IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No.87 of 2000 Reserved on: November 12, 2010 Date of Decision : November 26, 2010 State of H.P. …Appellant. Versus: Balak Ram …Respondent. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. Vivek Thakur, Addl. A. G. For the respondent: Mr. Rakesh Jaswal, Advocate Sanjay Karol, J. For an offence, which is alleged to have been committed on 16.11.1995, accused was put to trial. In terms of judgment dated 11.11.1996 passed by learned Sessions Judge, Mandi, in Sessions Trial No. 15 of 1996 titled as State of H.P. vs. Balak Ram, accused stands acquitted of the charged offence. 2. It is the case of the prosecution that on 16.11.1995 SI/SHO Krishan Lal (PW-8) along with C. Shankar Ram (PW-3, HC Nihal Singh (PW-9) and other police officials was on patrol duty. They were going 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 towards village Kuthehar in the departmental bus bearing registration No.HID-733. At Kuthehar they found the accused standing outside his shop on the road carrying a lime bag. Seeing the police he tried to escape from there. Police became suspicious and consequently overpowered him. Independent witnesses S/Sh. Bhadru Ram (PW-1) and Sher Singh (PW-2) present at the spot were associated. Option was given to the accused to be searched by the Gazetted Officer, Magistrate or by the police officials present at the spot. Memo (Ext.PA) was recorded to this effect. Accused gave option of being searched by the police official. Krishan Lal first rendered himself to be searched vide memo (Ext.PB). He was searched by the witness. Thereafter Krishan Lal searched the accused and found contraband substance (charas) (Ext.P-3) in the lime bag (Ext.P-4) which the accused was carrying in his right hand. It was weighed and found to be 1 kg. 500 grams. Two samples of 20 gms. each were separated and sealed with seal impression ‘A’. Remaining parcel was also sealed. Samples and the contraband substance were taken into possession vide memo (Ext.PC). Accused was informed of his ground of arrest. Rukka (Ext.PG) was sent through C. Shankar Ram (PW-3) for registration of the case on the basis of which FIR No. 155/95 (Ext.PH) dated 16.11.1995 was registered at Police Station Karsog, under Section 20 3 of the NDPS Act. On the spot Sh. Krishan Lal prepared the site plan. Sealed samples and parcel were deposited in the Malkhana by HC Nihal Singh (PW-9). Special report (Ext.PJ) was sent to the Superintendent of Police, Mandi on 17.11.1995 through C. Shankar Ram. Sample was sent for chemical analysis through C. Dhameshwar Ram and on receipt of the report of the Chemical Analyst (Ext.PO), it was found that contraband recovered was charas. 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 Narcotic Drugs and Psychotropic Substances Act, 1985 to which he did not plead guilty and claimed trial. 4. In order to prove its case prosecution examined 9 witnesses. Statement of the accused under Section 313 Cr.PC was also recorded. 5. Court below acquitted the accused of the charged offence, hence the present appeal. 6. By leading clear, cogent, consistent and reliable evidence, prosecution has to prove, beyond reasonable doubt, the complicity of the accused to the charged offence. 7. Noticeably independent witnesses PW-1 & PW-2 have not supported the prosecution case at all. They were declared hostile and inspite of being cross- 4 examined by the Public Prosecutor nothing fruitful could come out from their testimonies which would link the accused to the charged offence. On the contrary they have rendered the prosecution case to be doubtful. According to PW-1, he met the police on the road and was showed the contraband substance. They did not disclose from where it was recovered. He denies that in his presence police had given option of search to the accused. According to him, police had simply obtained his signatures and he had not read the papers as he was not wearing his spectacle at that time. He has studied only upto 2nd standard and even during his examination Court observed that when asked to do so he was unable to read memo (Ext.PC) in the Court. He was only able to identify his signatures on Ext.PA. He specifically denies having received any seal. Importantly he states that accused Balak Ram who was with the police was saying that no charas was recovered from him. He states that Nanak Chand and Alam Chand were sitting in the shop of the accused and police had gone ahead towards village Mahog. Police had taken Balak Ram with them in the vehicle and at that time Sher Singh was not with them. 8. According to PW-2, he was threatened by the police to sign the papers. Thereafter police took the accused and Bhadru Ram and he had returned to the village. He denied that papers were prepared or 5 recovery of charas took place in his presence. The independent witness, present at the spot has denied execution of memos of search, recovery and seizure. 9. Accused has taken a defence of false implication. Independent witnesses have not supported the prosecution version at all. However, this by itself would not render the prosecution case to be doubtful. It is a settled position of law that even if independent witnesses do not support the prosecution, testimonies of police officials, if they inspire confidence, after careful scrutiny and examination then can be relied upon to prove the guilt of the accused. However considering the nature of offence their statements need to be scrutinized with greater caution. 10. According to ASI Som Parkash (PW-7), on 17.11.1995, while working as a Reader in the office of Superintendent of Police, Mandi, he received special report (Ext.PJ) from Constable Shankar Ram. However he admits that there is overwriting beneath the signature of the Superintendent of Police. Date of receipt is shown to be 17.11.1995. In the report word ‘12’ has been cut out and overwritten as ‘11’. He admits that though it is in his hand writing but is not initialed by him. Under what circumstances he wrote the date beneath the signature of the Superintendent of Police has not been explained by 6 him. In law, he was not authorized to do so. Month of December has been changed to November. This casts a slight doubt on the prosecution case. 11. Sh. Krishan Lal no doubt has narrated the version as per the prosecution story. According to him, at about 6.30 A.M. he was travelling in the bus and when he reached at Kuthehra he saw accused carrying lime bag and on suspicion, accused was apprehended from whom charas was recovered in the presence of Sher Singh and Bhadru Ram. According to him, both independent witnesses were present at the spot and waiting for the bus which also is the version of HC Nihal Singh (PW-9). Now this version stands materially contradicted by Constable Shankar Ram (PW- 3), according to whom witnesses were called from their houses from a distance of 35 to 40 mtrs. from the spot by one constable. Now who is this constable has not been examined in Court. This version of Shankar Ram is also supported by the independent witnesses. This renders the version narrated by the independent witnesses and the defence taken by the accused to be plausible and probable. Contradictions, in first brush though appear to be minor but when considered in totality acquires significance. 12. Importantly, HC Nihal Singh admits that on the date of the incident MHC Bhim Singh was on leave and therefore, he was holding alternate charge 7 of M.H.C. Under these circumstances Nihal Singh’s presence at the spot, as part of the raiding party, appears to be doubtful. He does not state that when he was outside the Police Station, charge of MHC was handed over by him to some other police official. Further he admits that the SHO had deposited the case property with him in his capacity as MHC and when Bhim Singh returned back on 19.12.1995, he in turn entrusted the same to him. No doubt he states that the case property was not tampered with by him but however he categorically does not state that the case property was kept in safe custody i.e. in the Malkhana. Importantly Malkhana register has not been produced on record, absence of which renders the prosecution case to be further doubtful. Sh. Nihal Singh categorically does not remember to whom seal ‘A’ was handed over on the spot. According to him, most probably it was entrusted to Bhadru Ram, who has denied having received the same. Sealed sample being tampered with by the members of the raiding party between 16.11.1995 and 19.12.1995 cannot be ruled out. Further there is nothing on record to show that fresh seal impression was put on the samples/parcels received at the police station. Laboratory report (Ext.PO) only mentions impression of seal ‘A’ and no other seal. This only lends credence to the fact that 8 case property was not kept in safe custody i.e. in Malkhana in accordance with Police Rules. 13. Thus, in our considered view, version of the police officials cannot be said to be true. It does not inspire confidence. They are full of missing links, contradictions and improbabilities. Their statements cannot be said to be totally reliable and worthy of much credence. 14. The accused has 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 vs. 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 has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. ( Deepak Gupta ) Judge. ( Sanjay Karol ), Judge. November 26, 2010. (rana)