IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.123 of 2000 Date of decision:23.9.2010 State of H.P. ... Appellant Versus Tara Devi … Respondent Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr.Vivek Singh Thakur, Additional Advocate General. For the respondent: Mr.Dharamvir Sharma, Advocate. ____________________________________________________________ Deepak Gupta, J (Oral). This appeal by the State is directed against the judgment dated 30.11.1999 passed by the learned Sessions Judge, Mandi in Sessions Trial No.9 of 1999, whereby he acquitted the accused of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act). The prosecution case, in brief, is that on 18th January, 1999, PW-5 ASI Neel Chand along with Head Constables Krishan Chand and Bansi Lal were present at Aut Bazaar in 1Whether reporters of Local Papers may be allowed to see the judgment? Yes 2 connection with investigation of another case arising out of FIR No.5 of 1999. They were waiting for a bus. In the meantime, the accused came towards the bus stand from Mandi side. On seeing the police officials she got perplexed and tried to run away. This behaviour aroused the suspicion of the police officials. Therefore, the accused was apprehended and on inquiry she disclosed that her name was Tara Devi. It is alleged that she was carrying a bag underneath her arms. PW-5 Neel Chand associated two independent witnesses PW-1 Dina Nath and PW-3 Inder Arora and notice Ext.PW-1/B was issued to the accused seeking her option whether she wanted to be searched by the police officials or to some lady or to some Gazetted officer. It is further alleged that first the accused wrote the words “Main Tara Devi” and then stated that she could not write. Thereafter, PW-5 associated PW-4 Devinder Kumar who wrote portion X to X of document Ext.PW-1/B whereby the accused agreed to give her search to some lady before the police officials. On going through the original document, it is apparent that there is an interpolation in the same because there is one line added at the end in which the 3 accused has agreed to give her search before the SHO. This line is not in the same handwriting as the rest of the alleged writing made by Devinder Kumar. It is also apparent that this writing is different and written with a different pen and ink. To the naked eye itself this is a case of interpolation. Since, no lady was available, according to PW-5, he took the accused to the Police Station and produced her before PW-8 Vidya Dhar who at the relevant time was posted as SHO Aut. The lady was made to sit on a bench and PW-2 Meera Devi who is the wife of a constable was called from the neighbouring official police accommodation. The accused agreed to be searched by Meera Devi and when Meera Devi opened the bag being carried by the accused she found that in the bag there was a polythene bag which contained charas. According to her, there were three polythene packets, one containing 460 gms. of charas, second 500 gms. and third containing 504 gms. of charas. The weighing scales, according to PW-8 were arranged by Bansi Lal and charas was weighed. Two samples of 25 gms. each were drawn from each of the polythene bags i.e. six samples in all. Thereafter, these six samples along with bulk charas 4 were packed separately with seal ‘A’. Recovery memo Ext.PW-1/A was prepared. The accused was informed of her grounds of arrest vide memo Ext.PW-8/A. Spot map was prepared. Other codal formalities were completed. A special report Ext.Z/1 was prepared and sent to Dy.S.P. Thereafter, three samples were sent to CTL Kandaghat and after analysis it was found that all the three samples were of charas. On the basis of this material, the accused was challaned for having committed an offence punishable under Section 20 of the NDPS Act. The learned trial Court acquitted the accused on two grounds; firstly that the police had failed to prove the recovery beyond doubt and secondly that the provisions of Section 50 of the Act had not been complied with. As far as the second ground is concerned, in our considered view the provisions of Section 50 of the Act are not attracted in the present case. The law is now well settled that Section 50 will only be applicable in case of personal search and in case of search of a bag the provisions of Section 50 cannot be invoked. Reference may be made to the decision of the Apex court in State of H.P. vs. Pawan Kumar, Latest HLJ 2004 (SC) 1247. 5 The only question which needs to be decided is whether the Court below was justified in holding that the recovery had not been proved. As pointed out above, other than Meera Devi who is the wife of a constable, none of the other independent witnesses supported the prosecution case. According to PW-1 Dina Nath and PW- 3 Inder Arora they were never called by PW-5 to the spot where the accused was apprehended. Their version is that they were only called to the Police Station and by that time charas had already been recovered and they were only made to sign the documents. PW-4 Devinder Kumar has also not supported the prosecution. Though he admitted that he had scribed the portion X to X of document Ext.PW-1/B, according to him this was not scribed at the instance of the accused but he wrote down whatever was told to him by the police officials. It has been urged on behalf of the State that merely because the independent witnesses have turned hostile, the accused cannot be acquitted. There can be no quarrel with this proposition of law. By now the law is well settled that even if independent witnesses turn hostile but the statement of the police officials are consistent and inspire confidence, the conviction of the accused can be 6 based on the testimony of the official witnesses. The official witnesses are as good witnesses as any other witnesses. But if there are inconsistencies or certain matters remain unexplained in the testimony of the official witnesses, benefit of doubt must go to the accused. In the present case, according to the prosecution accused was apprehended near the bus stand. PW-1 and PW-3 were called by PW-5. They were associated as independent witnesses. If that be so, we fail to understand why PW-4 was called to scribe the alleged statement of the accused expressing her willingness to be searched by a lady in presence of the police party. This by itself shows that in all probability PWs 1 & 3 were not present. In case they were present there was no need of calling Devinder Kumar PW-4 to scribe portion X to X on document Ext.PW- 1/B. According to PW-5 he was accompanied by Head Constables Bansi Lal and Krishan Chand when the accused was apprehended. Once independent witnesses turned hostile it was incumbent upon the prosecution to examine at least one of these head constables and not merely ASI Neel Chand. Once independent witnesses turn hostile then it is the duty of 7 the prosecution to produce and examine the members of the police party to prove its case. In this case, there is another reason why these witnesses should have been examined. Admittedly, the accused was taken from the place from where she was apprehended to the police station. Positive evidence had to be led by the police that during this period the bag being carried by the prosecutrix was not tampered with and no material was placed in the bag nor there was any chance during this time for anything to be introduced in the bag. None of the prosecution witnesses has spoken a word in this regard. All that is stated is that the accused was taken from the place where she was apprehended to the police station. There is no whisper that the bag was not tampered with or kept in such a manner that nothing could be introduced in the bag during this period. Even the distance from the place of occurrence to the police station has not been mentioned by any of the witnesses. PWs 1, 3 and 4 are totally silent in this regard and though they have been cross examined by the Public Prosecutor, after being declared hostile, no suggestion had to be put to them that they accompanied the accused from the 8 place of occurrence till the Police Station and during this period the bag could not be tampered with. According to PW-8 SHO Vidya Dhar the accused had placed the bag on the bench by her side outside the police station. PW-2 Meera Devi states that the bag was in the lap of the accused and she was holding it with her hand. This is another contradiction in the prosecution case. In a case under the NDPS Act once possession is proved in terms of Section 35 of the Act mens rea is not required to be proved. Virtually burden shifts on the accused to explain how he or she was in possession of the contraband. The provisions of this Act also lay down very strict penalties. In such circumstances, the prosecution must prove beyond shadow of doubt that the recovery is made in the manner alleged by it. In view of the discussion made hereinabove it is apparent that there are glaring holes and missing links in the story of the prosecution and therefore, the learned trial Court was fully justified in acquitting the accused. We, therefore, find no merit in the appeal which is 9 accordingly dismissed. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ), J. September 23, 2010 ( Sanjay Karol ), J. PV