IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 42 of 1996 Date of Decision : February 25, 2010 State of H.P. Appellant Versus Jagir Singh and others Respondents Coram: Hon’ble Mr. Justice Deepak Gupta, Judge Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant : Mr. Vivek Thakur, Addl. Advocate General with Mr. R.M. Bisht, Dy. Advocate General for the appellant. For the respondents : Mr. Raj Kumar, Advocate, vice Mr. N. K. Thakur, Advocate, for respondents No. 1 and 2. Deepak Gupta, J. (Oral) This is a shocking case showing total incompetence and laxity on behalf of the police as well as the prosecution in a case of a serious offence. The prosecution story is that on 28.2.1994 SI/SHO Sh. Ram Swaroop (PW-5), Police Station, Dalhousie was present at Dhundiara Bungalow alongwith other police officials on patrol duty. At about 11.00 A.M. one van bearing No. PIM-6518 came from Dalhousie side. It was 1 Whether reports of Local Papers may be allowed to see the judgment? 2 got stopped. The three accused persons were sitting in the van. They tried to run away but were apprehended. Accused Bhupinder Kumar was driving the van whereas the other two accused were sitting in the rear. The Investigating Officer (PW-5) was suspicious and gave option to the accused to be searched. Two independent witnesses namely Ajay Gupta and Rajinder Singh, manager and employee of a café at Dhundiara were associated during the search. In fact the provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) are not applicable since this is not a case of personal search. On search of the van six kilograms of Charas was found wrapped in a woolen shawl. Only one sample of 10 gm was taken. The sample of Charas as well as the remaining bulk Charas was sealed in two separate parcels and sealed with seal ‘OP’ and taken into possession vide recovery memo Ext. PE. Ruka Ext. PB was sent to the police station, Dalhousie for registration of the case on the basis of which a formal F.I.R. Ext. PA was recorded at police station, Dalhousie under Section 20 of the Act. All the three accused were arrested. Both the sample parcel as well as the bulk parcel of Charas along with the seal were deposited by the S.H.O. Ram Swarup with MHC Budhi Parkash (PW-1) at police 3 station, Dalhousie. The sample was sent to Chemical Examiner, Kandaghat on 14.3.1994 though constable Govind Ram (PW-2). The Chemical Examiner vide report Ext. PJ state that the sample was that of Charas. Other codal formalities were followed and thereafter challan was filed against the accused arraigned for trial. There are some shocking lapses on behalf of the prosecution in the present case. The independent witnesses were not examined. The explanation given is that the independent witnesses were not traceable. The Investigating Officer (PW-5) in his cross examination has admitted that the café in question belonged to the H.P. Tourist Development Corporation (HPTDC). It was given on lease to Sh. Ajay Gupta. He further admitted that he made no efforts to obtain the lease deed of the cafe from which it would have been easy to trace out the permanent address of Sh. Ajay Gupta. In the memo prepared on the spot Sh. Ajay Gupta has given his address as son of Sh. Munni Lal, resident of Muhalla Tibba Bazar, Batala and Sh. Rajinder Singh has given his address as son of Sh. Dumnu Ram, resident of Dunera. There is nothing on record to show that the Investigating Officer tried to trace out these persons from Batala or Dunera. 4 The other weak link in the prosecution case is that except for PW-5 none of the other police officials present at the scene of occurrence have been examined in Court. In fact PW-5 in his examination-in-chief has given a statement as if he was alone at the time when the incident took place. But this is not borne out from the ruka Ext. PB prepared by PW-5 himself in which it is mentioned that PW-5 was accompanied by HC-Dev Raj No. 355, HC-Karam Singh No. 355, constable Deep Chand No. 60, constable Chaman Singh No. 218, constable Mahinder Singh No. 168, constable Parkash Chand No. 219, constable Kartar Singh No. 494 and constable Shyam Dutt No. 267 (Driver). Thus there were eight persons accompanying the Investigating Officer. There is no explanation whatsoever as to why none of these officials were examined in support of the prosecution case. According to PW-5 he had sent HC-Dev Raj to get scales from village Nainikhad which is at a distance of two to three kilometers from Dhundiara. There is no explanation as to why such scales could not be arranged from Dhundiara village which according to this witness is at a shorter distance of one kilometer. Even HC-Dev Raj has not been examined. The person from whose shop these scales were arranged has also not been examined. The 5 accused cannot be convicted on the sole testimony of the Investigating Officer especially when there is total laxity in producing the independent witnesses or even the other police officials who were accompanying the Investigating Officer. In view of the above discussions we are of the opinion that there is no merit in the present appeal and the same is accordingly dismissed. Bail bonds furnished by the accused are ordered to be discharged. (Deepak Gupta), Judge. (Sanjay Karol), Judge. February 25, 2010 (PK)