IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.732 of 1996 Decided on: May 17, 2010. State of H.P. …Appellant. VERSUS Prithvi Singh ….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 For the Appellant: Mr. Rajesh Madhotra, Dy.A.G. and Mr. Vivek Thakur, Addl. A.G. For the respondent: Mr. R.K.Gautam, Senior Advocate with Ms. Archna Dutt, Advocate R.B.Misra, Judge (Oral): Heard learned counsel for the parties. 2. Present appeal has arisen after leave to appeal has been granted under Section 378 of the Code of Criminal Procedure in reference to order, dated 13.6.1996, passed by the learned Additional Sessions Judge, Kullu in Sessions Trial No. 1/96, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 3.. In order to adjudicate the present appeal, it is necessary to deal with the prosecution version. On 20.10.1995, constable Kanyaya Lal and LHC Lal Singh, Police Station, Banjhar were on patrol duty at Khundan Mod. Kanyaya Lal constable informed Jagdish Chand, Whether the reporters of the local papers maybe allowed to see the judgment? …2… SI/SHO, Police Station, Banjar at 2.00 p.m. on telephone that a person had alighted from Bathahar bus at Khundan Mod and is having a polythene bag in his hand, and there was suspicion of his being having chras in his possession ad LHC Lal Singh is keeping watch upon him. This information was entered in the rapat roznamcha vide rapat No. 13 and the Superintendent of Police, Kullu was also informed vide W/T message No. 3210/5-A on that very day. The SHO Jagdish Chand accompanied by ASI Om Chand and constable Devi Ram had proceeded to Khundan Mod from the police station and when they were on their way, Bhup Singh and Neel Chand were also associated in the raiding party. Scales and weights were stated to be obtained from Rakesh Kumar, shop-keeper, Banjar and thereafter the raiding party had reached on the spot. One person was found sitting at Khundan Mod who was being watched by LHC Lal Singh and constable Kanahaya Lal in civil dress. On seeing the police party, that person had become nervous. The antecendants of that person were then asked in presence of witnesses and he revealed his name as Prithvi Singh alias Prithi Singh, son of Shri Telu Ram, resident of Dadhola, Tehsil and Police Station, Panipat, District Panipat (Haryana). The alleged accused was stated to be informed in presence of the independent witness orally as well as in writing that the police had suspicion of his having been in possession of charas and thus his personal search is required. Further that the option of the alleged accused was sought as to whether he would like to render his search to a Magistrate or Gazetted Officer or to Shri Jagdish Chand SI/SHO, in presence of witnesses. The memo Ex.PW-12/A is stated to have been prepared in …3… this regard in presence of witnesses, who have also put their signatures thereupon. The accused is stated to have consented to be searched by the police itself in writing as per memo Ex.PW-12/B. The SHO, Jagdish Chand thereafter is stated to have offered his search to the alleged accused and during such search, apart from the identity card of the SHO, nothing was recovered from him. The memo in this regard is Ex.PW-12/C. The search of the alleged accused was then conducted by SI Jagdish Chand and when the polythene packet which was in the hand of the alleged accused was searched, the charas in the shape of sticks was found kept therein. The recovered charas was weighed and it was found to be one kilogram. Out of the recovered charas, 50 gms. Was separated fro the purposes of sample and divided the same into two parts and sealed it into separate parcels with seal `C’. The remaining bulk is also stated to have been sealed in a separate parcel with the same seal. After obtaining the sample of seal, it was handed over to Shri Bhup Singh. Since the possession of charas by the accused is found illegal, therefore, SI Jagdish Chand had prepared ruka Ex.PW-2/B and sent the same to MHC, Police Station, Banjar for the registration of the case against the accused through constable Kanhaya Lal. 4. On the basis of the ruka, formal FIR Ex. PW-2/A was recorded and the file was sent to the I.O. through constable Kanhaya Lal itself. The recovered charas and the sample parcel then were taken into possession vide recovery memo Ex. PW-12/D whereas the personal belongings of the alleged accused accused were taken into possession vide recovery memo Ex.PW-12/D, whereas the personal belongs of the accused were taken into possession vide recovery …4… memo Ex.PW-12/G. The grounds of arrest were also made known to the alleged accused vide memo Ex. PW-12/F. The alleged accused was then arrested on the spot. After completion of the investigation on the spot, the alleged accused alongwith the case property was produced before Tehsildar, Banjar in his office, who re-sealed the parcels with seal `K’ and thereafter returned the parcels containing the case property to the police. The case property thereafter was deposited by the investigating officer with MHC, Police Station, Banjar for safe custody in Malkhana. The wife of the alleged accused is also stated to have been informed regarding the arrest of the alleged accused. It is also the case of the prosecution that on 21.10.1995, the investigating officer has prepared the special report in this case and forwarded the same to the S.P., Kullu through LHC Lal Singh. One of the sample parcel was sent for analaysis to CTI, Kandaghat on 20.10.1995 and after having received the report Ex.PW-12/K from the Lab, the police has prepared the challan and filed the same in the court. 5. On the basis of the receipt of the challan and materials on record, learned Additional Sessions Judge charged the alleged accused under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). In order to prove its case, the prosecution has examined as many as twelve witnesses, whereas the alleged accused has shown his innocence and has declined the guilt. 6. PW-1 Hari Pal was posted as Reader to S.P., Kullu at the relevant time. This witness has stated that W/T message Ex.PW-1/A and the special report Ex.PW-1/B were received by him on …5… 21.10.1995 and the same were placed before the Dy. S.P. Kullu for his perusal. This witness has also produced the original W/T message. In his cross-examination he has denied any tampering in the Register, maintained in the S.P. Office for entering the reports pertaining to such like cases, however, the cutting is noticed by this court and observations to this effect are there on the record. 7. PW-2 Baldev Singh, MHC, P.S. Banjar has registered the case vide FIR Ex.PW-2/A on the basis of the ruka Ex.PW-2/B, which was received by him from the investigation officer. This witness has further stated that the case property of this case sealed with seal `C’ and `K’ was handed over to him for safe custody I the Malkhana. One of the sample parcel is stated to have been dispatched to CTL, Kandaghat through LHC, Kahan Singh. The parcels of case propertyEx.P-1 and P-2 were stated to be the same which were handed over to him by the investigating officer on 20.10.1995. 8. PW-3 Yog Raj, the then Tehsildar, Banjar has stated that the accused as well as the case property was produced before him and he sealed the parcels containing the case property with his own seal `K’. This witness has also produced seal `K’ before the trial court. In his cross examination, he has stated that the alleged accused and the case property were produced before him at 4.45 p.m. on 20.10.1992. 9. PW-4 Neel Chand, the independent witness, has stated that he was called to police station where the police had obtained his signatures on the documents Ex.PW-1/A to Ex.PW-12/F and he was told that the police has recovered the charas from the alleged accused. This witness has, however, turned hostile. …6… 10. PW-5 Bhup Singh is another independent witness, who has also resiled from his previous statement and not supported the prosecution story. This witness has also deposed that his signatures were obtained by the police in the police station, as he had not gone to Khundan Mod with the police. In his cross examination, the suggestions that he had gone to Khundan Mod, the police had obtained the consent of the alleged accused in his presence regarding his search, the search of the alleged accused by SHO after giving his search to the alleged accused and recovery of the charas from the possession of the accused were denied by this witness. He deposed in the similar manner as deposed by Neel Chand, PW-4 and stated that nothing has happened in his presence, hwoever, he was called to the police station by the police. 11. PW-6 Dharam Chand, M.C. has stated that rapat Ex.PW-6/A bearing No. 13 was entered by him on 20.10.1995 at 2.0 p.m. PW-7 LHC Lal Singh has deposed that the special report of this case was taken by him to the S.P. Office on 21.10.1995 where he handed over the same to the reader to S.P. at 12.15 p.m. 12. PW-8 Mangat Ram has stated that at the relevant time, he was posted at wireless Station, Banjar and W/T message Ex.PW-8/A was handed over to him by Jagdish Chand SI/SHO, P.S. Banjar to transmit the same to S.P. Office, Kullu. Since W/T set was not in order and communication system was not in proper condition, therefore, this witness could not pass on the message to S.P. Office on 20.10.1995 and it was passed on 21.19.1995 at 9.10 a.m. 13. PW-9 Constable Kanhaya Lal has stated that MHC, P.S. Banjar handed over a sample parcel to him pertaining to this case …7… which he took to the Laboratory at Kandaghat and obtained the receipt on the R.C. after its deposit there on 22.10.1995 and the receipt was handed over to MHC by him on his return. 14. PW-10 Kanhaya Lal, while supporting the prosecution story, has stated that on 20.10.1995, he and LHC Lal Singh were having secret information of some one coming with charas and when they noticed the accused sitting at Khundan Mod, it raised suspicion ion their mind and thus he informed the SHO, P.S. Banjar accordingly. This witness has supported the entire prosecution story in his examination-in-chief. In his cross examination he has stated that secret information regarding some person coming with charas was received by him at 7.00 p.m. at Banjar when he was taking tea there at a tea stall. According to him, he informed the MHC, P.S. Banjar regarding this information, however, no entry thereof was made in the roznamcha. This witness has also stated that there is entry in the roznamcha qua his proceeding on patrol duty alongwith LHC Lal Singh. He informed the SHO at 2.15 p.m. and the SHO alongwith other members of the raiding party as well as witnesses reached on the spot within 15-20 minutes. The entire proceedings were stated to be completed by 4.15 p.m. and thereafter he proceeded to police station alongwith ruka. He has further stated that after getting the case registered, he had come back to the spot at 5.15 p.m. and thereafter the police party remained on the spot for about 15 minutes more. When the police party reached Banjar, it was dark. The alleged accused is stated to have taken to the residence of Tehsildar, as according to this witness, all the offices were closed by that time. …8… 15. PW-11 is Kartar Singh, Wireless Operator, who has stated that he received W/T message Ex.PW-1/A at Police Radio Station, Kullu on 21.10.1995 and thereafter handed over the same to the Reader to S.P., Kullu. 16. PW-12, Jagdish Chand, SI/SHO Banjar has stated that he carried out the investigation of this case. This witness has supported the entire prosecution story. In his cross examination, he has stated that the police party left the spot after completing the investigation at 5.0 p.m. and when they reached at Police Station, Banjar, Tehsildar was sitting in his office. The suggestions that no investigation had taken place at the spot and the police has prepared the record in the police station and also obtained the signatures of the PWs, Neel Chand and Bhup Singh there, itself were denied by this witness. 17. On analysis of the prosecution witnesses and materials on record, we notice that the entire case of the prosecution is that charas weighing 1 k.g. has been recovered from the possession of the alleged accused in presence of Neel Chand (PW-4) and Bhup Singh (PW-5), whereas both the independent witnesses, according to the prosecution, were associated in the investigation of the case. 18. As we have seen that PW-3 Yog Raj, the then Tehsildar, has stated that the case property was produced before him at 4.45 p.m. on 20.10.1991995, whereas PW-4 Neel Chand, an independent witness, has stated that he was told by the police that recovery of charas has been made. PW-5, another independent witness, has not supported the prosecution version and has stated that his signatures were obtained by the police at the police station. AS per versions of PW-5, he had not gone to Khundan Mod with police. The prosecution …9… case was that accused was noticed sitting at Khundan Mod by LHC Lal Singh and Kanhaya Lal. Such version is not supported at all by PWs 4 and 5. More so, according to PW-5, he did not go to Khundan Mod alongwith the police. Neither he was associated by the police in search nor he was associated in the investigation. Since PWs 4 and 5 have not supported the prosecution version, thereafter only testimony of PW-1 and PW-12, investigating officer being the official witnesses available, who could be said to be supporting the prosecution version. We notice that independent witnesses have not at all supported the recovery of charas from the alleged accused. The recovery of charas from the alleged accused is, therefore, falsified as PWs 3, 4 and 5 have consistently indicated that search was not made in their presence and recovery also was not made in their presence. 19. In our considered view, the prosecution has failed to prove the recovery of charas from the conscious and exclusive possession of the alleged accused, which is sine qua non for the purpose of affirming the conviction under Section 20 of the Act. 20. From the testimonies of prosecution witnesses PWs 3, 4 and 5 and other prosecution witnesses, we also notice that as per testimony of PW-3, the then Tehsildar, Banjar, the alleged accused was brought to his office at 4.45 p.m. when he was sitting in his office and whereas PW-9 constable Kanhaya Lal, an official witness, has stated that the alleged accused was taken to the residence of Tehsildar as the office time was over. As per testimony of PW-12, Jagdish Chand, the investigating officer, he left the spot at 5.0 p.m. and the alleged accused was produced before the Tehsildar alongwith the case property in his office. All these prosecution …10… witnesses have been revealing different story. It appears that the entire proceedings had taken place in the police station only and not on the spot and after completion of the proceedings in the police station, the alleged accused were produced before the Tehsildar. Therefore, the prosecution case that the accused was searched on the spot and documents were also prepared on the spot in presence of the prosecution witnesses is totally false. As such, the prosecution witnesses do not inspire confidence. The contradictions, as notice above, are major and goes to the route of the case and on the basis of the material on record and the statement of the prosecution witnesses, the recovery of charas from the alleged accused, has become doubtful. 21. The learned Additional Sessions Judge has rightly acquitted the alleged accused by making observation that the prosecution has failed to prove its case beyond reasonable doubt. In view of the above discussion, we find no merit in this appeal which accordingly is dismissed. The bail bonds furnished by the alleged accused-respondent are discharged forthwith. ( R.B.Misra ) Judge May 17, 2010(K) ( V.K.Sharma ), Judge