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2016 DIGILAW 15 (HP)

State of Himachal Pradesh v. Shadi Lal

2016-01-01

RAJIV SHARMA, SURESHWAR THAKUR

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JUDGMENT : Per Rajiv Sharma, Judge: This appeal has been instituted against Judgment dated 6.5.2015 rendered by learned Special Judge, Solan, District Solan, Himachal Pradesh in Session Trial No. 2-S/7 of 2011, whereby respondent-accused (hereinafter referred to as 'accused' for convenience sake), who was charged with and tried for offence under Section 20 of the Narcotic Drugs & Psychotropic Substances Act (hereinafter referred to as 'Act' for convenience sake) has been acquitted. 2. Case of the prosecution, in a nutshell, is that on 23.1.2011, Inspector Chaman Lal (PW-8), the then SHO Police Station Sadar, Solan alongwith HC Sohan Lal (PW-1), HC Kuldeep Kumar (PW-2) and Constable Ajay Kumar proceeded from Police Station, Sadar Solan to Salogra side on patrolling duty. At about 7.15 pm, when police party reached a little ahead of Salogra then from Mansar side accused came on the spot. He was carrying a polythene bag in his right hand. He tried to escape. He was nabbed. Bag was checked. It contained charas. It weighed 290 grams. It was sealed with three seal impressions of ‘D. NCB form was filled in triplicate by Inspector Chaman Lal and seal after use was handed over to HC Sohan Lal. Contraband was taken into possession vide seizure memo Ext PW-1/C. Rukka Ext PW-7/A was prepared and forwarded to Police Station Sadar through HC Kuldeep Kumar. FIR Ext PW- 7/B was registered. Site plan was prepared. Case property was deposited with MHC Narender Parkash (PW-3) by Inspector Chaman Lal. He made entries in the Malkhana Register. Abstract of Malkhana Register is Ext PW-3/A. Contraband alongwith sample seal, NCB form etc. was sent to FSL vide RC Ext PW-3/B. Chemical examination report is Ext PW-8/C. Investigation was completed and Challan was put up in the Court after completing all codal formalities. 3. Prosecution has examined as many as 8 witnesses to prove its case against the accused. Accused was also examined under Section 313 CrPC. He pleaded innocence. Learned trial Court acquitted the accused. Hence, this appeal. 4. Mr. Ramesh Thakur, Assistant Advocate General has vehemently argued that the prosecution has proved its case against the accused. 5. We have heard the learned counsel for the appellant and also gone through the record carefully. 6. Case of the prosecution, precisely, is that the police party was present at Bagaur Nallah on National Highway 22 on patrolling duty. 4. Mr. Ramesh Thakur, Assistant Advocate General has vehemently argued that the prosecution has proved its case against the accused. 5. We have heard the learned counsel for the appellant and also gone through the record carefully. 6. Case of the prosecution, precisely, is that the police party was present at Bagaur Nallah on National Highway 22 on patrolling duty. At 7.30 pm, accused was seen coming from Mansar side. He was carrying polythene bag. He tried to run away. He was nabbed. Bag was searched. It contained 290 grams of charas. Search, seizure and sampling proceedings were completed at the spot as per statements of Sohan Lal PW- 1 and HC Kuldeep Kumar PW-2. It has come on record that the accused was apprehend about 1 km from Salogra, which is situate on National Highway 22. HC Sohan Lal PW-1 deposed that traffic keeps moving on the road and people were also walking on the road when accused was apprehended by them at 7.15 pm. According to him, since no person was available when accused was apprehended on the spot, therefore they could not associate any independent witnesses. Inspector Chaman Lal PW-8 has admitted in his cross-examination that the place where accused was intercepted by them was at a distance of 1 ½ kms from Salogra. He has admitted that they have not stopped any vehicle which crossed at the relevant time. He has not asked any occupants of these vehicles to be associated as witnesses. He admitted that from Salogra to the place where accused was apprehended, there are shops though at a distance from Salogra. Accused was apprehended on National Highway 22, there is a lot of vehicular traffic on this road throughout day and night. Police should have associated independent witnesses by associating occupants of the vehicles. IO has not even tried to associate independent witness. PW-8 Chaman Lal deposed that there were shops situate between Salogra and place where accused was apprehended. Shopkeepers could be associated as independent witnesses to bring credibility to the search, seizure and sampling proceedings completed at the spot. It was not an isolated or secluded place. Trial Court has rightly observed that IO has not made any efforts to associate independent witnesses though available at the spot. Inspector Chaman Lal has not even deputed any police officials to call shopkeepers from the shops. It was not an isolated or secluded place. Trial Court has rightly observed that IO has not made any efforts to associate independent witnesses though available at the spot. Inspector Chaman Lal has not even deputed any police officials to call shopkeepers from the shops. It is settled law that the Court can rely upon the statements of the official witnesses but they must inspire confidence. Since in the instant case, independent witnesses though available, were not associated, statements of PW-1 Sohan Lal and PW-2 Kuldeep Kumar have rightly been discarded. 7. Thus, the prosecution has failed to prove its case against the accused. There is no occasion for us to interfere with the well reasoned judgment of the learned trial Court dated 6.5.2015. 8. There is no merit in the present appeal and the same is dismissed, so also the pending applications, if any.