HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 327 of 2006 Reserved on: 22.4.2009 Decided on: 8.5.2009 Babu Ram ……… Appellant. Versus State of Himachal Pradesh ………Respondents. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the Appellant: Mr.Rakesh Jaswal, Advocate. For the respondent: Mr.R.M. Bisht and Mr.Rajesh Mandhotra, Deputy Advocate General. Per V.K. Ahuja, J.: This is an appeal filed by the appellant against the judgment, dated 3.7.2006, of the court of ld. Additional Sessions Judge (Special Judge), Fast Track Court, Chamba (the name of the court has been wrongly mentioned as Kullu in the appeal), vide which the appellant was held guilty under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) and was convicted and sentenced to rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1.00 lac. In case of default of payment of fine, the appellant was to further undergo rigorous imprisonment for a period of two years. ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. Briefly stated the facts of the case are that PW-12 Inspector Rajesh Chhabra, the then SHO, Police Station Dalhousie, was present at Zeero Point Goli alongwith PW-4 Constable Ram Parkash, PW-5 Constable Mazid Mohammad and they laid a naka at Zeero Point. He also joined HHC Darshan Kumar and other police officials at 4.00 p.m. and was on patrolling and was checking vehicular traffic. PW-7 Hans Raj and PW-8 Parkash Chand, independent witnesses, also met the police party and they were joined in the naka party at about 4.00 p.m. One person appeared at the spot from Chaura Dam side, who tried to escape on seeing the police party. On suspicion, he was apprehended. He was having one bag on his right shoulder and on checking, it was found to be containing a polythene envelope in which charas was recovered in the shape of balls and sticks. The charas was weighed at the spot, which was found to be 4 kg. Two samples of 25 grams each were taken in accordance with the procedure and the samples and the remaining charas was sealed and were taken in possession. The necessary documents, namely, recovery memo, ruka etc. were prepared at the spot by HC Baldev Singh and on completion of the investigation and on receipt of the report of the Chemical Examiner, the challan was filed and the case was ultimately assigned to the learned trial Court, who tried the appellant leading to his conviction as detailed above. We have heard the learned counsel for the appellant and the learned Deputy Advocate General for the State. During the course of arguments, the learned counsel for the appellant had raised various points which were duly answered by the learned Deputy Advocate General and the points so raised during the course of arguments shall be discussed at length. Before we refer to the points raised during the course of arguments, we would like to make a brief reference to the evidence produced by the prosecution in support of their case. PW-12 Inspector Rajesh Chhabra was the Incharge of the raiding party, who apprehended the appellant and recovered the charas, which, on weighment was found to be 4 kg. He sent a memo to the Police Station, effected the recoveries of the charas after taking of two samples of 25 grams each, which were duly sealed and he filled the NCB form at the spot Ext.PW-12/A and handed over the case property alognwith documents to PW-13 HC Baldev Singh from Police Station, Dalhousie, who took up the further investigation of the case. The said Baldev Singh, who has been examined as PW-13, has stated that on receiving telephonic message, he reached at the spot and the SHO Rajesh Chhabra handed over the case property to him consisting of one big parcel, two sample parcels containing samples of charas, NCB form and other documents prepared at that time. PW-13 HC Baldev Singh conducted further investigation, recorded the statements of independent witnesses Hans Raj and Parkash Chand, gave the grounds of arrest vide Ext.PF to the accused and prepared personal search memo of the articles recovered from the personal search of the accused. He deposited the case property with MHC Ramesh Chand at Police Station, Dalhousie and handed over the file to S.I. Vijay Singh for preparing the final report. The statement of PW-13 Baldev Singh has been duly corroborated by PW-5 Constable Mazid Mohammad, who has also supported the statement made by PW-12 Rajesh Chhabra in regard to apprehension of the accused and recovery of the charas from his possession. He further stated that he was sent to bring weights and scales to the spot, which he brought from the nearby shop of one Kulwant Singh. The said Kulwant Singh, who had given weights and scales, has also been examined as PW-6. PW-4 Constable Ram Parkash was also present at the spot alongwith PW-12 Rajesh Chhabra and he has corroborated the testimony of PW-12 Rajesh Chhabra in regard to the apprehension of the accused, recovery of charas and taking of samples at the spot and preparation of the seizure memo etc. Out of the two independent witnesses associated by the Investigating Officer PW-12 Rajesh Chhabra, Hans Raj has been examined as PW-7, who stated that nothing happened in his presence. He was called from his house by the police and was asked by the police party to accompany them to Police Station, Dalhousie where he was taken and they obtained his signatures on some papers. He was declared as hostile and was subjected to detailed cross examination. In cross examination, he admitted that his thumb impression was there in the seizure memo Ext.PC, which he identified. He also admitted signatures on inventory list Ext.PE, arrest memo Ext.PF and memo of Jamatalashi Ext.PG. He stated that he did not see the accused earlier and had seen him for the first time in the court. The other independent witness PW-8 Parkash Chand, when examined, also stated that he was called by the police from his house to Zeero Chowk Goli and they told him that they have recovered some luggage and they brought him to Police Station, Dalhousie and took his signatures on some documents. He was also declared as hostile and was allowed to be cross examined by the learned Public Prosecutor for the State. He admitted his signatures on big parcel Ext.P-1, small parcel Ext.P-2, seizure memo Ext.PC, arrest memo Ext.PF and personal search memo Ext.PG. He also stated that he is seeing the accused for the first time in the court today. PW-1 Constable Hem Raj had taken the sample parcel given to him by MHC Ramesh Chand and deposited the same at CTL, Kandaghat on 1.2.2005 and gave the receipt on return to the MHC. PW-2 Constable Gulam Navi has stated that on 30.1.2005, sealed parcels were deposited with MHC Ramesh Chand by HC Baldev Singh, which were resealed by MHC Ramesh Chand in his presence with seal ‘T’ and reseal memo Ext.PA was redrawn. The other witness to this sealing process has also been examined as PW-3 Constable Hem Raj, who has corroborated this statement. He further stated that he took special report on 31.1.2005 given by SHO Rajesh Chhabra to him, which he deposited with Assistant Reader to the Superintendent of Police in the SP Office. The copy of the special report is Ext.PA. PW-4 Constable Ram Parkash also took ruka to Police Station, Dalhousie as given by SHO Rajesh Chhabra and gave the same to MHC Ramesh Chand. He brought back the case file to the spot after the case was registered. PW-9 ASI Saroop Kumar, the then Reader to S.P. Chamba, has stated that Constable Rajesh Kumar brought the ruka to him, the copy of which is Ext.PW-9/A and he produced the same before the Superintendent of Police, Chamba and it was retained by him in the record. PW- 10 Constable Ajay Kumar has stated that Constable Hem Raj had brought a special report to him on 31.1.2005, which he placed before the Superintendent of Police and the original report is Ext.PW-10/A. PW-11 HC Ramesh Chand was posted as MHC who deputed HC Baldev Singh to go to the spot on receipt of information from the SHO Rajesh Chhabra. He also stated that he recorded the FIR Ext.PW-11/D on receipt of the memo and in the evening, the case property was deposited with him by HC Baldev Singh, which was resealed by him. The first point taken by the learned counsel for the appellant was that the prosecution had not put up the case property to the Investigating Officer and other witnesses, who appeared in the witness box who have not stated about the recovery of the bag and the charas found in the said bag wrapped in polythene bag. A perusal of the statement of PW-4 Constable Ram Parkash, who was a member of the raiding party, shows that no questions were put up to him and he never identified the bag or the parcel of charas or the second sample parcel retained by the police. He simply stated that all the parcels were sealed with seal ‘S’ and the case property was taken in possession. To the similar effect is the statement of PW-5 Constable Mazid Mohammad, who also never stated that the bag or the parcel are the same or the samples are the same. He admitted that the accused was carrying one rexin bag. The Investigating Officer, SHO Rajesh Chhabra who apprehended the accused, appeared in the witness as PW-12 and he has stated about the sealing of the big bag and sample parcels vide seizure memo in the presence of witnesses, but the said parcel or the bag were never shown to him nor these were exhibited in his statement. However, he had clearly stated that the remaining bulk charas, after taking the samples, was put in the same bag which was sealed at the spot with seal ‘S’. The last witness examined, out of these recovery witnesses, is PW-13 HC Baldev Singth, who came to the spot subsequently and took over the investigation from PW-12 SHO Rajesh Chhabra. He stated that he brought the case property and the accused, and handed over the same to MHC Ramesh Chand at Police Station, Dalhousie. He has stated that he had received one big parcel and two sample parcels containing samples of charas from SHO Rajesh Chhabra. The only witness who had been shown the case property is PW-11 HC Ramesh Chand, the then MHC, who has stated that he has seen the big parcel Ext.P-1, sample parcel Ext.P-2 and sample seal Ext.P-3, which are the same parcels being case property in this case. It is, therefore, clear from the above discussion that neither the two Investigating Officers nor the two Constables, who were members of the raiding party, were ever shown the bag from which the charas was recovered and was again put in it after taking two samples from it, so that they could have identified if this was the same bag which was recovered at the spot. The only witness who has exhibited these bag and sample parcels is the MHC with whom the case property was deposited and this is the serious infirmity in the prosecution case which makes the prosecution case doubtful since the bag was not recovered in the presence of the MHC, but it was recovered in the presence of PW-12 SHO Rajesh Chhabra, who handed over the same to the next Investigating Officer PW-13 HC Baldev Sigh and two Constables had seen the recovery of the bag being effected from the possession of the accused, but they were never shown the bag in question which makes the prosecution case doubtful, which has to be looked into with suspicion. The next point taken by the learned counsel for the appellant was that there is nothing on record to show if the weights brought by PW-5 Mazid Mohammad to the spot included the weight of 25 gram, which was required for taking the samples at the spot. Coming to the testimony of PW-5 Constable Mazid Mohammad, who has stated that he was deputed by PW-12 SHO Rajesh Chhabra to bring the weights and scales to the spot, which he brought from the shop of witness Kulwant Singh. Thereafter, the charas was weighed. In regard to the denomination of the weights, he has not stated anything. Coming to the statement of said PW-6 Kulwant Singh from whose shop these weights were brought, he has stated that the Constable came, took weights and scales from him and returned the same to him after some time. He stated that the weights below 100 grams are not kept by him in his dhaba. The Constable took one weight of 1/2 kg and one of 1 kg from his shop. He further stated that he is running a dhaba and not a halwai shop. No questions were put up to him that the weight of 25 grams was also taken from his shop, which was used for sampling process and the learned Public Prosecutor never thought it necessary to put such questions to him. A perusal of the statement of PW-12 Rajesh Chhabra will clearly show that the weights and scales were brought by PW-5 Constable Mazid Mohammad and no other weights were used which were available with them or were brought by any other Constable from any other shop. PW-12 Rajesh Chhabra has clearly stated that PW-5 Constable Mazid Mohammad was directed to bring weights who brought the same from the nearby shop and the charas so recovered was weighted. In cross examination, he has stated that the denomination of the weights arranged at the spot were 50 grams, 100 grams, 200 grams, 500 grams, 1 kg. and 2 kg. This is contrary to the version of the witness PW-6 Kulwant Singh, who has given the weights and who never stated about any other weight except that of 500 gram and 1 kg. The Investigating Officer is specific that weight of 50 gram was also brought to the spot, which was only arranged through PW-5 Constable Mazid Mohammad, who is silent about this and even the Investigating Officer has not stated that one of the weight was of 25 grams from which the sample was taken. Therefore, it is clear that the sample may have been taken by an approximation only and this part of the evidence also shows that there is infirmity in the prosecution case which cannot be ignored altogether since witnesses have contradicted one another in this regard. Another plea taken by the learned counsel for the appellant was that PW-4 Constable Ram Parkash was posted at P.P., Banikhet and he had been associated while laying naka by PW-12 SHO Rajesh Chhabra. But the copy of the rapat rojnamcha from Banikhet should have been produced on record to prove that he was in fact associated at that time. No questions were put up to him in cross examination and no request was made to summon the rapat rojnamcha from P.P., Banikhet to prove his presence at the spot. His statement could have been deferred or the MC from P.P. Banikhet could have been summoned alongwith rapat rojnamcha to prove his presence at the spot. However, even if this process has not been adopted, which could have given credence to the plea raised by the learned counsel for the appellant, but this fact cannot be ignored that he clearly admitted that he did not sign any document in this case at the spot, though he had been associated as a witness at the spot and all proceedings had taken place in his presence, but there are no signatures of him on any of the documents prepared at the spot. However, the fact that ruka was taken by him to Police Station, Dalhousie and the case was registered by MHC Ramesh Chand PW-11, who admitted that this ruka was brought to the spot by this witness, therefore, this document proves his presence at the spot. The mere non-summoning of the copy of the rapat rojnamcha from P.P. Banikhet is not sufficient to hold that his testimony on oath and that of PW-11 HC Ramesh Chand in this regard can be ignored. The contention put forth by the learned counsel for the appellant is repelled being devoid of any force. The next point taken by the learned counsel for the appellant was that the two independent witnesses who were allegedly associated at the time of recovery, but both of them, as discussed above, have stated that they were called from their houses and they had not seen the accused nor any recoveries were effected in their presence. The statements of these witnesses have to be appreciated to consider this plea raised by the learned counsel for the appellant. PW-12 SHO Rajesh Chhabra has stated that witnesses Hans Raj and Parkash Chand also met them and they were also joined by him in the naka party at about 4.00 p.m. In cross examination, he stated that the independent witnesses came to the spot at about 12.30 p.m., who were standing their at the relevant time and they had apprehended the accused at a distance of 20-25 yards from the rain shelter. He conducted the proceedings in the rain shelter. A question was put up to him in regard to the houses of both these witnesses, if they were situated at a distance of 2 km. from the place of naka, but he denied his knowledge in this regard. However, no specific questions were put up to him that he had called these witnesses from their residences at the time of recovery. Both the independent witnesses, when examined as PW-7 Hans Raj and PW-8 Parkash Chand, have stated that they were called from their houses but they have nowhere stated that their houses were at a distance of 2 kms. and if this fact was established that their houses were at a distance of 2 kms. and they were called from such a distance, this would have given credence to the plea raised by the learned counsel for the appellant that they were not in fact present at the spot. Coming to the testimony of these two witnesses, PW-7 Hans Raj has nowhere stated that he was already present at the spot near the rain shelter and was associated at 4.00 p.m. by the police though he denied the suggestion in this regard. PW-8 Parkash Chand also stated similarly and denied that he was present at the rain shelter and was associated from there by the police. Coming to the testimony of the two Police Constables, PW-4 Ram Parkash and PW-5 Mazid Mohammad, who were also examined as witnesses to prove the recovery of charas from the possession of the accused, PW-4 Constable Ram Parkash has simply stated that the case property was taken in possession vide seizure memo in presence of independent witnesses Hans Raj and Parkash Chand, who were present with them in the naka party, meaning thereby that they had already been associated before the apprehension of the accused. In cross examination, he stated that the witnesses Parkash Chand and Hans Raj were already present at the spot and they came to the spot after their arrival since it was raining on that day and they took shelter in the nearby rain shelter. PW-5 Constable Mazid Mohammad has not stated anything in examination-in-chief in regard to the presence of these two witnesses or their association. However, in cross examination, he has come up with the plea that both these witnesses were already present in the rain shelter at that time since 11.00 a.m., which was never so stated by any of the police officials including the Investigating Officer. He has further stated that both these witnesses were present at the spot at the time when they laid naka at the spot. However, a perusal of the memo Ext.PB sent to Police Station for registration of the case shows that it was mentioned therein that the accused was apprehended and at the same time both the witnesses came to the spot and in their presence, the search of the accused was conducted. This rather suggests that these witnesses were associated by the police after the recovery, which finds further corroboration from Ext.PC recovery memo, which suggests that these witnesses were associated after apprehension of the accused and they were not associated in the naka prior to apprehension of the accused or were with the police party since 11.00 a.m., as has come up in the statement of one of the witnesses. Both these find corroboration from special report Ext.PW-10/A. In regard to the hostile witnesses, learned counsel for the appellant had relied upon the decision in State of H.P. versus Hanacho alias Stewart, 2004 (2) Shim.L.C. 200, which shows that the order acquitting the accused was held to be, on proper appreciation of material on record, as correct and it was held that it calls for no interference. In that case also, two independent witnesses were joined by the Investigating Officer to be present at the time of search and seizure memo was prepared in their presence, but they had not supported the search, recovery and the seizure. In that case also they had unambiguously and specifically denied the search and seizure in their presence as in the present case. It was further held that it was not the case of the prosecution that PW-6 and PW-7 were persons of tainted character and basically unreliable persons. The accused was a foreigner in that case while the two witnesses were local and, therefore, it was held that they cannot be said to be unduly helping the accused. On the face of evidence, the accused was acquitted in that case. In the present case also, the appellant is from Nanikhud, Tehsil Dalhousie whereas the recoveries were effected by the SHO, Police Station Dalhousie at the recovery point, but there is nothing on record to show that the independent witnesses associated were known to the appellant or had any relation with them or had any reason to depose falsely against the prosecution. Therefore, the fact that the independent witnesses did not support the prosecution story and there are some infirmities or contradictions in regard to their presence at that time, the prosecution story becomes doubtful. Apart from the above, one another point which needs to be considered, which has not been specifically raised by the learned counsel for the appellant, is that both the Constables, namely, PW-4 Constable Ram Parkash and PW-5 Constable Mazid Mohammad, had nowhere signed the recovery memo. A perusal of the recovery memo Ext.PC shows that it was signed by both the independent witnesses, namely, PW-7 Hans Raj and PW-8 Parkash Chand and it was also attested by the SHO, who had prepared the same at the spot. Therefore, the recovery memo prepared at the spot does not find corroboration from the testimony of the two police Constables who have been examined to support the statement of PW-12 SHO Rajesh Chhabra, though the independent witnesses had admitted their thumb mark and signature on the recovery memo. In case the recovery memo had been signed by any of the witnesses at the spot, their testimonies would have given sufficient corroboration to the statement of PW-12 SHO Rajesh Chhabra. Another point raised by the learned counsel for the appellant was in regard to the mentioning of the FIR number in the documents prepared at the spot, though the documents were prepared by the Investigating Officer PW-12 Rajesh Chhabra, who had handed over the investigation to PW-13 HC Baldev Singh, who recorded the statements of the witnesses etc., but it was pointed out that in all these documents, the FIR number has also been