High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH,

SHIMLA:

Cr. Appeal No.4196 of 2013.

Judgment reserved on: 5.11.2014.

Date of Decision: January 9,2015,

____________________________________________________________

State of Himachal Pradesh. ....Appellant.

Vs.

Anil Kumar son of Sh Kali Ram. ....Respondent.

Coram:

Hon’ble Mr. Justice Sanjay Karol, Judge.

Hon’ble Mr.Justice P.S.Rana, Judge.

Whether approved for reporting1?. Yes.

For the appellant: Mr. B.S.Parmar Addl. Advocate

General with Mr.J.S.Guleria,

Asstt. Advocate General.

For the respondent: Mr.S.M.Goel Advocate.

Whether reporters of the Local papers are allowed to see the judgment? yes.

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P.S.Rana, Judge.

JUDGMENT : Present appeal is filed against the

judgment passed by the learned Special Judge-I Sirmour

District at Nahan in Sessions Trial No. 3-ST/7 of 2012.

BRIEF FACTS OF THE PROSECUTION CASE:

2. Brief facts of the case as alleged by prosecution

are that on dated 8.11.2011 at 3.30 PM at bifurcation

Ronhat-Bela Baswa road accused was found in exclusive and

conscious possession of 650 grams charas. It is alleged by

prosecution that on dated 8.11.2011 PW7 ASI Partap Singh

along with PW1 HC Bishan Singh, PW2 HHC Rajinder Singh

and PW3 Kaku Chauhan left Police Station Shillai in official

vehicle No HP-18A-0233 which was driven by PW4 Constable

Heera Singh towards Rohnat side in connection with traffic

checking and detection of cases. It is alleged by prosecution

that at about 3.30 PM when the aforesaid police party was

present at place Bella bifurcation accused came from Rohnat

side carrying a bag in his hand and on seeing the police

officials accused threw his bag down from the road and tried

to run away from the spot. It is alleged by prosecution that

thereafter accused was chased and apprehended and

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thereafter the bag thrown by accused was lifted by PW7 ASI

Partap Singh and on checking it was found that bag

contained contraband of charas. It is alleged by prosecution

that thereafter PW7 Partap Singh sent PW3 Kaku Chauhan

for bringing weight and scale which was brought from Shillai

market and on weighment 650 gram charas was found. It is

alleged by prosecution that thereafter charas was put back

into same polythene envelope and seal ed with seal

impression ‘S’. It is alleged by prosecution that thereafter

NCB form Ext PW6/C were filled in triplicate and thereafter

sample of seal Ext PW1/B was handed over to PW1 HC

Bishan Singh. It is alleged by prosecution that thereafter

search and seizure memo Ext PW1/C were prepared and

rukka Ext PW2/A was sent to Police Station Shillai through

PW2 HHC Rajinder Singh along with case property. It is

alleged by prosecution that thereafter PW2 Rajinder Singh

delivered rukka Ext PW2/A to PW6 MHC Chatt ar Singh on

the basis of which FIR Ext PW2/B was registered . It is

alleged by prosecution that PW2 deposited case property with

PW6 in malkhana and entry in malkhana register at serial

No.298 was recorded. It is alleged by prosecution that extract

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of malkhana register is Ext PW6/A. It is alleged by

prosecution that thereafter PW7 Partap Singh prepared site

plan Ext PW7/B and got photographs Ext P4 to P8 clicked by

PW4 Constable Heera Singh from his mobile camera. It is

alleged by prosecution that grounds of arrest were conveyed

to accused. It is alleged by prosecution that thereafter on

dated 9.11.2011 PW7 Partap Singh sent case property to FSL

Junga through PW5 Constable Sunil Dutt vide RC

No.53/2011 who after depositing the same in laboratory

obtained its receipt which was handed over by him to PW6

Chattar Singh on his return to Police Station. It is alleged by

prosecution that after receiving the report of Chemical

Examiner Ext PW7/D SI Balak Ram prepared challan in the

present case. Charge was framed against the accused on

dated 21.9.2012 under Section 20 of Narcoti c Drugs and

Psychotropic Substances Act 1985. Accused did not plead

guilty and claimed trial.

3. Prosecution examined as many as seven

witnesses in support of its case.

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Sr.No. Name of Witness

PW1 Bishan Singh

PW2 Rajinder Singh

PW3 Kaku Chauhan

PW4 Heera Singh

PW5 Sunil Dutt

PW6 Chatter Singh

PW7 Partap Singh

4. Prosecution also produced following piece of

documentary evidence in support of its case:-

Sr.No. Description.

Ext PW/A Memo regarding identification of

Charas

Ext PW1/B Sample of seals

Ext.PW1/C Seizure memo of charas

Ext.PW2/A Rukka

Ext.PW2/B FIR

Ext.PW2/C Endorsement in rukka

Ext.P4 to P8 &

P9

Photographs & CD

Ext.PW6/A Entry in malkhana register

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Ext PW6/B Copy of RC

Ext PW6/C NCB Form

Ext PW7/A Copy of DD No.9(A)

Ext PW7/B Site Plan

Ext PW7/C Memo regarding information of

arrest

Ext PW7/D Report of chemical examiner

5. Statement of accused was also recorded under

Section 313 Cr.P.C. He has stated that he is innocent and

false case has been filed against him. He has stated that no

independent witness was associated. Accused did not lead

any defence evidence. Learned trial Court acquitted the

accused.

6. Feeling aggrieved against judgment passed by

learned Special Judge-I, Sirmour District at Nahan

appellant-State filed present appeal.

7. We have heard learned Additional Advocate

General appearing on behalf of the State and learned

Advocate appearing on behalf of the respondent and also

perused entire record carefully.

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8. Point for determination in the present appeal is

whether learned trial Court did not properly appreciate oral

as well as documentary evidence adduced by the parties and

caused miscarriage of justice to the appellant as alleged in

memorandum of grounds of appeal.

ORAL EVIDENCE ADDUCED BY PROSECUTION:

9 PW1 HC Bishan Singh has stated that he was

posted as Investigating Officer at Police Station Shillai. He

has stated that on dated 8.11.2011 he along with ASI Partap

Singh HHC Rajinder Singh and Constable Kaku Chauhan

had left Police Station Shillai in official vehicle No. HP-18A-

0233 which was driven by Constable Hira Singh towards

Ronhat side in connection with traffic checking and when

accused saw police officials he threw his bag down from the

road and turned back and started running towards Ronhat.

He has stated that thereafter police officials chased accused

and apprehended the accused and bag which was thrown

down the road by accused was took by ASI Partap Singh and

on checking one polythene envelope containing charas in the

shape of sticks was recovered. He has stated that thereafter

Constable Kaku Chauhan was sent to procure weights and

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scales which he brought from Shillai market and on weighing

the charas present in the polythene envelope was found 650

grams in the shape of sticks. He has stated that thereafter

charas was put back in the same polythene envelope and

sealed with seal impression ‘S’. He has stated that NCB form

was prepared in triplicate and thereafter sample of seal Ext

PW1/B was drawn and seal was handed over to him. He has

stated that search and seizure memo Ext PW1/C was

prepared which was witnessed by him. He has stated that

thereafter ASI Partap Singh scribed rukka and sent the same

to Police Station through HHC Rajinder Singh. He has stated

that parcel cover is Ext P1 which bears his signature. He

has stated that polythene containing charas is Ext P2 which

was recovered from accused. He has stated that bag is Ext

P3. He has stated that they did not make any efforts to

associate any independent witness though the vehicles were

plying on the road. He has stated that they did not call any

independent witness while sealing charas. He has stated that

he did not re-collect whether a bus of Sharma travelers

crossed from that place which plies between Gatta Dhar to

Shillai. He has denied suggestion that accused was not

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apprehended at the spot. He denied suggestion that no

contraband was recovered from the possession of accused.

He denied suggestion that false proceedings have been

carried out against the accused. He denied suggestion that

accused was took to the spot and thereafter photographs

were clicked. He denied suggestion that he deposed falsely

being police officials.

9.1 PW2 HHC Rajinder Singh has stated that during

the year 2011 he was posted as HHC in Police Station Shillai.

He has stated that on dated 8.11.2011 he along with ASI

Partap Singh, HC Bishan Singh and Constable Kaku

Chauhan left Police Station Shillai at 2.45 PM towards

Ronhat side in connection with traffic checking in official

vehicle No HP-18A-0233 which was driven by Constable Hira

Singh. He has stated that at about 3.30 PM when they were

present at Bella Baswa bifurcation accused Anil Kumar came

from Ronhat side and was in possession of bag in his hand.

He has stated that when accused saw police officials accused

turned back and threw bag down the road. He has stated

that thereafter they chased the accused and apprehended

him. He has stated that thereafter the bag which was thrown

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down the road by accused was picked up by ASI Partap

Singh and after checking bag 650 grams charas was found.

He has stated that charas was put back in the same

polythene envelope and put into a parcel and sealed with

seal impression ‘S’. He has stated that NCB form in triplicate

was prepared. He has stated that sample of seal Ext PW1/B

was drawn and seal was handed over to HC Bishan Singh.

He has stated that search and seizure memo Ext PW1/C was

prepared which was witnessed by him. He has stated that

thereafter ASI Partap Singh drawn rukka Ext PW2/A and

handed over the same to him which he delivered to MHC

Chatter Singh on the basis of which he recorded FIR Ext

PW2/B. He has stated that after making endorsement Ext

PW2/C on rukka he handed over case file to him which he

delivered to ASI Partap Singh at the spot. He has stated that

he also took case property to Police Station along with NCB

form and deposited the same with MHC. He has stated that

parcel cover Ext P1, polythene containing charas Ext P2 and

bag Ext P3 are the same which were sealed at the spot. He

has stated that during the period when they remained

present at the spot several vehicles crossed. He has stated

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that during the proceedings no efforts were made to join

independent witness. He has stated that he does not know

whether information with regard to incident was given to

superior officer or not. He has denied suggestion that false

case has been filed against accused. He denied suggestion

that no contraband was recovered from accused. He denied

suggestion that no rukka was sent through him. He denied

suggestion that he deposed falsely being police official.

9.2 PW3 Kaku Chauhan has stated that he was

posted as Constable General Duty at Police Station Shillai

since 2010. He has stated that on dated 8.11.2011 he along

with ASI Partap Singh, HC Bishan Singh and HHC Raj inder

Singh left Police Station at 2.45 PM towards Ronhat side in

connection with traffic checking in official vehicle No. HP-

18A-0233. He has stated that at about 3.30 PM when they

were present at place Bell Baswa bifurcation accused Anil

came from Ronhat side. He has stated that accused was in

possession of bag in his hand. He has stated that when

accused saw police officials accused threw his bag down the

road and turned back and tried to run away. He has stated

that accused was chased and apprehended. He has stated

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that thereafter ASI Partap Singh picked up bag which was

thrown down the road by accused. He has stated that

thereafter bag was checked and 650 grams charas was found

in bag. He has stated that after weighing the charas it was

put into a parcel and sealed with seal impression ‘S’ and

seizure memo was prepared. He has stated that NCB form

was prepared and rukka was sent to Police Station Shillai

through HHC Rajinder Singh. He has stated that thereafter

ASI Partap Singh prepared site plan and recorded the

statements of the witnesses. He has stated that no

photograph was taken of the place where the bag was

actually found. He has denied suggestion that no contraband

was recovered from accused. He denied suggestion that no

scale and weights were brought by him from Shillai market.

He denied suggestion that no proceedings were drawn in his

presence.

9.3 PW4 Heera Singh has stated that during the year

2011 he was posted as Con stable Driver in Police Station

Shillai. He has stated that on dated 8.11.2011 he left police

station Shillai by driving official vehicle No HP 18-A-0233

along with police officials headed by ASI Partap Singh

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towards Ronhat side in connection with traffic checking. He

has stated that they reached at place Bella bifurcation at 3

PM. He has stated that at about 3.30 PM accused Anil

Kumar came from Ronhat side carrying a bag in his hand.

He has stated that on seeing the police officials accused

threw down bag from the road and turned back and tried to

run away. He has stated that accused was chased and

apprehended by police officials. He has stated that ASI

Partap Singh picked up bag which was thrown by accused

and on checking it was found charas in the shape of sticks.

He has stated that thereafter constable Kaku Chauhan was

sent for procuring scale and weights which he brought from

Shillai market. He has stated that on weighment the charas

was found 650 grams and thereafter charas was put back in

the same polythene envelope and sealed with seal impression

‘S’. He has stated that thereafter seal was handed over to HC

Bishan Singh. He has stated that thereafter NCB form and

seizure memo was prepared. He has stated that rukka was

drawn and sent to Police Station through HHC Rajinder

Singh. He has stated that he clicked photographs Ext P4 to

P8 from his mobile phone camera. He has stated that CD is

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Ext P9. He has stated that bag was lying five metres below

the road. He has stated that from police station they directly

went to Bella bifurcation and reached there at 3 PM. He has

stated that the distance of Bella bifurcation from Police

Station is about 1.5 Km. He has stated that no prior

information was received qua contraband. He has stated that

no vehicle was checked. He has stated that they reached

back in police station at about 7.30 PM. He has stated that

several vehicles crossed the spot when they were present at

the spot. He has stated that they did not make any efforts to

associate any independent witness.

9.4 PW5 Sunil Dutt has stated that he was posted as

Constable General Duty in Police Station Shillai since 2011.

He has stated that on dated 9.11.2011 MHC Chatter Singh

had handed over case property of case comprising one sealed

parcel which was sealed with seal impression ‘S’ along with

sample of seal and NCB form in triplicate and a docket vide

RC No.53/2011. He has stated that he delivered the same in

FSL Junga on dated 11.11.2011 . He has stated that case

property remained intact in his custody.

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9.5 PW6 Chattar Singh has stated that during the

year 2011 he remained posted as MHC in Police Station

Shillai. He has stated that on dated 8.11.2011 at 5.35 PM

HHC Rajinder Singh had delivered rukka Ext PW2/A to him

on the basis of which he recorded FIR Ext PW2/B and after

registration of case he made endorsement on rukka Ext

PW2/C and handed over case file to HHC Rajinder Singh for

being delivered to ASI Partap Singh. He has stated that on

the same day at 6 PM HHC Rajinder Singh deposited one

sealed parcel along with sample of seal in malkhana. He has

stated that he recorded entry in malkhana register at serial

No.298 and its extract is Ext PW6/A. He has stated that the

same is true copy of original malkhana register. He has

stated that on dated 9.11.2011 he sent case property to FSL

Junga through constable Sunil Dutt vide RC No.53/2011. He

has stated that case property remained intact and was not

tampered. He has stated that no resealing was conducted.

9.6 PW7 Partap Singh has stated that during the

year 2011 he remained posted as Investigating Officer in

Police Station Shillai. He has stated that on dated 8.11.2011

he along with his subordinate officials left Police Station

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Shillai in official vehicle No. HP-18A-0233 vide DD No.9 copy

of which is Ext PW7/A. He has stated that at about 3.30 PM

when they were present at place Bella Bashwa bifurcation

accused Anil Kumar came from Ronhat side. He has stated

that accused was in possession of bag in his right hand and

threw the bag on the side of the road and turned back and

tried to run away. He has stated that accused was chased

and overpowered and thereafter he lifted the bag. He has

stated that after checking the bag one green colour polythene

envelope was found containing charas in the shape of sticks.

He has stated that thereafter Constable Kaku Chauhan was

sent to Shillai market for bringing weighing scales. He has

stated that thereafter charas was placed in the same

polythene and bag and thereafter the bag was sealed with

nine seals impression ‘S’. He has stated that a column of

NCB form was filled. He has stated that seal was handed

over to HC Bishan Singh. He has stated that thereafter

search and seizure memo Ext PW1/C was prepared in the

presence of HC Bishan Singh and HHC Rajinder Singh. He

has stated that thereafter rukka Ext PW2/A was prepared

which was sent to Police Station along with case property,

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sample seal and NCB forms. He has stated that thereafter he

prepared site plan Ext PW7/B and recorded the statement s

of witnesses. He has stated that after the receipt of report of

chemical examiner Ext PW7/D case file was handed over to

SHO Balak Ram for preparation of challan. He has stated

that parcel cover Ext P1 bears his signature. He has stated

that polythene containing charas Ext P2 and bag Ext P3 are

the same which was sealed at the spot by him. He has stated

that special report is not on record. He has stated that there

is no reference of special report and sending the same to

SDPO Paonta Sahib. He has denied suggestion that an

abandoned bag was found by the police. He denied

suggestion that contraband was falsely planted upon the

accused. He has admitted that column Nos. 9 and 11 have

not been filled in NCB form. He denied suggestion that there

is discrepancy in the time of recovery of contraband in

seizure memo and in the NCB form. He denied suggestion

that accused has been falsely implicated in the present case

in order to get reward and promotion.

10. Submission of learned Additional Advocate

General appearing on behalf of State that no reason has been

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assigned by learned trial Court for discarding the versions of

official witnesses and further submission of learned

Additional Advocate General appearing on behalf of State

that there was no occasion on the part of police officials to

falsely implicate the accused and reliance should have been

placed on testimonies of PWs and submission of learned

Additional Advocate General appearing on behalf of State

that learned trial Court has given undue weightage to minor

contradictions and on these grounds appeal filed by State be

accepted is rejected being devoid of any force for the reasons

hereinafter mentioned.

Non-joining of independent witness in present case is fatal

to prosecution despite availability of independent witnesses

11. PW1 H.C. Bishan Singh eye witness of incident

has specifically stated in positive cogent and reliable manner

that Investigating Officer did not make any effort to associate

any independent witness despite the fact that vehicles were

plying on the road at the time of alleged incident. Even PW2

HHC Rajinder Singh has also specifically stated in positive

manner that no efforts were made to join independent

witness by Investigating Officer. Even PW4 C. Heera Singh

has stated that a number of vehicles crossed when police

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party was present at the spot but no efforts were made to

join the independent witnesses in present case. It was held in

case reported in (1987)2 Crimes 29 (Delhi High Court) titled

Rattan Lal vs. State that if public witnesses were deliberately

not associated in the search and seizure proceedings in

narcotic drugs and psychotropic substances cases then

prosecution case is not free from doubt. As per testimonies of

PW1 Head Constable Bishan Singh and PW2 Rajinder Singh

and PW4 C. Heera Singh a number of vehicles were crossing

on the place of incident at the time of preparation of seizure

memo but Investigating Officer did not associate any

independent witness in search and seizure proceedings and

no efforts were made by Investigating Officer to associate

independent witnesses in investigation of case. There is no

evidence on record that independent witnesses refused to

join the search and seizure proceedings despite efforts made

by Investigating Officer to join them as independent

witnesses. Hence we are of the opinion that non-joining of

independent witnesses by prosecution at the time of

preparation of search and seizure memo despite the

availability of independent witnesses has caused miscarriage

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of justice to accused in present case in order to prove

impartial investigation on the part of Investigating Officer.

Hence it is held that testimonies of PW1 HC Bishan Singh,

testimony of PW2 HHC Rajinder Singh and PW4 Constable

Heera Singh that many vehicles crossed from the place of

incident at the time of preparation of search and seizure and

no efforts made by Investigating Officer to join independent

witnesses are fatal to the prosecution in the present case.

Non-placing of special report on record is also fatal to the

prosecution.

12. PW7 ASI Partap Singh has specifically stated in

positive manner that special report was not placed on record

and he has further stated that no reference of sending the

special report to SDPO was mentioned in challan is also fatal

to prosecution. No reason has been assigned by prosecution

as to why special report was not placed on record and no

reason has been assigned by prosecution that as to why

reference of special report was not mentioned in list of

documents filed along with challan. Non-placing of special

report on record and non-mentioning of reference of special

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report in challan has caused miscarriage of justice to

accused and same is fatal to the prosecution.

Non-filling of column Nos. 9 and 11 of NCB form is fatal to

the prosecution

13. Investigating Officer PW7 ASI Partap Singh has

specifically stated in positive manner that column Nos. 9 and

11 of NCB form qua resealing of parcel by SHO of Police

Station were kept blank. We have carefully perused the NCB

form and found that column Nos. 9 and 11 of NCB form qua

resealing by SHO have been kept blank. Hence it is held that

same are fatal to the prosecution and create doubt in the

mind of Court and same has caused miscarriage of justice to

accused.

Non resealing of process of contraband by SHO Police Station

is fatal to prosecution_________________________________________.

14. PW6 HC Chatter Singh has specifically stated in

positive manner that no resealing of parcels by SHO was

conducted. It was held in case reported in 1995 Criminal

Law Journal page 744 titled State of Punjab Vs. Kulwant

Singh (P&H Full Bench) that prosecution case would become

doubtful when sealing and resealing process was defective. It

was held that all sample taken from seized material have

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necessarily to be sealed with the seal of an officer incharge of

Police Station. It was further held that same is mandate of

law. It was further held that words used as ‘shall’ of Section

55 of Narcotic Drugs & Psychotropic Substance Act is

mandatory in nature to protect tampering of parcel because

punishment mentioned in NDPS case is grave in nature.

Hence we are of the opinion that same is fatal to the

prosecution and has caused miscarriage of justice to

accused.

Difference between time of recovery of contraband in seizure

memo and NCB form creates doub t in the mind of Court

15. As per First Information Report and seizure

memo recovery of contraband was effected on dated

8.11.2001 at 3.30 hours and as per entries of NCB form

recovery of contraband was effected at 4 PM. This has

created doubt in the mind of Court. Difference of time qua

search and seizure of contraband in NCB form and seizure

memo has created doubt in the mind of Court.

Entire investigation conducted by complainant himself is

also fatal to the prosecution

16. As per FIR complainant in present case is ASI

Partap Singh and it is proved on record that complainant ASI

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Partap Singh himself investigated the entire case and he

himself seized the contraband, sealed the parcels, sent the

ruka, prepared site plan and recorded statements of

prosecution witnesses. In present case whole investigation

was conducted by complainant himself which is against the

criminal jurisprudence and ipso facto contrary to law and

same has caused miscarriage of justice to accused. It is not

the case of prosecutio n that no other independent

Investigating Officer was available. We are of the opinion that

entire investigation in present case conducted by

complainant namely ASI Partap Singh has caused

miscarriage of justice to accused. Entire investigation by

complainant himself was deprecated by Hon’ble Apex Court

of India in case reported in AIR 1976 SC 985 titled Bhagwan

Singh vs. The State of Rajasthan . Also see 1993 Criminal

Law Journal 3716 titled Gyan Chand vs. State of Rajasthan .

Non-production of original seal in Court for comparison is

fatal to prosecution

17. In present case prosecution did not produce

original seal in Court for comparison purpose. It was held in

case reported in Latest HLJ 2011 HP 1195 (DB) titled Nanha

vs. State that if original seal is not produced in court for

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comparison then conviction could not be recorded. See 1998

(8) SCC 449 titled State of Rajasthan vs. Gopal) It is well

settled principle of law that if two reasonable conclusions are

possible on the basis of the evidence on record the appellate

Court should not disturb the finding of acquittal recorded by

the learned trial Court. (See (2013)2 SCC 89 titled Mookkiah

and another vs. State See 2011(11) SCC 666 titled State of

Rajasthan vs. Talevar, See AIR 2012 SC (Supp) 78 title d

Surendra vs. State of Rajasthan , See 2012(1) SCC 602 State

of Rajasthan vs. Shera Ram @ Vishnu Dutta.) It is also well

settled principle of law (i) That Appellant Court should not

ordinarily set aside a judgment of acquittal in a case where

two views are possible though the view of the appellate Court

may be more probable. (ii) That while dealing with a

judgment of acquittal appellant Court must consider entire

evidence on record so as to arrive at a finding as to whether

views of learned trial Court are perverse or otherwise

unsustainable. (iii) That Appellate Court is entitled to

consider whether in arriving at a finding of fact learned trial

Court failed to take into considered any admissible fact (iv)

That learned trial Court failed to take into consideration

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evidence brought on record contrary to law. (See AIR 1974 SC

2165 titled Balak Ram and another vs. State of U.P., See

(2002)3 SCC 57, titled Allarakha K. Mansuri vs. State of

Gujarat, See (2003)1 SCC 398 Raghunath vs. State of

Haryana, See AIR 200 7 SC 3075 State of U.P. vs. Ram Veer

Singh and others, See AIR 2008 SC 2066 (2008) 11 SCC 186

S. Rama Krishna vs. S. Rami Raddy (D) by his LRs. & others.

Sambhaji Hindurao Deshmukh and others vs. State of

Maharashtra, (2009)10 SCC 206 titled Arulvelu and a nother

vs. State, (2009)16 SCC 98 Perla Somasekhara Reddy and

others vs. State of A.P. and (2010)2 SCC 445 titled Ram Singh

@ Chhaju vs. State of Himachal Pradesh.)

18. Submission of learned Additional Advocate

General appearing on behalf of State that conviction could be

sustained on the testimonies of police officials in absence of

prior enmity of police official and on this ground appeal filed

by State be accepted is rejected being devoid of any force for

reasons hereinafter mentioned. It is well settled law that

conviction can be sustained on testimony of police officials if

same is trustworthy reliable and inspires confidence of

Court. It is also well settled law that conviction could be

sustained on testimony of police officials if independent

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witnesses could not be procured despite best efforts by

Investigating Agency.In present case it is proved on record

beyond reasonable doubt that many vehicles passed at the

time of preparation of search and seizure memo on public

road.It is proved on record that Investigating Agency

intentionally did not associate the independent witnesses in

present case and it is not the case of prosecution that

independent witnesses were not available despite best efforts.

Nonjoining of independent witnesses by Investigating Agency

intentionally despite availability of independent witness has

created doubt about the fair investigation of case in the mind

of Court. Hence we are of the opinion that it is not expedient

in the ends of justice to convict the accused solely on

testimonies of police officials because as per prosecution

story recovery of 650 grams charas at 3.30 PM was effected

upon the public road and many vehicles have crossed the

place of incident at the time of preparing the search and

seizure memos but investigating agency did not associate

any independent witnesses in recovery and seizure memos

which has created doubt about the impartial investigation of

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present case in the mind of Court and same has caused

miscarriage of justice to accused.

19. In view of above stated facts appeal filed by State

is dismissed and judgment passed by learned trial Court is

affirmed. Accused is acquitted by way of giving him benefit

of doubt. Contraband will be forfeited in favour of State of

H.P. in accordance with law after the expiry of limitation for

filing further proceedings. Appeal stands disposed of. File of

learned trial Court along with certified copy of this judgment

be sent back forthwith. All pending miscellaneous

application(s) if any also stands disposed of.

(Sanjay Karol),

Judge

January 9 ,2015 (P.S. Rana)

(R)/(ms). Judge

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