IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 309 of 1996 Date of decision: 25.3.2010 State of H.P. …. Appellant. Vs. Surender Pal and others. ... Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Sanjay Karol, J. Whether approved for reporting?1. No. For the appellant-State: Mr.Ram Murti Bisht, Dy. Advocate General For the respondents No. 2 and 3 : Mr. N.K.Thakur, Advocate. Per Deepak Gupta, J.(oral) This appeal by the State is directed against the judgement dated 6.9.1995 of the learned Sessions Judge, Chamba, in Sessions case No. 7 of 1995 whereby he acquitted the accused of having committed offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Accused No.1 has been declared to be a proclaimed offender and the appeal is being heard in respect of accused No. 2 and 3. The prosecution case, in brief, is that on 7.11.1994 a police party headed by S.I. Ramesh Pathania, PW-10, and consisting of PW-6 HC Krishan Gopal, one other head constable and three other constables had laid a Nakka at Tunuhatti Barrier for traffic checking. At about 1.15 p.m a Maruti van No.PB-07-1771 1 Whether the reporters of the local papers may be allowed to see the Judgment. Yes. 2 reached the barrier from Chamba side. Accused No.1 Surender Pal was driving the said van and accused No. 2 and 3 were sitting on the rear seat. According to the prosecution, there was a polythene bag lying between the two accused 2 and 3 on the rear seat of the van. The accused were given an option of being searched and after search 1 Kg. and 800 grams of Charas was recovered from this polythene bag. A sample of 10 grams was drawn. The bulk Charas as well as the sample were sealed in two separate parcels bearing seal impression “A”. The consent of the accused was taken vide memo Ext.PC. The recovery was made vide memo Ext.PE. The accused was informed about his arrest vide Ext.PF and the van was seized vide Ext.PG. All these documents purported to bear the signatures of the two independent witnesses Vijay Kumar PW-1 and Hem Raj PW-2. On chemical analysis the sample was opined to be that of Charas. Thereafter, the challan was filed against the accused. They have been acquitted. Hence, the present appeal. The main ground which weighed with the learned trial Court was that the search had not been conducted in accordance with Section 100 Cr.P.C. inasmuch as the two independent witnesses could not be said to be locally respectable persons. The second ground was that the documents clearly indicated that they were got signed by the witnesses lateron. 3 We are not going into the question as to whether the two witnesses were respectable persons or not but we proceed to examine their testimony as any other witnesses. Both PW-1 and PW-2 have not supported the prosecution version. They denied that any recovery was made in their presence. PW-1 admits that he appeared as a prosecution witness in 5/6 NDPS cases pertaining to Police Station Dalhousie. Both the witnesses have admitted their signatures on the various documents. According to them, the said documents were never read-over and explained to them and they were made to sign on blank papers. There are material contradictions in the testimony of the police witnesses also. Whereas PW-6, HC Krishan Gopal states that the two independent witnesses were associated only after the van was stopped, according to PW-10, Ramesh Pathania, the Investigating Officer, the two witnesses had already been associated prior to the van being stopped. We do not understand why a police patrolling party, which is on traffic checking duty, would associate two private witnesses unless they had prior information and they suspected some narcotic substance is being carried or some illegal activities are going to take place. This is not the case of the prosecution itself. There is a material contradiction in the testimony of the two witnesses with regard to the supply of seizure memo to the 4 accused. According to PW-6 HC Krishan Gopal, the copy of such seizure memo Ext.PE was never given to the accused. PW-10 Ramesh Pathania states that it was actually supplied to the accused. In fact, PW-10 himself admits that neither in the recovery memo Ext.PE nor in the statement of the witnesses recorded by him under Section 161 Cr.P.C. it was mentioned that the recovery memo was delivered to the accused. Another contradiction in the statements of these official witnesses is that whereas PW-6 states that the accused had been made to get down from the van and thereafter the van was searched, according to PW-10 the two accused were sitting inside the van when it was searched. When independent witnesses turn hostile then the statement of the prosecution witnesses has to be carefully examined and if there are any material contradictions in their statements then the benefit will have to go to the accused. We are dealing with a case under the NDPS where once an exclusive, conscious possession is proved the burden shifts on the accused and a presumption arises that a crime has been committed. In such an event the recovery must be free from any doubt what-so-ever. In case, there is doubt about the manner of recovery then the benefit has to go to the accused. In addition to the material contradictions pointed out above, the version of the independent witnesses that they were 5 asked to sign blank papers in the Police Station stands fortified by a careful examination of documents Ext.PC, Ext.PE, Ext.PF and Ext.PG. All these documents are different in nature. The main portion of the documents ends at different places on the paper but the signatures of the two witnesses in all the documents occur at almost the same position. In Ext.PE the writing becomes very small towards the end so that the entire document can be fitted into the page in question. On the other hand, in Ext.PF and Ext.PG the distance between the place where the main portion of the writing ends and the signatures of the witnesses is extremely large, which clearly indicate that these witnesses had already signed blank papers, which were filled lateron. In view of the above discussion, we find no merit in the appeal, which is accordingly dismissed. The bail bonds furnished by the accused are ordered to be discharged. (Deepak Gupta) Judge. 25th March, 2010 (Sanjay Karol) ™ Judge.