1 HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 409 of 2002 Decided on August 4, 2011 State of H.P. …Appellant. VERSUS Mohan Lal & anr ….Respondents. 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. Addl. AG with Mr. Rajinder Dogra, Addl. AG For the respondents: Mr. Inderjeet Singh, Advocate. R.B.Misra, Judge (Oral) 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 15.1.2001 passed by learned Sessions Judge, Kullu, HP in Sessions Trial No. 72/2001, thereby acquitting the respondents / accused for the offence under Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985 ( in short called ‘NDPS Act’) 2. The prosecution case is that in the evening of 24.4.2001, ASI Vikas (PW-8), accompanied by HC Narayan Singh (PW-6), HC Harbans Lal, C. Vijay Kumar, C. Tek Chand (PW-5), C. Whether the reporters of the local papers maybe allowed to see the judgment? 2 Kehar Singh, C. Pune Ram and SI/SHO Sanjay Kumar (PW-7), for traffic checking, left police station, Banjar and went towards Gara Gushani side. On 25.4.2001, in the morning at 4.45 am ASI Vikas had laid Naka. At that time, SHO Sanjay Kumar along with certain police officials went to some other place for laying Naka. Around 5.45 a.m, both the accused carrying a bag each were noticed coming from Gara Gushani side, however, on seeing police, they turned back and started walking briskly. They were stopped and on suspicion bags carried by them were checked. Mohan Lal was found carrying two kgs ‘Charas’ wrapped in polythene packet. Another accused was found carrying one Kg ‘Charas’ wrapped in polythene packet. Out of the recovered ‘Charas’ from both accused, three samples of 25 grams each were taken, packed and sealed in separate packets. All the six sample packets were sealed with seal ‘H’. Remaining ‘Charas’ along with bags was separately packed in two packets, which was also sealed with seal ‘H’. Seizure memos Ex PW-4/A and PW-4/B were prepared. Investigation was made and accused/respondents were charged for the aforesaid offence. 3. In order to prove its case, prosecution has examined as many as eight prosecution witnesses, whereas, through their statements under Section 313 Cr.P.C, accused/ respondents denied the prosecution case. 4. (PW-7) Sanjay Kumar, in his endeavour to support the prosecution case has stated that at about 7.20 AM on 26.4.2001, HC Narain Singh came to him at Percha and apprized him that ASI Vikas has apprehended two persons with ‘Charas’. PW- 7 went to the spot. ASI Vikas produced before him six small packets 3 and two bigger packets sealed with seal ‘H’ along with ‘NCB Forms’. PW-7 resealed all the packets with seal impression ‘A’. He had also put seal impression on ‘NCB Forms’. PW-7 further stated in cross- examination that from Banjar upto the place of naka, they were making traffic checking. Prior to Bahu no specific naka was laid and first naka was laid at a distance of about 7 Kms from Babu towards Gara Gushani where he reached at 5.45 AM. PW-7 came back to place called Percha and remaining naka party remained on the spot. HC Harbans, Constable Tek Chand and one more constable came back on official vehicle. At the place of naka, PW-7 remained for 2-3 minutes and then came back to Perch and on receiving message of ASI Vikas through HC Narain, he went to the spot at about 8.00 AM. PW-7 when reached the spot, ASI Vikas had already sealed ‘Charas’ packets and samples. PW-7 remained on the spot for about one hour and started at 9.00 AM from there and reached Banjar at about 4.00 P.M. Vikas ASI had already sent ruqa report. Case property was deposited by PW-7 to HMC at 4.00 PM. 5. (PW-8) ASI Vikas has stated that on 24.4.2001 he along with HC Narain Singh, HC Harbans Lal, Constable Vijay Kumar, Tek Chand, Kehar Singh and SHO Sanjay Kumar and constable Pune Ram left police station to Banjar for traffic checking and went towards Gara Gushani side. On 25.4.2001 at 5.45 AM they were at Dimberchahari, where naka was laid. After getting direction by SHO, PW-8 himself along with Tek Chand and Kehar Singh HC Harbans left the place. At about 5.45 AM, police party noticed two persons coming from Gara Gushani side, carrying gunny bags. However, seeing police personnel, both the accused, turned 4 back and started brisk walk, however, they were over powered and after fulfilling procedural formalities, ‘Charas’ was recovered. Thereafter, from the spot, PW-8 sent HC Narain Singh towards Bahu to intimate SHO Sanjay Kumar, who came to the spot where case property was entrusted to him. SHO resealed the case property with his own seal and also affixed seal impression and put signature on ‘NBC Form’. During investigation, copy of special report Ex PW-2/A, copy of daily diary Ex PW-3/B, copy of RC PW-3/C and Malkhana entry Ex PW-3/A were taken and on receipt of chemical report, the filed was handed over to ASI Narain Singh. PW-8 has stated in cross- examination that they left station on 24.4.2001 and on way stopped for the purpose of traffic checking. In between, no naka was laid prior to reaching Dimberchahri. (PW-1) constable Sunil Kumar has stated that Sandip Kumar handed over to him two sealed parcels sealed with seal ‘H’ and ‘A’ along with samples seals, ‘NCB Form’ which he took to CTL Kandaghat vide RC No. 28/2001 and on 27.4.2001 he deposited the same at CTL, Kandaghat and receipt was handed over to HMC. (PW-2) Constable Alam Gir has stated that he was posted as Reader to Addl. SP. On 26.4.2001 SP Kullu gave him special report of the case about which he made entry in register at serial No. 40. (PW-3) HC Sandip Kumar has stated that he was officiating as MHC and on 25.4.2001 SI Sanjay Kumar SHO deposited in Malkhana eight sealed parcels, six ‘NCB Forms’ parcels were sealed with seals ‘A’ and ‘H’ respectively. Seizure memo and copy of FIR were also deposited for sending with sample to CTL, Kandaghat. (PW-4) Pune Ram, posted HC at PS Banjar, has stated that on 25.4.2001 at 6.45 AM, two persons were seen coming from 5 Gara Gushani towards Mohni side and from whom accused, polythene bags of different colours were recovered, out of which ‘Charas’ was taken out and other formalities were made. 6. On analysis of the prosecution witnesses and materials on record nothing is emanating that any endeavour was made on the part of the police party to associate any independent witness. Ruqa Ex PW-8/A reveals that the entire policy party left police station, Banjar and when reached 7 Kms ahead of village Bahu, at Dimber Chahri both accused were noticed coming at 5.45 am carrying gunny bags from whom, on checking, recovery of ‘Charas’ was made. The initial story as made out from ruqa is that the entire police party was present there, where as narration of PW- 4 Pune Ram also reflects that entire police party was present when accused apprehended. However, in cross-examination, it was indicated that police personnel reached the place of naka at Dimber Chahri at 8.00 pm on 24.4.2001 and next morning accused were apprehended, carrying bags containing ‘Charas’. At another stage, PW-4 has stated that SHO after putting them on Naka himself left to village Bahu on the night of 24.4.2001 and next day came to the spot at 12.00 noon and by that time, empowered officer had completed proceedings and were to return to police station, Banjar. PW-4 came to police station, Banjar along with SHO. 7. We notice that in cross examination, PW-4 has made inconsistent narration about leaving of place of naka by SHO on the night of 24.4.2001, whereas, as per FIR Ex PW-8/A recovery was effected in presence of SHO and entire police party. Prosecution witnesses reveal that SHO Sanjay Kumar PW-7 was present when 6 ‘Charas’ in question was recovered from the bags at 5.45 am on 25.4.2001, whereas PW-7 Sanjay Kumar, SI/SHO and PW-8 ASI Vikas indicated different story. According to Sanjay Kumar, PW-7, all of them went from police station, Banjar and went towards Bahu and then Gara Gushani side. PW-7 further stated that at 4.45 am ASI Vikas and party was left by him for Naka seven Kms ahead of Bahu towards Gara Gushani and himself came back to Percha for laying naka. At 7.20 am Narayan Singh, HC intimated him of recovery of ‘Charas from the accused by ASI Vikas. Then, PW-7 visited the spot where case property was produced to him and he resealed the same. PW=7 stated that HC Harbans, constable Tek Chand and another constable came back to Percha for laying second nakka. Such aspects indicate that constable Tek Chand was not present when accused were apprehended and ‘Charas’ was recovered from the accused. We also take note of the fact by the admission of PW- 8/ASI Vikas when he stated that SHO Sanjay Kumar along with constable Tek Chand, constable Kehar Singh and HC Harbans Lal left the place of Naka at Dimber chahri. This means that Tek Chand was not present when the accused were apprehended and ‘Charas’ was recovered, whereas PW-4 in his statement stated in the manner as if everything has happened in his presence. 8. The above testimonies reveal that either Tek Chand was deposing falsely or two witnesses have taken different stand as Sanjay Kumar PW-7 stated that after getting information of recovery of ‘Charas’ by ASI Vikas from the accused, reached the spot at 8.00 a.m and when he reached the spot, ASI Vikas according to his narration had already sealed ‘Charas’ packet and sample packets, 7 memos were already prepared and ruqa had already been sent by ASI Vikas, before his reaching the spot. ASI Vikas had given different narration about the incident. As narrated by ASI Vikas, police party reached Dimber Chahri at 7.45 p.m and SHO himself also remained at the place of naka till 5.45 a.m when PW-8 left Dimber Chahri. After 10-15 minutes of the departure of SHO both accused were noticed carrying ‘charas’. Resultantly, all the three witnesses appear to have taken different stand qua the time when SHO and party left the place of Naka at Dimber Chahri. ASI Vikas (PW-8) had very categorically stated that when Sanjay Kumar (PW- 7) on getting information reached the spot at about 7.30 p.m., PW-8 had already prepared the packets and ruqa when PW-7 arrived. Prosecution witnesses have indicated different versions about the place of naka laid at Dimber Chahri and also at other places. PW-5 constable Tek Chand stated that before laying naka at Dimber Chahri, it was laid at 3-4 places earlier, whereas PW-4 Pune Ram stated that they straightway went to the place of naka without putting naka at other places. Sanay Kumar has very categorically stated that no naka was laid at other places. 9. We find above contradictions, inconsistencies and the testimonies of police officials are not in conformity with each other and as such is not inspiring confidence. 10. On the close scrutiny of the prosecution witnesses and materials on record, it appears that the incident had not taken place in the manner as suggested by the prosecution. In the absence of corroboration of the prosecution witnesses and non 8 association of independent witnesses, the sole testimony of police officials is not sufficient to prove the prosecution case. 11. Therefore, in our considered view, the prosecution has miserably failed to prove its case beyond reasonable doubt and has failed to bring home guilt to the accused. We find no scope for interference in the impugned judgment of the trial court. The criminal appeal, being devoid of merit, is accordingly dismissed. 8. Bail bonds, furnished by the accused/ respondents, are hereby discharged. ( R.B.Misra ), J. 4th August, 2011 (Dev Darshan Sud), J. (sl)