HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.194 of 2001. Judgment Reserved on:01.03.2011. Decided on: March 23,2011. State of H.P. …Appellant. VERSUS Raj Kumar & Others. ….Respondents. Coram The Hon’ble Mr.Justice R.B.Misra, Judge. The Hon’ble Mr.Justice Rajiv Sharma, Judge. Whether approved for reporting?1 For the Appellant: Mr.R.K.Sharma, Senior Additional Advocate General with Mr.Rajinder Dogra, Additional Advocate General. For the respondents: Mr.Anup Chitkara, Advocate. R.B.Misra, Judge: The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378(3) of the Code of Criminal Procedure, in reference to the judgment dated 28th December, 2000, passed by learned Sessions Judge, Chamba Division, H.P., in Sessions Trial No.12 of 2000, acquitting the accused / respondents for offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, Whether the reporters of the local papers maybe allowed to see the judgment? …2… 1985 (in short ‘NDPS Act’), in reference to F.I.R. No.17 of 2000 dated 13.2.2000. 2. Prosecution case, in brief, is that on 13.2.2000, Khub Ram Inspector, Police Station, Dalhousie, along with ASI Balraj and other police officials, while on patrol duty at village Goli, received secret information that the accused persons are dealing in illicit trade of Charas, as such, the information was sent to Superintendent of Police, Chamba and thereafter took Raj Kumar, one of the accused, to village Bugga and in the meantime Dy.S.P. Mohinder Singh arrived and joined the raiding party and Kewal Krishan and Pritho were associated as witnesses and the raiding party searched the temple room located on the ground floor of the house, recovered a polythene bag kept under the platform below the portrait of Lord Shiva and on opening the same, found nine packets containing Charas. On weighment, the same was found to be 7 Kilograms, out of which, two samples weighing 250 grams each were taken separately and remaining bulk parcels were sealed with seal impression ‘H’ and recovery memo was prepared. Seal impressions were also taken separately on a piece of cloth and seal after use was handed over to witness Kewal Krishan and samples were sent for chemical examination and a special report was sent …3… to Superintendent of Police, Chamba on 15.2.2000. Accused Raj Kumar was arrested, whereas, accused / respondents Bhagnu Ram and Madan Lal since absconding were taken into custody subsequently and after completion of the investigation, all the accused persons / respondents were charged for the offence under Section 20 of the NDPS Act. 3. Accused / respondent Bhagnu Ram is said to be dead. In order to prove its case, the prosecution has examined as many as 21 witnesses, including two independent witnesses. PW-1 Kewal Krishan has been declared hostile. The respondents / accused, through their statement under Section 313 Cr.P.C., have denied the charges and prosecution case. 4. For adjudicating the present appeal, we have to scrutinize the statements of the prosecution witnesses and materials on record. PW-1, Kewal Krishan, as an independent witness, has stated that while he was going to cut the grass, when he reached on the bank of khud, he saw a person coming from the opposite side. In the meantime, on seeing the police party, that person threw his bag and fled away. As per testimony of PW-1, no search of the house of accused was conducted by the police in his presence. PW-1, however, has not supported the prosecution case. …4… Through his statement in cross examination, PW-1 has stated that accused Raj Kumar was taken by the police from his shop and when an unidentified person fled away from the spot, the police took into possession the said bag, containing Charas and asked PW-1 to carry that bag up to road, otherwise he might be implicated in the case. During conversation PW-1 came to know the name of that person as Pritho, who also supported in lifting the aforesaid bag and putting that in the Jeep. PW-1 was asked to sit in the Jeep, and his signatures were obtained on the papers by the police officials at Police Station. PW-1 has stated in his cross examination that accused / respondent Raj Kumar runs a shop at Gandhiar Morh and resides there with his family. Accused / respondent Madan Lal also resides separately from his brother and father in the same house. Accused Madan Lal resides in the outer side of the house in the second floor. 5. PW-2, Madan Lal, while working as Gram Panchayat Vikas Adhikari, Sherpur, District Chamba, had produced Parivar Register in respect of Bhagnu Ram. The name of Raj Kumar had been struck off by his predecessor, but reflecting the entry of Bhagnu Ram. 6. PW-3, Smt.Bimla Devi, has stated that she knows accused Bhagnu (the elder brother of her …5… husband) as previously the accused persons used to live in village Kakaina and subsequently they have been living in village ‘Bugga’. Accused Raj Kumar runs a shop at Gandhiar Morh and also runs a Government Fair Price Shop. PW-3, in her cross examination, has stated that Raj Kumar resides at Gandhiar Morh separately from other two accused persons. 7. PW-4, Ashok Kumar, has stated that earlier the accused persons had been residing in village Kakaina, but after constructing a new house at village Bugga, all the three accused persons started residing there, whereas, accused Raj Kumar resides at Gandhiar Morh. 8. PW-5, Prem Lal, Kanungo, Banikhet, made a demarcation of the house of Bhagnu Ram at village Bugga which was situated in Khasra No.609/1, where there was one Shiv Mandir located in the lower storey. As per testimony of PW-5, made in cross examination, as per Jamabandi Ext.PO, the owners in possession of the house in question were Bhagnu (one share), Kamal Raj, Kamla Devi, Kanchan Devi and Sheela Devi (one share), Parso, Teko (two shares i.e. one share each). 9. PW-6, Om Parkash, Patwari has stated that he accompanied Field Kanungo Prem Lal and prepared Mauka Tatima Ext.PP at the instance of Kanungo. …6… However, he denied any knowledge about the Shiv Mandir inside the house on the ground floor and also stated that the house is two storeyed, however, he did not enter inside the house. 10. PW-7, Yashpal, Junior Engineer, visited the place where building of Bhagnu Ram is existing at village Bugga and prepared site plan. However, he was unaware of the persons residing in the house. 11. PW-8, Constable Puran Chand, a member of raiding party, stated that when he went to the house of accused Bhagnu Ram, he was stationed outside the house and SHO Khub Ram handed him over Rukka Ext.PS for being taken to Police Station, Dalhousie and in that reference F.I.R. Ext.PT was registered. However, in cross-examination, he stated that he did not state to the police that he was stationed outside the house. PW8 had no personal knowledge about the ownership of the house which was raided by the party. However, Dy.S.P. Mohinder Singh disclosed the name of the owner of the house to PW-8. 12. PW-9, Constable Karam Singh, stated that SHO Khub Ram had asked him for bringing weights and scale. Accordingly, he brought the same from the shop of Satpal shopkeeper and has reiterated that from village Bugga, Gandhiar Morh is nearer than village Goli, where one Karyana shop was being run …7… however, he was not aware that the said shop owned by accused Raj Kumar. 13. PW-10, Lady Constable Naresh Kumari, has stated that on 13.2.2000, at about 12:20 P.M., she transmitted a log to Superintendent of Police, Chamba indicating that a secret information had been received to the effect that there is Charas kept in the house of accused Raj Kumar and some Gazetted Officer be deputed. 14. PW-11, Constable Manoj Kumar, had received F.I.R. handed over to him by SHO for being taken to S.P. Office, Chamba and accordingly F.I.R. was handed over to PW-11 at the spot in presence of Constable Karam Singh, Puran Chand etc, however, he did not remember the names of the other police officials present at the spot. 15. PW-12, Constable Mohinder Singh, was handed over an envelope letter No.605/5-A by SHO to be delivered to Superintendent of Police, Chamba. 16. PW-13, Constable Naresh Kumar, posted as Assistant Reader to Superintendent of Police, Chamba, had received one envelope No.605/5-A dated 15.2.2000 through Mohinder Singh, Constable. However, after opening, the same was placed before Superintendent of Police, Chamba without making any entry in the diary register but after recording only in the Dak Challan. …8… 17. PW-14, Constable Rajinder Kumar, has stated that on 26.4.2000, Madan Lal, Secretary, Gram Panchayat, Sherpur had produced one photocopy of abstract of Parivar Register, two receipts of Chullah tax in respect of accused Bhagnu Ram and Madan Lal and abstract of ration card and the same were taken into possession vide seizure memo Ext.PE Exts.PF, PG, PH and PJ. 18. PW-15, Mohinder Singh, Dy.S.P., has stated that on 13.2.2000, while he was at his residence, he received telephonic direction from Superintendent of Police, Chamba that SHO Police Station, Dalhousie has informed him regarding possession of Charas recovered from Bhagnu Ram and accordingly directed PW-15 to proceed to the spot. PW-15 reached at the spot and found that SHO Khub Ram, ASI Balraj, Constables etc. and Raj Kumar were present at the house of Bhagnu Ram alongwith Krishan Kumar and Pritho. During Search, it was found that in the ground floor of the house, there was one Shiv Mandir and portrait of Lord Shiva was placed there and beneath the said Mandir, there was one Thada and there was one passage for going inside the Thada. Charas was recovered from inside that Thada wrapped in one white polythene pack. There was an almirah near the Thada in the wall and weighing scale and one kilogram weight was found in …9… that alimrah. The Charas was weighed with the help of scale and one kilogram weight and was assessed 7 kilograms. Thereafter, SHO Khub Ram had sent Constable Karam Chand for bringing weights of lesser weight and accordingly he brought the same and after recovery two samples of 250 grams each were separated from the recovered Charas and all the samples and the bulk Charas were put into parcels, sealed with seal impression ‘H’. In his cross examination, PW-15 has stated that he did not know the total number of houses existing in village Bugga. According to PW-15, only one house, near the house of Bhagnu Ram, was existing. When PW-15 reached the spot, SHO Khub Ram told him that the house belongs to Bhagnu Ram and accordingly he verified from witnesses Krishan Kumar, Pritho and accused Raj Kumar about the inhabitants of the house. PW-15 further stated in his cross examination that Lord Shiva’s photograph was about 2 feet in length and 1 ½ feet in breadth. 19. PW-16, ASI Bal Raj, accompanying SHO Khub Ram on 13.2.2000 as a member of the raiding party, has stated that SHO Khub Ram prepared Rukka and sent it to Police Station, Dalhousie through Constable Puran Chand. Information to that effect was sent to Superintendent of Police, Chamba through Manoj Kumar and information was also sent …10… to the Wireless Station at Dalhousie through walkie talkie. Thereafter, on reaching village Bugga, cordoned the house of Bhagnu Ram and witnesses Kewal Krishan and Pritho were associated. PW-16 has further stated that thereafter Dy.S.P. Mohinder Singh reached at the spot from Chamba and conducted search of one of the rooms in the house of Bhagnu Ram where the ground floor was being used as a temple. It was noticed that below the platform of the temple, one packet, containing Charas, was recovered. The packet was white in colour and it was of polythene and the temple was having photograph of Shiva. According to PW-16, one weighing scale and weight of one kilogram were found kept in an almirah in the same room one Constable was sent to village Goli to bring scale and weights. Subsequently, PW-16 reiterated the procedure adopted and the sample was sent for chemical examination. PW-16 stated in his cross examination that only two families had been living in village Bugga and when he entered the house in question, the temple room was opened which was not having any lock but its doors were closed. However, anybody could come and go in the house. PW-16, in his cross examination, has further stated that he, along with raiding party, reached Bugga village, where witness Pritho was doing masonry work at that …11… time and was constructing a danga. PW-16 has stated that when the raiding party went to Gandhiar Morh, accused Raj Kumar was at his shop. However, he was not aware whether Raj Kumar was residing there. As per testimony of PW-16, SHO had lifted the bag containing Charas and again said it was taken up to the van arranged by SHO and went to Dalhousie. However, neither the name of the driver nor colour and number of the van was known. 20. PW-17, Gulab Singh, Dy.S.P., Dalhousie, arrested accused Madan Lal and Bhagnu after six months. 21. PW-18, while posted as Inspector / SHO, Police Station, Khairi, District Chamba, on receiving some information, reached village Bugga, prepared Rukka Ext.PS and sent the same to Police Station, Dalhousie. One copy of Rukka was sent to Superintendent of Police, Chamba through Constable Manoj Kumar. Thereafter, (PW18) went to village Bugga via Gandihar Morh from where taking accused Raj Kumar with them and on way associated Kewal Krishan (while he was cutting grass) and Pritho (while he was working as Beldar) and thereafter Superintendent of Police arrived at the spot and made search of temple room of the house where below the statue under the platform, one plastic bag, containing Charas, was recovered. One weight of …12… one kilogram and scale were kept in an almirah in that room, however, Constable Karam Chand was sent for bringing weights and scale and on weighment, 7 Kilograms of Charas was said to be recovered and after fulfilling the formalities, the said Charas was sent to chemical examination. PW-18 has further stated in his cross examination that there was a framed photograph of Lord Shiva in the temple and when he returned, after recovery of Charas, the raiding party had gone in a private vehicle which was perhaps Jeep. The private vehicle was stopped by them at village Goli and Charas was lifted by Constable up to Goli however PW-18 could distinguish between Jeep and Maruti Van. However, it was a Jeep. 22. PW-19, Head Constable Rajesh Kumar, received two parcels i.e. one weighing 6 ½ Kilograms and other two weighing 250 grams. Accordingly, he made entry in Malkhana Register regarding deposit of case property. Thereafter, PW-19 proceeded on 15 days leave and charge of Malkhana was given Head Constable Sukhdev Singh. 23. PW-20, Head Constable Sukhdev Singh had sent the parcels along with same seal through Constable Mohinder Singh to be taken to CTL Kandaghat. …13… 24. PW-21, Constable Mohinder Singh, received one sealed parcel said to be containing Charas from MHC Sukhdev. 25. From the scrutiny of prosecution witnesses and materials on record, we find that accused / respondent Raj Kumar, in his statement under Section 313 Cr.P.C., in response to Question No.25, has stated that he is residing at Gandhiar Morh and he was not present at the time of raid and he was picked up by the police from his shop. Accused / respondent Madan Lal, in his statement under Section 313 Cr.P.C., in response to Question No.25, has stated that he resides separately from the co-accused and no search was conducted in his presence and he has been implicated falsely. 26. In view of the statement of PW-1 Kewal Krishan, it can also be said that an unknown person threw a bag containing Charas and fled away. However, since PW-1, the independent witness, has been declared hostile and Pritho has not been examined and such version has not been corroborated by any other prosecution witness, therefore, the version of PW-1 cannot be believed. 27. We also notice that the temple room of the house of accused Bhagnu Ram was not found locked when search of the same was made and in view of the statement of prosecution witnesses, accused Raj …14… Kumar was taken from his shop at Gandhiar Morh and then in his presence search of the house of accused Bhagnu Ram at village Bugga was carried out. Such fact is emanating from the cross examination of PW- 16 Balraj, wherein, he has stated that when they went down the Gandhiar Morh, the accused was at his shop. Accused Raj Kumar was said to be residing separately at Gandhiar Morh which indicates that Charas recovered from village Bugga was not from the conscious and exclusive possession of Raj Kumar. In view of the testimony of Dy.S.P. Mohinder Singh (PW-15), there was one Shiv Mandir and portrait of Lord Shiva was placed there and beneath the said Mandir, there was one Thada and there was one passage for going inside the Thada and Charas was recovered from inside that Thada wrapped in one white polythene pack. Such indication has, however, not been emanating from the testimony of ASI Balraj (PW-16) and Inspector Khub Ram (PW-18). In view of the testimony of PW-16 ASI Balraj, below the platform of the temple, one packet containing Charas was recovered in polythene and the temple was having photograph of Lord Shiva, whereas, in view of the testimony of PW-18 Inspector Khub Ram, in temple room below the statue under the platform, one plastic bag containing Charas was recovered. Description of …15… place or spot, from where the recovery of Charas was made, is different and contradictory. It is not clear whether it was a statue or photograph of Shiva. We also take note of the fact that in view of the testimony of PW-18 Inspector Khub Ram, there was a framed photograph of Shiva in the temple. PW-16 has not indicated anything about the statue of Shiva, whereas, PW-18 has stated that temple room of the house was below the statue under the platform, one plastic bag, containing Charas, was recovered. In cross examination, he has stated that framed photograph of Shiva was in the temple and he understands the difference between photograph and statue. PW-16 ASI Balraj has very categorically stated in his cross examination that temple room was open without any lock and anybody could go inside the house and also come out. It indicates that the house and temple room was accessible to everyone, as such, anything recovered cannot be said to be from the exclusive possession of accused Raj Kumar and Madan Lal, who too was residing separately. 28. As per the receipts of Chullah tax Exts.P-J and PH, accused Bhagnu and Madan Lal were living separately as both the accused were having separate kitchen. Similarly, Ext.PD, the abstract of Parivar Register of Bhagnu Ram reveals that the …16… name of accused Raj Kumar has been deleted, whereas, according to Ext.DA, also a copy of Parivar Register, it can be said that accused Raj Kumar was living separately from the other accused. The abstract of Ration Card Holders Ext.PF indicates that Bhagnu Ram has been shown at No.278, Madan Lal at No.279 and Raj Kumar at No.169. By giving different numbers in the Ration Cards, it could be inferred that they were not living jointly. In these circumstances, it becomes doubtful that the Charas was recovered from the exclusive and conscious possession of accused / respondents. Even in Ext.PO, copy of Jamabandi for the years 1996-97, names of Bhagnu, Kamal Raj, Kanchan Devi, Sheela and Parso are shown to be the owners in possession of the Gair Mumkin Abadi at Village Bugga. It is probable that Kamal Raj and Kanchan might be having their possession over the temple from where the packet of Charas was recovered. Here also, recovery of the Charas from the exclusive and conscious possession of accused / respondents in question becomes doubtful. 29. We also notice apparent contradictions emanating from the statement of PW-15, Dy.S.P.Mohinder Singh, wherein Charas was recovered below the portrait of Lord Shiva, PW-16, ASI Balraj, has referred to the photograph of Lord …17… Shiva, whereas, Investigating Officer PW-18, Khub Ram, has referred to the statue of Lord Shiva over the platform under which polythene packet containing Charas was recovered. However, PW-18 has corrected his statement by saying that it was a framed photograph. We also notice that in site plan Ext.PY, Charas is stated to have been recovered below the platform having the statue of Lord Shiva, however, there is difference between the statue and photograph, therefore, the material discrepancy is emanating which is going to the root of the case. After the alleged recovery of the Charas, the members of the raiding party are stated to have gone back in some vehicle but it is not known to these witnesses whether the said vehicle was a Van or a Jeep. PW-16 Balraj has stated that the packet containing Charas was taken to the Police Station in a Van, whereas, he was not in a position to tell the colour of the Van. According to PW-18 Khub Ram, the members of the raiding party came to the Police Station with the case property in a private Jeep. PW-15 Mohinder Singh was also not aware of the name of independent witness Kewal Krishan (PW-1), as such, it appears that PW-15 was not present at the spot. 30. In the totality of facts and circumstances, we also see that the ownership of the house is …18… doubtful and as also emanating from the analysis of the prosecution witnesses and materials on record that Charas, if at all had been recovered from the temple room of the house in question of village Bugga, it could not be said to have been in the exclusive and conscious possession of accused / respondents. Since respondents Raj Kumar and Madan Lal were residing separately, the offence cannot be attributed to both Raj Kumar and Madan Lal and in the facts and circumstances also, Bhagnu Ram (dead) cannot be said to be attributed to the offence in question. 31. In the facts and circumstances, the learned Sessions Judge has rightly arrived at the findings that the prosecution has failed to prove its case beyond reasonable doubt and in our considered view also the prosecution has failed to bring him guilt to the accused / respondents. We find no scope for interference in the impugned judgment. Resultantly, the criminal appeal, being devoid of any merit, is accordingly dismissed. 35. Bail bonds, furnished by the respondents, are hereby discharged. ( R.B.Misra ), J. March 23, 2011. ( Rajiv Sharma ), J. (soni)