IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 303 of 1996 Reserved on: 4.3.2010 Date of decision: 16.3.2010 State of H.P. …. Appellant. Vs. Yusaf ... Respondent. Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Sanjay Karol, J. Whether approved for reporting?1. No. For the appellant-State: Mr. Ram Murti Bisht, Dy. Advocate General For the respondent: Mr. Naresh Thakur, Advocate. Per Deepak Gupta, J. This appeal by the State is directed against the judgement of the learned Sessions Judge, Chamba, in Sessions Case No. 8 of 1995 dated 6.9.1995 whereby he acquitted the accused of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (here-in- after referred to as the Act). The prosecution story in brief is that on 26.10.1994 at about 8.30 a.m PW-8 Hari Singh and PW-4 constable Rakesh Kumar and constable Mela Ram were carrying out traffic checking at Salooni near the rain shelter. Bus No. HP-48-0818 belonging to the HRTC coming from Sanghni and bound for Chamba reached there. Since at the relevant time there were terrorist activities going on in the neighbouring area of Jammu and 1 Whether the reporters of the local papers may be allowed to see the Judgment. Yes. 2 Kashmir the police was checking the bus passengers to ascertain that they are not unwanted elements. One person was found sitting next to the conductor. He had wrapped a blanket around his body. On questioning by PW-8 he disclosed his name to be Yusaf (accused). The police officials were suspicious and asked him to get down from the bus. Two independent witnesses Hoshiara Ram PW-2 and Kushal Kumar PW-3 were associated. In their presence memo Ext.PB was served upon the accused in which it was stated that the accused was suspected of possessing Charas and whether he wanted to be searched by the police party or before a Gazetted Officer. The accused volunteered to be searched by PW-8. On search of the accused 2 kg. & 200 gms of Charss were recovered. This Charas was being carried by the accused in a cloth bag which in turn was in a polythene packet. A sample weighing 10 grams was separated from the bulk of the recovered Charas. Both the sample and bulk Charas were put into separate parcels and sealed with seal bearing impression ‘H’. Seal impression Ext.PH was prepared and the seal was entrusted to Kushal Kumar. The police also took into possession the bus tickets of the accused. Ruka Ext. PL was sent to the Police Station, on the basis of which F.I.R. Ext.PL/1 was registered. Special report Ext.PA was also sent to the superior officer. PW-8 Hari Singh handed over the case property to PW-5 S.I/SHO 3 Kishan Chand in the police station who after comparing the seals and finding them to be in order resealed the parcels with his own seal bearing seal impression ‘K’. He then deposited the case property in the Malkhana. The sample was sent to the CTL Kandaghat and vide the report of the chemical examiner Ext.PN it was found that the sample was of Charas. The learned trial Court, after trial, acquitted the accused only on the ground that there is violation of Section 50 of the Act in as much as no proper option of being searched before the Magistrate was given to the accused. In addition thereto the learned trial Court held that the so called independent witnesses could not be termed to be independent and respectable inhabitants of the locality and hence there was violation of Section 100 of the Cr.P.C. The law has undergone a sea change. The contraband was recovered not from the person of the accused but from the bag being carried by him. The Apex Court has now repeatedly laid down that in such a situation the provisions of Section 50 of the Act are not attracted. We are also of the view that mere violation of Section 100 of the Cr.P.C is not by itself sufficient to acquit the accused. The law is well established that conviction of the accused can also be based on the sole testimony of the official witnesses as long as their testimony inspires confidence. 4 Having said so, we now have to examine the evidence on the merits itself. The two independent witnesses turned hostile. They have not supported the prosecution case at all. Hoshiara Ram PW-2 states that nothing was recovered in his presence and only his signatures were obtained on the documents. The witness was declared hostile and cross-examined by the prosecution. Unfortunately, he has not been properly cross- examined. He in cross-examination has identified his signatures on the Suchipatra which only informs the accused about the right of being searched. Similarly, this witness has also identified his signatures on the document Ext.PD which only informs the accused about his arrest. In cross-examination this witness states that the recovery memo Ext.PE was not prepared in his presence nor its copy handed over to the accused. He, however, admits that his signatures were obtained on the said documents. According to him these signatures were obtained at a later stage. The witness is illiterate. There is nothing on record to show that anybody read over and explained the documents to him. The position with regard to PW-3 Kushal Kumar is even worse. This witness states that he works as a salesman in a liquor vend and a police constable came to him and asked him to sign the recovery memo, which he signed. However, nothing was recovered in his presence. In cross-examination, no document bearing his signatures has been put to the witness. 5 Once the witness was declared hostile, it was the duty of the prosecution to have confronted him with his signatures on the various documents. This having not been done the statement of this witness can be used against the prosecution. No doubt, PW- 4 and PW-5 have fully supported the prosecution case. However, when independent witnesses turned hostile the statement of the official witnesses have to be scrutinized with greater care and caution. There are certain lapses in the prosecution case which are unexplained. Admittedly, the accused was traveling in a bus. However, no effort was made to associate the driver, conductor or any other passenger from the bus. In natural course, the best witness to the search would have been one of the co-passengers or the driver/conductor of the bus. Neither PW-8 the Investigating Officer nor PW-4 constable Rakesh Kumar who was accompanying the Investigating Officer have stated that they have made any effort to associate any person from the bus with the search. The second aspect is that no explanation has been given as to why the bus was permitted to go to Chamba without even recording the statement of the conductor. The conductor would have been the best person to prove the fact that the tickets allegedly recovered from the accused were actually issued by him. In the absence of any such evidence, it cannot be presumed that the tickets allegedly recovered from the person of 6 the accused were used by him for traveling in the bus in question. Independent witnesses as already mentioned above have turned hostile. According to PW-8 he had got arranged the scales and weights. From where the scales were arranged has not been stated by him. PW-4 constable Rakesh Kumar states that weights scales were brought from the shop of Hoshiara Ram. This statement appears to be totally false since Hoshiara Ram is a dealer in rags (old clothes). Such a person would not require nor keep weights that too of the denomination of 10 grams, 50 grams and 100 grams. This casts a serious doubt on the prosecution version. It is also clear that the occurrence took place in Salooni Bazar at 8.30 in the morning. There is no explanation as to why no effort was made to associate some officials or more respectable citizens who admittedly were present in Salooni. A rag dealer and a liquor salesman could always be under the influence of the police. No suggestion was put to Hoshiara Ram that the weights were taken from his shop. In fact in portion “D to D” of his statement Ext.PC recorded under Section 161 Cr.P.C., which also this witness denied, all that was stated was that weights and scales were arranged from a nearby shopkeeper. Who was the shopkeeper is absolutely unclear. It is definitely not PW-2 Hoshiara Ram and no other witness in this regard has been examined. It is indeed surprising that once Hoshiara Ram denied his signatures on the memos relating to the 7 recovery of Charas and when Kushal Kumar turned hostile, the public prosecutor appearing for the State did not even make an effort to confront his witnesses with their alleged signatures on the seizure memo. Therefore, the recovery of the Charas itself becomes doubtful. This witness in examination clearly stated that no recovery was made in his presence. He should have been confronted with the documents relating to such recovery. In the absence of any such effort being made by the prosecution conviction cannot be based on the sole testimony of the police witnesses. There are certain other aspects of the matter which also casts a doubt on the prosecution version. There are certain missing links in the case. Even if recovery is presumed to have taken place, it is for the prosecution to prove that the sample was kept in the same condition. According to PW-8 he had sealed the sample parcel as well as the bulk parcel with seal “H”. He had then handed over the case property to SHO Kishan Chand PW-5, who resealed the case property with seal “K”. PW-5 Kishan Chand also states that he had appended his seal “K” on the parcel and thereafter deposited the same in the Malkhana. According to Kishan Chand he prepared a sample seal impression of his seal mark “K” (Ext.PM). The sample seal impression prepared by H.C. Hari Singh is PH. PW-6 H.C.Subhash Kumar states that PW-5 had deposited two sealed parcels sealed with 8 seal mark ‘H and K’ with him which he kept in the Malkhana and entered in the register. According to him on 6.11.1994 he sent the sample parcel sealed with seal “H” which was intact alongwith sample seal through constable Krishan Chand alongwith RC No. 72 of 1994. This witness is totally silent as to seal “K”. It is obvious from his statement that only one sample seal was sent. PW-7 Kishan Chand also states that he took a parcel sealed with seal H alongwith RC and sample seal to the office of the Chemical Examiner. Therefore, these witnesses are only talking about seal ‘H’ which was put by the Investigating Officer. They are totally silent about seal ‘K’ put by the SHO. Where did this seal go? This question remains unanswered and casts a doubt as to whether the sample was in same condition in which it was taken. Unfortunately, the prosecution has not even produced the road certificate which could have shown which seal impression was sent to the CTL. In view of the above discussion we find no merit in the appeal, which is accordingly dismissed. The case property be destroyed in accordance with law. Bail bonds are discharged. (Deepak Gupta) Judge. 16th March, 2010 (Sanjay Karol) ™ Judge.