State of Himachal Pradesh vs Sher Singh and Another

R.B. Misra, J.—The present 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 6.1.2000 passed by learned Special Judge, Kullu, in Sessions Trial No. 23 of 1999 acquitting the Respondents-accused for the offences punishable u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, NDPS Act), in reference to FIR No. 432/99 dated 9.4.1999 of Police Station, Banjar.

The prosecution case is that on 8.4.1999 at about 11.15 P.M. when the police was on patrol duty at Larji, they had seen one scooter with two persons. H.C. Het Ram gave signal to stop the scooter but the person, who was pillion rider, gave the blow of torch on the arm of the police official. On suspicion, the police officials wanted to take their search. On search, contraband good was recovered from the bag carried by Sher Singh which was 500 grams, out of which two samples of 25 grams each were taken in presence of the witnesses and were sealed. PW-5 Rajinder Kumar and PW-6 Bhola Ram were associated as independent witnesses and after making investigation, both the accused-Respondents were charged.

In order to prove its case, the prosecution examined as many as nine prosecution witnesses, whereas the accused - Respondents through their statements u/s 313 Code of Criminal Procedure denied the prosecution case.

PW-1 HC Sarswati, PW-2 Constable Prem Singh, PW-3 HC Narayan Singh, PW-4 SI Shakti Chand, PW-5 Rajinder Kumar, PW-6 Bhola Ram, PW-7 Lal Singh, PW-8 Inspector Jagdish Chand and PW-9 HC Het Ram were examined on behalf of the prosecution. Out of these prosecution witnesses, PW-5 and PW-6 are the independent witnesses. PW-5 Rajinder Kumar is the Forest Guard, who admitted his presence at the Check Post and also the presence of police officials, however, have not supported the prosecution case and was declared hostile. PW-5 in cross-examination has specifically denied the prosecution case including obtaining of consent of the accused for their personal search. PW-5 has only admitted that he has put his signatures on the memos, however, has not supported the search and seizure of the contraband. Similarly, PW-6 Bhola Ram, who was posted as Helper on the forest barrier has also not supported the search and seizure of the contraband recovered. So much so, in cross-examination, PW-6 has stated that no charas was recovered from the accused persons in his presence.

On scrutiny of the prosecution evidence, we notice that the two accused persons, who were travelling on a scooter which was being driven by Shyam Lal and charas alleged to have been recovered from the bag carried by Sher Singh, but the prosecution has not been able to establish that charas was actually belonging to both or one of the accused and it was in conscious and exclusive possession of Sher Singh. The official witnesses cannot be said to be reliable for lack of non-corroboration of independent witnesses associated for the purpose. The testimonies of the official witnesses are not sufficient to prove the guilt of the accused. In facts and circumstances, the prosecution has not been able to bring home the guilt against the accused and has failed to prove its case beyond reasonable doubt.

We do not find any scope of interference in the impugned judgment dated 6.1.2000 passed by the learned Special Judge, Kullu. Therefore, the criminal appeal being devoid of any merit is dismissed. The bail bonds of the accused-Respondents are discharged.