CRIMINAL APPEAL 58 of 2001 on 29 September 2000

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Appeal No. 58 of 2001Decided on December 29, 2010

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State of H.P.

Versus

…Appellant.

Jagdish Singh Bedi ...Respondent.Coram

The Hon’ble Mr. Justice R.B. Misra, Judge.

The Hon’ble Mr. Justice Sanjay Karol, Judge.¹Whether approved for reporting? No.

For the appellant:Mr.R.K.Sharma, Senior Addl.Advocate General, with Mr.Rajinder Dogra, Addl. Advocate General.

For the respondent: Mr. Bimal Gupta with Mr.Harmeet Singh, Advocates.

Justice Sanjay Karol,J.

For an offence, which is alleged to have been committed on 19.3.2000, accused was put to trial. In terms of judgment dated 29.9.2000 passed by Sessions Judge, Sirmaur, District at Nahan, H.P., in Sessions Trial No.36-ST/7 of 2000, titled as State of H.P. vs. Jagdish Singh, accused stands acquitted of the charged offence. 2.It is the case of the prosecution that on 19.3.2000 at about 12.30 P.M., ASI Balak Ram received a secret information that an old man sitting on a parapet near the stairs leading to the bazar of Nahan was carrying contraband substance with himself. Balak Ram (PW.7) formed a raiding party consisting of Sohan Singh, Parma Nand and other police officials. Raiding party found the accused sitting on the parapet wearing a jacket. He was informed that police suspected him of carrying a contraband substance. On inquiry, he disclosed his name to be Jagdish Singh Bedi. Balak Ram informed the accused of his valuable right of being searched in the presence of a Gazetted Officer, Magistrate or a higher police official. Accused gave his consent of being searched by the police official present at the spot. Search was carried out and from the right pocket of the jacket worn by the accused charas like substance was recovered. Police got the scales from the shop of Goldsmith Siri Ram Verma (PW.2). Upon weighing, the contraband substance was found to be of 70 grams. Two Samples of 5 grams each were prepared. Samples and remaining substance was sealed with seal impression 'T'. Contraband substance was taken into possession vide recovery memo (Ex.PB). Search was carried out in the presence of independent witnesses Sohan Singh and Sh. Parma Nand (PW.1). Rukka (Ex.PF/1) was prepared and sent to the Police Station, Nahan, where FIR No.76/2000 dated 19.3.2000 (Ex.PF) was registered under Section 20 of the Narcotic Psychotropic Substances Act, 1985. Sealed parcels were deposited in theMalkhana. Balak Ram sent information (Ex.PE) to the superior officer. Sealed sample was sent for chemical analysis to the Forensic Science Laboratory, Kandaghat and report of the Chemical Examiner (Ex.PH) obtained. With the completion of investigation, challan was presented in the Court for trial, as police found the accused carrying charas without any lawful authority.

3. Accused was charged of having committed offence punishable under Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985 (in short referred to as the Act), to which he did not plead guilty and claimed trial.

4. In order to prove its case, prosecution examined 7 witnesses and statement of the accused under Section 313 Cr.P.C. was also recorded.

5. It is a matter of record that out of the raiding party constituted by the police, prosecution has only examined ASI Balak Ram (PW.7) and independent witness Parma Nand (PW.1). According to Balak Ram (PW.7), he associated independent persons Parma Nand and Sohan Singh and formed a raiding party. Now Sohan Singh has not been examined in Court and Parma Nand (PW.1) is not a local resident. He is serving in Shakti Nagar, which is not in Nahan. ASI Balak Ram (PW.7) had prior information of the accused carrying some contraband substance. There is nothing on record to establish this fact of prior information except for the bald statement of Balak Ram made in Court. Had Balak Ram constituted a raiding party he would have definitely associated some local person and not any passers-bye i.e. Parma Nand who just happened to be present at the bazar on that day. Raiding party must have been constituted in the Police Station and it is not the case of Parma Nand that he was present in the Police Station / Post and from there he went alongwith Balak Ram. According to Parma Nand police associated him at the spot. The genesis of the prosecution case is thus rendered doubtful.

6. That apart, we find that there are inherent and glaring contradictions in the statements of Parma Nand and Balak Ram with regard to the person who carried out the search. According to Parma Nand (PW.1) search was conducted by Suresh Kumar in presence of 'ASI' ( here he is referring to Balak Ram). Whereas, it is the version of Balak Ram that he alongwith Suresh Kumar took personal search of the accused. Further, in cross-examination, Balak Ram contradicts himself by deposing that Head Constable did not carry out any search of the accused. Admittedly, Suresh Kumar has not been examined in Court. Consequently, prosecution case on the question of search is also rendered to be extremely doubtful, if not false.

7. For the aforesaid reasons, we do not find the version of prosecution witnesses to inspire confidence.

8. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the person has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged.

(R.B. Misra)Judge

December 29, 2010(Purohit)

(Sanjay Karol)

Judge