STATE OF HIMACHAL PRADESH Vs. DILBAG SINGH

JUDGEMENT

(1.) THIS is an appeal filed by State of Himachal Pradesh under Section 378 of the Cr.P.C. against the judgment, dated 25.4.2003, passed by learned Additional Sessions Judge, Mandi, H.P., vide which the respondent was acquitted of the charge framed against him 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 on 20.12.1997, PW-11 Narender Kumar, a probationary ASI, P.S. Aut, was present at Hanogi alongwith Constables Shanti Kumar, Dameshwar Ram, Mangat Ram, Bansi Lal and two independent witnesses Man Singh and Chaman Lal. At about 2.10 p.m. two persons were seen carrying bags on their shoulders who tried to flee on seeing the police pry. One of them, the present respondent, was apprehended and the other accused was also apprehended for which a separate case was made out. Search of the person of the respondent was conduction after PW-11 Narender Kumar obtained consent of the respondent on memo that he be searched by the police, which was signed by both the independent witnesses. On search of the bag being carried by the accused, charas weighing 600 grams was recovered. Two samples of 20 grams each were taken and were put in separate parcels and the sample parcel and remaining charas were sealed separately and the recovery memo, spot map etc. were prepared. THE case property was deposited with the MHC on the same day. A special report was prepared by the Investigating Officer and was sent to Superintendent of Police, Mandi. On conclusion of the investigation, challan was filed before the learned Sessions Judge, who assigned the case to the learned Additional Sessions Judge, who tried the respondent, as detailed above, leading to his acquittal.

(3.) ON appraisal of the record of the case, it is very much clear that PW-11 Narender Kumar, the Investigating Officer, has stated that he was present in the area of Hanogi alongwith four Constables and two independent witnesses and conducted the search of the person of the accused and recovered 600 grams charas. Out of the two independent witnesses, namely, Man Singh and Chaman Lal, Man Singh was given up by the prosecution as having been won over by the accused, as per the statement of the learned Public Prosecutor for the State. It could not be presumed that Man Singh would not speak the truth and the proper way was to examine him and after his statement had been recorded and after cross examination only, a conclusion could have been drawn as to whether he has deposed falsely or truthfully. This statement in itself is not sufficient to hold that Man Singh was won over by the accused, particular, when there is nothing on the record that the accused was known to this witness or had any relation with him or they were from the same village.