IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 181 of 1999 Reserved on: 01.07.2010 Date of Decision: 20.8.2010 State of H.P. …Appellant. Versus. Raj Pal …Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Sanjay Karol,, Judge. Whether approved for Reporting? Yes. For the Appellant: Mr. Vivek Singh Thakur, Addl. Advocate General. For the Respondents: Mr. Surinder Verma vice Mr. Subhash Sharma, Advocate. Per Deepak Gupta, J. 1. This appeal by the State is directed against the judgement dated 12.11.1998 delivered by the learned Sessions Judge, Kullu in Sessions trial No. 22 of 1998 whereby he acquitted the accused of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (herein referred to as the Act). 2. The prosecution story, in brief, is that on 1.4.1998 at about 3.45 p.m PW-13 head constable Het Ram was on patrolling duty alongwith PW-12 head constable Amar 2 Singh and PW-1 LHC Lal Singh at Larji. Het Ram received secret information that one person was coming from Bihali towards Larji on foot and that the said person was carrying a polythene envelope in his hand. He was wearing a white Chader on the shoulder. It was suspected that he was carrying charas. The secret information was recorded in writing and sent to the Police Station Banjar vide report Ext.PA. Thereafter, two independent witnesses, Sanjeev Kumar and Hari Ram were joined with the raiding party and they were told about the information received. Thereafter, the raiding party went towards Bihali. At about 4.10 p.m when they had walked about 1-½ kilometer they found one person wearing a white chader and carrying an envelope coming from Bihali side. This person was stopped and asked to disclose is identity. He stated that he is Raj Pal S/o Om Prakash, resident of village Badota, Tehsil Karnal, i.e. the accused. The police suspected that he was carrying charas. He was given a notice and his option was sought as to whether he wanted to be searched before the police officials, a Gazetted Officer or a Magistrate. The accused consented to be searched by the police party vide his writing Ext. PL/1 on the consent memo Ext.PL. Thereafter, PW-13 gave his search to PW-10 Sanjeev 3 Kumar as per memo Ext.PO. Then search of the accused was conducted and from the right hand of the accused an envelope was found containing charas, which on weighment was found to be 500 grams. From this, two samples of 25 grams each were drawn and both the samples and remaining charas were sealed with seal ‘T’ and seal after use was given to Sanjeev Kumar. The case property was taken into possession vide memo Ext.PM. The accused was informed about the grounds of arrest and sentence for the offence, etc. vide memo Ext.PN and thereafter accused was arrested. Rukka was sent through HC Amar Singh to the Police Station on the basis of which F.I.R. Ext.PB was recorded. The site plan Ext.PP and other codal formalities were concluded at the spot. In the evening PW-13 handed over the sample and case property to the SHO who resealed the same and deposited the same with MHC. Special report Ext.PD was sent to the office of Superintendent of Police on the next day. One of the samples was sent to the CTL Kandaghat and it was opined that the sample was of charas having resin content of 42%. On the basis of the aforesaid material the accused was charged with having committed an offence punishable under Section 20 of the Act. He pleaded not guilty and claimed trial and has been 4 acquitted by the learned trial Court. Hence, the present appeal. 3. The main grounds which weighed with the learned trial Court were that the provisions of Sections 42 and 50 of the Act had not been complied with since this was a case of prior information and recovery was made from the possession of the accused. The independent witnesses did not support the prosecution and it was found that they belong to far off places. 4. As far as Section 42 is concerned, the same is not applicable since even though the charas was recovered on the basis of the prior information it was recovered in a public place. Even the provisions of Section 50 are not at all applicable in view of the fact that according to the prosecution the charas was recovered from the envelope being carried by the accused. 5. PW-13 HC Het Ram has totally supported the prosecution case. In cross-examination he denied that the two independent witnesses Sanjeev Kumar and Hari Ram were not joined in the raiding party. Even PW-12 Amar Singh has totally supported the prosecution case. These witnesses were cross-examined at length but nothing material has been extracted during their cross- examination. PW-1 LHC Lal Singh stated that in his 5 presence HC Het Ram received secret information which was recorded in Ext.PA and he took the same to the Police Station and thereafter MHC made report in Rojnamcha which he took to the spot. PW-2 ASI Surinder Pal stated that on 1.4.1998 he transmitted wireless message Ext.PC to the Superintendent of Police. It would be pertinent to mention that both in Ext.PB and Ext.PC the time of receipt of the secret information is given as 4.45 p.m whereas on Ext.PA the endorsement Ext.PA/1 shows the time as 5.45 p.m. 6. PW-4 and PW-5 are the Reader and Wireless Operator of S.P. Kullu, who both stated that the message Ext.PA was received by them at about 5.10 p.m. PW-7 Daya Ram was the MHC at Police Station Banjar. According to him at about 4.45 p.m he received secret report Ext.PA and entered the same in his Rojnamcha vide Ext.PB and thereafter he sent wireless message Ext.PC to the higher official. On the same day in the evening PW-9 Jagdish Chand deposited the case property and sample seal with seal-X with him which he kept in the Malkhana on 3rd April, 1998. One sample was sent to CTL Kandaghat through constable Dina Nath who after depositing the samples returned the RC to him. Copy of RC is Ext.PE. He also stated that NCB form in triplicate and copy of 6 F.I.R were sent to CTL Kandaghat. In cross-examination he stated that the time mentioned as 5.45 p.m in Ext.PA/1 has been mentioned by mistake. He has virtually not been examined on the issue of sending of the samples, etc. PW-8 is a formal witness. 7. PW-9 SI Jagdish Chand stated that Het Ram brought the case property i.e. bulk charas and two samples, which were sealed with seal “T” and he resealed the same with seal “X”. He took the impression of the seal on Ext.PJ and then the same was deposited with MHC and after receipt of the chemical examiner’s report he filed the challan. 8. PW-10 and PW-11 the two independent witnesses did not support the prosecution case at all. According to them no search of the accused was conducted in their presence and they were both called to the Police Station Banjar where the police officials took their signatures on some blank papers. PW-10 Sanjeev Kumar after being declared hostile was cross-examined by the public prosecutor. He stated that during those days he was driving car of headmaster Shri Amar Nath Dogra and was being paid Rs.1500/- per month. He also owns an orchard which is in his name. He knew the other witness Hari Ram, who is his childhood friend. He denied the 7 prosecution suggestion that the search had been conducted in his presence. He admitted that it was for the first time in Court he was stating that his signatures had been taken on blank papers in Police Station Banjar. He also admitted that he had never complained to any authority in this regard. The statement of Hari Ram is virtually identical to the statement of Sanjeev Kumar. It would be pertinent to mention that even Hari Ram stated that he is a driver and driving the jeep of Lala Shayam Sunder and getting salary of Rs.1500/-. He also owns an orchard, which is in his name. 9. There is no manner of doubt that the independent prosecution witnesses have not supported the prosecution case. What is the effect of this? The law by now is well settled that even if the independent witnesses turn hostile the prosecution can rely upon the statements of the official witnesses. The statements of the official witnesses cannot be rejected simply because they were members of the raiding party. Merely because these witnesses happened to be police officials, their testimony cannot be discarded unless it is shown that these police officials had some hostility or animosity towards the accused. Reference be made to the judgment of the Apex 8 Court in Nathusingh v. the State of Madhya Pradesh, AIR 1973 SC 2783, wherein it was observed, thus: “2. Concurrent findings of fact conclude the case against the petitioner so far as his possession of unlicensed cartridges on the date and the time and place given in the charge are concerned. The fact that the two witnesses called from amongst the members of the public, namely, Raghunathsingh (P. W. 1) and Gambhirsingh Tomar (P. W. 2), had turned hostile was considered by the High court and the courts below. They had held that the two prosecution witnesses who had turned hostile could not be relied upon. Their evidence could not destroy the prosecution case or make it doubtful. The prosecution case is fully supported by Mahadevsingh (P. W. 5), and Umashankar (P. W. 6), who are police officers. The mere fact that they are police officers was not enough to discard their evidence. No reason was shown for their hostility to the appellant.” (Emphasis supplied) 10. Similarly in State of Kerala vs. Mathew and another, AIR 1978 SC 1571, a contention was raised that the evidence of the officers constituting the inspecting party should be rejected since these witnesses are interesting witnesses. The Apex Court rejected this contention and held as follows: “It is true that courts of law have to judge the evidence before them by applying the well recognized test of basic human probabilities and that some of the observations made by the Sessions Judge especially one to the effect that 'the evidence of officers constituting the inspecting party is highly interested because they want that the accused are convicted' cannot be accepted as it runs counter to the well recognized principle that prima facie public servants must be presumed to act honestly and conscientiously and their evidence has to be assessed on its intrinsic worth and cannot be discarded merely 9 on the ground that being public servants they are interested in the success of their case.” 11. Similar view was taken by the Apex Court in Samaalana Abdulla vs. State of Gujarat, (1996) 1 SCC 427, Betal Singh vs. State of M.P. AIR 1996 SC 2770 and Akmal Ahmad vs. State of Delhi, (1999) 3 SCC 337. 12. In case the independent witnesses do not support the prosecution case and are declared hostile the testimony has to be discarded and cannot be used by the defence in its favour. In case independent witnesses turn hostile, like in the present case, it may be a good reason to scrutinize the statements of the official witnesses with greater care and caution. In case their statements are consistent and there are no material contradictions, there is no reason why conviction cannot be based on the statements of these official witnesses. 13. We have already referred to the statements of the witnesses in detail. The statements of the prosecution witnesses are consistent. The only contradiction is that in Ext.PA/1 the time of receipt of the secret report in the police station is given as 5.45 p.m instead of 4.45 p.m. This has no material bearing on the recovery since Section 42 is not applicable and in fact Daya Ram had given a valid explanation for the same. The statements of PW-12 and PW-13 are totally consistent that the 10 recovery was made from the accused. These statements inspire confidence. A perusal of these statements clearly show that the recovery of the contraband was made from the accused. The report of the chemical examiner has been completely linked with the sample and the recovery made from the accused. In fact, there is virtually no cross-examination of the witnesses in this regard and their statements that the samples were kept properly and were not tampered with has not been assailed at all. 14. The accused was found in possession of 500 grams of charas but the resin content was 42% therefore the quantity of illegal contraband in his possession amounts to 210 grams. The accused is, therefore, held guilty of having committed an offence punishable under Section 20 of the Act. Normally, we would have asked the accused person to be present to be heard on the quantum of sentence but we find that in this case the accused from the date of his arrest i.e. 1.4.1998 remained in custody till the trial was completed on 12.11.1998. The quantity of resin involved is 210 grams only. The offence took place more than 12 years back and therefore, we feel that the sentence already undergone by the accused is sufficient to meet the ends 11 of justice. The appeal is accordingly disposed of. Bail bonds discharged. ( Deepak Gupta ) Judge. 20th August, 2010 (Sanjay Karol ) ™ Judge.