IN THE COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.174 of 1997 Decided on July 14,12010. _______________________________________________________________ _State of H.P. ……Appellant Versus Hima Ram ……Respondent ______________________________________________________ Coram The Hon’ble Mr. Justice R.B Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge Whether approved for reporting? For the Appellant: Mr. Anil Jaswal, Dy. AG. For the respondent Mr. Ashwani Kumar Advocate with Ms. Madhu Sharma Advocate. R.B.Misra, Judge (Oral) The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378(3) of the Code of Criminal Procedure, in reference to judgment dated 3.8.1996, passed by learned Sessions Judge, Mandi, Kullu and Lahaul Spiti Districts, at Mandi, H.P.in Sessions Trial No.7/96, thereby acquitting the respondent/ accused for offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘NDPS Act’). 2. In order to adjudicate the present criminal appeal, it is necessary to give the factual background of the case. The facts, 2 according to the prosecution story, are that on 14.11.1995, during patrolling duty, S.I Krishan Lal, along with other police officials, was going towards village Jamna-Bag and Krishan Lal received a secret information that the accused was dealing in illicit liquor. . On receiving such information, he prepared the ruka EX.PD and sent for the registration of the case through constable Padam Dev and thereafter associated Govind Ram, Mangat Ram and Chaudhan Dass witnesses in the raiding party and proceeded to the house of accused. At about 8:00 a.m, on 14.11.1995, on reaching the place of accused, his house was searched and from the cowshed, on the ground floor, a silver bucket EX.P4, was recovered containing Charas EX.P2 in the black cotton bag EX.P3 on weighment which was found 2 Kgs. Two samples of 20 grams each were separated from the recovered contraband goods. The case property was sealed with seal impression ‘A’ and case property was taken into possession vide memo EX.P-A. The accused was arrested and the grounds of arrest were stated to have been intimidated to the accused in writing EX PB. Accordingly, FIR EX.PE was lodged. 3. The case property was deposited in the Malkhana and one sample was sent for chemical analysis to the Chemical Test Laboratory, Kandaghat through constable Dhameshwar and on receipt of the Chemical Examiner Report EX.PG sample was confirmed to be of Charas. The special report EX.PC was sent to the Superintendent of Police, which was received by ASI Som 3 Parkash on 15.11.1995 at 12:00 noon .After completion of investigation the challan was submitted to the court and case was committed to Session Court. 4. In order to prove its case, the prosecution has examined as many as eight prosecution witnesses, including PW-1 Govind Ram, PW-2 Mangat Ram, PW-3 ASI Som Parkash, PW-4 constable Hem Singh, PW-5 H.C Nihal singh, PW-6 MHC Bhim Singh, PW-7 constable Dhameshwar and PW-8 SI/SHO Krishan Lal. 5. The accused, through his statement under Section 313 Cr.P.C, denied the prosecution case. PW-1, Govind Ram stated that on 14.11.1995 at about 8:00 A.M., while doing his work, he was called by constable Mangat Ram that the house of accused Hima Ram was to be searched for illicit liquor. The police officials went inside whereas PW-1 remained outside . Police brought a bucket from inside containing Charas in the cigar like shape weighing about 2Kgs. 2 samples, weighing about 25 grams, were separated and sealed and recovery memo Ex.P-A was prepared over which PW-1, along with witness Chauhan Dass had put the signatures. PW-1 has stated in his cross examination that Karam Chand is father-in-law of Moti Ram and PW-1 is God brother of wife of Moti Ram and when PW-1 was in the house of Karam Chand for the last two days along with Karam Chand, PW- 1 was called by the police officials, whereas Karam Chand was not called by the police personnel. When PW-1 was called by the 4 police personnel, police party was already present outside the house of the accused. PW-1 has further stated in the cross examination that family of Karam Chand lives in the first floor and he was not aware as to how many rooms were there in the house as he did not come to the house of accused prior to the said day. It is stated that about 5 houses were in the village where families were living and before he reached the spot S.I had brought out the Charas from inside and PW-1 saw the Charas from outside wrapped in black cotton bag Ex.P-3. 6. PW-2 Mangat Ram too has stated that on 14.11.1995 he was called by the police officials. Govind and Chauhan were also with him. The house of accused was being searched and bucket Ex.P4 was recovered from the ground floor of the house of Hima Ram accused containing Charas. EX.P2 kept in cotton bag EX.P3. PW-2, has stated in his cross examination that he was the first person who reached on the spot thereafter Govind Ram was called and upper storey of the house of Hima Ram was searched and bucket was taken out from the upper storey through the inner passage and Khem Singh was living with his wife in the house of Hima Ram as house of Khem Singh was under construction. PW-2 has further stated in his cross examination that there was a land dispute interse the accused Hima Ram and Karam Chand, whereas, Khem Singh has brought up Hima Ram since childhood as his parents had died and PW-2 who was not aware as to whether Khem Singh was pressurizing Karam Chand to deliver 5 the land to Hima Ram. PW-2 has further stated that the land of Hima Ram was in the possession of Karam Chand since long and Hima Ram had received money from Karam Chand about a year back. PW-2 has further stated in cross examination that he did not enter the house of the accused at the time of search as Police Inspector told him to stay at the door of the upper storey. The door of the cowshed opens in the other direction on the ground floor. Probably the passage from the upper storey is from within and the bucket was taken from the upper storey and not from the cowshed (Khud). 7. PW-3 Som Parkash, A.S.I has stated that on receipt of EX.PC, the same was handed over to Superintendent of Police. PW-4 Hem Singh ,Constable has stated that Charas was recovered from the possession of Hima Ram during the search of his house in the presence of Govind Ram, Mangat Ram and Chauhan Dass. According to PW-4 Hem Singh, when search was made, Hima Ram accused was alone in his house and Charas was recovered from the central room of the upper storey which was in the black bag in an aluminum bucket Ex.P4,cotton bag EXP3,Charas EX.P2. PW-4 has stated in his cross examination that he remained outside the door at the time of search and he was not aware as to how many wooden boxes were inside and bucket was taken from the store room and Krishan Lal SHO along with Govind Ram, Mangat Ram and Chauhan Dass had entered the room and searched all the rooms of the house of Hima Ram and at the time of his search wife 6 of Hima Ram, his children and Khem Singh and his family members were also present there. PW-5 Nihal Singh, Head Constable, who prepared FIR EX.PE on 14.11.1995 at 10:30 A.M. PW-6, Bhim Singh has stated that one sample was drawn from Malkhana in this case on 22.11.1995 and was sent to F.S.L Kandaghat through constable Dhameshwar and on the same day was deposited by him in the laboratory. PW-7 Dhameshwar Ram and PW-8, Krishan Lal, in discharging their official duty have supported the prosecution case to the extent the role assigned to them. According to PW-8, Govind Ram, Mangat Ram and Chauhan Dass were associated with the raiding party when house of Hima Ram, accused was searched and at the time of search, Hima Ram accused was alone in his house and at about 8:00 A.M silver bucket ExP4 was recovered from the ground floor from the cowshed containing charas EXP2 in cotton bag EX.P3 . According to PW-8 Govind Ram and Mangat Ram remained outside and they did not go inside as Hima Ram was from upper caste and Chauhan had accompanied PW-8 and constable remained outside the house on the door. 8. From the scrutiny of the prosecution witnesses and material on record, it is noticed that in view of the testimony of PW-1, police party went inside and brought a bucket from inside, whereas, PW-1 and PW-2 remained outside and PW-1 could not see that he did not enter inside the house of accused Hima Ram from where the recovery of Charas was made. PW-2 has also 7 reached the spot after Govind Ram but he did not enter the house of accused Hima Ram at the time of search and remained outside, however, and so the bucket had taken from the outside from upper storey through the inner passage where Hem Singh as living with his wife in the house of Hima Ram. From the testimony of PW-2 it is apparent that Karam Chand was also living in the house of accused Hima Ram at the relevant time and family of Hima Ram and Karam Chand, his wife and children were also present at that time. There was enmity between Hima Ram and Karam Chand and PW-2 did not enter the house at the time of search, to stay at the door The door of cowshed was opened and bucket was taken from the upper storey and not from the cowshed. There is apparent contradiction regarding the recovery of bucket containing Charas, in reference to the testimonies of PW-1 and PW-2, both had not seen the recovery of Charas from a particular place. PW-1 has stated that bucket was taken from inside the house, whereas, he was present in the house of Karam Chand for the last two days and PW-1 has only saw Charas outside, in black cotton bag, EXP3. Whereas, in view of testimony of PW2, he did not witness the the recovery of charas but he observed that bucket was taken out by the police from the upper storey, through inner passage. 9. PW-4, Hem Singh, Constable has stated that when search of Hima Ram was made, he was alone in the house and as per testimony of PW-4, Charas was recovered from a room of upper storey, which was in a black bag in a aluminum bucket.PW- 8 4 however, had not entered the house and remained outside the door at the time of search and as per testimony of PW-4 Krishan Lal, SHO, along with Govind Ram, Mangat Ram and Chauhan Dass had entered the room and were helping in searching the Charas and all the rooms of Hima Ram were searched and as per testimony of PW-4, wife of Hima Ram, his children, Khem Singh and his family members were also present in the house at the time of search. There is apparent self contradiction regarding the testimony of PW-4. At one place, PW-4, has stated that Hima Ram was present at the time of search and subsequently different version has been emanating from the testimony made in cross examination that family members of Hima Ram were present at the time of search in the house and another apparent contradiction has come that Govind Ram, Mangat Ram and Chauhan Dass had entered the room and were helping in search of Charas, is contrary to the statements of PW-1 Govind Ram and PW-2 Mangat Ram who themselves, very categorically have stated that they did not enter inside the house and kept outside the door when the search was made by the police officials. In view of the testimony of PW- 4, Charas was recovered from the central room of the upper storey, whereas, in view of the testimony of PW-1, Charas was recovered from inside the house and in view of testimony of PW-2, Charas was recovered from upper storey through the inner passage. PW-2 has also at one place in his cross examination stated that bucket was taken from upper storey and not from cow shed(khud). 9 10. In view of testimony of PW-8, Krishan Lal, when house of Hima Ram, accused was searched, he was alone at that time, whereas PW-2 and PW-4 have stated that at the time of search, family members of Hima Ram and Khem Singh, were present in the house along with their wives and children . In view of the testimony of PW-8 Krishan Lal, SI/SHO,aluminium bucket ExP4 was recovered from the ground floor, from the cowshed, which is apparent contradiction regarding recovery of Charas and the place of recovery. PW-8 has stated that Govind Ram and Mangat Ram remained outside the house, whereas, Chauhan Dass accompanied him for searching of Charas. Be stated that as it may apparent contractions have been emanating regarding recovery of Charas and from the testimony of prosecution witnesses PW- 1,PW-2,PW-4 and PW-8, nothing is ascertained from which place exactly Charas was recovered. 11. Govind Ram and Mangat Ram remained outside the house of accused and search was being made since they were of lower caste and one Chauhan Dass, witness has accompanied PW- 8, however, Chauhan Dass was not examined by the prosecution. The other constables also remained outside the house. When PW-1 Govind Ram is a God brother of Moti Ram son-in-law of Karam Chand nominating on account of landed dispute and Karam Chand at the relevant time was present in the house for the last two days, However, police did not call Karam Chand in this case. No Pardhan or member was called by the police and PW-1 had 10 admitted that the police was already present out side the house of the accused, when he was called by the constable. PW-1 was also not aware as to how many doors were there in the house of the accused and where was the location of the cowshed, and as per testimony of PW-2, he reached at the spot along with PW-1 Govind Ram and Chauhan Dass had arrived earlier to them and according to PW-1 and PW-2 Charas was brought out from inside by the Sub Inspector and PW-2 saw the Charas in black cotton bag ExPA first time in the courtyard of the house of the Karam Chand . PW-2 Mangat Ram had stated that bag ExP4 was recovered from the ground floor of the house of accused Hima Ram. In cross examination, Hima Ram has stated that he was first to reach the spot against the statement of PW-,1 that Chauhan Dass had reached before them. PW-2 has further stated that Govind Ram was called thereafter and PW-2 reached the spot when bag was taken by the police. According to PW2, the upper storey of the house of the accused Hima Ram was searched, whereas, the case of the prosecution was that Charas was recovered from the ground floor, as against his narration, that the bucket was taken out from the upper storey. The evidence of prosecution, on the point of place of recovery of Charas, is absolutely contrary to each other giving an impression that nothing was recovered from the possession of the accused and none of the prosecution witnesses, including PW-1 and PW-2, who were associated by the police at the time of the search. According to PW-8 Charas was recovered 11 from the Cowshed and as per testimony of PW-1 he did not participate in the search and remained outside. However, he has observed that the police had brought a bucket from outside containing Charas and PW-1 further stated that he was called by the police, who were also in the house of the accused and he saw Charas for the first time in the house of Karam Chand, which is away from the house of accused Hima Ram. PW-1 has also stated that two rooms might have been used for cowshed. Even, PW-2 Mangat Ram has given a different version that the Charas was recovered from upper portion of the house and not from the cowshed, whereas, PW-4 Police Constable has already indicated that the Charas was recovered from the store, which was situated in the upper storey. PW-4 has stated in his statement that the Charas was recovered from the central room, whereas in cross examination he has stated that the Charas was recovered from the store room of the upper storey. 12. In view of the recovery of the Charas, prosecution has not been able to prove that the recovery of Charas was in actual and conscious possession of the accused . It appears from testimony of prosecution witnesses, that the house which was searched, was of joint possession of accused and his maternal Uncle Prem Singh, as both were living there with their families and when two views are possible then favourable version to the accused has to be taken into consideration. 12 13. In our considered view, the prosecution has failed to prove its case beyond reasonable doubt. We find no scope for interference in the impugned judgment and the Criminal Appeal, being devoid of any merit, is accordingly dismissed. 14. Bail bonds, furnished by the respondent are hereby discharged. (R.B Misra),J. 14th July,2010 (V.K.Sharma),J (veena) 13