1 HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 127 of 2002 Decided on: August 31, 2011 State of H.P. …Appellant. VERSUS Sewak Ram ….Respondent. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice Dev Darshan Sud, Judge Whether approved for reporting?1 For the Appellant: Mr.R.K. Sharma, Sr. Adld. AG with Mr. Rajinder Dogra, Addl. AG. For the respondent: Mr. Neel Kamal Sharma, Advocate. R.B.Misra, Judge (Oral): Accused is present in the Court. It has been submitted by Mr. Neel Kamal Sharma, Advocate that the respondent/accused has moved an application for the appointment of an Advocate for him from Legal aid. Mr. Neel Kamal Sharma, Advocate has sufficient years standing at the Bar and he is ready to assist this Court being a legal aid counsel. As such, he is appointed as Legal Aid Counsel in this matter. Mr. Neel Kamal Sharma, Advocate, shall be entitled to the fee as payable as Legal Aid counsel. Whether the reporters of the local papers maybe allowed to see the judgment? 2 2. 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 judgment dated 6.11.2001 passed by learned Sessions Judge, Bilaspur, District Bilaspur, HP in Sessions Trial No. 7 of 2001, thereby acquitting the accused/respondent for the offence under Section 20 of Narcotic Drugs & Psychotropic Substances Act, 1985 ( in short called ‘ND&PS Act’). 2. The prosecution case is that on 9.1.201 at about 11.00 PM when the accused was traveling in HRTC Bus No. 33- 3925 from Manali to Delhi, the said bus was checked up by the police, when the accused, was found occupying seat No.44 and carrying one bag of black colour kept on his lap. On search of that bag, two plastic envelops containing ‘Charas’ were taken out from the bag in which ‘Charas’ was kept which on weighment, was found 4 Kgs 100 gms. At the time of recovery of ‘Charas’ from the bag of the accused/respondent, S/Sh. Lalit Kumar, conductor of the bus and Chhota Ram, Head Constable were present inside the bus. Two samples each weighing 25 gms were taken form the ‘Charas’ and the same were put into two separate cloth parcels and the remaining ‘Charas’ was also put in a separate cloth parcel and thereafter all the three parcels were sealed with seal ‘A’. A seizure memo was prepared which was signed by the accused and the witnesses. 3 Thereafter, a ruqa was sent to the Police Station, Sadar, Bilaspur. On receipt of the information regarding the recovery of ‘Charas’ Dev Ram Inspector/SHO, Police Station Sadar, Bilaspur reached the spot and had taken into possession the sealed parcels from Uttam Singh, ASI. After that Dev Ram, SHO/Inspector had re-sealed the three parcels with his seal ‘T’. After investigation, accused/respondent was charged of the aforesaid offence. 3. In order to prove its case, prosecution has examined as many as 10 prosecution witnesses, whereas through his statement under Section 313 Cr.PC, accused/ respondent denied the prosecution case. 4. (PW-1) Rattan Chand, Constable, Mansha Ram, Forest worker (PW-2), Hardayal Singh (PW4), Lalit Kumar, conductor of the bus (PW-5) and Uttam Singh ASI (PW-6) are alleged to be the eye witnesses. While remaining prosecution witnesses, except Devi Ram/Inspector SHO (PW-7) are formal witnesses. Out of these five eye witnesses, Mansha Ram PW- 2, Hardayal Singh, PW-4 and Lalit Kumar PW-5 are independent witnesses, while the remaining two witnesses are police officials. 5. On scrutiny of materials on record, we notice that witnesses Mansha Ram PW-2, Hardayal Singh, PW-4 and Lalit Kumar PW-5 have not supported the prosecution case at all. PW-2 has stated that on 9.1.2001, while posted as Forest Worker at check post, Swarghat had not seen any recovery 4 of ‘Charas’ from the possession of accused in his presence. PW-2 has further stated that the police party has brought the bag and the accused to the Forest check post and from opening of the bag, ‘Charas’ was recovered. Testimony of PW-2 reveal that he was not inside the bus when recovery of ‘Charas’ was made. Likewise, PW-4, driver of the bus in question has also stated that bag in question was not recovered from the accused in his presence. According to PW-4, police had told to him that the bag was recovered from the possession of the accused. As such, PW-4 was not in a position to say that bag Ext P-6 was recovered from the possession of the accused. PW-4 has indicated only to the extent that the accused was the same passenger to whom police had apprehended inside the bus. Lalit Kumar, (PW-5), conductor of the bus in question has stated that the police had checked the bus and one person who was carrying bag was apprehended by the police and on search of the bag, ‘Charas’ was found inside the bag. However, he categorically stated that the bag in question was not recovered from the possession of the accused in his presence. Therefore, nothing favourable could be derived from the testimonies made in cross-examinations by PW-2, PW-4 and PW-5. 6. (PW-1) Constable Rattan Chand, in his endeavour to support the prosecution case, has stated that when the bus had stopped, ASI Uttam Singh and HC Chhotta 5 Ram conducted the search of the luggage of the passengers inside the bus in presence of driver and conductor of the bus. At that time, police officials were standing outside the bus and PW-1 was watching from outside the bus and was looking into the bus through the windows. When ASI reached near passenger occupying seat No. 44 of the bus, he opened the chain of the bag of passenger sitting on seat No. 44 carrying bag on his lap on search of the bag, clothes were found in the bag and below that ‘Charas’ was kept in the plastic cover inside a cloth bundle. The passenger was taken out of the bus along with the bag. Driver and conductor of the bus also accompanied the ASI and the accused to the forest check post. All the belongings from inside the bag were taken out in the presence of the driver and conductor of the bus. There were two plastic envelops in which ‘Charas’ in the form of sticks was kept. PW-1 brought the weighing scales and weights from Rajesh Kumar, shop keeper from the nearby shop and the ‘Charas’ on weighment was found 4 Kgs and 100 gms. Ruqa was handed over to PW-1, which he brought to the police station Sadar, Bilaspur at about 12.30 night i.e. intervening night of 9.1.2000/10.1.2000 and after lodging FIR, PW-1 carried the case file to the spot. SHO/ Devi Ram Inspector was informed on telephone from Swarghat regarding the case. PW-1 further stated in cross-examination that the bus was 52 seaters. ASI Uttam Singh entered the bus 6 through the front door of the bus while HC Chhota Ram entered through the back door of the bus and PW-1 was standing towards the driver’s seat near the centre of the bus and the remaining two police officials were standing towards the door of the bus and at that relevant time there were 35 passengers in the bus. ASI started checking from the upper seats of the bus while Chhota Ram started checking from the back seats of the bus. It took half an hour for the ASI to check the luggage of the passengers and PW-1 had observed recovery of bag from the custody of accused/respondent, whereas in cross-examination, he stated that he was standing towards the driver’s seat near the centre of the bus. As PW-1 was standing outside the bus, he was not supposed to have observed the recovery of bag from the accused/respondent and also recovery of plastic bags and ‘Charas’ from the bag. PW-1 had also not stated that seat No.44, where accused/respondent was allegedly sitting, was side seat. 7. (PW-3)/ Rakesh Kumar, at the relevant time was running shop of cigratee, biddies at Swarghat from whom HC Chhota Ram had taken scales and weights. PW-3 had seen packets of ‘Charas Exts P-2 and P-3 and had also seen bag Ex P-6 and had also observed that sample boxes were put in separate cloth parcels and the same were sealed with seal ‘A’ and the remaining ‘Charas’ was put in separate parcel and the same was sealed with seal ‘A’. PW-3, has however, 7 not stated that he had observed recovery of ‘Charas’ from the accused/respondent. 8. (PW-6)/ SI Uttam Singh, in his endeavour to support the prosecution case has stated that he entered the bus through the front and Chhota Ram HC entered the bus through the backdoor. Chhota Ram checked the luggage of the passengers seats on one side each bench having three seats, while PW-6 checked the other side seats each bench having three seats. When PW-6 checked the passengers sitting on seat No. 44, he was having one bag Ext P-6 of black colour on his lap and on the opening of bag, one shirt and one pajama was found and below that there was one bundle of cloth and inside the bundle, two packets of plastic envelopes containing ‘Charas’ in the form of sticks were recovered ion the presence of conductor Lalit Kumar, apart from HC Chhota Ram. PW-6 has further stated that the accused along with the bag was taken to Forest check post and in presence of witnesses Mansha Ram, Rakesh Kumar and conductor Lalit Kumar, the bag was completely searched and two packets of ‘Charas were weighed and the ‘Charas’ was fond 4 Kgs 100 gms in both the packets. Two samples each of 25 gms were taken from the ‘Charas’ and each sample was put in empty cigarette box and the sample boxes were put in separate cloth parcels and the cloth parcel were sealed with seal ‘A’. The remaining ‘Charas’ was put in the separate cloth parcel and the same was sealed 8 with seal ‘A’. Ruqa Ext PC was sent through constable Rattan Chand, PS Sadar, Bilaspur and the statements of three witnesses, namely, Lalit Kumar, Rakesh Kumar and Mansha Ram were recorded. The tickets of the accused were taken into possession. PW-6 has also recorded the statements of Ram Lal MHC and Constable Sarwan Kumar. Inspector Devi Ram reached the spot at 8.45 AM on 10.1.2001 and to whom PW-6 handed over the case file for investigation. Case property was also handed over to him who resealed the sealed parcel aforesaid in the presence of PW-6 with his seal ‘T’. 9. (PW-7)/ Devi Ram, District Inspector Police also reached the spot, arrested the accused and said to have filled in NCB form. Again Uttam Singh, had filled in the ‘NCB Form’ which is Ext PJ. Thereafter the sample was sent to Chemical Examiner and on receipt of Chemical Examiner report which is Ext PK, challan was prepared. 10. On the analysis of the prosecution witnesses and materials on record, nothing is emanating whether the ‘NCB Form’ was filled in on the spot as serial No.1 Section, Crime number off the ‘NCB Form’ does not indicate that it was filled on the spot. It is also not known as to whether the sample was kept in police station and whether an entry was made in Malkhana register or not. Nothing is known after perusal of ‘NCB Form’ that any facsimile seal was put on ‘NCB Form’. In the absence of this, it could not be ascertained as to whether 9 same sample was sent for which Chemical Examiner has given report. The testimony of PW-1, said to be present on the spot outside the bus, has not corroborated the testimony of PW-6 regarding recovery of bag and recovery of ‘Charas’. The independent witnesses have not supported the prosecution case at all and in the facts and circumstances of the case, the testimony of police officials are also not inspiring confidence. In totality of the facts and circumstances, doubt is created regarding place of recovery, manner of recovery of bag and ‘Charas’. It is also not known whether the recovery was made from the exclusive and conscious possession of the accused/ respondent. 11. In these circumstances, leaned Sessions Judge has rightly arrived at the conclusion that the prosecution has not been able to prove its case beyond reasonable doubt and has failed to bring home guilt to the accused. In our considered view, we find no scope for interference in the impugned judgment. The criminal appeal, being devoid of merit, is accordingly dismissed. 12. The bail bonds, furnished by the accused/ respondents, are discharged. ( R.B.Misra ), J. 31st August, 2011 (Dev Darshan Sud ),J. (sl)