IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 161 of 2003 Date of Decision: 16.11.2011 State of H.P. …Appellant. Versus. Inder Singh …Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K.Ahuja, Judge. Whether approved for Reporting? No For the appellant: Mr. Rajesh Mandhotra, Deputy A.G. For the Respondent: Ms. Divya Sood, Advocate, vice Mr. Anup Chitkara, Advocate. Deepak Gupta, J (Oral). This appeal by the State is directed against the judgment dated 1.10.2002 passed by the learned Sessions Judge, Kullu, District Kullu in Sessions Trial No. 27/02, whereby he acquitted the accused of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act'). 2. The prosecution story, in brief, is that on 22nd November, 2001, HC Gagbir Singh (PW7) along with HC Narinder Singh (PW6), HHC Surat Ram (PW5), Constable Inder Singh (PW8) and HC Ranjeet Singh laid a 'naka' at Bhutti Chowk, Kullu. At about 10.45 p.m., they saw a person coming from Shishamati side. This person was carrying a plastic bag in his hand. On seeing the police, this person tried to run away. This aroused suspicion in the mind of the police officials and they overpowered the person, who on inquiry revealed his name to be Inder Singh, son of Sh. Lotam Ram (accused). 3. PW-7 gave an option to the accused that he could be searched by a Magistrate or Gazetted officer or the police, but he consented to be searched by the police. This information was conveyed to him vide memo, Ext. PW6/A. In fact, Section 50 of the Act was not attracted in this case since the search was of the bag, therefore, it is not necessary to go into this aspect of the matter. It would suffice to say that on search of the bag, 400 grams of charas was recovered . Two samples of 25 grams each were drawn and thereafter the two sample parcels and the remaining bulk charas were sealed in three separate parcels having seal impression 'D' affixed on them. Other documentation was done there and case property was taken into possession vide memo, Ext.PW6/D. NCB form Ext.PW7/A was also prepared at the spot. After completing other codal formalities, PW7 sent Ruka Ext.PW7/C to the Police Station, on the basis of which FIR, 2 Ext.PW4/A was recorded. Special report, Ext.PW1/A, was sent the next day to the Superintendent of Police, Kullu. 4. According to PW-7, he produced the case property before PW-4, who resealed the same and deposited the same in the Malkhana. One of the samples was sent to the Examiner, CTL, Kandaghat and as per report, Ext.PW2/A, the sample was found to be of Charas having resin content of 35.50%. After trial, the accused has been acquitted and hence, the appeal by the State. 5. We have heard Mr. Rajesh Mandhotra, learned Deputy Advocate General on behalf of the State and Ms. Divya Sood, Advocate, vice counsel for the accused. 6. The accused in this case has been acquitted on two points. According to the learned trial court, no independent witnesses were examined and in the absence of any independent witness, the statements of the police officials had to be consistent and reliable. The learned trial court held that the statements of the police officials cannot be relied upon since, according to them the entire proceedings were conducted in the rain shelter and as per the evidence led by the accused, it stands proved that the nearest street light under which entire proceedings were allegedly carried on was at a distance of 105 feet from the rain shelter. Therefore, the entire proceedings could not have been completed at the site. This has cast a doubt on the prosecution story. PW-7, the Investigating Officer, has clearly stated that the entire documentation was done in the rain shelter with the help of street light. He has, in no uncertain terms, stated that no torch was used. 3 7. The accused examined Sh. B.S. Thakur, Architect (DW1), who has prepared a site plan and according to the site plan as well as the sworn testimony of this witness, the nearest street light is at a distance of 105 feet from the rain shelter. Sh. Subhash (DW-2) is the photographer, who has proved the photographs and negatives, which also show that the street light is at a fairly long distance from the rain shelter. 8. There can be no quarrel with the proposition of law that in every case, independent witnesses are not required. However, the prosecution must give some reasonable explanation as to why the independent witnesses were not associated. According to prosecution case, all proceedings took place, virtually in the heart of Kullu Town. The explanation of the Investigating Officer, PW-7, that he had sent police officials to get the independent witnesses, but nobody could be procured, does not appear to be correct. 9. Be that as it may, even according to the official witnesses, the entire documentation, i.e. preparation of large number of documents, consent memo, seizure memo, ruka etc., was done at the spot and according to PW-7, all proceedings took about two hours, such documents could not have been prepared with the use of the nearest street light, which was, as has been held , at a distance of 105 feet from the rain shelter and such light could not have been of much use to the police officials. It is apparent therefore that the documentation was done somewhere else. This itself casts a doubt on the prosecution version and since it is not corroborated by any independent witness, the 4 learned trial court has taken a possible view exercising jurisdiction vested in it. We do not find any reason to interfere in its decision. Therefore, we find no merit in the appeal, which is accordingly dismissed. (Deepak Gupta ) Judge. November 16, 2011 (V.K. Ahuja) (pankaj) Judge. 5