IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.232 of 2006. Judgment reserved on: September 11, 2009. Decided on: October 7th, 2009. _______________________________________________________ Sohan Lal. ……..Appellant. Versus State of H.P. ……..Respondent. Coram Hon’ble Mr. Justice Surjit Singh, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. G.R. Palsra,. Advocate. For the respondent : Mr. P.M. Negi, Dy. Advocate General with Mr. Ramesh Thakur, Asstt. Advocate General. ____________________________________________________ SURINDER SINGH,J: The appellant has challenged the judgment of his conviction and sentence, passed by the learned trial court, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 in short ‘the Act’, allegedly for keeping in possession 10 Kgs. Charas, whereby he was sentenced to undergo rigorous imprisonment for a period of 12 years and to pay a fine of Rs. 2 lacs, in default of payment of fine, further to undergo rigorous imprisonment for a period of 2 years. In brief, the prosecution story as emerges from Whether reporters of the Local papers are allowed to see the judgment? Yes. - 2 - the evidence on record is that on 22nd November, 2004 at about 9.30 p.m., PW-11 Inspector/SHO N.K. Sharma, was on patrolling duty, in his official Van bearing registration No.HP-33-6202 at Beoli bridge. PW-6 Jagir Singh was its driver. ASI PW5 Yog Raj, Head Constable Ram Lal and Constable Sant Ram of CIA staff met them on the way. They were also joined and all of them reached Bus-stand, Mandi in their police-van. Inspector N.K. Sharma noticed the appellant, hurriedly boarding the moving HRTC Bus No.HP-35-0414 which had just left the bus-stand and was enroute to Delhi. He entertained some suspicion on the appellant and followed the bus, which was ultimately stopped at Pull Gharat. The appellant was having a Pithu-bag (Ex.P-1) and a carry- bag looking like an Attache-case in his hand. He was alighted from the bus. In the meantime, a three-wheeler bearing No. HP-05-1376, which was being driven by PW2 Lekh Raj arrived there. He was also associated by the police while conducting the search of the appellant. The police searched Pithu-bag (Ex.P-1). It was found having contained two Jean Pants, one Jacket and 5 packets of Charas in different shapes and each packet wrapped with red-tape. It was estimated to be about 10 Kgs. Inspector N.K. Sharma took into possession the entire Charas vide memo Ex.PW-1/A in the presence of PW-2 Lekh Raj and PW-9 Head Constable Gulab Singh and sent a Ruka Ex. - 3 - PW-11/A, for the registration of the case through Head Constable Gulab Singh (PW-9). Police prepared the site plan Ex.PW-11/B. Thereafter scales and weights were arranged from the shop of PW-1 Sushil Kumar, who was running a police canteen near Police-Line Paddal in Mandi Town. The Charas was weighed in the Police Station. It was exactly found to be 10 Kgs. The said Police Officer separated two samples of 25 grams each and sealed each of them with seal impression “N”. The remaining bulk was also sealed with same seal. A sample of seal was also taken separately on a piece of cloth. The seizure memo Ex.PW-9/A was prepared in the presence of Head Constables Gulab Singh (PW-9) and Jagir Singh (PW-6). N.C.B. forms in triplicate, one of which is Ex.PW- 11/D, was also prepared. On the personal search of the appellant, his personal affects were taken into possession, which are detailed in memo Ex.PW-1/C on 23rd November, 2004. The case property was deposited with MHC Rajeev Kumar (PW-10) in the Malkhana. The statements of the witnesses were recorded and a sample parcel was sent for chemical examination. On receipt of the report of the Chemical Examiner Ex.PW11/H, the challan was presented in the court for trial of the appellant. The appellant was charge-sheeted for the aforesaid offence. He pleaded not guilty and claimed trial. - 4 - To prove its case, prosecution examined its witnesses and the appellant was also examined under Section 313 of the Code of Criminal Procedure. He denied the circumstances, which were found attendant upon him and maintained his innocence. He also disowned Pithu-bag and other articles and denied any recovery from his possession. The appellant was called upon to enter into his defence. He examined DW-1 Roshan Lal, Adda-Incharge of Bus stand Mandi. He stated that on 22nd November, 2004 the bus aforesaid had left the Bus-stand Mandi at 9.30 PM. DW-2 Kulwant Singh was the driver and Madan Lal was its conductor. He produced and proved the extract of duty roster Ex.DA. Kulwant Singh, DW-2 deposed that after leaving the Bus-stand, the bus was only stopped at Ner Chowk. It was never stopped by the police or any other person at Pull Gharat, which is merely half kilometer away from the Bus-stand, Mandi. The learned trial court after hearing the parties and upon going through the evidence on record disbelieved the defence version and convicted and sentenced the appellant, as aforesaid, which has been assailed in this appeal. Sh. G.R. Palsra, learned counsel for the appellant has taken us through the evidence on record and vehemently argued that the evidence of the prosecution - 5 - is full of contradictions and consistencies, which creates a doubt qua the recovery of the alleged offending article. He further urged that the evidence in defence has probablised the case of the appellant and the learned trial court committed material illegality in convicting the appellant. Sh. P.M. Negi, learned Deputy Advocate General, duly assisted by Sh. Ramesh Thakur, learned Assistant Advocate General for the State while supporting the impugned judgment of conviction and sentence, urged that the minor contradictions which have appeared in the statements of the prosecution witnesses do not make the prosecution case a suspect. According to them, the appellant was found in possession of 10 Kgs of Charas and such a huge quantity cannot be said to be a planted one. We have given our thoughtful consideration to the rival contentions of the parties and have carefully reappraised the evidence on record. In fact the essence of the criminal trial is, the legal evidence should only be made the basis for the decision of a criminal case. This implies that the criminal case should be decided on the basis of the legal evidence brought on record thus there is no scope for basing the decision on probabilities, conjectures or surmises. In absence of definite, positive legal reliable - 6 - and unimpeachable evidence, the accused cannot be convicted. On the close scrutiny of evidence on record, we find that the recovery of the alleged contraband from the possession of the appellant could not be proved by the prosecution in accordance with law so as to draw even legal presumption regarding its possession from the accused as envisaged under Section 54 of the Act. We have noticed in evidence certain material contradictions and serious defects, which impel us to take a contrary view to that of the learned trial court. PW-2 Lekh Raj did not support the case of the prosecution at all. He denied the recovery of contraband, as alleged in the prosecution story, from the possession of the appellant. According to him, neither the police met him nor they conducted the search of the appellant in his presence as alleged. He stated that the police took his signatures on some blank papers (Ex.PW-1/A to 1/C) on 23rd November, 2004 at about 11.00 AM in the Police Station itself. He also stated that the police threatened him that they would make it difficult for him to drive his three-wheeler in the Bazar, in case he refused to sign the blank papers. In defence, the appellant had examined DW-1 Roshan Lal, Adda-Incharge. As already stated above, he proved the duty roster of DW-2 Kulwant Singh and further - 7 - stated that on 22nd November, 2004, the said bus had left bus-stand at 9.30 PM. DW-2, Kulwant Singh, testified on oath that on the said date after leaving the bus-stand Mandi he did not stop his bus anywhere in between Mandi and Ner Chowk. He categorically stated that the bus never stopped by the police or by any other person at Pull Gharat as alleged, which is barely ½ kilometer away from bus-stand, Mandi. This causes a dent in the prosecution case. In view of the above facts brought on record, we proceed to examine the statements of the official witnesses closely and with great caution. PW-11, Inspector N.K. Sharma is the star witness of the prosecution, who has allegedly recovered the contraband from the possession of the appellant. He stated that the way appellant boarded the moving bus, he entertained suspicion. The bus was followed and the appellant was de-boarded from the bus at Pull-Gharat and the Charas was recovered from his Pithu-bag Ex.P.1 wrapped in five packets which were in different shapes and the same were taken vide memo Ex.PW-1/A. It is important to note that at that time, neither the Charas was weighed nor its samples were taken and even the alleged contraband was not sealed on the spot. There is a reference in the memo Ex.PW-1/A, which is alleged to have been prepared in the presence of PW-2, Lekh Raj - 8 - and PW-9 Head Constable Gulab Singh that the recovered bulk would be weighed and its samples taken and sent to CTL, Kandaghat for its examination later and also that the N.C.B. forms would also be prepared later. The reason for doing so has not been mentioned therein. Thereafter the Ruka Ex.PW-11/B was sent to the Police Station, Mandi for the registration of the FIR through PW- 9 Head Constable Gulab Singh. The alleged recovery was effected around 9.30 PM on 22nd November, 2004. The FIR was registered in Police Station, Mandi at 11.15 PM on the same day and PW-7 ASI Surinder Kumar, on the registration of case put the endorsement on Ruka at 12 O’ clock during night. It was, thereafter, Head Constable Gulab Singh returned to the spot with the case file. According to him (PW-9), on his return on the way, Inspector/S.H.O. N.K. Sharma alongwith others met him near ITI curve, then all of them came back to Police Station, Sadar. It means that Inspector N.K. Sharma was on the spot w.e.f. 9.30 p.m. till 12 p.m. i.e. for about 2½ hours. The scales and weights were arranged. On reaching the Police Station the Charas was weighed in the Police Station and two samples of 25 grams each were separated and the case property was sealed with seal impression “N”, regarding which the recovery memo Ex.PW-9/A was prepared. On the perusal of the record, we find the very story of the prosecution all the more - 9 - doubtful. The recovery memo Ex.PW-9/A shows that it was prepared in the presence of PW-6 Jagir Singh, police van driver and PW-9 Head Constable Gulab Singh, in Police Station, Mandi. But contrary to this, there is a search memo Ex.PW-1/B allegedly prepared on the spot in the presence of PW-2 Lekh Raj and PW-9 Head Constable Gulab Singh near Pull Gharat at NH-21 on 22nd November, 2004. In its column No.11 there is a reference of taking into possession 10 Kgs. of Charas whereas in column No.13 the details of case property have been given. There is also a reference that two samples of 25 grams each from the recovered stuff were taken on the spot. The case property and samples were sealed with seal impression “N” and the signatures of the witnesses were obtained on each of the packets. Thus, both these documents (Ex.PW-11/B and Ex.PW-9/A) are irreconcilable and present a sorry state of affairs thus raises a grave doubt in the authenticity of the prosecution case. If the samples were taken and sealed in the presence of PWs Lekh Raj and Head Constable Gulab Singh at the spot, i.e., at Pull-Gharat on 22nd November, 2004, then what was the necessity to repeat the same process in the presence of Constable Jagir Singh and Head Constable Gulab Singh in Police Station, that too in the absence of PW-2 Lekh Raj, who according to PW-6 Jagir Singh had accompanied them upto Police Station, - 10 - remains a mystery. Further, if the case property was sealed on the spot with seal “N” then to whom the seal was entrusted. How the same seal was reused in the presence of Police officials and what was the condition of the parcels earlier sealed. Not only this, PW-6 Jagir Singh also stated that the case property was seized and samples were drawn in the presence of Lekh Raj. This adversely reflects the statements of senior Police Officers which create a doubt in their version; therefore, we are unable to accept the correctness of the prosecution case as put forth. The above position apart, the Investigating Officer has admitted that all five packets were having different weights and he did not make its individual inventory. He also did not put any mark or serial number on any of the packets or the samples. He further stated that he did not make the Charas homogenous before taking the samples. Whereas, PW-6 Jagir Singh has another story to tell that the sample specimen was taken directly in Ex.P-10 which was sealed. He did not say about taking the second sample, but stated that the plastic envelope Ex.P.11 contained the specimen of Charas and he could not tell the total number of plastic envelopes containing Charas. His testimony created more confusion than solving the issue. - 11 - Further, PW-9, Head Constable Gulab Singh, in his cross-examination stated that the seizure memo Ex.PW-9/A was prepared within 20 minutes by the Investigating Officer at the spot, whereas it was Ext. PW- 1/A which was allegedly prepared on the spot and not Ext. PW-9/A, which was stated to have been prepared in the Police Station, as per their own case. He further stated that thereafter he was entrusted with a Ruka at 11.00 PM then it is not known to him what the police party did on the spot for 1½ hours. He further materially contradicted the prosecution version that the memo Ex.PW-1/A, which is with respect to the search of the appellant, was prepared in the Police Station, whereas it was stated to have been prepared on the spot, thus his testimony totally demolishes the prosecution case. He also contradicts the Investigating Officer N.K. Sharma aforesaid, who stated that he partly prepared the N.C.B. form on the spot and partly in Police Station, but according to Head Constable Gulab Singh, it was filled in by the Investigating Officer on the spot itself. The perusal of the N.C.B. form Ex.PW-11/D shows that it was filled in on 23rd November, 2004 at one place, in one go and there is also an overwriting on the date of drawl and dispatch of sample against column No.5, which appears to have been made to read “23” in place of “22” November, 2004. PW-10, Head Constable - 12 - Rajeev Kumar, the then MHC stated that the case property was deposited by SHO N.K. Sharma with him on 22nd November, 2004 and the sample for its analysis was handed over to Constable Narain Singh to deposit the same with CTL, Kandaghat on 25th November, 2004. If it was so, then why in column No.5 of the N.C.B. form, the date of drawl was given as 23rd November, 2004, also remained unexplained. Further, the story of obtaining the scales and weights having been obtained from the shop of PW-1 Sushil Kumar is also not free from doubt. Although, in examination-in-chief Sushil Kumar stated that during the night at about 12.00 O’clock Constable Jagir Singh came to his shop and demanded scales and weights, whereupon he handed over the scales and weights from 50 grams to 5 Kgs., which were returned by him on the next day, but in cross-examination he materially contradicted himself. He admitted that on 22nd November, 2004 around 5/6.00 PM he had gone to his home because it was cold and came to his shop on the next day at 12.00 noon when the scales and weights were returned to him. He further stated that scales and weights were taken by the police in his absence from his servant. Thus no reliance can be put on his version. On scanning the evidence of the prosecution and in the light of the observations made hereinabove by us, - 13 - the case of the prosecution is found to be full of material contradictions and inconsistencies, thus not worth inspiring confidence. The recovery of the alleged contraband is not proved from the possession of the appellant in accordance with law, as such, the judgment of conviction and sentence passed by the trial court cannot be upheld, therefore, set aside. In result, the appeal filed by the appellant is allowed. The appellant is acquitted by giving him the benefit of reasonable doubt. He is presently in jail, undergoing the sentence, he be set at liberty forthwith, if not required in any other case. The fine amount, if any, deposited be refunded to him. The Registry of this Court is directed to take immediate appropriate steps for his release, in conformity with this judgment. The case property, i.e. the Charas be and is hereby confiscated to the State of HP and Pithu- bag, Ex.P.1, two jean pants and one jacket, Exs. P-2 to P-4 not claimed by the appellant be destroyed. The records of the Trial court be returned with an authenticated copy of this judgment. (Surjit Singh) Judge (Surinder Singh), Judge. October 7th, 2009. (Pds/rc) - 14 -