IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 71/2010 Date of decision: 20. 8. 2010 Amar Chand …..Appellant Versus State of H.P. ……Respondent Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . Yes For the Appellant: Mr. Anup Chitkara, Advocate. For the respondents : Mr. J.S. Rana, Assistant Advocate General. Surinder Singh, J. (Oral) Appellant was convicted for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substantives Act, 1985, in short ‘the Act’ for allegedly possessing 370 grams of stuff out of which 39.68% W/W was found to be contraband, i.e, resin of the cannabis plant [charas] as such he was sentenced to undergo imprisonment for a period of three years and to pay a fine of Rs.50,000/- 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - with default clause for possessing non- commercial quantity, as per the provisions of Section 20 (b) (ii) (B) of the Act. 2. In short, prosecution case can be stated thus. On 18.7.2008, at about 6.30 p.m. Police party consisting of police driver Constable Sanjeev Kumar (PW1), Lady Constable Ram Kali and HHG Durga Dass headed by PW2 ASI Balbir Singh of Police Station Bhuntar, was on patrolling duty near Subzi Mandi Chowk at Bhuntar. Appellant, on seeing the police, is alleged to have retraced towards his dhaba. On getting suspicious, police followed him and apprehended him across the water channel behind the said dhaba. On being asked, he disclosed his identity. He was carrying a black coloured bag in his hand. On checking, the police found some stuff weighing about 370 grams, out of which two samples each were separated and each of the samples as well as remaining stuff were sealed with seal impression ‘A’. NCB forms in triplicate were also prepared on the spot. Facsimiles of the seal used on the samples were also taken on each of the NCB forms. Seal - 3 - impression was also taken separately on a piece of cloth. Seal after its use was handed over to Ram Lal (not examined) who was found present in the dhaba taking tea. Seizure memo Ext. PB was prepared. Its copy was supplied to the appellant. Since the appellant was running the dhaba where he was apprehended, it was also searched. During search, police did not associate two independent witnesses rather included Ram lal aforesaid who was no other person than cook in the Police Mess at Bhuntar. During the search, police recovered another bag containing Rs.75400/-. This amount was also seized vide memo Ext. PC. Same seal was used on this bag-parcel. 3. Ruka Ext.PJ was sent for registration of the case on the basis of which FIR Ext. PQ was formally registered. 4. PW2 ASI Balbir Singh prepared the site plan Ext. PE, recorded the statements of the witnesses. Special report Ext. PO was sent, within the statutory period to the Additional S.P. Kullu which was handed over to PW5 constable Nirat Singh his Reader. - 4 - 5. Case property was produced before PW8 ASI Gian Chand, officiating SHO of Police Station Bhuntar. He is stated to have re-sealed each of the packets (case property) by his own seal producing the impression of English letter ‘M’. Relevant columns of NCB forms were also filled-in by him in triplicate. Its facsimiles were also taken on the forms aforesaid. 6. Case property along with sample as well as NCB forms and other relevant documents were deposited with MHC Kartar Singh (PW3). Entries of the case property so deposited were made in the Malkhana. Copy whereof is Ext. PH. 7. On 19.7.2008 one of the samples of the case property was sent through PW4 constable Jinesh Kumar for its analysis to Forensic Science Laboratory Junga. He deposited it on 21.7.2008 and obtained receipt Ext. P1 on the road certificate Ext. PK and handed over it back to MHC. The sample was analyzed in the Laboratory. Report is Ext. PB. On its examination, the said sample contained 39.68 W/W. Pure resin of cannabis plant as such it was - 5 - “charas” calculated upon the percentage it come out to be 147 grams approx. 8. On the completion of the investigation, challan was presented in the court for the trial of the appellant. At the end of the trial he was convicted and sentenced, as aforesaid. 9. Shri. Anup Chitkara, learned counsel for the appellant vehemently argued that the report of the analysis in question, has not been linked with the recovered stuff and also its recovery has not been proved from the appellant in accordance with law. He further pointed out some contractions appearing in the statements of the witnesses and urged that the case of the prosecution lacks probity as such the appellant deserves to be acquitted. 10. Contra Mr. J. S. Rana, learned Assistant Advocate General has taken me through the evidence on record and also the findings arrived at by the learned trial Court and submitted that there is no fault in the judgment of conviction and sentence passed by the learned trial - 6 - Court. Therefore, the appeal deserves dismissal. 11. I have given my thoughtful consideration to the respective submissions and have carefully reappraised the evidence on record. 12. In C. Magesh and others versus State of Karnataka (2010) 2 SCC (Cri) 1318 in para 45, the apex court observed that in criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency. Consistency is the keyword for upholding the conviction of an accused. In a criminal trial, evidence of the eye witness requires a careful assessment and must be evaluated for its creditability. Since the fundamental aspect of criminal jurisprudence rests upon the stated principle that “no man is guilty until proven so”, utmost caution is required to be exercised in dealing with situations where there are multiple testimonies and equally large number of witnesses testifying before - 7 - the Court. There must be a string that should join the evidence of all the witnesses thereby satisfying the test of consistency in evidence amongst all the witnesses. 13. Tested upon the above touch-stone, I would like to say that the witnesses examined in this case are all official witnesses contradicting upon material particulars and are not consistent. Although the identity of Ram Lal, who was introduced as an independent witness but his identity was camouflaged as he happened to be a cook in Police-mess of the same police Station where the Investigating Officer PW2 ASI Balbir Singh was posted. Surprisingly even said Ram lal was not examined in the Court; therefore, a close scrutiny of the evidence adduced is definitely necessitated to find out the truth and I proceed to explore the prosecution evidence. 14. PW2 ASI Balbir Singh stated that on seeing the police, appellant had rushed from out side towards the dhaba. He was having black coloured bag in his hand. Police got suspicious and - 8 - apprehended him and “charas” in the shape of sticks and chapaties was recovered, thereafter sampling process as afore-stated was conducted, at that time Ram Lal witness was taking tea in the dhaba he was joined as an independent witness to search and seizure. 15. PW1 constable Sanjeev Kumar was a driver of the police vehicle. He stated that at the relevant time, at the place of the alleged recovery, there were many dhabas and customers were also present. Thus, it is not understood why the police failed to associate any of them despite their availability, so as to inspire confidence in its story. 16. The defence of the appellant has been that one Khekhu Ram son of Sh. Churu was taking liquor in the dhaba. The appellant and Khekhu were given beatings by the police. At that time wife of the appellant was also present in the dhaba. She objected to the aforesaid action of the police, that is - 9 - why the case was foisted upon the appellant. Although this defence has not been proved yet I feel the evidence put forth by the prosecution to prove the charge is quite discrepant and open to criticism and at the same time it is not believable because of material discrepancies and contradictions. Thus the inclusion of an independent witness was essential in this case and at least, an attempt to associate such an independent witness should have been made to facilitate the court arrive at truth. [see State of Punjab versus Pratap Singh: 2004 Drugs Cases (Narcotics) 104] 17. In Ajmer Singh versus State of Haryana (2010) 3 SCC 746, the apex Court also observed that it may not be possible to find an independent witness at all place, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, - 10 - the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence. 18. Applying the above principle, in the present case, initial story set- up by the prosecution is different from as spoken during the trial originally, the case of the prosecution was that that the appellant was apprehended behind the dhaba across the water channel whereas PW1 in his examination- in-chief stated that the appellant was carrying a black colour bag in his hand. He, on seeing police went inside Dhaba. They went inside the ‘dhaba’. Ram Lal aforesaid was taking tea. The appellant had tried to conceal the bag, ASI Balbir Singh got suspicious, asked his - 11 - identity, his bag was checked and the recovery of the stuff, as stated above was made in the presence of Ram lal. As already stated above Ram Lal was a cook in the Police Department in the same Police Station, but even he was not examined to corroborate the prosecution version. His withholding itself causes a serious doubt on the probity of the prosecution case. Thus an adverse inference has to be drawn. 19. Further, the report of analysis Ext. PB is also not connected with the alleged recovery. PW3 MHC Kartar Singh stated that the sample in this case was sent for analysis on 19.7.2008. He also admitted in the cross-examination that on the same day 19.7.2008 he had sent two samples of charas to deposit it in the Laboratory for analysis which, according to him were deposited on 20.7.2008 as against 21.7.2008 reflected in the report. One sample was of this case and another sample was of FIR No. 16/2008 sent through the same constable - 12 - Jinesh Kumar. He testified that both these samples were bearing the identical seals ‘A and M’. The perusal of the report of the analysis Ext. PB shows that sample in this case was received on 21.7.2008. Though the report makes reference to the FIR of this case but, in my opinion, it has failed to connect the sample which was analyzed in the laboratory pertains to this case. Because neither the report number nor reference number as mentioned in 1st and 2nd columns could be connected with entry of the report and reference number in this case nor these numbers are borne out from the road certificate Ext. PL. Further, against column No. 7 description of the parcel is given as one cloth parcel bearing four seals of ’A’ and three seals of ‘M’ which also corresponds with the sample of another FIR No. 16/2008 of the same Police Station. Further the, weight of the sample also varies by almost three grams in the instant case. On the top of it, - 13 - there is no certificate that the seal found on the samples were intact and tallied with the sample of seal separately sent or were corresponding to the facsimile found on the NCB-I forms. Therefore, in these circumstances, logical conclusion is that either the sample of the instant case, or that taken on the spot, was not analyzed, or that it was some other sample or even it could be a sample which was tampered with. 20. Tested upon the above principle of law, I find that there is no consistency in the evidence of the prosecution which raises considerable doubt on the probity of the prosecution case and the report of analysis could not be connected with the recovered stuff. Thus, the appeal is allowed and the conviction and sentenced passed by the learned trial Court is hereby set aside. Consequently, the respondent stands acquitted by giving him the benefit of reasonable doubt. - 14 - 21. The appellant is in jail. He be released forthwith. The fine amount, if any deposited be refunded to the appellant. Send down the record. August 20, 2010 (Surinder Singh),J (cm)