IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.246 of 2007. Judgment Reserved on:14.09.2010. Decided on: December 15, 2010. Smt.Kamla …Appellant. VERSUS State of H.P. ….Respondent. Coram The Hon’ble Mr.Justice R.B.Misra, Judge. The Hon’ble Mr.Justice V.K.Sharma, Judge. Whether approved for reporting?1 Yes. For the Appellant: Mr.M.S.Guleria, Advocates. For the respondent: Mr.R.K.Sharma, Sr.Addl. A.G. R.B.Misra, Judge The present appeal has been preferred under Section 374 of the Code of Criminal Procedure, against the judgment dated 18th June, 2007, passed by learned Special Judge, Mandi, (H.P.), in Sessions Trial No.22 of 2006, whereby learned Special Judge convicted the accused under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short ‘NDPS Act’) awarding sentence to convict-appellant to undergo rigorous imprisonment for ten years with fine of Rs.1 lac Whether the reporters of the local papers maybe allowed to see the judgment? …2… and in case of default of payment of fine, to undergo imprisonment for a period of one year. 2. The prosecution case is that a team of police officials comprising of Inspector Dabe Ram (PW-8), along with HC Krishan Lal, Lady Constable Bimla Devi and Constable Surjit Kumar at about 5 P.M. left for traffic checking duty on 12.3.2006 in vehicle No.HP-33-0365,when reached at Khalyut Mor on Kandha-Chail Chowk road and at about 6 P.M. observed a taxi No.HP-01-3696, coming in high speed from Kandha side on its way to Chail Chowk was stopped at some distance despite signal having been given by the police officials. A lady was found sitting on the back seat with a bag on her side. On asking by PW.8, the driver could not produce the driving licence as he was only holding a learners licence, as such, the vehicle was challaned under the Motor Vehicles Act vide challan Ext.PG and on enquiry the lady disclosed her name as Kamla Devi and she was informed about her checking. Thereafter, (PW-1), Sohan Lal, Pradhan, Gram Panchayat, was called by PW-8 and formal search of bag Ext.P-3 was carried out and poly bag Ext.P-4, containing Charas, was recovered from there. HC Kishan Chand arranged scale and weights from the shop of Narotam Ram, a Karyana Merchant at Naun and on weighment 5 Kilograms of Charas was recovered, …3… out of which two samples of 25 grams each were taken out and sealed with seal ‘K’ and marked them as A-1 and A-2 and remaining bulk Charas was put in separate parcel and sealed with seal ‘K’ at 12 places. Samples were sent for the chemical examination and after investigation, convict- appellant was charged for the above offence. 3. In order to prove its case, the prosecution has examined as many as eight prosecution witnesses, whereas, the accused / respondent through her statement under Section 313 Cr.P.C. denied the prosecution case and has also denied that the bag Ext.P-3 was not in her conscious possession from which contraband goods were recovered and DW-1 Raju and DW-2 Mane Ram were produced on behalf of the defence. 4. The travelling of accused / respondent (Kamla) in said taxi with PW-2 Rakesh Kumar and DW-1 Raju is not disputed on 12.3.2006. The bag being carried in the said taxi is also not disputed. The vital question therefore, for determination is whether Kamla while travelling in the said taxi was carrying the bag Ext.P-3 with herself and the same was in her conscious possession from which poly bag containing Charas was recovered. Prosecution has been found by learned Special Judge to have proved its case …4… beyond reasonable doubt, as such, the prosecution and defence witnesses are required to be scrutinized exhaustively. 5. PW-1, (Sohan Lal), the Pradhan Gram Panchayat, Naun, when joined the investigation with police officials on 12.3.2006 at Khalyut Mor on Kandha Chail Chowk Road, at that time Ramesh Kumar (PW-2) and one other person with the police officials, were already present and at that time one taxi came from Kandha side which was on way to Chail Chowk in which a lady was sitting in the said vehicle, who disclosed her name as Kamla Devi, however, PW-1 had not seen anything in possession of Kamla Devi as PW-1 has stated that “I have not seen anything in possession of Kamla Devi as I came later-on. I have seen one bag lying on the road by side of vehicle. The said bag was opened by the police and Charas was recovered from the said bag wrapped in polythene envelope.” PW-1 has further stated that on weighment, 5 Kilograms of Charas was found and samples of the Charas were taken and other formalities, as usual, as stated in the testimony of PW-1, were made. In view of the testimony of PW-1, taking of sample, putting of seal impression etc. and putting of signatures by himself and by accused were affirmed. PW-1, in his cross examination, has stated that Max …5… vehicle No.HP-01M-3696 was a taxi and Rakesh Kumar (PW-2) was driver in the said vehicle in which accused / respondent was sitting in the rear seat. However, carrying of bag Ext.P-3 was denied by the accused. PW-1 has indicated in his cross examination that though he is matriculate and normally puts signatures on papers after going through the contents of the same, however, she had put signatures on the relevant papers in the present case, without reading the contents thereon. PW-1 has further stated in his cross examination that house of PW-1 is at a distance of half kilometer from the place of incident and he joined the police later-on and when he reached the spot, the police was enquiring from the accused, Rakesh Kumar (PW-2) and another occupant of the vehicle regarding the possession and ownership of the same. It was almost dark when PW-1 reached on the spot, thereafter, PW-1, along with other person and police went to Police Station, Gohar in the said vehicle and had further stated in his cross examination that, “I was sitting outside the Police Station in the verandah and police conducted the proceedings inside the Police Station. ... ... It is incorrect that later-on we were called inside the room by the police and signatures obtained by police on papers.” …6… 6. PW-2, (Rakesh Kumar), the driver of taxi No.HP-01M-3696, has deposed that he was standing at the Taxi Stand along with taxi at Thunag and Raju (DW-1) was also with PW-2 at the relevant time. PW-2 has stated that he was driver of taxi No.HP- 01M-3696 and accused Kamla Devi came to PW-2 and hired his taxi to go to Chail Chowk Bassa. Kamla Devi was known to PW-2 as she was running maniyari shop and was carrying bag in her hand when she boarded taxi of PW-2. She sat on the back seat of his taxi. Raju sat with PW-2 on the front seat of taxi and started at 4 P.M. and reached at Khaliun Mor near Village Naun when police after giving signal stopped the taxi and on formal checking of vehicle, police challaned PW-2 for his not having driving licence. Thereafter, the bag, carried by the accused, was also checked by the police. A poly bag containing Charas was found inside the said bag. Charas was taken out from the bag and weighed in scale and found to be 5 kilograms. Police had also called Pradhan, Sohan Lal (PW-1) on the spot. Thereafter, two samples of Charas were taken separately and same were put in different parcels of cloth and same were sealed with some seal. Signature of PW-2 were obtained on sample parcel as well as bulk parcel which was also sealed with the same seal. PW-2 has seen sample seal …7… parcel Ext.P-1 which bears his signatures and that of Sohan Lal, Pradhan and thumb marked by the accused. PW-2 did not remember to whom the seal was handed over. PW-2 has further stated that the police had prepared search and seizure memo and attachment form Ext.PB where PW-2 had put his signatures and PW-2 had paid fine in the Court of SDJM, Gohar vide receipt Ext.PF and the copy of challan is Ext.PG under Motor Vehicles Act. PW-2, in his cross examination, has further stated that, “My signatures were obtained by the police on the various papers in the Police Station. We were sitting on bench in the verandah of the Police Station. I do not know where the police had prepared the parcels and papers as I was sitting outside the Police Station in verandah. My signatures were obtained after 10 – 15 minutes of arrival in Police Station. It was almost darkness at that time.” PW-2 has further denied that he was carrying Ext.P-3 in his taxi in the dicky and when police started searching vehicle he foisted the same on the accused. PW-2 has further denied that he got frightened because he was carrying Charas, as such, he stopped the vehicle after covering some distance. According to PW-2 in his cross examination, it is incorrect that in connivance with the police, he foisted false case against …8… accused Kamla Devi and has also denied that the recovered Charas belonged to PW-2. 7. PW-3, Lady Constable Purnu Devi, had received special report Ext.PJ on 14.3.2006 which she delivered to the Superintendent of Police, Mandi at his residence at 3.30 P.M. 8. PW-4, HC Vinod Kumar, while posted as Assistant Reader in the office of S.P.Mandi, has received special report Ext.PJ. PW-5, HC Inder Dev, posted at relevant time as MHC in Police Station, Gohar, had received two sample parcels sealed with seal impression ‘K’ (marked as A-1, A-2 and a bulk parcel Ext.P-2) which were sealed with seal ‘K’ at 12 places along with specimen seal ‘K’, NCB Form, search and seizure form and other documents and accordingly PW-5 had entered the same in Malkhana Register at Sr.No.536 on 12.3.2006 Ext.PL. 9. PW-6, Constable Jai Singh, who received sample sealed parcels on 13.3.2006 with seal having impression ‘K’ at six places along with specimen seal, NCB Form and other documents vide R.C.No.178/5-06 had deposited at CTL Kandaghat on 14.3.2006. The report of Chemical Examiner in that respect was obtained as Ext.PD/1. …9… 10. PW-7, ASI Paras Ram, received Rukka Ext.PO through Constable Surjit Kumar and accordingly F.I.R. Ext.PQ was registered by him. 11. PW-8, Inspector Dabe Ram, while posted as S.H.O. in Police Station, Gohar, in his endeavour to support the prosecution case, has stated that on giving signal, the driver of the vehicle in question stopped the vehicle after covering some distance. The vehicle in question was driven by PW- 2 Rakesh Kumar and his relative Raju (DW-1) was sitting along with him by his side and a lady was sitting on the back seat who was carrying a bag putting the same at her side on the seat. On asking PW-2 Rakesh Kumar, could not produce learner’s licence, as such, the vehicle was put under the challan and accordingly a fine of Rs.500/- was imposed by the Court against PW-2. PW-8 has further stated that on enquiry from the lady, she disclosed her name Kamla alias Dassi, resident of Thunag and she was told for formal check up of her bag and she was bit reluctant, therefore, Sohan Lal, Pradhan, from the nearby Gram Panchayat was called who joined the investigation along with PW-2 Rakesh Kumar and on opening the bag Ext.P-3, a polythene envelope was taken out containing Charas Ext.P-5. Thereafter, PW-8 sent HC Krishan Chand to arrange scale and weights from …10… Naun. Accordingly, he arranged the same from the shop of Narotam Ram, Karyana Merchant and on weighment of the recovered Charas it was found to be 5 Kilograms and two samples of 25 grams each were separated and sealed with seal impression ‘K’ at six places each and marked as A-1 and A-2. The remaining bulk Charas was separately put in a parcel sealed with seal ‘K’ at twelve places. The specimen of seal ‘K’ was taken on pieces of cloth, one of which was Ext.PC bearing the signatures of witnesses and thumb impression of the accused. After fulfilling the formalities, the case property was deposited with MHC Inder Singh along with NCB Form, specimen seals and other documents along with two sample parcels and bulk parcel. Seal ‘K’ after use was handed over to PW-1 Sohan Lal witness. Witness Sohan Lal, Narotam Lal and accused were related to each other. PW-8 has further stated that Kamla Devi (accused) had hired the taxi of Rakesh Kumar (PW-2) for going to Chail Chowk Bassa and was carrying the Charas in her bag Ext.P-3. In cross examination, PW-8 has stated that he was doing traffic checking on that day and had not challaned any other vehicle on that day and it took half an hour for searching, sealing and preparing the memos on the spot. PW-8 had sent Surjit Kumar Constable to call PW-1 Sohan Lal …11… Pradhan of concerned Panchayat. However, PW-8 has very specifically indicated in his cross examination that “I felt no necessity to call any other person as Rakesh and Raju were already present on the spot. I felt no necessity to call two other persons from the locality.” PW-8 has denied that all the inmates of the vehicle, including the accused and driver, were brought outside and thereafter search of the vehicle was done and has also denied that Ext.P-3 was recovered from the dicky of the vehicle as there is no dicky in the said vehicle. PW-8 has also denied that the proceedings were conducted inside the room at Police Station, Gohar and also denied that all the three persons along with Pradhan were made to sit out side the Police Station in Verandah. PW-8 has also stated in his cross examination that he had not made any enquiry that Kamla (accused ) boarded the vehicle along with bag at Thunag except from Rakesh (PW-1) and Raju (DW-1) both related to each other as uncle and nephew in relation. 12. DW-1 (Raju) has stated that accused Kamla is his siste/cousin and on 12.3.2006 when he, along with the accused, was going to Gohar to his relation, he came to Thunag to get the bus but he could not get the same on the said date. DW-1 had also made enquiry from the taxi drivers as to …12… whether any taxi was going to Gohar, but Rs.700/- was demanded by them as charges, in the meanwhile, taxi (Jeep) No.HP01M-3696 driven by Rakesh Kumar came from Janjehali side and on giving signal, it stopped nearby to DW-1, on enquiry he told that he was going to Ner Chowk. DW-1 requested PW-2 Rakesh Kumar to take him also to Gohar to which he agreed. Accordingly, DW-1 and accused occupied the seats in the Jeep. At that time, as per testimony of DW-1, both were not holding any bag and both sat on the back seat of the driver and when they reached near village Naun, they were stopped by the police party and after stopping the vehicle, they took DW-1 and accused out and searched the taxi and one bag was taken out by them from the back side of the seat kept on the parapet, thereafter, one person was called by the police and then DW-1 and accused were taken to Police Station, Gohar and were made to sit on the bench in the Police Station outside the room and after some time signatures were obtained on many papers. DW-1 and PW-2 (Rakesh Kumar) were sent by the police, whereas, accused Kamla was taken into custody. In cross examination, DW-1 has stated that he did not remember the name of his grand father, however, the name of his grand father and that of accused is the same and subsequently said that the …13… name of his grand father is Daru Ram and accused Kamla has no nick name and denied that accused is known by the name of Dassi and had also denied that Rakesh Kumar (PW-2), driver of the taxi in question was his friend and mostly was accompanying him. DW-1 in his cross examination has also stated that when the taxi was intercepted, at that time DW-1, accused Kamla Devi and driver Rakesh Kumar (PW-2) were present and none else were inside the taxi and DW-1 has also stated that it is incorrect that he was not sitting with the driver on the front seat and Kamla Devi was sitting on the back side of the seat and has further stated that DW-1 and accused were sitting on the back seat and also stated that the accused was also holding the bag under her hands on the back seat of the taxi. 13. Mr.Guleria, learned counsel appearing for and on behalf of the convict / appellant, has made following submissions:- (i) No independent witness was associated by the prosecution. Nothing is emanating from the prosecution witnesses or the defence witnesses that endeavour was made on the part of the prosecution and Investigating Officer to associate independent witness of the locality; …14… (ii) Samples, which were drawn by the Investigating Officer, were not according to the provisions of Section 55 of the NDPS Act, as such, the prosecution case has been shattered; (iii) PW-2 (Rakesh Kumar), the driver and DW-1 (Raju) though were occupants of the vehicle when alleged recovery of contraband goods were made from Kamla Devi (convict – appellant) but for the reasons best known to the prosecution they were not treated as co-accused or accomplices; (iv) Samples allegedly taken out from the contraband goods recovered on the relevant date were not properly handled and were not kept in the Malkhana, as such, the possibility of tampering of samples cannot be ruled out; and (v) The contraband goods alleged to have been recovered cannot be said to be recovered from the exclusive and conscious possession of the convict / appellant Kamla Devi. …15… (vi) PW.2 Rakesh Kumar, the driver of the taxi HP-01M-3696 has not supported the prosecution case and was not even declared hostile, as such, the testimony of PW.2 is binding on the prosecution but defence can derive the benefit of the testimony of PW.2. (vii) PW.1 (Sohan Lal), the Pradhan Gram Panchayat has stated in cross- examination that normally he puts signatures on papers after going through the contents therein. However, in present case, he has put the signatures on the relevant papers without reading the contents therein. PW.1 has also stated that,” I was sitting outside the Police Station in the verandah and police conducted the proceedings inside the Police Station…… ….. ….. …..It is incorrect that later-on we were called inside the room by the police and signatures obtained by the police on papers.” PW.1 has also stated that “I have not seen anything in possession of Kamla Devi as I came later-on. I have seen one bag lying on the road by side of …16… vehicle. The said bag was opened by the police and Charas was recovered from the said bag wrapped in polythene envelope.” PW.1 (Sohan Lal) though said to have been relied upon by the prosecution, however, his testimony does not support the prosecution case as he has put the signatures without looking the contents in the search and seizure and had not seen anything in possession of convict / appellant Kanta Devi as he came later-on and he has only observed that bag from which the alleged recovery of contraband goods was made was lying on the road by side of the vehicle. Likewise, PW.2 (Rakesh Kumar) the driver of the taxi, accompanying all along the convict / appellant, has stated that that PW.1 (Sohan Lal) was called on the spot and PW.2 did not remember to whom the seal was handed over. PW-2, in his cross examination, has further stated that, “My signatures were obtained by the police on the various papers in the Police Station. We were …17… sitting on bench in the verandah of the Police Station. I do not know where the police had prepared the parcels and papers as I was sitting outside the Police Station in verandah. My signatures were obtained after 10 – 15 minutes of arrival in Police Station. It was almost darkness at that time.” (viii) In view of the testimony of PW.2 made in cross-examination, he was sitting outside the Police Station and his signatures were obtained by the police on various papers only after 10-15 minutes of his arrival in the Police Station. The prosecution was to declare him (PW.2) hostile, however, since PW.2 was not declared hostile and his testimony was binding upon the prosecution, in these circumstances the defence can derive the benefit to the extent testimony of PW.2 supports the defence case. It appears that nothing has happened in his presence and his signatures were obtained in Police Station. However, PW.2 has only supported the prosecution case that he did not keep …18… bag Ex.P3 in dicky of his taxi and in view of his testimony he has not connived with the police to falsely implicate Kamla Devi, convict / appellant and has indicated that a poly bag containing charas was found inside the said bag Ex.P3 which was being carried by the convict / appellant Kamla Devi. 14. Mr.Guleria, learned counsel for the convict / appellant, has referred and relied upon the following decisions:- In Ajmer Singh versus State of Haryana, (2010) 3 SCC 746, it was observed by Hon’ble Supreme Court that while searching the bag, briefcase etc. carried by the accused person, compliance of provisions of Section 50 of the NDPS Act is not required. It was also observed that the testimony of official witnesses, even in absence of its corroboration by independent witness, can form basis of conviction if the Court is satisfied, on careful and cautious appreciation of evidence that it is otherwise believable. Arrest and recovery made by the police could not necessarily be vitiated if the Court finds that despite making reasonable efforts, police failed to associate public …19… witnesses with the raid or arrest. The relevant paragraphs of the judgment of Ajmer Singh’s case (supra) are being referred as below:- “19. The learned counsel for the appellant has submitted that the evidence of the official witnesses cannot be relied upon as their testimony, has not been corroborated by any independent witness. We are unable to agree with the said submission of the learned counsel. It is clear from the testimony of the prosecution witnesses PW-3, Paramjit Singh Ahalwat, DSP, Pehowa; PW 4, Raja Ram, Head Constable and PW-5, Maya Ram, which is on record, that efforts were made by the investigating party to include independent witness at the time of recovery, but none was willing. It is true that a charge under the Act is serious and carries onerous consequences. The minimum sentence prescribed under the Act is imprisonment of 10 years and a fine. In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. Therefore, in the peculiar circumstances of this case, we are satisfied that it would be travesty of justice, if the appellant is acquitted merely because no independent witness has been produced.” 20. We cannot forget that it may not be possible to find independent witness at all places, 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, 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 …20… after taking due care and caution in evaluating their evidence. 21. In the present case, both the trial court and the High Court by