IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 34 of 2005 Reserved on.: 18.8.2008 Date of decision: 03.9.2008 Hem Raj Appellant. Versus State of Himachal Pradesh Respondent. Coram The Hon’ble Mr.Justice Deepak Gupta, J. The Hon’ble Mr. Justice V.K.Ahuja, J. Whether approved for reporting?1 No. For the appellant: Mr. Bimal Gupta, Advocate. For the respondent. Mr. R.M.Bisht and Mr. Rajesh Mandhotra, Deputy Advocate Generals. Per Deepak Gupta, J. This appeal is directed against the judgement of the learned Additional Sessions Judge, Fast Track Court, Chamba, dated 18.11.2004 in Sessions trial No. 34/04/03 whereby he has convicted the accused of having convicted an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (NDPS Act) and sentenced him to undergo rigorous imprisonment for a period of 10 years and to pay fine of rupees one lac only. In default of payment of fine, the accused has been directed to undergo further rigorous imprisonment for two years. The prosecution version is that on 26.11.2002, a police patrolling party headed by PW-13 HC Kartar Singh was on traffic checking duty at Nainikhud. At about 7.40 am one bus bearing No. PB-06-1245 1 Whether the reporters of the local papers may be allowed to see the Judgment? yes 2 coming from Dalhousie towards Pathankot was stopped. It is alleged that Kartar Singh entered the bus, whereas HC Ajeet Kumar stood near the rear door and constable Daya Singh stood near the front door of the bus. The luggage of the passengers in the bus was checked. When HC Kartar Singh went to seat No. 20, there was one person sitting alone on this seat, who was holding a bag in his lap. HC Kartar Singh opened the bag and another white coloured plastic bag was found inside this bag. When the plastic bag was opened, Kartar Singh found that the same contained Charas which he could identify by its smell. The officer asked the name of the person and he disclosed his name to be Hem Raj S/o Nanak Chand. According to the police, the conductor informed Kartar Singh that the said passenger had boarded the bus at Banikhet and was going Nainikhud. Two persons Ranjeet Singh and Sohan Singh, who are running shops near the spot of occurrence were associated with the search. According to the police, the accused alongwith the bag containing Charas was made to sit on the road side under the supervision of constable Mohinder Singh in the presence of the aforesaid witnesses. Thereafter, a Ruqua Ext.PN was sent for registration of the case through constable Yoginder Singh to P.S. Dalhousie. Copy of the same was also sent to SP Chamba through constable Daya Singh. Kartar Singh also informed his higher officers on telephone about the incident and requested that an Investigating Officer be deputed to investigate the case. Thereafter, ASI Ravi Kumar reached the spot and then Kartar Singh handed over the accused alongwith the bag containg charas and copy of Ruqua to Ravi Kumar. 3 Thereafter, PW-14 ASI Ravi Kumar asked the accused whether he would like to be searched by the police, or in the presence of the Gazetted Officer or Magistrate. The accused opted to be searched by the police. The bag which was in the possession of the accused was searched in the presence of the independent witnesses and plastic bag was recovered from it. The plastic bag Ext.P-6 contains the Charas Ext.P- 7. The Investigating Officer asked constable Mohinder Singh to get some scales. Thereafter, the Charas was weighed and it was found to be 13 Kg. and 500 grams. Two samples of 25 gram each were taken out of this Charas for the purpose of chemical analysis and sealed with seal ‘S’. The balance Charas weighing 13 Kg. and 450 grams was again put in the same parcel and also sealed with seal ‘S’. Specimen of seal ‘S’ was taken on a piece of cloth and signatures of the witnesses Ranjeet Singh and Sohan Singh were obtained on the specimen seal impression. Thereafter, recovery memo Ext.PF was prepared and the Charas was taken into custody. The accused was informed about the ground of arrest and was taken into custody. Two tickets Ext.P-1 and Ext.P-2 were recovered from the possession of the accused and the conductor of the bus signed the same. The case property was lateron produced before PW-15 ASI Amar Singh, the officiating SHO, who resealed the same alongwith NCB form Ext.PW. The parcels, etc. were resealed with seal impression ‘A’ and specimen of the same was also taken on a piece of cloth. Thereafter, the case property was handed over to PW-12 HC Paras Ram, who entered the same in the Malkhana register. Subsequently, from the Malkhana one sealed parcel containing sample of contraband alongwith NCB form was 4 sent through constable Rajinder Singh to CTL, Kandaghat for chemical analysis. The report of the chemical examiner was received. As per this report the contents of the sample were found to contain Charas and therefore, the challan was put in Court. The accused pleaded not guilty and the prosecution examined a number of witnesses to prove its case. The trial Court found the accused guilty and sentenced him as detailed above. Aggrieved by the said conviction and sentence the appellant has filed this appeal. We have heard Shri Bimal Gupta, learned counsel for the appellant and Shri Rajesh Mandhotra, learned Deputy Advocate General for the respondent. The main contention of Shri Bimal Gupta, learned counsel for the appellant are:- 1. that the independent witnesses have not supported the prosecution case at all; 2. that there is no explanation as to why HC Kartar Singh himself did not carry out the investigation; 3. there is no explanation as to why the Investigating Officer took almost three house to reach the spot; and 4. that there is no connecting link evidence and the case of the prosecution is full of glaring inconsistencies. We have gone through the entire evidence of the case. As far as the recovery is concerned, according to the police, after Kartar Singh found that the accused was carrying some Charas he did not carry out further investigation but asked his senior officers to depute some person to carry out the investigation. No question was put to Shri 5 Kartar Singh as to why he himself did not carry out the investigation. This plea has been raised for the first time in appeal. We can take judicial notice of the fact that earlier this Court in a number of cases had set aside the conviction of some persons convicted under the NDPS Act only on the ground that the investigation was carried out by the person who had made discovery of the contraband. It appears that to avoid such a situation Kartar Singh thought it fit to have the investigation done by some other person. We may also point out that during the cross-examination no question was put to PW-13 Kartar Singh and PW-14 Ravi Kumar in this regard. No question was asked from Ravi Kumar as to when he received the message to investigate the matter and proceed to the spot. According to Ravi Kumar after he reached the spot he had searched the bag in the presence of PW-1 Ranjeet Singh and PW-2 Sohan Singh. Both these witnesses have turned hostile. According to Ranjeet Singh he was only informed by the police that they have recovered the Charas from a boy. He was declared hostile and cross- examined by the public prosecutor. In cross-examination, he admits that the bus was stopped and checking of the passengers was done. It is also admitted that HC Kartar Singh was checking the bus. He, however, denied that Kartar Singh brought the accused alongwith bag to his shop. He admits that HC Kartar Singh told him that Charas is in the bag. It is important to note that this witness identifies his signature on the inventory list Ext.PA prepared by Kartar Singh when handing over the accused as well as the bag to ASI Ravi Kumar. This witness is 6 the Up-Pardhan of a Gram Panchayat. According to him, he has heard disputes between villagers and recorded evidence and signed such proceedings. The witness was confronted with Ext.PB, which has been signed by him as well as by Sohan Singh. This contains a note in the handwriting of Hem Raj accused. The witness has also admitted his signature on Ext.PC, which is the search memo of the police officials and the witnesses. This witness has also admitted his signatures on the Ext.PD, the sample cloth bearing the seal impression and Ext.PE whereby the copy of the seal was taken. The only explanation given by this witness about the signing the documents is that he had not gone through the documents before signing the same. He has not given any reason for signing the same in such a manner. The witness has identified the remaining sample, the sealed parcel of Charas as well as the bulk parcel of Charas, which all bear his signatures. To the similar effect is the statement of Sohan Singh. Though this witness has turned hostile, he has admitted his signatures on all the aforesaid documents. According to him, he did not ask why the police was obtaining the signatures. He further states that his signatures were obtained forcibly. PW-3 Raj Kumar has stated that constable Mohinder Singh took the scales from his shop. This fact has also been proved by PW-4 Mohinder Singh. PW-5 Raghuvir Singh, conductor of the bus also turned hostile. He admits that the bus was stopped for checking purpose and one passenger was caught. According to him, this passenger was put in Government Gypsy and taken away. Thereafter, the bus was allowed to proceed to Pathankot. This witness was declared hostile. In 7 cross-examination by the public prosecutor he has admitted that HC Kartar Singh checked the luggage. He states that he does not know that the bag containing Charas was recovered from the person of the accused sitting on seat No.20. He states that he does not know whether the accused had boarded the bus or not. He was shown the bus tickets Ext.P-1 and Ext.P-2 and admits that both the bus tickets bear his signatures with date 26.11.2002. PW-6 and PW-7 are formal witnesses. PW-8 Rajinder Kumar took the samples from Mal Khana to CTL Kandaghat. PW-12 HC Paras Ram states that he was working as MHC at Police Station Dalhousie at the relevant time. He received Ruqua Ext.PN on the basis of which he recorded FIR Ext.PO. He also states that ASI Amar Singh deposited the case property alongwith seals ‘S’ and reaseal ‘A’, which he entered in the Malkhana register. According to him he had handed over one sample alongwith NCB form and docket to constable Rajinder Kumar for taking it to CTL Kandaghat. Statement of Kartar Singh and Ravi Kumar is totally in line with the prosecution case. From a close scrutiny of the evidence, it is clear that the bus was stopped and on search Kartar Singh suspected that the accused was carrying some Charas. He immediately reported the matter to the higher authorities and sent a Ruqua in this behalf. He, thereafter, kept the accused under the supervision of Mohinder Singh and the independent witnesses. When the Investigating Officer, Ravi Kumar came, he handed over the accused and the bag to him. Thereafter, 8 search was conduced and 13 Kg. and 500 grams of Charas was recovered. By now the law is well settled that the conviction of an accused can be based on the testimony of the official witnesses so long as it inspires confidence. Merely because the independent witnesses have not supported the prosecution case is no ground to disbelieve the official witnesses. It is important to note that all the independent witnesses have admitted the search of the bus. They have also admitted that a bag was recovered. However, they have refused to identify the accused. The identity of the accused is virtually not in dispute. There are various documents signed by him. The amount of Charas recovered is huge that it could not have been planted either by the police or any other person. The accused has not pointed out any specific enmity with the police officials or other persons may have had with him. The testimony of the so called independent witnesses has to be discarded in view of the fact that it is apparent that they have not told the truth in Court. It cannot be believed that witnesses would have signed the documents without reading the same. PW-1 is the Up- Pardhan of Gram Panchayat and he could not have been threatened or influenced into signing these documents. If that had been done, he would have complained to the higher authorities. The procedure followed by the police officials is totally correct and the prosecution has proved to the hilt that the contraband was recovered from the accused in accordance with law. The samples were taken and on analysis the samples were found to contain resin to the extent of 26.86%. Even 9 applying this percentage the quantity of Charas would be more than 4 Kg. i.e. a commercial quantity. Keeping in view the aforesaid discussion, we find no merit in the appeal, which is accordingly dismissed. (Deepak Gupta), J. 3rd September, 2008 ( V.K.Ahuja ), J. ™