IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No.656 of 2008 Decided on: June 29, 2009. Vijay Kumar @ Viju …Appellant Versus State of Himachal Pradesh …Respondent Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr. Anand Sharma, Advocate. For the Respondent : Mr. Ramesh Thakur, Assistant Advocate General. Surjit Singh, Judge (oral) Heard and gone through the record. 2. Appellant is aggrieved by the judgment dated 31st July, 2008 of learned trial Court, whereby he has been convicted of offence, under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.10,000/-; in default of payment of fine to undergo simple imprisonment for a further period for three months. 3. Case of the prosecution, which has led to the trial and conviction of the appellant for the aforesaid offence, may be stated. On 25.1.2007, around 6.30 A.M., a police party headed by PW8 ASI Yog Raj, comprising, amongst others, PW- 2 HHC Jawala Ram and PW-2 Constable Achhar Singh, went to Chauntra Bazar from Police Station, Joginder Nagar, in Whether reporters of the local papers may be allowed to see the judgment? …2… connection with routine patrolling. Around 6.30 AM, appellant was seen coming along highway No.20 from the opposite direction. On seeing the police he turned back and tried to flee. He was overpowered. He had wrapped himself with a blanket. On suspicion his person was searched. He was carrying a blue coloured bag under his right arm pit, which contained Charas, weighing 450 grrams. Two samples, each weighing 25 grams, were separated. Samples and bulk Charas were made into three parcels and the parcels were sealed. Search and seizure memo. was prepared. Specimen impressions of seals were taken on two separate pieces of cloth. NCB forms were filled in. Written report of search and seizure was drawn and sent to Police Station, where case was formally registered, vide FIR Ext.PW8/B. One of the two samples was sent to Chemical Examiner, who opined the same as Charas, as it contained Cannabis resin to the extent of 24.91%. 4. During the course of trial, prosecution examined ASI Yog Raj as PW-8, HHC Jawala Ram as PW-1 and Constable Achhar Singh as PW-2. 5. Though all the aforesaid three witnesses testified that the appellant was apprehended and on search of his person Charas was recovered, as stated hereinabove, while narrating the facts, yet there are certain material contradictions, which cumulatively render the prosecution version doubtful. Prosecution case is that the appellant was seen coming from the opposite direction at 6.30 AM. …3… Thereafter he was apprehended. His person was searched and Charas was recovered. It was weighed, two samples were separated, bulk Charas and samples were made into three parcels, parcels were stitched and sealed, search and seizure memo. was prepared, specimen impressions of the seals were taken on three separate pieces of cloth and thereafter report Ext.PW8/A was recorded and sent to Police Station for formal registration of the case through PW-1 HHC Jawala Ram. Recording of report, as per time given by PW-8 ASI Yog Raj below his signature concluded at 7.15 AM. 6. Entire process, referred to hereinabove, finds mention in report Ext.PW8/A, meaning thereby that this report was drawn only after the aforesaid proceedings had been conducted. It is unbelievable that within just 45 minutes, PW- 8 ASI Yog Raj could have conducted all the aforesaid proceedings and also prepared their record, in the form of search and seizure memo. Ext.PW1/B and could have also recorded report Ext. PW8/A, which is quite lengthy. Recording of the report itself would have taken not less than half an hour. 7. PW-1 HHC Jawala Ram stated that it took 1½ hour to conduct the aforesaid proceedings and to prepare the papers, including report Ext.PW8/A. That means the report Ext.PW8/A was ready only after 8 A.M., for being despatched to the Police Station. However, PW-8 ASI Yog Raj says that report was despatched at 7.15 AM. This witness also stated that he went to Police Station with report Ext.PW8/A on foot …4… and it took him 1½ hour to reach there, meaning thereby that he could not have reached the Police Station before 9.30 AM. However, FIR Ext.PW8/B suggests that he reached the Police Station, with the report Ext.PW8/A, at 8.05 AM. 8. Again PW-1 HHC Jawala Ram says that it took about 15 minutes to record FIR and another 1½ hour to return to the spot with the copy of FIR. That means he could have returned to the spot only around 11.15 AM. He also stated that again it took two hours, on the spot, to complete rest of the formalities, i.e. preparation of spot map, personal search of the accused, in connection with his arrest etc. That means he was there at the spot with the Investigating Officer upto 1.15 PM. It is further stated by this witness that it took 1½ hour for the police to return to Police Station from the spot. It means, police party could not have returned to Police Station before 2.45 PM. However, PW-8 ASI Yog Raj stated that he returned to Police Station at 12.30 PM and deposited the case property with SHO Kapoor Chand (PW-9). PW-9 SHO Kapoor Chand stated that case property was deposited with him at 12.20 PM. 9. I also find contradictions in the testimony of PW-1 HHC Jawala Ram and PW-2 Constable Achhar Singh about the Investigation Kit, which allegedly contained the scale and the weights and other material used for parceling the Charas and the samples. According to PW-1 HHC Jawala Ram, Investigation Kit was in the form of a suitcase, but PW-2 …5… constable Achhar Singh stated that it was in the form of a cloth bag. 10. Aforesaid contradictions may not have been material in case prosecution story about search and seizure were not based only on the testimony of police officials, but they assume significance, when no independent, substantive or even corroborative, evidence is there, despite the fact that such evidence could have been arranged by PW-8 ASI Yog Raj. 11. In view of the above stated position, I am of the considered view that the case of the prosecution does not stand established beyond reasonable doubt. Hence, the appeal is allowed. Judgment of the trial Court, convicting and sentencing the appellant is set aside and he is acquitted. June 29, 2009(ss) ( Surjit Singh ), J.