HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 56 of 1997 Decided on: 26.5.2010 State of Himachal Pradesh ……… Appellant. Versus Lakhan Singh ………Respondent. Coram: The Hon’ble Mr.Justice R.B. Misra, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? For the Appellant: Mr.Rajinder Dogra, Additional Advocate General, & Mr.Vikas Rathore, Deputy Advocate General. For the respondent: Mr.B.R. Sharma, Advocate. R.B. Misra, J.(Oral): Heard Mr.Rajinder Dogra, Additional Advocate General, for the appellant/State and Mr.B.R. Sharma, learned counsel for the respondent. 2. The present criminal appeal has arisen consequent upon granting leave to appeal under Section 378(3) of the Code of Criminal Procedure, in reference to the judgment dated 4.10.1996, passed by learned Sessions Judge, Shimla in S.Tr.No.12-S/7 of 1996, vide which the accused has been acquitted of the offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, (hereinafter referred to as ‘the NDPS Act’). ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? - 2 - 3. The prosecution case in brief is that on 28.2.1996, at about 5.00 a.m., when the accused was about to board a bus at Bus Stand, Rohru, police party consisting of Tarsem Lal, Inspector/SHO, Police Station Rohru, Head Constable Gulab Singh and five other Constables had apprehended the accused on suspicion because on seeing the police officials, the accused had tried to run away. Shri Tarsem Lal associated one Shri Tara Chand, a ‘Rehdiwala’ at the Bus Stand at that time and consent of the accused was obtained with regard to his search. On obtaining the consent, search was made by Tarsem Lal, Inspector/SHO. On search, a recovery of 500 grams charas was made from the gunny bag being carried by the accused. Thereafter, two samples, each of 10 grams, were taken and were put in sealed parcels and were sent for chemical examination. The accused was arrested on disclosing ground of arrest to him and a case under Section 20 of the NDPS Act was registered against the accused. On receipt of the report of the Chemical Examiner, it was found that the content was that of the charas. As such, the accused was charged for offence under Section 20 of the NDPS Act. 4. In order to prove its case, the prosecution has examined as many as six witnesses, whereas the defence has not adduced any evidence, rather chosen to deny the prosecution version. 5. PW-1 Tara Chand, an independent witness & a seller on ‘Rehdi’, has stated that his signatures were obtained on two blank papers and on two other papers, which were already written, the contents whereof were not read over - 3 - to him and he was also not apprised why his signatures were being obtained. In cross-examination, PW-1 Tara Chand has stated that he is illiterate and knows only how to sign. According to PW-1, he brings his ‘Rehdi’ at Bus Stand Rohru early in the morning at 4.30 a.m. and sells groundnuts and tea at the Bus Stand. According to the testimony of PW-1 Tara Chand in his cross examination, no accused was caught in his presence by the police. According to PW-1, he had seen the accused in the court and he does not know him as the person present in the court was not caught in his presence by the police while he was having a bag on his one hand and gunny bag on his other hand. PW-1 has, however, denied that he is deposing falsely because he had been won over by the accused. PW-1 has also stated in his cross examination that there were 2-3 other ‘Rehdiwalas’ when he was called by the police in the Police Station. According to PW-1, there are always 3-4 ‘Rehdis’ at Bus Stand, Rohru. PW-1, being the only independent witness stated to have witnessed the occurrence and the recovery, has not supported the prosecution version. 6. PW-2 H.C. Gulab Singh has stated that when he was standing at about 5.00 a.m. at Rohru Bus Stand alongwith Tarsem Lal, Inspector, and other five Constables, Tara Chand PW-1 was also standing near the Bus Stand, where one person was seen coming from opposite side carrying a bag in his hand. On seeing the police personnel, that person tried to run away. However, with the endeavour of police personnel, that person was nabbed and on inquiry, he told that his name was Lakhan Singh. Thereafter, SHO Tarsem Lal told the accused - 4 - that he wanted to search him and his bag, and made him aware that he had a right to be searched either by the S.H.O. or before a Gazetted Officer. On being agreed, the accused was searched by the SHO. According to PW-2, at that time, no other person was present at Rohru Bus Stand and on search of the accused, charas was recovered from the gunny bag, which was being carried by him in his hand. In cross examination, PW-2 has admitted that many buses leave Rohru Bus Stand at about 5.00 a.m. He has also admitted in cross examination that there is also a transport office near the place where the accused was apprehended and there was a waiting room at the Bus Stand. According to PW-2 HC Gulab Singh, he and other police officials remained at the spot for about 1/2 hour or 45 minutes. He denied that the entire proceedings regarding this case were completed at the Police Station. PW-2 has, however, denied that the signatures of the accused were obtained at the Police Station on blank papers. According to PW-2, in his cross examination, he has stated that no driver or conductor was available at 5.00 a.m. at Rohru Bus Stand. No Booking Clerk was also there at that time. 7. PW-3 Chet Ram, Head Constable, has stated that he received a ruka Ext.PE from the SHO through Constable Kedar Singh and on the basis of this ruka, he recorded the FIR Ext.PF. He further stated that one sealed parcel and two sealed samples were deposited with him and the samples were sent through Constable Jagmohan to the Chemical Examiner. 8. PW-4 Head Constable Narain Singh has stated that he was working as Reader to Dy.S.P., Rohru and he - 5 - brought the record regarding special report. PW-5 Constable Jagmohan Singh has stated that he had carried one sealed parcel of sample from MHC Chet Ram, Police Station, Rohru on 29.2.1996 to the Chemical Examiner. 9. PW-6 Tarsem Lal, Inspector/SHO, has stated that he alongwith H.C. Gulab Singh and five Constables were on patrolling duty at about 5.00 a.m. in the morning on 3.3.1995 at Bus Stand, Rohru. At that time, he saw one person coming from Meat Market, who was carrying one rexin bag in one hand and in the other hand, he was carrying a gunny bag. On seeing PW-6 and other police personnel, he tried to run away. However, he was overpowered and at that time Tara Chand, ‘Rehdiwala’, was present. However, the accused was apprised that he was to be searched. The accused was made aware of his right of being searched and if so he desires, he could be searched from a Gazetted Officer and in case he had no objection, then PW-6 could search him. The accused, thereafter, vide Ext.PA expressed his objection for search by him. Ext.PA was written at the dictation of PW-6 and bears the signatures of PW-6 Tarsem Lal, PW-1 Tara Chand and PW-2 Gulab Singh. However, after this consent memo, PW-6 searched the accused and also searched the gunny bag. Inside the gunny bag, there was a bedding and inside the bedding, there was charas in the form of sticks and balls. The charas was taken in possession alongwith gunny bag and it was weighed and after weighing, it was found 500 grams. Two samples of 10 grams each were taken out and were put in different sealed parcels and seizure memo Ext.PB was prepared and signatures of the accused, witness Tara Chand and that of - 6 - PW-6 were put. Thereafter, the accused was explained the grounds of arrest vide Ext.PC and ruka Ext.PE was sent to the Police Station through Constable Kedar Singh, on the basis of which the FIR Ext.PF was recorded. According to PW-6, it was very early hour of morning and there was no witness available in the locality except Tara Chand. PW-6 has denied in his cross examination that 5-6 buses leave from Rohru Bus Stand at about 5.00 a.m. He also stated in his cross examination that it is only Tara Chand who brings his ‘Rehdi’ early in the morning at the Bus Sand and other ‘Rehdiwala’ comes late in the morning. According to PW-6, Haridwar bus leaves Rohru Bus Stand at about 5.15 p.m. and at 4.40 a.m., leaves the Jawalaji Bus. PW-6 in his cross examination has admitted that the Bus Stand and Booking Office are adjoining to the place of occurrence and at the relevant time, there was no Booking Clerk and there was none, except Tara Chand PW-1, when the accused was apprehended. There was no passenger at that time at the Bus Stand. PW-6, however, has denied that the entire proceedings of this case were completed at the Police Station and the signatures of the accused were obtained at the Police Station and the entire proceedings were completed on the spot, which took about 3 hours to complete the proceedings and in the meantime when the proceedings were being completed, many people gathered at the Bus Stand. However, there was no occasion for associating other witnesses after the recovery had been effected. 10. On analysis of the prosecution evidence, it is apparent that PW-1 Tara Chand, the only independent witness, who is stated to have seen the occurrence and had seen the - 7 - accused and recovery was made before him, had completely denied the case of the prosecution, so much so he has categorically stated in his cross examination that he had not been won over. As per the testimony of PW-2 Head Constable Gulab Singh, many buses leave Rohru Bus Stand at about 5.00 a.m. He also stated that he remained on the spot for about 1/2 hour or for 45 minutes. PW-2 in his cross examination has categorically denied that the entire proceedings regarding the case were competed at the Police Station. AS such, as per the testimony of PW-2, the entire proceedings were completed within 45 minutes, whereas, as per the testimony of PW-6 Tarsem Lal, Inspection/SHO, who conducted the entire investigation, PW-6 as well as other police officials remained at the spot for about 3 hours to complete the proceedings. From the testimonies of PW-2 and PW-6, apparent contradictions have emerged regarding the presence of PW-6 and other police officials at the spot and apparent contradictions are about timing of presence and completing of the proceedings at the spot. 11. PW-1 Tara Chand in his cross examination has stated that it was incorrect that there was a police party at 4.30 a.m. at the Bus Stand. According to PW-1, he had not seen anything, as has been asserted by the prosecution. His signatures were obtained on two blank and two other papers, which were already written, and the contents of both the papers were not read over to him. In cross examination, PW-1 has categorically stated that there are always 3-4 ‘Rehdis’ at Bus Stand, Rohru and on that day, 2-3 other ‘Rehdiwalas’ were available. Such statement is contradictory to the - 8 - testimony of PW-6 indicating in his cross examination that on the said day, except Tara Chand PW-1, no other ‘Rehdiwala’ was available on the spot. The testimony of PW-6 is also not inspiring confidence when he says that only Tara Chand brings his ‘Rehdi’ early in the morning at the Bus Stand and other ‘Rehdiwalas’ come late in the morning, whereas PW-1 Tara Chand categorically stated in his cross examination that on the date of incident, 2-3 other ‘Rehdiwalas’ were present when PW-1 was called in the Police Station. PW-1 has categorically denied the presence of PW-6 and other police officials even on the spot and has only testified that he was called at the Police Station where his signatures were obtained on two blank papers and two other papers which were already written. 12. PW-2 H.C. Gulab Singh, stated to be present at the spot and stated to have participated in the operation, has not indicated that he saw one person coming from Meat Market side carrying one rexin bag in one hand and gunny bag in other hand. PW-2 has only stated that he and other police officials saw one person coming from opposite side carrying a bag in his hand. PW-2, though a prominent active official witness, has not divulged that on search, a bedding was inside the gunny bag and in the bedding there was a plastic envelope in which the charas was being kept in the form of sticks and balls and that the charas was taken in possession from the bedding. In that respect also, two contradictory versions have been appearing from the testimonies of PW-2 and PW-6. PW-2 and PW-6 have stated in their statements that the charas so recovered was weighed and after weighing, it was - 9 - found 500 grams. It gives a doubt that from where they were carrying the weighing machine and how the charas recovered was weighed. 13. From the testimony of the prosecution witnesses, which is on record, we find that the only independent witness PW-1 Tara Chand, who was supposed to support the prosecution case, has completely disassociated from the prosecution. PW-2 & PW-6, official witnesses, have contradicted on many aspects, as have been discussed above. Thus, the evidence produced by the prosecution does not inspire confidence and the witnesses of the prosecution cannot be treated as trustworthy. 14. In view of the above discussion, in our considered view, the prosecution has failed to prove its case beyond any reasonable doubt and rightly so the Sessions Judge has also found and has taken the same view. Therefore, this Court is not inclined to interfere in the present appeal and the same is dismissed. Bail bond furnished by the respondent is hereby discharged. (R.B. Misra), Judge. May 26, 2010. (V.K. Ahuja), (TILAK) Judge