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2010 DIGILAW 1094 (HP)

State of H. P. v. Attar singh

2010-09-08

R.B.MISRA, V.K.SHARMA

body2010
JUDGMENT : R.B. MISRA, J. 1. The present criminal appeal has come-up for consideration after leave to appeal u/s 378(3) of the Code of Criminal Procedure has been granted, in reference to the impugned judgment dated 5.3.1997, passed by learned Sessions Judge, Shimla, H.P., in Sessions Trial No. 34-S/7 of 1996, whereby respondent-accused has been acquitted for the offence, u/s 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 2. Prosecution case is that on 9.8.1996, at about 11.00 A.M. Dhani Ram, Sub Inspector, Police Station, Chhota Shimla along with other police official while on patrolling duty observed one person coming from the Jakhu temple side who on seeing the police party tried to run away. On suspicion, he was apprehended and he was apprised of being searched. Accordingly, on personal search, 500 grams opium was recovered from the pocket of the pant of the respondent-accused, which he had kept inside the plastic envelope. Taking 20 grams of two samples from recovered opium, samples were put in two separate parcels and the parcels were sealed with seal impression 'H' and the same were sent to Chemical Examination. On investigation, respondent-accused was charged for offence, u/s 18 of the ND and PS Act and case was committed to the Sessions Court. 3. In order to prove its case, the prosecution examined eight witnesses, whereas the accused through his statement u/s 313 Cr.P.C. denied the prosecution case. 4. Out of eight prosecution witnesses, seven are police official witnesses, whereas one Avinash Kumar is independent witness. 5. Shri Nathu Ram ASI (PW-4), Shri Ramesh Chand HC (PW-5) and Shri Ram Saran Inspector of Police (PW-8) are the formal witnesses, while, the remaining four police officials are the eye-witnesses. Thus, there are five eye witnesses, out of which Shri Avinash Kumar (PW-1) is the independent witness, while, Shri Nirmal Dass HC (PW-2), Shri Naresh Kumar Constable (PW-3), Shri Yog Raj Constable (PW-6) and Shri Dhani Ram SI (PW-7) are the police officials. Apart from this, Ext.P.A., which is seizure memo of the opium, consent memo Ext.PB, search memo Ext.PC., memo of arrest Ext.PE, F.I.R. Ext.PG, site plan Ext.PJ, sample of seal Ext.PK, special report Ext.PL and Chemical Examiner's report Ext.PM have also been led in evidence. Further, opium Ext.P-1 and the sample Ext.P-2 were also produced in the Court during the trial. Apart from this, Ext.P.A., which is seizure memo of the opium, consent memo Ext.PB, search memo Ext.PC., memo of arrest Ext.PE, F.I.R. Ext.PG, site plan Ext.PJ, sample of seal Ext.PK, special report Ext.PL and Chemical Examiner's report Ext.PM have also been led in evidence. Further, opium Ext.P-1 and the sample Ext.P-2 were also produced in the Court during the trial. Shri Avinash Kumar (PW-1), an independent witness, has not supported the prosecution case, while the four police officials have endeavoured to support the prosecution case. 6. We have examined prosecution evidence and materials on record. The prosecution for the reasons best known to them have not associated sufficient independent witnesses from such a busy place where personal search of respondent-accused was made. So much so, PW-1 Avinash Kumar associated by the police at the time of search of respondent-accused has not supported the prosecution case by saying that neither opium was recovered nor he was present at Five-Bench, Jakhu on 9.8.1996 at about 11.00 A.M. As such, he has emphatically denied that in his presence 500 grams opium was recovered from the possession of the respondent-accused. Similarly, he has also denied that respondent-accused had put signatures on the documents in his presence. In cross-examination also, he has consistently mentioned that neither recovery was made, nor signature was put by the respondent-accused in his presence. 7. On the scrutiny of evidence of police official witnesses, the prosecution case cannot be said to be in full compliance of mandatory requirement of Section 50 of the ND and PS Act. As on agreeing by the respondent-accused personal search was made and above mentioned contraband goods were recovered in presence of police official witnesses and one independent witness PW-1 Avinash Kumar but such personal search was not made after apprising the respondent-accused that he had right to be searched by the police party or Magistrate or a gazetted officer. Making of personal search only on agreement of respondent-accused could not be meeting the mandatory provision of Section 50. Keeping in view the inconsistence statements of prosecution witnesses and that one independent witness has not supported the prosecution case and police official witnesses not worth reliable, learned Sessions Judge has rightly arrived at the conclusion that the prosecution has failed to prove its case beyond reasonable doubt. 8. In our considered view, prosecution has failed to bring home the guilt of the accused-respondent. 8. In our considered view, prosecution has failed to bring home the guilt of the accused-respondent. There is no scope of any interference with the judgment of the acquittal. Accordingly, the appeal being devoid of any merit is, therefore, dismissed. 9. Bail bonds, furnished by the respondent-accused, are hereby discharged.