IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No.63 of 2002 Date of Decision : 02.06.2011 State of H.P. …Appellant. Versus: Dagu Ram …Respondent. Coram: The Hon’ble Mr. Justice R. B. Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. R. K. Sharma, Sr. Addl. A. G. For the respondent: Mr. Y.P.S. Dhaulta, Advocate Sanjay Karol, J.(Oral) For an offence, which is alleged to have been committed on 17.1.2001, accused was put to trial. In terms of judgment dated 7.11.2001 passed by learned Sessions Judge, Bilaspur, H.P., in Sessions Trial No. 9 of 2001, titled as State of H.P. vs. Dagu Ram, accused stands acquitted of the charged offence. 2. It is the case of the prosecution that on 17th January, 2001 SI(SHO) Chamel Singh (PW-6) was on traffic checking duty near ‘Kanchi Mor’ at a place know as ‘Amb-Wali’ on National Highway No. 21. He was accompanied by HC Brij Lal, HHC Hardial Pathak (PW-2) 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 and Constable Daulat Ram. ASI Gautam also met them there. At about 3.10 P.M., one bus bearing No. PB-12- B-8910 was seen coming from Bilaspur side. The bus was stopped and the police after entering the bus started searching the passengers and their luggage. Accused Dagu Ram was seen sitting on the rear seat of the bus carrying a black coloured bag placed on his legs. In the presence of the Conductor Sardar Amrik Singh (PW1) and driver of the bus, bag was checked, from which Charas was recovered. Along with the bag accused was asked to get down from the bus. Constable Hardial was asked to get the weighing scales and the weights from nearby tea stall of Kewal Ram. Scales were brought and when weighed, charas was found to be 1 kg 800 gms. PW6 took out two samples of 25gms each and after putting them in separate parcels, sealed them with seal impression ‘A’. Remaining Charas was also packed in a separate parcel and sealed with seal impression ‘A’. Seizure memo(Ext.PA) was prepared on the spot, which was witnessed by driver and the conductor (PW1) of the bus. PW6 sent Ruqua(Ext.PC)through Constable Daulat Ram to the Police Station, on the basis of which FIR (Ext.PD) No. 20, dated 17.1.2001 under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the Act’) was registered at Police Station, Kot-Kehloor, District Bilaspur. PW-6 filled-up NCB forms (Ext.PH), 3 sent special report (Ext.PE) to the superior officer, searched the accused and recovered tickets for travelling in the bus (Ext.PG) from him. Sealed parcels were brought to the Police Station and one sealed sample was sent to the Chemical Examiner, Forensic Science Laboratory, Kandaghat for chemical examination through Constable Vijay Pal (PW4). Report of the Chemical Examiner (Ext.PL) was obtained by the police. After completing the investigation, Challan was presented in the Court for trial. 3. The accused was charged for having committed an offence punishable under Section 20 of the Act, to which he did not plead guilty and claimed trial. 4. In order to prove its case prosecution examined 6 witnesses and statement of accused under Section 313 Cr.P.C was also recorded. 5. The court below, after carefully scrutinizing the material placed on record by the prosecution, acquitted the accused of the charged offence. Hence, the present appeal. 6. In order to prove the charged offence, prosecution has to prove that Charas, being the contraband substance, was recovered from the conscious possession of the accused. 4 7. Out of six prosecution witnesses, testimony of Sardar Amrik Singh (PW-1), HHC Hardial Pathak(PW-2) and SI(SHO) Chamel Singh (PW-6), who were allegedly present at the spot at the time of recovery, needs to be examined. 8. PW-1 has not supported the prosecution case with regard to recovery of the Charas from the accused. This witness was declared hostile and inspite of his extensive and exhaustive cross-examination by the Public Prosecutor, nothing fruitful or purposeful could come out from his testimony in support of the prosecution case. There is nothing to create a doubt in our mind that this witness has deposed falsely in favour of the accused. This witness in no uncertain terms has deposed that accused was sitting in the bus and his bag was searched from which one envelope was recovered. The witness further states that when the bus was stopped, both he and driver had got down before the police officials started searching the bus. Therefore, from the envelope Charas was recovered or not is not proved by him. In any event he does not state it to be so. 9. The prosecution, for reasons best known to it, has not examined the driver of the bus. We may note here that though at the time of search also there were other passengers sitting in the bus, yet 5 investigating agency did not associate anyone of them during the course of recovery and seizure of Charas or investigation of the case. 10. It is a settled position of law that if the version and testimony of the police officials, otherwise inspires confidence, then it would be open for the Court to look into the same and rely upon them to ascertain the guilt of the accused, even if their version is not supported by independent prosecution witnesses. In the instant case, we find that version of police officials, PW-2 and PW-6 does not inspire confidence. There are material contradictions in the statements of PW-2 and PW-6, which on first brush would appear to be minor and insignificant but when seen cumulatively they stand amplified and acquire greater dimension rendering the contradictions to be material and going to the root of the matter. 11. According to PW-1, bus had only one door and that too on the front side. There was no door on the rear side of the bus. Significantly, on this count his testimony goes unrebutted. Now, PW-2 has deposed that PW-6 had entered the bus through its rear door and ASI Gautam had entered the bus through the front door. Even, he entered the bus along with all other police officials. At this stage, we will point out that ASI 6 Gautam has not been examined in Court. Why so? It is not clear. Be that as it may be, in contradiction it is the version of PW-6 that he entered through the front door and there was only one door on the front side of the bus. Further, according to PW-2, all police officials had entered the bus during the course of the search and seizure operation, which version stands materially contradicted by PW-6, according to whom, he alone entered the bus and the remaining police officials remained outside the bus. Version of PW-6 that he entered the bus along with the driver and the conductor stands materially contradicted by PW-1, according to whom, they had alighted from the bus before the police officials entered the same and all along, they remained outside the bus. Also there are other contradictions in the statement of the witness. 12. We further find even on the point of link evidence, prosecution case to be weak and there being material contradictions in the version of police officials. 13. We find that on the question of incriminating articles, i.e. sealed samples, being deposited in the Police Station, PW-6 has made certain contradictions and improvements. Firstly, he states that incriminating articles were brought to the Police Station and deposited with the MHC. But, however in 7 the very next breath, he unequivocally and categorically states that “Again stated I had kept the case property in my custody”. Now, this version stands materially contradicted by PW-3, according to whom on the evening of 17.1.2001, S.H.O. Shri Chamel Singh had handed-over to me three sealed parcels of the case property which were sealed with seal ‘A’ and after making entries thereof in the malkhana register, two parcels were returned to him which he had kept under his lock and key and one sample parcel was kept by me which was sent to chemical examiner on 18.1.2001 through constable no. Vijay Pal no. 120 vide R.C.no. 9/2001. 14. Significantly, none of the police officials has deposed that seal carrying impression ‘A’ was kept with them. This seal has not been produced in the court either. Further, PW-2 and PW-6 do not state in their testimony as to how many seals were put on the samples/parcels, which according to the NCB form, were 6 in number. In this backdrop, possibility of sealed samples being tampered with, thus, cannot be ruled out. 15. We also find that PW-6 had not prepared any arrest memo. Significantly, according to PW-6, tickets for travelling in the bus were recovered from the person of the accused. But, no search memo was either 8 prepared or served upon the accused before carrying out such personal search. It is true that Charas was not recovered from body of the accused, but however before effecting personal search of the accused, provisions of Cr.P.C. ought to have been complied with by the police. Failure on their part to do so further renders the prosecution case to be fatal. 16. We may also note that prosecution has not examined Kewal Ram, owner of ‘nearby tea stall’ from whom the scales were brought. Why he was not associated during investigation or examined in the court is also not clear? All this has rendered prosecution case to be doubtful. 17. In our considered view, prosecution has failed to prove the guilt of the accused, beyond reasonable doubt, by leading clear, cogent, convincing and reliable material. 18. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the person has resulted into travesty of justice. No ground for interference is called for. The present 9 appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (R. B. Misra) Judge. (Sanjay Karol) Judge. June 2, 2011. (pankaj)