IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 74 of 2010. Judgment reserved on 7th September, 2010. Date of Decision: 14th September, 2010. _______________________________________________________ Andre Moll ….Appellant. Versus State of Himachal Pradesh ..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. Ashwani Pathak, Advocate. For the respondent : Mr. J.S. Rana, Assistant Advocate General. ____________________________________________________ SURINDER SINGH, J. Appellant is a Swiss National. He was charge- sheeted, tried for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short ‘the Act’, but convicted for the offence punishable under Section 20 (b)(ii)(B) of the Act, for allegedly keeping in possession the non-commercial quantity of “Charas”, as such sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.50,000/- with default clause, by the Whether reporters of the Local papers are allowed to see the judgment? - 2 - learned trial Court, which has been assailed by him in the instant appeal. 2. In short, the prosecution story, as emerges from the evidence on record, can be stated thus. On 18.1.2009 at about 7.00 am, PW-9 Sub-Inspector Pawan Kumar alongwith police party consisting of Head Constable Mohar Singh (PW-1), HHC Chaman Lal, HHC Uttam Singh and HHG Garish Kumar, was present at Kasol near the English-Wine-shop. The appellant went inside the liquor- vend. He was carrying a blue-black coloured bag on his back. The said Sub-Inspector asked about his identity. His identity was checked with reference to the passport carried by him finding it to be correct, he was further asked as to what he was carrying in his bag. He gave very cursory reply that nothing objectionable was therein. On this the Sub-Inspector (PW-9) aforesaid got suspicious and asked him to show the contents of the bag. Appellant started dilly-dallying. The Police Officer further enquired from him about the place where he was residing. On this, he replied that he was staying in the house of ‘Alans family’ at Kasol. The Police Officer associated PW-2 Piar Chand, the salesman of the liquor- vend and sought the consent of the appellant for the search of the bag in his presence. On checking the bag, in the presence of Piar Chand aforesaid and other - 3 - police officials, he recovered one polythene-bag containing “Charas” in the shape of small sticks and balls, which were found wrapped in the polythene paper. On removing the polythene paper he checked its contents carefully and became sure about it that it was “Charas”. On weighing it came to be 1.200 Kgs. He drew two samples of 25 grams each separately and wrapped in polythene paper and the same were sealed in a white piece of cloth with seal impression “A”. Three impressions of said seal were put on each parcel. The remaining “Charas” was put in the same bag from which it was recovered, which was also sealed with the same seal at three places. The seal impression was also taken on the piece of cloth Ext.PW1/B. 3. NCB forms one of which is Ext.PW4/C were filled in triplicate. The seal after its use was handed over to Piar Chand aforesaid. 4. The case property was taken into possession vide seizure memo Ext.PW1/A in the presence of Piar Chand (PW-2) and Mohar Singh, the then Head Constable (PW- 1). The copy of the seizure memo was also supplied to the appellant. 5. Ruka Ext.PW9/A was sent for the registration of the case through Constable Uttam Singh. - 4 - 6. PW-9 Sub-Inspector Pawan Kumar prepared the site plan Ext.PW9/B of the place of recovery. 7. The appellant was arrested. The grounds of arrest were informed vide memo Ext.PW1/C. Personal search of the appellant was also conducted. Memo to this effect is Ext.PW1/D. 8. The information with respect to the arrest of the appellant was supplied to his friend on telephone as intimated by him. Memo to this effect is Ext.PW9/C. 9. Constable Uttam Singh aforesaid on return from the Police Station handed over the case file after registration of the FIR, to PW-9 Sub-Inspector Pawan Kumar around 11.30 am. Thereafter he filled up the number on the documents prepared during the search and seizure. 10. Sub-Inspector Pawan Kumar (PW-9) produced the case property before Inspector/SHO Prem Dass (PW-8). It was re-sealed by him with his seal producing impression of English letter “B”. Thereafter the case property was handed over to MHC Manoj Kumari. The search of ‘Alans Family House’ where the appellant was staying, was conducted in the presence of Goma Devi and Neel Chand, but nothing incriminating was found. Memo of such search is Ext.PW9/D. 11. On 19.1.2009 PW-9 aforesaid prepared the special report Ext.PW7/A, and presented it to Additional - 5 - Superintendent of Police who made his endorsement thereon and handed over to dealing clerk (PW-7 HC Nirat Singh). 12. PW4 Manoj Kumari had entered the case property into the Malkhana register and handed over one sample parcel alongwith police docket to Constable Pradeep Kumar (PW-5) for its analysis to Forensic Science Laboratory, Junga, which was taken by him vide RC No.19 of 2009. On its deposit he obtained the receipt on the RC, which is Ext.PW4/B. It was handed over to MHC on his return. The sample on analysis tested positive. As per report Ext.PW8/C, it contains the resin 26.47% W/W, which was of ‘cannabis’ plant. After completing the investigation, the case was presented in the Court for the trial of the appellant. 13. The trial Court came to the conclusion that though the appellant was found in possession of the 1.200 Kgs. stuff which contained 26.47% resin of the ‘cannabis’ plant, thus applying the ratio of the judgment of Division Bench of this Court rendered in Dharam Pal vs. State of HP 2007 Latest HLJ 827, taking the percentage of the ‘resin’ content into consideration for determining the quantity of the “Charas” a contraband, in possession which came to be 317.64 grams, as such convicted the - 6 - appellant for the ‘non-commercial quantity’ and sentenced him as aforesaid. 14. Shri Ashwani Pathak, learned Counsel for the appellant vehemently argued that the prosecution has failed to prove the case against the appellant beyond reasonable doubt. He further ventilated that the place where the appellant was apprehended was national highway and was a busy place. Lot of vehicles ply on that road, but the police did not bother to associate the independent witnesses to witness the search, to inspire confidence in their case. He further pointed out that the personal search of the appellant was conducted without complying with the provisions of Section 50 of the Act, although the offensive material is alleged to have been recovered from the bag, but it was during the process of personal search. Therefore, the compliance of aforesaid Section was sine-qua-non. He also submitted that the Investigating Officer admitted that he did not give his personal search to the appellant which is also fatal to the prosecution case. He also argued that at the relevant time the appellant was not readily having passport with him, to which he could produce to the Police Officer, which resulted into the hot exchange of words. As such, the appellant was implicated in a false case. - 7 - 15. Contra, Shri J.S. Rana, learned Assistant Advocate General for the State supported the impugned judgment of conviction and sentence. It is submitted by him that the appellant is a foreign national and to fix him in the case such a huge quantity could not have been planted for no reason. Therefore, false implication as alleged is absolutely wrong and without any basis. He also submitted that when the appellant was produced before the Court for seeking his remand, he could have also made a complaint to the Court for his false implication in the case by the police. He also drew my attention to the cross-examination of the Investigating Officer (PW-9) wherein no such suggestion was put except that the police party found an unclaimed bag containing “Charas” and the appellant was intoxicated. Police made enquiry from him, but he could not produce the passport and a false case was foisted upon him, which is contrary to the plea now raised. In nutshell, the learned Assistant Advocate General argued that the motive imputed to the police for falsely implicating the appellant is malafide. He also argued that the recovery of the contraband is from the bag and not on personal search, therefore, section 50 of the Act is not attracted. Thus there is no ground for the acquittal of the appellant. As such, the appeal deserves to be dismissed. - 8 - 16. I have given my thoughtful consideration to the rival contentions of the parties and have carefully scanned and reappraised the evidence on record. 17. PW-9 Sub-Inspector Pawan Kumar has substantiated the prosecution version verbatim, which has further been corroborated by the then Head Constable Mohar Singh (PW-1), who was accompanying him. Although, PW-2 Piar Chand turned hostile to the prosecution, but admitted that the police party had informed him that “Charas” was recovered from a foreign national and his signatures were obtained on some papers. He also admits his signatures on the seizure memo Ext.PW1/A, but according to him, these papers were blank at that time. He admitted that he had been associated by the police in some excise cases also. The said witness is a matriculate. Why should he sign blank papers when he knew the implications thereof? It was suggested to him in cross-examination by the learned Public Prosecutor, though denied, that the witnesses in such type of cases were paid money to favour the accused and also that he was not supporting the case as he had been bribed. Pertinently, he stated that he was not forced by the police to put his signatures on the recovery memo, but according to him, he did so in good faith, cannot be believed. His statement is a tainted - 9 - version only made to favour the appellant for obvious reasons. The seizure memo Ext.PW1/A, if perused from any angle, it does not give any impression that he had signed a blank paper. 18. Further, PW-1 Mohar Singh aforesaid has afforded corroboration to the statement of PW-9 Pawan Kumar with respect to the recovery, of the offensive material from the appellant. Even PW-3 Uttam Singh Constable also testifies the recovery of the contraband from the bag of the appellant, to which he was carrying. He also corroborates the version of taking samples and sealing process. He is a police official who had taken the Ruka from the spot for the registration of the case and on return he handed over the file to the Investigating Officer at Kasol. Against the aforesaid evidence, it can safely be concluded that the contraband was recovered from the appellant as stated by PW-9 Sub-Inspector Pawan Kumar. He (PW-9) further testified that he had produced the appellant and case property before PW-8 Prem Dass, Inspector/SHO (PW-8). On the receipt of the Ruka through Uttam Singh Constable aforesaid FIR Ext.PW8/A was registered by him and on the same day the case property was produced before him by Sub-Inspector Pawan Kumar which was resealed by him by his own seal (mark B) and the facsimiles of the seal were also - 10 - affixed on the NCB forms. He had filled up column Nos.9 to 11 of the NCB forms in triplicate and obtained the seal impression on a separate piece of cloth Ext.PW8/B and handed over the case property to MHC Manoj Kumari (PW-4). 19. PW-4 Manoj Kumari admitted the aforesaid fact of depositing the case property with her alongwith NCB forms and the photocopy of the seizure memo. Its entry was made in the Malkhana register, the copy of which has been proved by her as Ext.PW-4/A, being correct, according to the original record produced by her during her examination in the Court. She further testified that she had handed over sample parcel alongwith sample seals “A” and “B”, NCB forms in triplicate, photocopy of the seizure memo and FIR as well as other concerned documents to Constable Pradeep Kumar, which were taken by him vide RC No.19 of 2009 to Forensic Science Laboratory, Junga for its examination, which was deposited by him on 20.1.2009. She also produced the original RC Ext.PW4/A and proved the receipt issued by the FSL, Junga as Ext.PW4/B in token of its receipt, which fact has been testified by PW-5 Constable Pradeep Kumar during the trial. The M.H.C. and PW-5 above further stated that so long the case property remained - 11 - with them it was kept intact and not allowed to be tampered. 20. Further, report of the Forensic Science Laboratory, Junga, Ext.PW8/C also makes a mention about the date of receipt of the same on 20.1.2009 through Constable Pradeep Kumar with seals intact, which tallied with the seal impressions sent by the SHO. The sample tested positive as aforesaid. Therefore, the link evidence in this case is also complete. Since the recovery was from the bag in which the Charas was kept duly packed by him, Section 50 of the Act is not attracted. The argument advanced otherwise by the learned Counsel for the appellant that the conviction of the appellant was bad for its non-compliance, is also devoid of any force. Hence rejected. 21. On the scrutiny of the statements of the above police officials, I find their version confidence inspiring. There is no requirement of law that the testimony of the official witnesses cannot be believed, if otherwise inspires confidence. The testimony of police personnel has to be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be either relied upon or acted. It is by now well settled that the presumption that a person acts honestly - 12 - applies, as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. But, however, it all depends upon the facts and circumstances of each case and no principle of general application can either be applied or laid down. (See Karamjit Singh vs. State AIR 2003 SC 3011). 22. On the critical analysis of the evidence aforesaid as stated above, I find the testimony of the official witnesses without any exaggerations, embellishment or material contradictions, hence it was rightly relied upon by the learned trial Court. 23. To meet the defence raised, I would like to add that when the appellant was produced before the Magistrate for his remand within 24 hours of his arrest, no such complaint was made by him that the case was falsely foisted upon him, more specifically when he was represented by the learned counsel during the period of remand till the case was presented in the Court for his trial. Therefore, the defence raised is rejected outright. 24. Further, the recovery of the contraband is effected from an open place from the possession of the appellant. Although, PW-2 Piar Chand was included as an independent witness, he turned hostile, but even non- association of independent witness or non-supporting - 13 - the prosecution version by him, by itself is not a ground to doubt the prosecution case to acquit the accused, because the testimony of the official witnesses inspire confidence as aforesaid. More so, the police party was on patrol-duty. They are not required to carry the independent witnesses with them to support the recovery if and when made. Once it is concluded that the statements of official witnesses inspire confidence, their testimony can be acted upon. Even the non- supporting the case of the prosecution by an independent witness would be of no consequence. 25. I have closely and with more circumspection scrutinized the evidence of the police witnesses on record. The false implication of the appellant is totally ruled out. The statements of official witnesses are consistent and satisfy the judicial conscience and the recovery of the alleged contraband stands proved on record in accordance with law. 26. For the reasons aforesaid, I do not find any merit in this appeal, as such the same is dismissed. September 14, 2010. (Surinder Singh), J. (rc)