IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal Nos. 398 and 568 of 2003. Judgement reserved on: 22.3.2007. Date of decision: 29.3.2007. ( For title, see reverse). Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting?1 For the Appellant : ( See reverse). For the Respondents : Surjit Singh, Judge. These two appeals are directed against the same judgement of the trial court, whereby a case, under Sections 29 and 18 of the Narcotic Drugs and Psychotropic Substances Act, instituted by the State against two persons, namely Nek Ram, appellant in Criminal Appeal No. 398 of 2003 and Mani Ram respondent in Criminal Appeal No. 568 of 2003 has been disposed of. By this judgement, appellant Nek Ram has been convicted of the offence, under Section 18 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as `the Act’) and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Whether the reporters of the local papers may be allowed to see the Judgment? …2… Rs. 1,00,000/-. Mani Ram respondent in Criminal Appeal No. 568 of 2003, has been acquitted. 2. Criminal Appeal No. 398 of 2003, has been filed by Nek Ram, challenging his conviction and sentence. The other appeal, i.e. Criminal Appeal No. 568 of 2003, has been filed by the State, challenging the acquittal of respondent Mani Ram. Appellant Nek Ram in Criminal Appeal No. 398 of 2003 and respondent Mani Ram in Criminal Appeal No. 568 of 2003 shall, hereinafter be referred to as the accused. 3. First the prosecution version may be noticed. On 9.9.2002, SHO, Police Station, Bahal Om Parkash (PW 19) accompanied by HC Shyam Lal (PW 18), constable Hira Lal (PW 11), HHC Amar Singh (PW 10) and some other police officials went towards a place called Gutkar for traffic checking. Around 4.30 p.m., two scooters, bearing registration Nos. HP 29-0891 and HP-33-0404 came from Mandi side. Both the scooters were signaled to stop. The driver of scooter No. HP-33-0404 after stopping and parking it by the side of the road, ran into maize fields towards Suketi Khud. He was chased by PW 10 HHC Amar Singh and PW 11 constable Hira Lal on being commanded by the S.H.O. Scooter No. HP-29-0891 was being driven by accused Nek Ram. He stopped it. Search of the scooter was conducted. Documents/ papers of the scooter were not with him. The Station House Officer then searched the two dickeys, one in the rear and the other on the front side of the scooter and recovered opium, which was packed in sweet boxes numbering five. Two boxes were recovered from the rear and three from the front dickey. On …3… being weighed, the quantity of the opium was found to be ten kilograms. Two samples from each of the five boxes were separated. Thereafter the bulk opium and the ten samples were sealed separately. Search and seizure memo was prepared. In the meanwhile, HHC Amar Singh (PW 10) and constable Hira Lal (PW 11), who had been deputed to nab the other scooterist returned. They told PW 19 SHO Om Parkash that the said scooterist first crossed the Suketi Khud, leaving his shoes behind and after crossing the Khud he removed and threw his pant as it was completely wet and escaped into maize fields. They also told that they had picked up the pair of shoes and the pants. They produced the same to the said Station House Officer. On search of the pants, two registration certificates, one in respect of scooter No. HP -29-0891 and the other in respect of scooter No. HP-33-0404 and an insurance cover note in respect of scooter No. HP-29-0891 wrapped in a plastic cover were found. The shoes, the pants and the aforesaid documents, were taken into possession. In the registration certificate, pertaining to scooter No. HP-29-0891, name of accused Mani Ram, was written as owner. In the registration certificate, pertaining to the other scooter, i.e. HP-33-0404 accused Nek Ram, was described as owner. Accused Nek Ram told the police that the scooterist, who had succeeded to escape was Mani Ram accused. 4. Nek Ram accused was arrested on the spot. Later on accused Mani Ram was also arrested after he failed in his attempt to get anticipatory bail from this court. It came to light during the course of investigation that Mani Ram accused is employed as a Teacher in …4… Government Primary School, Dagwan. He did not attend the school from 9.9.2002 to 11.10.2002. However, he went to the school around 10.00 in the morning on 10.9.2002, marked his attendance for 9.9.2002 and handed over application for leave for 10th and 11th September, 2002 to Sh. Amar Singh, Senior Assistant and then left the school. 5. Five samples of opium, one out of the two taken from each of the five packets, were sent to the Chemical Examiner for analysis and his opinion. The Chemical Examiner opined that the contents of the samples were of opium. 6. Accused were sent up for trial to the specially designated Sessions court. They were charged, under Sections 29 and 18 of the Act. On their pleading not guilty, they were put on trial. Finally, both of them were acquitted of the offence, under Section 29 of the Act, for want of evidence and accused Mani Ram was acquitted of the offence, under Section 18 of the said Act, also. However, accused Nek Ram was convicted of the offence, under Section 18 of the Act, and sentenced, as aforesaid. 7. Grievance of the accused-appellant Nek Ram is that he has been falsely implicated in this case. According to him, he was driving his own scooter, bearing No. HP-33-0404. He says that he reached the spot driving his scooter No. HP-33-0404 and on being stopped by the police people and on being required to produce the papers of the scooter, he showed such papers and that in the meantime two more scooterists reached there and when the police signaled them to stop they ran away and could not be apprehended. …5… It is also his plea that the opium was recovered not from scooter No. HP-29-0891, but from the third scooter. He claims that he has been falsely implicated on suspicion that he had association with the two scooterists who ran away from the spot. 8. The State is aggrieved by the acquittal of accused- respondent Mani Ram in (Criminal Appeal No. 568 of 2003). According to it, there is sufficient evidence indicating that Mani Ram was driving scooter No. HP-33-0404 belonging to accused Nek Ram and both of them reached the spot simultaneously driving the scooters and Mani Ram ran away, after parking scooter No. HP-33- 0404 and after crossing the river disappeared into maize fields and while running away left his shoes on one side of the river and removed and threw his pant on the other side of the river and that those shoes and pant were picked up by HHC Amar Singh (PW 10) and constable Hira Lal (PW 11) and produced to the S.H.O. and from the pocket of the pant, the registration certificates of the two scooters and insurance cover note, pertaining to scooter No. HP-29-0891, were found and that this evidence when seen in the light of the fact that the opium was recovered from scooter No. HP-29-0891 registered in his name, is enough to hold him guilty. The State has, however, not challenged the acquittal of the two accused in respect of offence, under Section 29 of the Act. 9. We have perused the record and heard the learned counsel for the parties. 10. Learned counsel representing the appellant-accused Nek Ram, made the following submissions:- …6… (a) Police party had laid Nakka for traffic checking, as per depositions of PW 19 SHO Om Parkash, PW 18 Shyam Lal, PW 11 constable Hira Lal and PW 10 HHC Amar Singh, but the accused-appellant was not challaned for committing violation of any traffic rules, even though the prosecution story is that he was not having any documents with him and that this fact not only falsifies the prosecution version that the documents were not there with the appellant- accused or that the registration certificate was recovered from the pants, but also lends credence to the appellant’s plea that he was driving his own scooter No. HP-33-0404 and had all the documents with him, when he was stopped for traffic checking. (b) The prosecution has withheld the memo of personal search prepared, under Section 51 of the Code of Criminal Procedure, because that would have shown that the documents of scooter No. HP-33-0404 were found on personal search of Nek Ram accused at the time of his arrest. (c) The conduct of the man, who ran away towards the river is indicative that it was he who was driving scooter No. HP-29-0891 from which opium was allegedly recovered. Had he been driving scooter No. HP-33-0404, as alleged by the prosecution, why should have he run away because nothing incriminating was there in the dickeys of that scooter. (d) According to the prosecution three independent witnesses were associated. These witnesses were Dharam Dass (PW 1), Yogesh Mahajan (PW 2) and Daler Singh (PW 3) and all of them denied that scooter No. HP-29-0891, from the dickeys of which opium was …7… allegedly recovered was being driven by Nek Ram and the other scooter by Mani Ram. (e) Nek Ram was driving his own scooter on 9.9.2002, as per deposition of DW 1 Vinod Kumar. (f) There is no evidence on record that accused Nek Ram and accused Mani Ram, the registered owner of scooter No. HP-29-0891, were known to each other from before. (g) The conduct of the appellant-accused in not running away from the spot also speaks of his innocence. (h) The story regarding chase of accused Mani Ram and recovery of the documents of the two scooters from the pocket of his pants is concocted and that the evidence on record shows that neither accused Mani Ram was chased nor did he abandon his pants and shoes, because the photographs taken on the spot show that the alleged chasers remained on the spot throughout and also because there are contradictions in the testimony of the witnesses of the prosecution as to the time when they allegedly returned with the pant and the shoes and also with respect to the distance of Suketi Khud (river) from the spot. Another reason is that this fact does not find mention either in the Rukka (report) that was sent from the spot for the registration of the case or the special report, which was sent to the superior police officer, on the next following day. 11. Learned Additional Advocate General submitted that there is definite and indubitable evidence on record that Mani Ram accused was driving scooter No. HP-33-0404 belonging to accused Nek Ram and the latter was driving scooter No. HP-29-0891 …8… registered in the name of former and that both of them appeared on the scene one after the other and accused Mani Ram ran away from the spot and was given a chase by PW 10 HHC Amar Singh and PW 11 constable Hira Lal, but he managed to escape, abandoning his shoes and pants and that from the pants abandoned by him, registration certificates of both the scooters and insurance cover note in respect of his own scooter were recovered and that this evidence conclusively proves the case not only against appellant-accused Nek Ram, but also against respondent-accused Mani Ram. 12. Learned counsel representing accused Mani Ram submitted that no doubt scooter No. HP 29-0891 belongs to Mani Ram and is registered in his name, but it had been stolen on 9.9.2002 and that Mani Ram had even gone to the Police Station in the company of the Pradhan of the Gram Panchayat to lodge a report about the theft of his scooter on 9.9,.2002 itself, but his report was not registered, as the SHO was not available. He also submitted that accused Mani Ram remained in the school throughout the day and this fact also negates the prosecution version that it was he who was driving the other scooter and escaped into maize fields, after crossing the river near the place of occurrence. 13. We have gone through the record thoroughly and considered the aforesaid submissions in the light of the evidence on record. Submission (a). 14. As regards submission (a) above, it is true that the police officials, who were present on the spot, namely PW 19 SHO Om …9… Parkash, PW 18 constable Shyam Lal, PW 10 HHC Amar Singh and PW 11 constable Hira Lal, have stated that they had gone to the spot in connection with the traffic checking and it is also true that no challan for violation of any provision of the Motor Vehicles Act or the rules framed thereunder, on account of the accused not possessing the documents, was drawn, but that cannot be taken to be a circumstance negating the prosecution version that the accused did not have the documents of the scooter with him and the same were recovered from the pant of the other scooterist, who had escaped. Now when on search of the dickeys of the scooter huge quantity of opium weighing 10 Kilograms had been found and the possession of the opium amounted to a very serious offence, punishable with imprisonment not less than ten years and minimum fine of Rs. 1,00,000/-, the police team headed by Station House Officer, himself was supposed to have given priority to the investigation of this serious offence and conducting the proceeding of search and seizure and preparing the record of such proceedings. Offence of not possessing the documents was too minor and rather too trivial compared to the offence of possessing huge quantity of opium and, therefore, any police official in such a situation would think of only investigating the serious crime and ignoring the minor offence of violation of traffic rules. 15. Another reason for rejecting the submission is the categorical evidence on record about the documents having been found from the pocket of the pant, which is being discussed hereinafter. …10… Submission (b). 16. Coming to submission (b), it is true that the search and seizure memo prepared, under Section 51 of the Code of Criminal Procedure, has not been produced by the prosecution, but this again is not sufficient to negate the prosecution version that registration certificates of both the scooters were recovered from the pant of the man, who escaped after removing and throwing his pant. The evidence on record, which is being discussed hereinafter, in detail, under the relevant submission, proves beyond reasonable doubt that the two registration certificates and the insurance cover note, were recovered from the pant of the other scooterist, who escaped. Submission ( c). 17. Admittedly, scooter No. HP-29-0891, from which opium was recovered, belongs not to accused Nek Ram but to accused Mani Ram, per registration certificate. Normally, when two persons are traveling together by their own vehicles, they would drive their own vehicles. However, this may not be true in a situation like the one in which the two vehicles, i.e. scooter No. HP-33-0404 and HP- 29-0891 were being driven. Mani Ram accused is in government service. In the event of his having been caught with the opium in the dickey of his scooter being driven by him personally, there could not have been any scope for his acquittal and this would have entailed not only punishment under the Act but also his dismissal from service. In other words stakes were very heavy in the event of Mani Ram being caught with the opium in the scooter driven by him. It appears that to avoid such a situation, the two accused agreed that they would …11… be driving each other’s scooter. It is clear from the prosecution evidence, as is being discussed hereinafter that while scooter NO. HP-29-0891 was being driven by accused Nek Ram, the other scooter No. HP-33-0404 was being driven by accused Mani Ram. 18. Now when the scooter in which opium was being carried belonged to Mani Ram and he was accompanying accused Nek Ram on latter’s scooter bearing registration No. HP-33-0404, obviously he had to get scared and that is why he ran away. There is nothing unnatural as regards this conduct of his. Submission (d). 19. All the three non-police official witnesses, namely PW 1 Dharam Dass, PW 2 Yogesh Mahajan and PW 3 Daler Singh, stand contradicted by their statements, under Section 161 of the Code of Criminal Procedure, with which they were duly confronted and therefore, their depositions that they were called to the spot after the scooters had been intercepted and opium recovered and hence, they did not know which of the two scooters was being driven by accused Nek Ram, are of no avail to accused Nek Ram. Submission (e). 20. DW 1 Vinod Kumar, no doubt stated that on the relevant date, Nek Ram had come to his shop driving his own scooter No. HP- 33-0404, but he did not say as to what was the time when he came to his shop. May be that he visited his shop in the morning. In any case, the witness does not say that he was present on the spot and that at that time also accused Nek Ram was driving his own scooter No. HP-33-00404. …12… Submission (f). 21. Lack of evidence that the two accused had prior intimacy should not make any difference, if the prosecution version that they were driving each other’s scooter on the relevant date and at the relevant time and place is believed. This itself would lead to a very strong presumption that the two knew each other and even had the knowledge that opium was there in scooter No. HP-29-0891. As would be seen from the discussion hereinafter, the two accused reached the spot driving each other’s scooter, when the police signaled them to stop. Submission (g). 22. From the mere fact that Nek Ram did not abscond, an inference cannot be drawn that he is innocent. May be that he did not get the opportunity to run away. Possibility can also not be ruled out that he could not muster the courage to run away on seeing the police or that he thought that he was not capable of running faster than the police men and as such it was no use attempting escape. Submission (h) and the submissions of learned Additional Advocate General & learned counsel for accused Mani Ram. 23. The first part of the submission that there is no evidence in support of the allegation that one of the scooterists was chased and that that scooterist while absconding abandoned his pant and shoes and from the pocket of the pant, documents were recovered, is not correct. It is not only the police officials, namely PW 19 SHO Om Parkash, PW 18 HC Sham Lal, PW 11 Constable Hira Lal and PW 10 …13… HHC Amar Singh, who have testified this fact, but one of the independent witnesses, namely PW 1 Dharam Dass has also stated certain facts, which go to show that the prosecution version is true. The witness stated in the course of cross-examination by the Public Prosecutor that when the police officials were busy on the spot conducting proceedings, HHC Amar Singh came there carrying a pant, which was wet and soiled with silt and a pair of shoes and told that the pant and the shoes were of the man, who had run away after parking the scooter and that on search of the pant, registration certificates and some papers were recovered from one of its pockets. He further stated that registration certificates, insurance cover note, pant and the shoes were taken into possession vide memo Ex. PE. He also stated that registration certificates and insurance cover note were like Ex. PF, Ex. PG and Ex. PH. The witness (PW 1 Dharam Dass) was not cross-examined with respect to this part of his testimony by the accused and therefore, there is no reason to disbelieve the same. This unchallenged testimony of PW 1 Dharam Dass lends a great deal of corroboration to the statements of the above named four police officials. The testimony of the police officials and this witness proves beyond any pale of doubt that one of the two scooterists had escaped towards the river, known as Suketi Khud. He was chased by PW 10 HHC Amar Singh and PW 11 constable Hira Lal and the scooterist while fleeing, abandoned his shoes on one bank of the river before crossing it and removed and threw his pant on the other bank after it got soaked in river water and in the pocket of that pant the registration certificates of both the …14… scooters and the insurance cover note of scooter No. HP-29-0891 were there. 24. In the face of the above discussed evidence, the discrepancies in the statements of the police official witnesses as to the time when the photographs were taken or the contradictions in their testimony as to the distance of the river from the spot or the time taken by the chasers to return to the spot or that the fact of chase and recovery of documents from the abandoned pant does not figure in the Rukka or special report, become immaterial. Otherwise also, these contradictions are minor and hence of little consequence. 25. The next and the most important question is whether the man who escaped from the spot was accused Mani Ram or some other person. As noticed hereinafter, the evidence on record conclusively proves that the registration certificates of both the scooters and insurance cover note of scooter No. HP-29-0891, were recovered from the pocket of the pant, which was abandoned by the man, who fled leaving the scooter on the spot. It can legitimately be presumed that the man who carries the documents of a vehicle in the pocket of his pants is the owner of the vehicle. Since in the present case, the registration certificates and insurance cover note of scooter No. HP-29-0891, were recovered from the pocket of the pant, which the absconding man threw away, there is no escape from the presumption that he was the owner of scooter No. HP-29-0891. This presumption is further strengthened by the fact that the registration certificates of the scooter No. HP-33-0404 which he was driving was also in his pant. Of course, such a presumption is rebuttable. There …15… can be situation, where a man who himself is not the owner of the vehicle carries the documents of that vehicle. For example a man who borrows the vehicle of another may also be carrying the documents of that vehicle. A thief who has stolen the vehicle alongwith the documents may also be found in possession of the documents. The documents may also be entrusted by the owner of the vehicle to some other person for renewal etc. In the present case, Mani Ram has taken the plea that his scooter had been stolen on 9.9.2002 and he came to know about the theft in the evening and thereafter he went to the Police Station to lodge the report, but the police official refused to lodge his report and asked him to visit the Police Station on the next following day. On next day, he could not go himself and sent the Pradhan to lodge the report but the police did not enter the report. The witness examined by him to prove this plea, namely DW 3 Lal Chand, the then Pradhan has no doubt stated that he accompanied Mani Ram to Jogindernagar, Police Station for lodging the report for theft of his scooter, but the reason stated by him for non-recording