(1.) THIS appeal by the State is directed against the judgment dated 11.12.1996 delivered by the learned Sessions Judge, Chamba Division, in Sessions Case No. 9 of 1996, whereby he acquitted the accused of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act').
(2.) THE prosecution story in brief is that PW -6 Inspector Ram Swaroop was posted as SHO, Police Station, Sadar, Chamba. On 11.11.1995 at about 10.40 p.m., the police party headed by PW -6 and comprising of ASI Rai Singh, ASI Swaroo Ram and Constables Daulat Ram and Rajinder Singh was returning to the Police Station after routine patrolling. When the police party reached near the District Hospital, Chamba, one person was found coming from the side of Puccca Tiala. He was questioned as to where he was going at that late hour. He could not satisfactorily reply to the question of the police officials. His behaviour was also suspect. This aroused the suspicion of the police officials and it was, therefore, decided to search the accused. At this stage PW -1 Dy.SP Rajinder Singh was contacted by PW -6 and he arrived at the spot and thereafter the search was conducted. The accused was found carrying a saffron coloured bag on his right shoulder. On search of the bag, 1 kg. 600 gms. of substance which appeared to be charas was recovered. A sample of 10 gms. was drawn from this bulk charas. The bulk charas as well as the sample was sealed in two separate parcels with seal bearing impression 'PS'. The said case property was taken into possession vide memo Ext.PA. The police also prepared the seal impression Ext.PC on the spot. The seal after use was handed over to PW -1. The accused was informed about the grounds of his arrest vide memo Ext.PB and arrested. Rukka Ext.PE was sent to the Police Station, on the basis of which F.I.R. Ext.PD was registered. Special report Ext.PF was sent to the superior police officials. The Investigating Officer completed other codal formalities at the spot and the case property was deposited on the same day with MHC Dalip Singh. Thereafter, the sample was sent for chemical analysis to the C. T. L. Kandaghat. Report Ext.PK was received from the C.T.L., according to which the sample was that of charas. On the basis of this material the accused was charged with having committed the offence detailed hereinabove.
(3.) WE have gone through the record of the case. A perusal of the evidence and the material on record clearly indicates that the accused as per the prosecution was arrested at 10.45 p.m. near the District Hospital at Chamba. It may be true that the accused was arrested at a late hour but we cannot loose sight of the fact that he was apprehended at a place where there is activity at even such a late hour. The District Hospital would normally have 24 hours service. There would be Doctors, Paramedical, Nursing and other staff on duty at that time. All that the Investigating Officer has stated is that he made an effort to associate the independent witnesses but none was available. This statement of the Investigating Officer cannot be accepted in view of the fact that the hospital was close by and we cannot believe that the Government officials, such as Doctors, paramedical staff would not join the police investigation. Even with regard to the effort made there are contradictions. According to the PW -1 Dy.SP Rajinder Singh, the police party was only at a distance of 10 yards from the hospital towards Police Station and he admitted that the Doctors, paramedical staff and the attendants of the patients were available at the hospital at that time. He also admitted that the area in question "Pucca Tiala" is thickly populated. This clearly shows that serious effort was not made to associate the independent witnesses and there is no reasonable explanation for not associating the independent witnesses with the search operation.