1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 431 of 2007. Judgement reserved on: 14.7.2008 Date of decision: 21.7.2008. Ashok Sharma & Others. ……. Appellants. Vs. State of Himachal Pradesh …... Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellants : Mr. Sunil Chaudhary, Advocate. For the Respondent : Mr. Ansul Bansal, Addl. Advocate General. Kuldip Singh, Judge. The appellants-accused have filed this appeal against the judgment of conviction and sentence dated 28.09.2007 passed by learned Special Judge, Kullu, in Sessions Trial No. 42/2006, convicting appellant No. 1 under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘Act’) and appellants 2 to 4 under Section 29 read with Section 20 of the Act and sentencing all the appellants to five years’ rigorous imprisonment each and to pay a fine of Rs. 50,000/- each. In default of payment of fine, each convict has been ordered to undergo further simple imprisonment for three months. 2. The prosecution case in brief is that on 07.11.2005, at about 2:30 p.m. ASI Harish Chander was present at place Chhoi-nullah, along Whether the reporters of the local papers may be allowed to see the Judgment?Yes 2 with other policemen and Charan Dass Bali, Tehsildar Banjar, in connection with verification of an accidental vehicle bearing registration No. HP 01A-3759, at that time a white Alto car without registration No. came from Banjar side and it was signalled to stop and thereupon car was stopped. On suspicion the car was checked by ASI Harish Chander in presence of other policemen and Charan Dass Bali, Tehsildar. On checking one black colour bag was found near the foot of the occupant sitting on the left front seat of the car. On further checking of the bag it was found to contain sale and insurance papers of the car, driving license of Bhinder Singh, two packets of polythene and a paper were also recovered from the bag and on opening the same charas in the shape of sticks and chapattis was recovered. 3. On enquiry the person sitting on the left front seat of the car disclosed his name Ashok Kumar and the driver of the car disclosed his name Bhinder Singh. The two other occupants of the car were occupying rear seats who disclosed their names Balbir Singh and Daulat Ram. The recovered charas was weighed and on weighment it was found 2.500 kilograms. Sampling and sealing of the samples and remaining bulk charas was done with seal ‘T’. The sample of seal ‘T’ was obtained on a separate piece of cloth. The NCB forms in triplicate were filled in. The seal after use was handed over to constable Dalip Singh. The three parcels, car and its documents were taken into possession. Thereafter, ruka was sent for registration of the case and F.I.R. was registered. The spot map was prepared. The statements of witnesses were recorded. The accused were arrested. On completion of investigation the case property was deposited with MHC Rajinder Kumar and the car was parked in the compound of the police station. The Special Report was prepared on 3 09.11.2005 and was sent to Dy.S.P. headquarter at 9 a.m. One sample of the charas was sent to CTL Kandaghat for analysis. On receipt of Chemical Examiner’s report challan was filed against the accused. Ashok Kumar accused was charged under Section 20 read with Section 60 of the Act and the other accused were charged under Section 20 read with Section 29 of the Act. The accused pleaded not guilty and claimed trial. The prosecution examined nine witnesses. The statements of accused were recorded under Section 313 Cr.P.C. DW-1 Jeevan Chand was examined in defence. The learned Special Judge after conclusion of the trial convicted and sentenced the accused as noticed above and, therefore, the accused have filed the present appeal. 4. I have heard Mr. Sunil Chaudhary, learned counsel for appellants-accused and Mr. A.K. Bansal, learned Addl. Advocate General for the State and gone through the record. Mr. Chaudhary, learned counsel for the appellants has submitted that learned Special Judge has not properly appreciated the material on record. The recovery of charas from conscious possession of the accused has not been proved. There is no evidence on record that occupants of the car were owners of the car. He has submitted that the prosecution has not examined independent witnesses. Charan Dass Bali, Tehsildar, was present on the spot, as per prosecution, but he has not been examined for reasons best known to the prosecution. In these circumstances he has submitted for drawing adverse inference against the prosecution. He has also submitted that the prosecution story is not believable. On the contrary learned Addl. Advocate General has projected same line of reasoning as adopted by learned Special Judge in his submissions while supporting impugned judgment. He 4 has submitted that prosecution has proved the case against all the accused persons beyond reasonable doubt. 5. PW-1 constable Dalip Singh has stated that on 7.11.2005 he along with lady constable Veena, ASI Harish Chander, Charan Das Bali Tehsildar , Banjar was present at Chhoinallah around 2.30 p.m. in connection with an accident. At that time one white Alto car without registration number came from Banjar side which was stopped by ASI Harish Chander. He conducted checking of the car and found one bag with one of its occupants occupying left side front seat. The bag was opened by ASI. Out of it one plastic bag was recovered and on opening the same documents of the vehicle and driving licence of one Bhinder Singh were recovered. In that bag two more polythene bags were found and on opening the same charas in the shape of sticks and rounds was found. After recovery of charas, the Investigating Officer enquired the name of the person occupying front seat who disclosed his name Ashok Kumar. The person on the wheels of the vehicle had disclosed his name Bhinder Singh. The two persons who were sitting on the rear seats of the car had disclosed their names Balbir Singh and Bhagat Ram. (The learned Special Judge has observed that the witness has correctly identified all the accused persons in the Court ). The recovered charas was weighed and it was found 2.500 kg.. Out of it 25-25 grams samples were separated and sealed with seal impression “T”. The remaining charas was also separately sealed in parcel with seal impression “T”. The impression of seal was taken on a separate piece of cloth which is Ex.PW-1/A. The Investigating Officer Harish Chander filled NCB forms in triplicate. The seal after its use was handed over to him. The car, recovered charas and sample parcels were taken into possession vide recovery memo Ex.PW-1/B which bears 5 his signature and also of Charan Dass Bali, Tehsildar. The copies of recovery memo were supplied to accused persons and they have signed the recovery memo in token of having received its copies. The Investigating Officer prepared ruka which was handed over to him with a direction to take the same to Police Station, Banjar for registration of the case. He handed over ruka to MHC Rajinder Singh who there upon registered the FIR. Thereafter the file was handed over to him with a direction to hand over the same to the Investigating Officer and he ultimately handed over the file to the Investigating Officer. ASI Harish Chander handed over the special report at 9 a.m. on 9.11.2005 to him with a direction to him to hand over the same to Dy. S.P. headquarter and he handed over special report to Dy. S.P. at 1.15 p.m. The black coloured bag Ex.P-3 is the same which was in possession of accused Ashok Kumar and charas Ex.P-4 is also the same which was recovered from bag Ex.P-3. 6. PW-2 Head Constable Rajinder Singh has stated that on the basis of ruka Ex. PW-2/A he registered F.I.R. Ex. PW-2/B and made an endorsement Ex. PW-2/C on ruka. The case property was handed over to him by ASI Harish Chander I.O. which he entered at Sr. No. 99 vide entry Ex. PW2/D. He handed over one sealed sample parcel to constable Karam Jor vide RC Ex. PW-2/E for depositing in CTL Kandaghat and the same was deposited in CTL Kandaghat on 28.11.2005 vide receipt Ex. PW-2/F on RC Ex. PW-2/E. PW-4 constable Karam Jor has stated that on 27.11.2005 MHC Rajinder Singh had handed over sample to him vide RC Ex. PW-2/E, which he deposited with CTL Kandaghat on 28.11.2005 and brought the receipt Ex. PW-2/F which was handed over to MHC. PW-5 HC Kashmi Ram has stated that on 09.11.2005 Special Report Ex. PW-5/A 6 was handed over to him by Prem Chand Dy.S.P. for record. The endorsement of Dy.S.P. on Special Report is Ex. PW-5/B. He entered the Special Report at Sr. No. 36 in Special Report Register vide entry Ex. PW- 5/C. PW-6 HHC Mast Ram has stated that on 10.01.2006 Chaman Lal, MHC P.S. Banjar, had handed over case property to him vide RC No. 306, Ex. PW-3/C which he deposited in District Malkhana at Kullu. PW-7 HC Anant Ram has stated that on 10.01.2006 HHC Mast Ram, Police Station Banjar had brought the case property to him and after making entries in relevant register he kept the case property in Malkhana, abstract of register is Ex. PW-7/A. 7. PW-8 ASI Harish Chander is the Investigating Officer and he has stated in detail about the recovery of charas. He has stated that he prepared ruka Ex. PW-2/A and handed over the same to PW-1 Dalip Singh with the direction to take the same to Police Station Banjar for registration of case. Thereafter, he prepared spot map Ex. PW-8/A. He recorded the statements of witnesses. The four accused were apprised about the offence and then they were arrested. Accused Ashok Sharma, Bhinder Singh, Daulat Ram and Balbir Singh were given such information vide Ex. PW-8/B, Ex. PW-8/C, Ex. PW-8/D and Ex. PW-8/E respectively. He prepared Special Report on 09.11.2005. He has stated that black coloured bag Ex. P-3 is the same which was lying near the foot of accused Ashok Sharma, charas Ex. P-4 is also the same which was recovered from the bag Ex. P-3. The driving license of Bhinder Singh accused is Ex. P-5. 8. The recovery of charas weighing 2.500 kilograms from bag which was lying near the foot of accused Ashok Sharma, who was sitting on the front left seat of the car has been proved by DW-1 Dalip Kumar and 7 PW-8 ASI Harish Chander. The learned counsel for the appellants has submitted that as per prosecution case Charan Dass Bali, Tehsildar, was present on the spot and he was allegedly associated at the time of recovery of the charas from the bag lying in the car, but Charan Dass Bali has not been examined by the prosecution and, therefore, adverse inference is to be drawn against the prosecution. The recovery of charas has not been challenged on any procedural lapse. It has not been submitted that during search and thereafter any mandatory procedure prescribed under the Act was violated. The number of witnesses is not of much significance, what matters is the quality of evidence. In the present case, PW-1 constable Dalip Singh and PW-8 ASI Harish Chander have proved the recovery of charas from the bag. It is not necessary for the prosecution to examine in each case all witnesses. It is for the prosecution to decide which witness is to be examined or not. In the present case recovery of charas has been proved by PW-1, therefore, such recovery is not required to be proved again by examining Charan Dass Bali, Tehsildar, who was also a witness of the recovery. The police man as a witness of an incident is as good as any other witness if his statement inspires confidence. In the present case nothing has been pointed out why the statements of PW-1 and PW-8 regarding the recovery of charas are not to be accepted. Simply because PW-1 and PW-8 are police men is no ground to ignore their statements. PW-1 and PW-8 along with other police men were happened to be on the spot in connection with some accident and by chance accused along with the car came on the spot and the car was searched in routine and charas was recovered from bag lying in the car. Therefore, the prosecution has proved the recovery of charas from the bag which was lying in the car and 8 the prosecution case to this extent has been fully proved from the material on record. 9. There is no manner of doubt that the contraband recovered from the bag lying in the car was charas as per Chemical Examiner’s report Ex. PA. However, the connected question is whether prosecution has proved the case against all the accused persons. Accused Ashok Sharma has been charged under Section 20 read with Section 60 of the Act. The other accused have been charged under Section 20 read with Section 29 of the Act. Section 20 deals with punishment for contravention in connection with cannabis plant and cannabis, Section 29 deals with punishment for abetment and criminal conspiracy and Section 60 pertains to liability of illicit drugs, substances, plants, articles and conveyances to confiscation. The learned Special Judge has acquitted accused Ashok Sharma under Section 60 of the Act 10. PW-8 ASI HC has stated that black coloured bag Ex. P-3 was lying near the foot of accused Ashok Sharma and charas Ex. P-4 is also the same which was recovered from bag Ex. P-3. The driving license of Bhinder Singh accused is Ex. P-5. PW-1 constable Dalip Singh has stated that bag was opened by ASI and driving license of one Bhinder Singh was recovered. No prosecution witness has stated that bag Ex. P-3 was owned by accused Ashok Sharma, Daulat Ram and Balbir Singh. There is no material on record that any article was recovered from bag Ex. P-3 connecting the bag with accused Ashok Sharma, Daulat Ram, and Balbir Singh. It has, however, come on record that driving license Ex. P-5 of accused Bhinder Singh was recovered from bag Ex. P-3. The owner- ship of bag Ex. P-3 has been attributed to accused Ashok Sharma possibly for the reason that the bag was lying near his foot while he was sitting on 9 the front left seat in the car. As per prosecution Bhinder Singh was driving the car and the other front seat was occupied by accused Ashok Sharma and the vehicle was Alto car. Accused Bhinder Singh has given no explanation how his driving license Ex. P-5 was found in bag Ex. P-3. Bhinder Singh accused in his statement under Section 313 Cr.P.C. has stated that Alto car was being driven by him and at the instance of the police was taken to the place of accident. He assisted the police in carrying out the rescue operation. He refused to bring the dead bodies from the nallah as desired by the police and therefore, he has been falsely implicated in the case. The explanation given by Bhinder Singh accused regarding the case against him is not worth believing but simultaneously in the statement he has admitted his presence in the car at the time of search. The driving licence Ex.P-5 of Bhinder Singh was recovered from by Ex.P-3. In these circumstances prosecution has succeeded in connecting bag Ex. P-3 with accused Bhinder Singh, who was driving the car. Alto car is a small vehicle and it is reasonable to infer that due to paucity of space Bhinder Singh had kept the bag adjacent to the foot of Ashok Sharma, who was sitting on the front left seat of the car. There is no evidence that accused Ashok Kumar, Daulat Ram and Balbir Singh were having knowledge of charas Ex.P-4 which was kept in bag Ex. P-3. It has also not been established from the prosecution evidence that charas was kept in bag Ex. P-3 in connivance with Ashok Sharma, Daulat Ram and Balbir Singh accused. There is no evidence regarding conspiracy and abetment of offence implicating Ashok Sharma, Daulat Ram and Balbir Singh. There is nothing on record to show that Ashok Kumar, Daulalt Ram and Balbir Singh before the recovery of charas from bag Ex.P-3 were even remotely aware of the fact that charas was kept in a bag Ex. P-3. On the basis of material on record it cannot be said that 2.500 kilograms charas at the 10 relevant time was recovered from the conscious possession of Ashok Kumar, Daulat Ram and Balbir Singh accused. However, prosecution has established recovery of 2.500 kilograms charas from the bag Ex.P-3. Therefore, the prosecution has successfully connected recovered contraband with accused Bhinder Singh. The recovered stuff was found to be charas as per Chemical Examiner report Ex.PA. 11. The learned Addl. Advocate General has submitted that all the four accused were travelling together in the car which was not a taxi, therefore, it is reasonable to infer that all accused were aware that the bag contains 2.500 kilograms charas and it is for the accused to explain how they were sitting in the car when it is not owned by any accused. The learned Addl. Advocate General has referred Madan Lal and another vs. State of H.P. (2003) 7 SCC 465. He has submitted that in that case also five accused were travelling in the car and on search a bag was found which contained a ‘steel dolu’ and from the ‘dolu’ 820 gms of charas was recovered and nothing incriminating was found from the personal search of the accused persons. The trial court convicted all five accused in that case. The appeals filed by the accused were dismissed by the High Court. The appeals filed by the accused in Hon’ble Supreme Court were also dismissed. The learned Addl. Advocate General has submitted that the facts in Madan Lal case supra were very close to the facts of the present case and, therefore, the trial court has rightly convicted and sentenced all the accused in the present case. In Madan Lal case supra, the Hon’ble Supreme Court in para 28 of the judgment has held that the evidence clearly establishes that they knew about the transportation of charas and each had a role in the transportation and possession with conscious knowledge of what they were doing. In the present case the prosecution 11 has not led any evidence to show that accused Ashok Sharma, Daulat Ram and Balbir Singh were having the knowledge that charas has been kept in bag Ex. P-3 nor there is any evidence that bag and charas were in conscious possession of Ashok Sharma, Daulat Ram and Balbir Singh when charas from the bag was recovered. Therefore, it cannot be said that charas was recovered from conscious possession of Ashok Sharma, Daulat Ram and Balbir Singh. 12. In Sorabkhan Gandhkhan Pathan and another vs. State of Gujarat (2004) 13 SCC 608, the facts were that there were in all four accused. The trial court convicted accused 1 and 2 under Sections 20(b)(ii) read with Section 2(iii)(a) read with Section 29 of the Act and acquitted accused 3 and 4 for offences punishable under Sections 8(c), 20(2), 21, 27 and 29 of the Act. The appeal filed in the High Court was dismissed. The further facts are that information was received by police Inspector on 12.10.1992 that certain persons were carrying illicit liquor in an auto rickshaw, the police Inspector organized a raiding party and on inspecting the auto rickshaw he found accused No. 1 carrying a hand-bag which when searched was found to contain 960 gms of charas. On those facts the Hon’ble Supreme Court has held that appellant No. 2 as per prosecution case was travelling in the auto rickshaw along with three other persons. The prosecution has not produced any other material whatsoever to establish that either said appellant had the knowledge that appellant No. 1 was carrying the contraband or was, in any manner conniving with the said accused in carrying the contraband. In the absence of any such material, to convict the second appellant only on the ground that he was found in auto rickshaw is not justified. In the present case also simply because accused Ashok Sharma, Daulat Ram and Balbir Singh were travelling in the 12 car, it cannot be said that they had the knowledge that in bag Ex. P-3 charas was lying or they were conniving with Bhinder Singh in carrying the charas in the bag or they abetted the commission of offence. The learned trial court so far as the case of accused Ashok Sharma, Daulat Ram and Balbir Singh is concerned has not properly appreciated the material on record and has erred in convicting and sentencing accused Ashok Sharma, Daulat Ram and Balbir Singh, but so far conviction and sentence of accused Bhinder Singh is concerned no fault can be found with the impugned judgment Therefore, impugned judgment convicting and sentencing Ashok Sharma, Daulat Ram and Balbir Singh is liable to be set aside. 13. No other point was urged. 14. The result of the above discussion, the appeal is partly allowed, conviction and sentence of Ashok Sharma, Daulat Ram and Balbir Singh under Section 20 read with Section 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985 vide judgment dated 28.9.2007 is set aside, they are acquitted of the charge, fine amount, if any deposited by them be refunded to them. They be released immediately, if not required in any other case. So far conviction and sentence of accused Bhinder Singh vide judgment dated 28.9.2007 is concerned, the same is affirmed. (Kuldip Singh) Judge. July 21, 2008. (VB/sks)