1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.Appeal No.30 of 2007 Judgment Reserved on: 09.08.2011 Date of decision: 01.09.2011 Nanha … …Appellant Versus State of H.P. … …Respondent Coram The Hon’ble Mr.Justice R.B. Misra,J. The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 Yes For the Appellant: Mr.Suneet Goel, Advocate. For the Respondents: Mr.R.K. Sharma, Senior Additional Advocate General with Mr.Rajinder Dogra, Additional Advocate General. Dev Darshan Sud,J. This appeal has been preferred by the appellant against the judgment of the learned trial Court convicting him for offences under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the `Act’) and sentencing him to undergo rigorous imprisonment for ten years and fine of Rs.one lac and in case of default in the payment of fine to further undergo rigorous imprisonment for three years. 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes 2 2. The prosecution case in brief is that the appellant herein was arrested on 7th January, 2005 when police party comprising of PW-8 ASI Tarlok Chand, PW-6 HC Palam Singh, HC Jagdish Chand, PW-2 Constable Sandeep Kumar, PW-3 Constable Vijay Kumar, Constable Bhagat Ram, Constable Ajay Kumar and Constable Nar Bahadur were on routine traffic checking at Kalhel. At around 7.40 A.M. a bus bearing No.HP-48-0919 of the Himachal Road Transport Corporation, which was on way from Bhanjararu to Chamba, was stopped for checking in the presence of Balbir Singh PW-1, who was the Inspector of Himachal Road Transport Corporation, Chamba Depot and Sant Singh. They spotted a man, who was later on identified as the accused, seated on seat No.25 clutching a black coloured bag which was on his lap. The bag was opened and two pouches of cloth were found to contain Charas in the shape of sticks. On being questioned, he disclosed his name as Nanha (accused in this case). Charas from these bags was mixed up and ASI Tarlok Chand PW-8 deputed Sant Singh to bring weights and weighing scales which direction was duly complied with. The Charas was weighed and found to be 2 Kg. Out of this, two samples of 20 grams each were separated. They were put in two empty cigarette boxes which were wrapped and sealed with the impression `D’. The remaining Charas weighing 1 Kg.960 grams was put in the same cloth pouches and sealed with seal `D’. The specimen impression of the seal was 3 retained/affixed on a piece of cloth Ex.PC and the seal after use was handed over to Shri Balbir Singh. The parcels were taken into possession vide Memo Ex.PA in the presence of the witnesses. NCB form was prepared and other investigation commenced. Seized samples and NCB form were sent to the Chemical Examiner CTL, Kandaghat for analysis. 3. The prosecution examined 11 witnesses. Out of these, Balbir Singh PW-1 has stated that on the day he was traveling in this bus it was stopped at Kalhel by the police. The passenger, who was seated on seat No.25 carrying black coloured bag with him, was made to get down from the bus. The bag was opened and two cloth pouches were recovered from the bag. Charas was found in the shape of two round balls. He then states that from the recovered contraband two samples of 20-25 grams each were separated and put in empty cigarette boxes. The cigarette boxes and balance Charas were sealed by the police with impression `D’ and taken into possession by Memo Ex.PA. This was signed by him and Sant Singh (who has not been produced as a witness). He says that he knows Sant Singh who is running a karyana shop in Kalhel. 20-25 persons were traveling in the bus when this witness boarded it for checking. He denied the suggestion that on 29.9.2005 he appeared as a witness before the same Court in case titled: State vs. Satya Narayan and told the Court that the police had recovered the contraband from Satya Narayan who 4 purported to travel in the same bus. According to him, Charas was weighed in the shop of Sant Singh, Constable Sandeep Kumar PW-2 and Constable Vijay Kumar PW-3 have corroborated this witness. PW-8 ASI Tarlok Chand also corroborates these witnesses. 4. The learned Court, on the evidence on record and adverting to the principle that these witnesses had no animosity to state anything against the accused proceeded to convict him. The judgment proceeds in 31 paragraphs out of which 24 paragraphs are paraphrasing what the witnesses state and abruptly in two paragraphs the learned trial Judge decided the entire controversy before it by invoking the principle of law holding that the police witnesses are not interested witnesses and have no motive to implicate the appellant. As principle of law we have no doubt in our mind that this is the established principle in case the testimony is otherwise reliable. However, whether the evidence itself was a pointer to the effect as to whether the accused is guilty or not, the learned Judge has failed to apply his mind and has given short shrift to the evidence of other witnesses. The learned trial Court being the Court of first instance namely; the learned original Court, was duty bond in law to determine the principle or otherwise of the facts as established on the record and not to gloss over the contradictions merely for the reasons that they became inconvenient to the prosecution. The contradiction in the evidence of 5 this witness withholding, Sant Singh, from whose possession the weights and measures, weighing scales were procured, has not been considered by the trial Court. 5. Learned counsel appearing for the appellant, submits that these are major contradictions in the evidence of the prosecution witnesses, which have been ignored and ought to have been the central focus/attention of the learned trial Court. In particular, he submits that the evidence of PW-1 Balbir Singh has been contradicted in material terms, namely, that the bus stopped 100 yards short to Kalhel, whereas spot map shows the bus was parked right in front of the shop. There were 20-25 passengers in the bus, whereas PW-3 Constable Vijay Kumar says that there were 35-36 passengers when it stopped for checking and PW-6 HC Palam Singh says that the bus was full to its carrying capacity. More importantly, this witness says that Sant Singh was in a shop at Kalhel, whereas PW-2 Constable Sandeep Kumar says that Sant Singh was sent for by ASI Tarlok Chand PW-8 to bring the weighing scale and weights from his shop. He then says that no warning was given to the passengers before checking, whereas PW-2 Constable Sandeep Kumar says that the passengers were infact given warning before checking/search conducted in the bus. PW-3 Constable Vijay Kumar cannot remember that any such warning was given or not. More importantly, he says that on the 6 same day Charas was recovered from another passenger but not from Satya Narayan. PW-2 Constable Sandeep Kumar is emphatic when he says that Satya Narayan was also caught from the same bus on the same day. PW-3 Constable Vijay Kumar contradicts PW-2 Constable Sandeep Kumar by saying that Satya Narayan was not apprehended from the same bus in his presence. PW-6 HC Palam Singh says that Satya Narayan was apprehended with Charas on the same day from the same bus. Learned counsel then submits that PW-5 Constable Yoginder Singh says in his cross examination that the seal has been lost and no report etc. 6. Learned counsel then submits that this witness states that the Charas was weighed in the shop of Sant Singh, whereas PW-2 Constable Sandeep Kumar states that Charas was weighed on the roadside near the shop of Sant Singh and another version comes from PW-8 ASI Tarlok Chand who says that the Charas was weighed outside the vehicle at the time of checking. Continuing with these contradictions, learned counsel then submits that the bus was stopped for 20-25 minutes, whereas PW-8 ASI Tarlok Chand states that the bus remained there till the evening hours. One more aspect to be noticed is that PW-6 HC Palam Singh says that it is quite possible that Sant Singh had appeared as a witness in 40-50 cases. He is a stock witness. PW-8 Tarlok Chand says that he cannot remember the number of the bus. Lastly it is pointed out by learned 7 counsel for the appellant that PW-2 Constable Sandeep Kumar does not corroborate PW-8 ASI Tarlok Chand when he states that 5-7 vehicles were checked by them and that Sant Singh was outside the vehicle at the time of checking and he brought the scale and weights from his shop. We have noticed these contradictions in order to test the veracity of their evidence. Sant Singh has not been examined for reasons best known to the prosecution. He was a very important link in the chain of evidence as he was the person from whom the weighing scale and weights were requisitioned and in whose presence the contraband was weighed. In fact, his evidence was clinching. We say this because we find and as noticed by us that his presence whether inside the shop or outside the shop, in the bus or outside the bus, has not been established by the prosecution with certainty. Why he was given up is not clear to us but turning to the case of Satya Narayan, we find that this witness has turned hostile. We also find that there is an admission by the prosecution as noted by us that he is a stock witness appearing in police cases. 7. Adverting to the points urged by learned counsel appearing for the appellant that the seal used has not been produced in Court, we note that this Court in Criminal Appeal No.308 of 1996, decided on October 21, 2009, State of H.P. vs. Tek Chand, reported in Latest HLJ 2010 (HP) 497, holds:- 8 “9. PW1 Hukam Chand, MHC, with whom the case property was deposited by PW4 Ravinder Singh, also did not say that any specimen seal impression has been deposited alongwith parcel containing the samples and the bulk Charas. It is only PW2 HC Raj Singh, who took over the charge of MHC from PW1 Hukam Chand, who stated that he sent one of the two samples alongwith sample seals to the Chemical Examiner, through Constable Mani Ram. Mani Ram who was examined as PW3, did not say that any specimen seal impressions were also carried by him alongwith the sample. He simply stated that he carried one sealed parcel which was handed over to him PW2 HC Raj Singh. On the docket with which the sample was sent to the Chemical Examiner, i.e. Ext.PC, facsimiles of the seals used in sealing the parcels are not there. That means specimen impressions of the seals, used in sealing the sample parcel, which was sent to the laboratory, were not available with the Chemical Examiner, for comparison with the seal impressions on the parcel containing sample. Therefore, the report Ext.PC cannot be said to have been sufficiently linked with the samples allegedly separated from the recovered stuff. (pp. 600-601) 8. Adverting to the facts on record, we find from Ex.PW-8/A that the facsimile of the seal not having been affixed on this document. Further we also note that PW-5 Constable Yoginder Singh states:- “… … …All the parcels were sealed with seal `D’ initially. The seal `S’ was made 9 of some metal. The seal has not been brought by me today as the same has been lost. No report qua missing of the seal was lodged by me with any one… … … … …” 9. The seal was in possession of the prosecution as established from the evidence of PW-7 Constable Ramesh Kumar, who says that he had deposited this in the Kandaghat Laboratory. What happened to the seal after that is not clear neither it is clear as to why the facsimile is not affixed on the NCB form. 10. We will now advert to the decision of this Court in Satnarayan vs. State of H.P. Latest HLJ 2010 (HP) 18 and we refer to this decision in some detail as it is from the same bus, on the same date and time that this Satya Narayan was arrested. The witnesses are also the same viz. who have been produced in this Court and who have professed their ignorance about Satya Narayan being there. He was arrested on 7.1.2005 by police party comprising of ASI Tarlok Chand, HC Palam Singh PW-6, HC Jagdish Chand PW-10, Constable Vijay Kumar PW-7 and four-five other Constables. The bus was intercepted at Kalhel. The bus number is also the same. He was stated to have been seated on seat No.37 and a polythene bag which, according to the prosecution, was placed on his laps and on being searched, it was found containing two small bags containing Charas weighing 2 Kg. PW-1 Sant Singh, a Dhaba owner at Kalhel and PW-2 Balbir Singh, Inspector 10 of Himachal Road Transport Corporation, were also witnesses in this case to support the prosecution case. The trial Court, discarded the evidence of PW-1 Sant Singh who turned hostile. In-fact even PW-2 Balbir Singh had turned hostile. The trial Court in that case had relied upon the evidence of PW-6 HC Palam Singh, PW-7 Constable Ajay Kumar and PW-10 Constable Jagdish Chand, who had stated that this passenger was seated on seat No.37 and was carrying a plastic bag in his lap. The defence taken by the accused in that case was that the police party had brought this bag from the Dhaba of Sant Singh and told him that this has been recovered from his custody. The evidence of PW-1 Sant Singh and PW-2 Constable Balbir Singh was accepted by this Court. The Court holds:- “9. Denial of true facts that PW-1 Sant Singh owns a Dhaba, where tea and breakfast etc. is served and that the bus was checked in front of the Dhabas by PW-6 HC Palam Singh and PW-7 Constable Ajay Kumar itself is sufficient to doubt their testimony and incidentally the prosecution story. Also, the denial of these true facts by the abovenamed two witnesses corroborates the defence plea, which is supported by both the independent witnesses, namely PW-1 Sant Singh and PW-2 Balbir Singh. Both these witnesses stated that the bus had stopped at Kalhel and passengers were taking tea and breakfast, when the police people came with a bag 11 containing Charas and proclaimed that it belonged to the appellant.” (at p.21) 11. We are also fortified by the decision in State of H.P. vs. Raju @ Mohammad and Others, Latest HLJ 2010 (HP) 913 delivered by one of us (Hon’ble Mr.Justice R.B. Misra) holding:- “17. A perusal of the contents of columns No.6 and 7 above would go to show that though against column No.6 it is recorded that sample contained seals bearing impressions ‘N’ and ‘X’, the entry against column No.7 is only with regard to the seal bearing impression ‘X’. It is apparent from a bare perusal of NCB form Ext.PA that the same does not contain the actual seal impression(s) and instead, the mention therein about seals and ‘X’ is hand written and appears to be incorporated by way of a ball pen. In such circumstances lithographic stamp contained on NCB form Ext.PA certifying that seal/seals on the sample tallied with the specimen impression seal sent separately, is of consequence to complete the chain in evidence to establish that sample of the Charas analyzed vide report contained in NCB from Ext.PA is that of the Charas, allegedly recovered during search and seizure in question.” (at p.920) 12 12. To similar effect is the judgment of this Court in State of H.P. vs. Deen Mohammad, Latest HLJ 2010 (HP) 1386, holding that the facsimile of the seal having been affixed on the NCB form is the fatal to the case of the prosecution. 13. We find that in cross-examination repeated suggestions have been given to the witnesses that the seizure was, in fact, made from Satyan Narayan which they have denied even going to the extent of saying that he was not present in the bus, though these witnesses in Satya Narayan’s case say that he was present there. We also find that Sant Singh has not been produced in the witness box possibly because of the fact that he turned hostile in the case of Satya Narayan and would have stated the true facts. Surely if two persons had been caught with contraband from the same bus, this witness would have stated so in the other case in which he has not done so and was declared hostile. Coupled with the other circumstances of the case and the contradictions as noticed by us, we find that the learned trial Court has been conjectural in invoking the principles of animosity and totally oblivious to the facts that in another case, the prosecution has made concerted efforts to foist criminality on Satya Narayan. The contradictions and the material aspect of the case as noted by us, the absence of the facsimile of the seal, its loss by the police by stating that as established and taking no 13 action to file any report or otherwise as also withholding the best evidence in this case which was most important link, namely, the evidence of Sant Singh who had to prove; (a) that the weights and measures were got from his shop, (b) he was either called or Charas was brought to his shop, (c) it was weighed inside the vehicle or outside the vehicle, inside his shop or outside of his shop, which raises a very grave doubt in our mind in respect of the involvement of the accused in the offence. We also find in the decision of Satya Narayan’s case supra that this Court had, while considering Ex.PW-10/A in that case relating to the site plan, observed:- “8. PW-6 HC Palam Singh and PW-7 Constable Ajay Kumar stated that PW-1 Sant Singh had a grocery shop and not a tea-stall or Dhaba at Kalhel. PW-6 HC Palam Singh stated that the bus was not checked near the Dhabas but at a distance of 100 meters from village Kalhel PW-7 Constable Ajay Kumar also stated that the bus was got stopped 50 meters away from the bazaar of village Kalhel. Statements of these two witnesses, with respect to these two facts, are falsified by PW-10 HC Jagdish Chand, as indicated hereinabove. Site plan relied upon by the prosecution, which is Ex.PW-10/A, also falsifies the statements of these two witnesses, because as per the site plan, the bus is shown in front of Dhabas of village Kalhel and one of the three Dhabas shown in the site 14 plan, is recorded to belong to PW-1 Sant Singh.” (p-20) We find that the same evidence has been replicated here by the prosecution. This again goes against the veracity of the evidence led by the prosecution. 14. We, therefore, set aside the judgment of the learned trial Court and give the benefit of doubt to the appellant herein. The judgment of the trial Court is quashed and set aside. The appellant is directed to be released forthwith from custody in case he is not required in any other case. (R.B. Misra) Judge September 01, 2011 (Dev Darshan Sud) (aks) Judge.