1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Criminal Appeal No. 558/2001 Date of Decision: 5th May, 2011. State of H.P. …..Appellant. Versus Damodar Dass …..Respondent. Coram: The Hon’ble Mr. Justice R.B Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. R.K Sharma, Senior Addl. Advocate General with Mr. Rajinder Dogra, Addl. Advocate General. For the Respondent: Mr. Abhishek Sood, amicus curiae. Sanjay Karol, J. (Oral). Accused Damodar Dass stands acquitted for having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘NDPS Act’). 2. It is the case of the prosecution that ASI Chunni Lal (PW-9) was on routine patrol duty along with Head Constable Rajesh Kumar, Constable Mani Ram, Constable Anil Kumar and LHC Devi Singh at Pandoh Dam on 18-11-1987. They had checked 3/4 buses and when bus bearing No. HP-34-1146 reached it was stopped. Police party entered the bus and spotted the accused 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 sitting on seat No. 39. He was holding a bag (Ex. P-1) which smelled like CHARAS a contraband substance. The bag was kept on his legs and concealed by him with his hands. Driver Sh. Kanshi(PW-2) and the conductor Sh. Hitesh Kumar (PW-1) were called and the accused questioned, who disclosed his name to be Damodar Dass. The accused was informed about the suspicion of carrying a contraband substance and consequently his consent for being searched before the Magistrate, Gazetted Officer or the police official was sought vide consent memo Ex. PW-2/A. Accused offered himself to be searched by the police official present at the spot. From the bag, 241 sticks of contraband substance (CHARAS) were recovered. The raiding party alighted from the bus. Constable Anil Kumar(PW-4) was sent to get the scales from the nearby place. After receiving the scales the contraband substance was weighed which was found to be 1 Kg, 650 grams. Two samples of 25 grams each were taken by PW-9 and sealed with five seals bearing impression ‘A’. The remaining bulk parcel was sealed and sealed with six seals bearing impression ‘A’. The seal was handed over to PW-2. The accused was arrested on the spot after being informed of his involvement in the alleged crime. The recovered samples were deposited by PW-9 in the Police Station, Sadar and certificate Ex. PW-8/B obtained. According to PW-9, SHO Police Station, Sadar put his seal bearing impression ‘H’ on the sealed parcels. The sample sealed parcels were sent to Forensic Science Laboratory for analysis and report Ex. PP obtained. On the spot, statements of witnesses were recorded and necessary papers 3 prepared. With the completion of investigation, challan was presented in the Court for trial. 3. Accused was charged for having committed an offence punishable under Section 20 of the NDPS Act to which he did not plead guilty and claimed trial. 4. In order to prove its case prosecution examined nine witnesses and statement of the accused under Section 313 of Cr. P.C was also recorded. Upon careful scrutiny of material and appreciation of evidence led by the parties, the accused stands acquitted by the Court below, in terms of impugned judgment. Hence, the present appeal. 5. Out of 9 witnesses, the relevant testimonies are that of Sh. Hitesh Kumar (PW-1), Sh. Kanshi Ram (PW-2), Sh. Kehar Singh (PW-3), C. Anil Kumar (PW-4), H.C Rajesh Kumar (PW- 8) and ASI Chunni Lal (PW-9). All others are formal witnesses. 6. PW-1, PW-2 and PW-3 are independent witnesses to the recovery of the contraband substance. These witnesses have not supported the prosecution case at all. They were declared hostile and inspite of extensive cross-examination, nothing fruitful could be elicited from their testimonies. PW-1 categorically states that one bag was lying on seat No. 39 and police asked to whom the same belonged to. He could not hear what the accused upon questioning by the police said. Significantly, this witness has not been cross-examined on this point. In cross-examination, this witness categorically states that he was not aware to whom the bag belonged to. However the version given by the driver is to the 4 same effect. Both these witnesses state that police had threatened them to sign the papers lest their bus be impounded and passengers harassed. It is for this reason that they signed the papers on the spot. 7. PW-3, no doubt supports the prosecution with regard to recovery of the charas in the bus. But however, he does not state that the same was recovered from the exclusive and conscious possession of the accused. Further, he was not sure whether the recovered charas was of 2 Kg or 1 kg. This witness further states, on which there is no cross-examination, that there were several passengers sitting in the bus and the bag could belong to any of them. 8. Hence, independent witnesses have not supported the prosecution at all. But however, it does not mean that the prosecution case is to be thrown out on this ground alone. It is a settled position of law that if the statement of police officials, otherwise inspires confidence, then they can be looked into and relied upon to prove the guilt of the accused. 9. In the facts and circumstances of the case, we find that not only prosecution has not been able to prove, beyond reasonable doubt, the link evidence but in fact the statements of police officials being contradictory otherwise does not inspire confidence. 10. According to PW-9, some of the papers pertaining to the search, recovery and arrest were prepared inside the bus, whereas according to PW-8, all papers were prepared outside the 5 bus on the table laid-down for this purpose. They were prepared in the light coming from the dam. That apart, according to PW-9 there was no other person sitting on seat No. 39 whereas according to PW-8 there was another person sitting along with accused on the said seat. The contradiction is thus material raising a doubt about the prosecution case. 11. Further, it has come in the version of PW-8 that first charas was recovered and then all the papers were drawn. If this was so, then obviously, statement of PW-9 is false, according to whom the accused was suspected of carrying charas and before the search was carried out, his written consent for search was obtained after issuance of proper notice. 12. We also find that there is no link evidence on record. PW-9 states that he had affixed five impressions of seal ‘A’ on the samples. He further states that the SHO, Police Station Sadar had also re-sealed the said sample with seal impression ‘H’. SHO, P.S Sadar has not been examined in the Court and the report of FSL (Ex. PP) does not state the number of seal impressions found on the samples. From Ex. PP, it is also apparent that there is no facsimile seal on the NCB form. Now who took the samples from the Malkhana and deposited the same in the Laboratory has not come on record. It is also not apparent from the record that NCB form was filled up on the spot. The possession of samples being tempered with both in the Malkhana and on way to the Laboratory cannot be ruled out. Prosecution has not been able to place on 6 record the Malkhana register and the road certificate. All this renders the prosecution case to be extremely doubtful. 13. Thus, for all the aforesaid reasons, we find that prosecution has not been able to prove its case beyond reasonable doubt. 14. The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the persons had resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bond, if any, furnished by the accused stands discharged. (R.B Misra), Judge. (Sanjay Karol),Judge. May 5, 2011 (Priti)