IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 429 of 2002 Date of Decision : July _28_ , 2011 State of Himachal Pradesh Appellant Versus Jagdish Kumar Respondent Coram: The Hon’ble Mr. Justice R. B. Misra, Judge The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 For the appellant : Mr. R. K. Sharma, Senior Addl. Advocate General for the appellant/State. For the respondent : Mr. G. R. Palsra, Advocate, for the respondent. Justice R. B. Misra, J. (Oral) The present criminal appeal has come up for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted in reference to the impugned judgment dated 18.1.2002 passed by the learned Addl. Sessions Judge, Mandi, H.P., in Sessions Trial No. 14 of 2001 acquitting the respondent/accused for offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, Whether reports of Local Papers may be allowed to see the judgment? 2 1985 (in short the ‘NDPS Act’) in reference to F.I.R. No. 65/2001 dated 1.2.2001, Police Station, Balh, District Mandi, H.P. 2. The prosecution case in brief is that on 1.2.2001 at about 7.40 a.m. HC-Bhupinder Pal, Investigating Officer, along with HC Joginder Pal and Const. Rajesh Kumar and Rakesh Kumar while on patrol duty at village Kummi received a secret information that a passenger bus belonging to Chandan Travels bearing registration No. HP-33-3375 is coming from Rajgarh to Mandi in which one of the passengers wearing a blue coloured jacket was carrying contraband articles. HC-Bhupinder Pal Singh (PW-5) sent such intimation/Ext. PD to his superior officer Additional Superintendent of Police, Mandi and he along with other police officials proceeded towards Beura Chowk and laid a Naaka. The said bus when arrived near Beura Chowk at about 8.10 a.m., was stopped, in which accused wearing a blue jacket sitting on seat No. 20 was inquired and written option/Ext. PA was taken from him about the search and after obtaining his consent, the bag carried by him was searched in presence of Sita Ram /(PW-2)/driver of the said bus and Vishnu Ram conductor of the bus (not examined). On search, a polythene envelop was taken out containing charas in the shape of sticks from the black and purple bag having yellow strips and on weighment 440 grams of charas was seized. Out of it two samples of 10 grams each were taken out separately and the remaining 420 grams of charas was sealed in separate parcel and the sample and the bulk were 3 sealed with seal impression-‘T’. Ruka/Ext. PE was sent to Police Station Balh by PW-5 through HC-Joginder Pal (PW-1) at about 9.45 a.m. and in that reference a formal F.I.R./ Ext. PF was registered. ASI-Ram Lal /(PW-9) carried out the investigation after visiting the spot and prepared special report Ext. PH and sent the same to Superintendent of Police, Mandi on 2.2.2001 which was received to the office of the Addl. Superintendent of Police on 2.2.2001 at about 6.30 p.m. The case property was kept at the police station. One sample along with seal impressions ‘T’ and ‘L’ was sent to the chemical examiner in sealed condition along with NCB- Form /Ext. PJ for chemical analysis. After investigation accused/respondent was charged for the aforesaid offence. 3. In order to prove its case prosecution examined as many as nine witnesses and the statement of the accused under Section 313 Cr. P.C. was recorded in which he denied the prosecution case. 4. PW-1 HC-Joginder Pal in his endeavour to support the prosecution case has stated that the accused sitting in the bus wearing a dark blue jacket was asked to get down from the bus along with his luggage. The accused came down from the bus with bag of black and purple colour with yellow strips. One Sh. Bali Ram was called from the nearby shop along with the driver and conductor of the bus and in presence of HC-Bhupinder Pal, option was given to the accused regarding search and after obtaining 4 consent in writing search of the bag carried by the accused was conducted from which a golden purse was taken out from which, a polythene packet was kept from which charas in the shape of billets were found and weights and measures were arranged by Bali Ram and on weighment 440 grams charas was found. After taking out two samples the bulk was kept separately and seal impression-T was put on each sample and bulk. Recovery memo /Ext. PB was signed by the accused, Bali Ram and the driver and conductor of the bus. PW-1 also brought Ruka to the Police Station and the same was handed over to ASI-Ram Lal and came back to the spot along with ASI-Ram Lal after registration of the F.I.R.. PW-1 in cross- examination has endeavoured to reiterate the statement made in the examination-in-chief that all the police officials had received the secret information at village Kummi at about 7.30 – 8.00 a.m. on 1.2.2001 and all the four police officials including PW-1 went to Beura Chowk, however, such secret information was not put into writing. PW-1 also stated in cross examination that many houses are on both the side of the road from Kummi to Beura Chowk and nearly 500 to 700 persons reside there. PW-1, self stated that 2 – 3 houses are there at Beura Chowk. As stated by PW-1 in cross- examination the police officials reached at Beura Chowk at about 8.00 a.m. and the raiding party at Beura Chowk was formed where Bali Ram was associated who had been running a petty shop of karyana and tea-stall. The shop of Bali Ram was located at a distance of half kilometer from Beura Chowk towards Kummi, 5 however, HC-Bhupinder Pal had sent a constable to call witness Bali Ram from his shop. At the relevant time seven – eight passengers were travelling in the said bus in question and passengers were asked to join investigation, however, they refused. PW-1 further stated that police party remained at Beura Chowk till 12.00 – 12.30 noon and the bus was stationed there. PW-1 further stated that he did not remember whether the parcels were signed by the witnesses or not. 5. PW-2/Sita Ram working as a driver said to have been associated in search and seizure has stated that the police started checking the bus and all the passengers got down from the bus and he remained in the bus, however, he was not aware from where the police recovered the bag. He further stated in cross-examination that PW-2 along with conductor also got down of the bus along with the police officials and after getting down from the bus Bali Ram was also summoned. PW-2 was declared hostile, however, in cross- examination he has stated that separate seal impression was taken on a cloth Ext. PC and the seal impression Ext. PC was also signed by PW-2 and the conductor. The seal after use was handed over to PW-2 who stated in cross examination that after completion of all the formalities ruka was sent through HC-Joginder Pal and after some time HC-Joginder Pal came back with ASI-Ram Lal and a sealed parcel sealed with seal impression-L was produced in the Court and after opening the sealed parcel sealed with seal impression-L, a sealed parcel with seal impression-T was brought 6 out. PW-2 further stated that bus being driven by him was 30 seater and it was full to its capacity and rather it was over loaded. PW-2 has very categorically stated in cross-examination that he did not know who is owner of the bag Ext. P3, as no passengers was asked to stay by the police officials and as stated by PW-2, there are 20 – 25 houses near Beura Chowk and shop of Bali Ram is situated at a distance of half a kilometer from Beura Chowk who came within 15 minutes. PW-2 has also stated that accused denied having ownership of Ext. P3 initially, however, after some time as the police started harassing the accused then he admitted that the bag belonged to him. Again stated that police did not harass him and did not beat him. 6. PW-3 Constable Suram Singh was handed over on 5.2.2001 one sample parcel by MHC Shyam Lal sealed with seal impression-L for depositing the same with C.T.L. Kandaghat which PW-3 deposited in C.T.L. Kandaghat. PW-3 further stated in cross- examination that the MHC had handed over to him only one sample parcel to be deposited in the C.T.L. Kandaghat. 7. PW-4 Rakesh Kumar while posting as Constable at Police Station, Balh had received the special report for handing over to Addl. S.P. Mandi, which he handed over at the residence at 6.30 p.m. to Addl. S.P.. PW-4 has very categorically stated in cross- examination that he was present in the police station on 1.2.2001 throughout the day. As per the testimony of PW-4 if he was present 7 throughout the day at the police station then he cannot be said to have been associated with the raiding party and cannot be said to have been participated in the Naaka party as has been claimed by PW-1. 8. PW-5 HC-Bhupinder Singh, who too has stated that on 1.2.2001 he along with HC Joginder Pal and constables Rajesh Kumar and Rakesh were present at Kummi at about 7.30 a.m. on patrol duty where the police party received a secret information that the accused is coming in a private bus from Rajgarh to Mandi who is suspected to carry contraband item. The informant also gave identification of the accused that the accused was wearing a jacket and had sufficient beard. PW-5 immediately sent intimation/information Ext. PD to this effect to the Addl. S.P. , Mandi through constable Rakesh Kumar in writing. PW-5 along with HC- Joginder Pal and constable Rajesh Kumar placed Naaka at Beura Chowk and waited for the arrival of the bus when arrived at 8.10 a.m. was stopped and the driver and the conductor were associated. Accused was carrying a bag. PW-5 intimated him verbally inside the bus that he was suspected of carrying charas and his consent was obtained regarding the search, however, written consent of the accused was obtained in the bus. PW-5 stated in cross-examination that on agreeing by the accused that he was ready to give search to PW-5, the accused along with his luggage was taken out of the bus and he was carrying bag Ext. P3 with him and accordingly document Ext. PA was prepared by PW-5 in presence of HC-Joginder 8 Pal and constable Rajesh Kumar and the driver and conductor of the bus. Document Ext. PA and marked portion-A was scribed in presence of witnesses Vishnu Ram and Sita Ram both put their signatures on Ext. PA and another witness Bali Ram was also summoned to the spot and bag Ext. P3 was taken out from the bus by the accused himself. PW-5 has further stated in cross- examination that the secret information was given to him verbally. The original of the intimation sent by PW-5 from the spot to the Addl. S.P. was not kept in the file. PW-5 also stated that he had asked the passengers to wait but as they were in a hurry they left the spot. PW-5 further very categorically stated that he verbally told to the accused when he was in the bus and the option of search was prepared in the bus and consent of the accused was taken in the bus. At that time the driver and the conductor were also present and Bali Ram was also present. 9. As per the testimony of PW-5 it appears that constable Rakesh was present with the patrolling party, whereas, contrary to the statement of PW-4 Rakesh Kumar, that he was all along present on 1.2.2001 at the police station. As per the testimony of PW-5 though the secret information Ext. PD was verbally received to him, however, same was sent through constable Rakesh Kumar to the Addl. S.P. As per the testimony of PW-4/constable Rakesh Kumar, when he was present only at the police station then how the secret information Ext. PD could have been sent to the Addl. S.P. in view of the testimony of PW-5 Bhupender Singh. As per the testimony of 9 PW-5 the driver and the conductor of the bus were associated and consent of the accused was obtained in the bus and Bali Ram was summoned to the spot and bag Ext. P3 was taken from the bus by the accused himself, whereas, as per the testimony of PW-1 Bali Ram was called at the spot and was present along with the driver and the conductor of the bus and Bali Ram had reached Beura Chowk prior to the arrival of the bus. As per the testimony of PW-1 raiding party had associated witness Bali Ram prior to the arrival of the bus, whereas, as per the testimony of PW-5 witness Bali Ram was called subsequently, however, surprisingly Bali Ram who had arranged weights and measures as per the testimony of PW-1 had not been examined. As per the testimony of PW-1 seven – eight passengers were travelling in the bus in question whereas as per the testimony of PW-2 Sita Ram the bus was of capacity of 30 and it was full and rather it was over loaded. PW-2 has stated that he did not know from whom the police had recovered the bag. As per the testimony of PW-1 the secret information was not put into writing at Kummi, whereas, PW-5 has very categorically stated that the secret information was sent through PW-4 constable Rakesh Kumar to Addl. S.P., Mandi. Such contradictions make the presence of PW-4 constable Rakesh Kumar on the spot doubtful. By non-examination of Bali Ram it could not be indicated from where the weights and measures and scales were arranged and the specific statement of PW-1 made in cross-examination that the secret information was not put into writing at Kummi indicate that the compliance of Section 42 10 of the ‘NDPS Act’ was also not complied with. In view of the testimony of PW-3/constable Suram Singh he had deposited one sealed parcel with impression-L at C.T.L. Kandaghat, however, nothing is known that who had resealed the sample at the police station. PW-4 Const. Rakesh Kumar claimed to be present in the police station on 1.2.2001 throughout the day had not whispered about receiving of samples and resealing of the same by the S.H.O.. As per the testimony of PW-2 all the passengers were taken out from the bus and they went away and he remained in the bus, whereas, as per the testimony of PW-5 option of search memo/Ext. PA was prepared in the bus and consent of the accused was obtained in the bus. As per testimony of PW-5 made in cross- examination Bali Ram was summoned to the spot and PW-5 had not stated categorically in the examination-in-chief that Bali Ram was present when the bus had arrived at Beura Chowk. 10. PW-6 HC-Shyam Lal has stated that on 1.2.2001 ASI Ram Lal deposited with him four sealed parcels out of which two were sample parcels sealed with seal-L and one more parcel sealed with seal impression-L allegedly containing charas and one more parcel sealed with seal-L allegedly containing bag. On 5.2.2001 one of the sample parcels along with specimen seal impression-L was handed over to constable Suram Singh for depositing the same in C.T.L. Kandaghat. 11 11. PW-7 HC Neelmani has stated that report dated 1.2.2001 Ext. PD was handed over by Addl. S.P. Mandi to PW-7 at 9.05 a.m. for record and special report dated 2.2.2001 Ext. PH was handed over to PW-7 by the Addl. S.P. at about 6.35 p.m. PW-7 was, however, not definite that who had handed over the reports to Addl. S.P. from Police Station, Balh. PW-7 has further stated in cross-examination that he had not entered the above reports in the diary and dispatch register and self stated that special file has been opened for this purpose. 12. PW-8 SI-SHO Kaali Dass has stated that ASI Ram Lal gave him detailed report brought by PW-7. PW-8 has further stated that ‘NCB- Form’ was filled by the MHC in his presence and signed by him. 13. PW-9/ASI Ram Lal as an Investigating Officer has stated that HC-Joginder Pal brought before him ruka Ext. PE scribed by HC-Bhupinder Pal and in that regard F.I.R. Ext. PF was prepared and PW-9 proceeded to the spot for further investigation accompanying HC-Joginder Pal and after reaching the spot articles seized by HC-Bhupinder Pal and documents prepared by him were handed over to him which were taken into possession vide memo Ext. PG. Samples of charas and residue charas parcel were resealed with seal impression-L before taking into possession vide memo Ext. PG. The specimen seal impression after resealing the parcels was separately taken by PW-9 as Ext. PM. The case property and the accused were brought to the police station and after investigation on 12 the spot the case property was handed over by PW-9 to MHC Shyam Lal for keeping in safe custody in the maalkhana. PW-9 has further stated that Ext. P3 does not contain the signatures of the witnesses and the accused. 14. Analysis of the testimonies of PW-8 and PW-9 reveals that ‘NCB- Form’ was not prepared on the spot as ruka was sent to ASI Ram Lal PW-9 who came at the spot accompanied by HC- Joginder Pal and PW-9 received ruka/Ext. PE by HC-Joginder Pal entered F.I.R. Ext. PF and thereafter proceeded to the spot. PW-9 has not stated anything where the ‘NCB- Form’ was filled. Certainly the ‘NCB- Form’ was not prepared before recording of F.I.R. Ext. PF as stated by PW-9. It is also fortified by perusal of ‘NCB- Form’/Ext. PJ as entry No. 1 by one stroke and with same ink and pen, F.I.R. number has been mentioned at one go. Nothing has been emanating from the testimonies of prosecution witnesses that the case property was kept in the maalkhana after getting the same entered into the maalkhana register. Nothing is emanating that resealing had been made at the police station. As per the testimony of PW-9 resealing was done at the spot. When F.I.R. was lodged prior to filling of ‘NCB- Form’, whereas, ‘NCB- Form’ does not contain any facsimile seal of seal impressions ‘T’ and ‘L’. In such condition report of the chemical examiner cannot be tallied with the sample sent for chemical analysis, as such, the link evidence is also missing, which creates doubt in the prosecution case. 13 15. As per the testimony of PW-1 accused was asked to get down from the bus along with his luggage and accordingly accused came down from the bus along with bag of black and purple colour with yellow strip and in presence of other witnesses, driver and conductor, HC-Bhupinder Pal asked him that he was having suspicion that he was having contraband article in his possession and whether he wanted to be searched by him or a Gazetted Officer and after obtaining consent Ext. PA signed by accused in presence of the driver and the conductor the search of the bag was conducted by HC-Bhupinder Pal, whereas, as per the testimony of PW-5 written consent of the accused was obtained in the bus itself and after becoming ready for search accused came down of the bus along with luggage. Such contradictions also create doubt regarding definite place of recovery of the contraband goods. Since place of recovery is not definite, as such, contraband goods cannot said to have been recovered from the conscious and exclusive possession of the respondent-accused. No endeavour was made by the police officials or the raiding party to associate independent witnesses; Bali Ram was not examined for the reasons best known to the prosecution, only one out of two independent witnesses examined i.e. the driver of the bus PW-2/Sant Ram was declared hostile and has not supported the prosecution case. There are apparent contradictions emanating in the testimonies of the official witnesses. 16. In view of the above facts and circumstances and analysis made above we find that there is no scope of any 14 interference in the findings arrived at by the Learned Addl. Sessions Judge, Mandi. In our considered view the prosecution has miserably failed to prove its case beyond reasonable doubt. The appeal, devoid of any merit, is dismissed. The bail bonds of the accused/respondent are discharged. (Justice R. B. Misra), Judge. (Justice Sanjay Karol), Judge. July 28_, 2011 (PK)