The stringent burden of proof on the prosecution to establish recovery of contraband from the exclusive and physical possession of the accused, and the legal necessity of joining independent witnesses to witness the search and seizure.

Dharam Chand Chaudhary, J.

State of Himachal Pradesh is aggrieved by the judgment dated 30.6.2011, passed by learned Special Judge, Kullu, in Sessions trial No.47 of 2010, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter to be referred as ‘NDPS Act’, has come up in appeal before this Court on the grounds inter alia that cogent and reliable evidence produced by the prosecution to prove its case against the accused has been appreciated in slipshod and perfunctory manner and the same is based upon hypothetical reasoning, surmises and conjectures. The prosecution evidence has not only been ignored, but unrealistic standards adopted to evaluate the same. The testimony of the prosecution witnesses has been discarded for untenable reasons that too in the absence of any proof of their enmity with the accused. As per the prosecution case, the accused met the police-party per chance when it was patrolling in Green Tax Barrier and Banu Pul area. The suspicion that he might be in possession of some contraband or some illegal thing arises, when on seeing the police-party the accused tried to flee away. He, however, was nabbed and thereafter his antecedents enquired. As per further case of the prosecution, efforts were made to join someone as an independent witness, however, no one was available and as such the search was conducted in the presence of the police officials accompanying the Investigating Officer. The search was conducted after obtaining the consent of the accused and the procedure, as prescribed under the NDPS Act, was fully observed while conducting the search and seizure. It is claimed that the prosecution has been able to prove its case against the accused beyond all reasonable doubts and as such he has erroneously been acquitted by the trial Court.

2. The facts, in a nutshell, are that on 26.9.2010, at 5.00 p.m., Inspector Om Parkash (PW-3), the then Station House Officer, Police Station, Manali, deputed PW-5 ASI Daya Ram, hereinafter to be referred as ‘the I.O.’, PSI Anil Kumar, HHC Lal Singh (PW-4) and lady constable Meena Kumari for patrolling in the area towards Green Tax Barrier, Banu Pul etc. etc. ASI Lal Chand, Incharge, Security Range was also deputed for patrolling with the police-party headed by the I.O. Rapat Ext.PW-2/A was entered to this effect in the Rapat Roznamcha. The patrolling party when reached at Banu Pul on National Highway 21 around 5.25 p.m., noticed the accused walking on National Highway and coming towards Banu-Pul. On seeing the police party, he turned behind and tried to flee away towards Green Tax Barrier side. Such conduct of the accused has resulted in suspicion in the mind of the police-party that he might be in possession of some narcotic drugs/contraband, hence the police swung into action. The accused was overpowered by the I.O. with the help of accompanying police-officials at a distance of about 20 meters. Being an isolated place, no one from locality was readily available for being associated as witness. The I.O., therefore, asked the accused to disclose his antecedents. He disclosed his name as Laxmi Dutt alias Pallu and his parentage as well as complete address.

3. PW-4 HHC Lal Singh was deputed to find out someone available in the locality for being associated as an independent witness. The said witness, however, returned alone after 20 minutes and told the I.O. that no person is available there. On this, the I.O. has associated PSI Anil Kumar and PW-4 HHC Lal Singh as witnesses to witness the search and seizure. In their presence the information was given to the accused vide consent memo Ext.PW-4/A that the search of the bag he was carrying on his back is required to be conducted and that he has right to opt for conducting his search either before a gazetted Officer or Magistrate. The accused allegedly opted for being searched by the police present on the spot. On this, the I.O. has offered his search first vide memo Ext.PW-4/B to the