IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 510 of 2002. Judgment Reserved On: 1.8.2011. Date of Decision: 25th August, 2011. _______________________________________________ State of H.P. ….Appellant. Versus. Ranjeet Ram. ….Respondent. Coram: Hon’ble Mr. Justice R.B.Misra, Judge. Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1?.yes. For the appellant: :Mr.R.K.Sharma, Senior Additional Advocate General. For Respondent. :Mr.Anup Chitkara, Advocate. Dev Darshan Sud, J. The State challenges the judgment of acquittal passed by the learned Sessions Judge, Kullu on 4.3.2002 acquitting the respondent for offences under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘Act’). 2. The prosecution case in brief is that Head Constable PW10 Lal Singh, Constable Bachitter Singh, L.H.C. PW7 Surat Ram, Constable PW8 Santosh Kumar and Lady Constable Ram Kali were checking traffic at Bajaura barrier, Kullu. At around 6.10 p.m., bus of Monal Travels having Whether reporters of the Local papers are allowed to see the judgment. 2 registration No.HP-01/1709 travelling from Manali to Delhi was stopped for checking at Bajaura barrier. The case is that the accused at that time was occupying seat No.31 for which he had purchased ticket Ext.PW4/A. He was found in possession of a bag which according to the prosecution he had kept between his legs. This bag was seized and searched and 3 Kilograms charas was found. Three samples of 10 grams each were separated and packed in three empty match boxes which were wrapped and sealed separately with seal ‘T’ which was entrusted to PW7 Surat Ram. N.C.B.Form Ext.PW10/A was prepared in triplicate. These proceedings were conducted in the presence of PW9 Raj Kumar conductor of the bus. 3. On the evidence as led by the prosecution, the learned Sessions Judge acquitted the respondent holding that case of conscious possession was not established and that the prosecution evidence was full of contradictions. Learned Sessions Judge held that PW9 Raj Kumar, who was an independent witness, has not supported the case with respect to the possession of the contraband by the accused/respondent. 4. The State now appeals against this judgment. Learned Senior Additional Advocate General urges that the judgment of the learned trial Court is conjectural and that the evidence of L.H.C. PW7 Surat Ram, Constable PW8 Santosh Kumar and H.C. PW10 Lal Singh corroborated each other in all material particulars so far as recovery is concerned and in 3 these circumstances, the evidence of PW9 Raj Kumar Conductor of the bus could not be accepted on his face value, to discredit their testimony. 5. He submits that merely because these three witnesses were police personnel, their statements could not be discarded and he places reliance on the judgment of the Supreme Court in Aher Raja Khima Vs. State of Saurashtra AIR 1956 S.C.217, in which the Court held: “40 …………………………The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not a judicial approach to distrust and suspect him without good grounds therefor. Such an attitude could do neither credit to the magistracy nor good to the public. It can only run down the prestige of the police administration.” (P. 230) 6. He submits that conviction can be based on the evidence of the police personnel if after careful scrutiny it supports the case of the prosecution. For this proposition, he has placed reliance on the judgment of the Supreme Court in Girja Prasad Vs. Sate of M.P., (2007) 7 SCC 625. 7. Before adverting to the principles urged, it is necessary to consider the evidence which has been produced on record. Adverting to the evidence of PW9 Raj Kumar, who was the conductor of the bus he states in his examination-in- chief that he was working as a conductor in the bus which was searched by three police personnel aforesaid when the bus was proceeding from Manali to Delhi. A bag was found on the rack of the bus and three boys were sitting below that rack and were taken away by the police. He says that he does 4 not know as to whom the bag belongs. He was cross- examined by the prosecution and his version is consistent in so far as the possession of the bag is concerned stating that it was not in the possession of the respondent. He was declared hostile and cross examined by the prosecution. His testimony on the question of possession is consistent and unshaken. Otherwise, he supports the prosecution on all other particulars, namely that the bag contained charas in plastic packets which weighed and found to be 3 kilograms. From the recovered charas, three simples of 10 grams each were separated and all three sealed in match boxes on the spot separately with seal ‘T’ which seal after use was handed over to Constable whose name he does not remember. Charas was taken into possession vide memo Ext.PW7/A on which he admitted his signatures. He admits that the bus had thirty five seats all of which were occupied. He admits his signatures on memo Ext.PW7/B and Ext.PW7/C. He says that the N.C.B. form was not filled in his presence. This is the entirety of his evidence. 8. So far as the three police witnesses are concerned, they have stated with respect to the recovery of the bag from the custody of the respondent. Learned Sessions Judge notices some inconsistency in the statements. He first notices the evidence of PW7 Surat Ram and PW8 Santosh Kumar who state that the “dikki” (luggage compartment of the bus) was not inspected/checked whereas according to PW10 H.C. Lal Singh it was inspected and there were 7/8 5 bags in the “dikki”. The Court then notices that according to PW8 Santosh Kumar, who brought rukka from the spot to the Police Station for registration of the F.I.R. was handed over by him to the Investigating Officer at the Police Station. The learned Judge notes that after coming from the spot with rukka Ext.PW10/B, he did not return to the spot and remained in the Police Station. The rapat which was lodged Ext.PW5/D states that PW10 Lal Singh accompanied by L.H.C. PW7 Surat Ram, Constable PW8 Santosh Kumar, Constable Bachiter Singh and Lady Constable Ram Kali all of whom were travelling in official vehicle No HP-34/0186 driven by Constable Dalip Kumar which reached the Police Station along with the accused. When PW8 Santosh Kumar after registration of the case never visited the spot with the file, there was no question about his accompanying the police party thereafter to the Police Station. The learned Judge also notes that on checking of the bus from seat No.3 to seat No.31 it took time about 10/15 minutes, which could have given ample opportunity to the accused to push the bag away from him in case he was holding it. 9. In these circumstances, it become necessary to examine as to whether reliance can be placed on the testimony of PW9 Raj Kumar, who is an independent witness but nevertheless declared hostile because it is not toe the prosecution line that the recovery was made from the respondent. The law on this point is well settled. In Sayed Akbar Vs. State of Karnataka, AIR 1979 S.C. 1848, the Supreme Court holds: 6 12. As a legal proposition, it is now settled by the decisions of this Court, that the evidence of a prosecution witness cannot be rejected wholesale, merely on the ground that the prosecution had dubbed him 'hostile' and had cross-examined him. We need say no more than reiterate what this Court said on this point in Sat Paul v. Delhi Administration (1976) 2 SCR 11 : AIR 1976 SC 294: "Even in a criminal prosecution when a witness is cross- examined and contradicted with the leave of the Court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be credit-worthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto." 13. The instant case is not one where the whole of the testimony of these witnesses was impugned in cross-examination by the prosecution. Their credit, on material points, was hardly shaken. The courts below, therefore, were not justified in brushing aside their testimony. (P1851) 10. These principles find reiteration in Balu Sonba Shinde Vs. State of Maharashtra, (2002) 7 SCC 543, where the court holds: “14 It is at this juncture the prosecutor declared her a hostile witness and prayed for permission to cross-examine the witness upon however, the leave being granted, PW 5 totally decried the factual aspect as contained in the complaint lodged, though however, the thumb impression was admitted while it is true that declaration of a witness to be hostile does not ipso facto reject the evidence and it is now well-settled that the portion of evidence being advantageous to the parties may 7 be taken advantage of but the Court before whom such a reliance is placed shall have to be extremely cautious and circumspect in such acceptance. Reference in this context may be made to the decision of this Court in State of U.P. v. Ramesh Prasad Misra.[(1996) 10 SCC 360] wherein this Court stated: "It is equally settled law that the evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused, but it can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted.” (Pp.550&551) 11. We need not extract in detail other judgments but take note of the principles which again reaffirmed in Anil Roy Vs. State of Bihar, AIR 2001 S.C.3173. 12. To encapsulate the principles, we may only refer to the decision in Radha Mohan Singh Vs. State of U.P. 2006 Cri.L.J.1121, where the court declared: “7. ………………………………………It is well settled that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof. (See: Bhagwan Singh V. State of Haryana, AIR 1976 SC 202; Rabinder Kumar Dey V. State of Orissa, AIR 1977 SC 170, Syed Akbar V. State of Karnataka AIR 1979 SC 1848 and Khujji @ Surendra Tiwari Vs .State of Madhya Pradesh 1991 AIR SCW 2038, AIR 1991 SC 1853}…………………..” (Pp.1124 & 1125) (Emphasis supplied) 13. We need not multiply precedent any further. It is in these circumstances, that the testimony of the witnesses has to be considered. The most obvious reason for accepting 8 the evidence of PW9 Raj Kumar conductor is that he supports the prosecution on each and every point except the point of possession where he says two things: (a) that the bag was recovered from the rack above the seats and three boys were sitting below that rack who were taken away by the police. If the witness was an untruthful witness, he could have resiled from his entire statement. The testimony of the police personnel cannot be accepted for the reason that they contradicted each other on the point as to how the search was conducted. The learned trial Court takes note of this and to repeat we find that the three witnesses as noticed by us state differently about the manner in which the search was conducted. The principles in criminal jurisprudence that the prosecution must stand on its own legs are settled. In Sharad Virdi Chand Sarda Vs. State of Maharashtra, AIR 1984, SC 1622. The Court holds: “150. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this: where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court.” (P 1655) 14. Submission made on behalf of the State that the learned Court below discarded the evidence of these 9 witnesses only for the reason that they were police personnel cannot be accepted as it is the intrinsic worth of the facts stated and their corroboration which has to be considered. There is thus no impediment in accepting the evidence of PW9 and we hold accordingly. 15. When we apply the principles stated by the Supreme Court for assessing the evidence of witnesses as noted by us, we have no hesitation in accepting the veracity of the version as narrated by PW9 Raj Kumar. 16. Learned counsel appearing for the appellant also relies upon the decision of the Supreme Court in Jagdish Vs. State of M.P. (2003) 9 SCC 159. In this case, the case against the accused was that: “2. ……………….. when he was travelling in a bus which was checked by Narcotics Sub Inspector Dudhnath Ram, PW1 near Hasanpaliya village at Neemuch-Dhar Road. PW1 found that there was an attaché lying on the rack and three persons were sitting on the back side seat of the bus. On inquiry as to who did that attaché belong to, the appellant is stated to have admitted that it belonged to him. The attaché also carried a name slip with the name of the appellant on it. The attaché was taken into possession by PW1 and the appellant was made to alight from the bus. He was asked about the key of the attaché which he took out from his pocket. Two panch witnesses Shankar Lal, PW2 and Chhoga la, PW3 were present. It is alleged that when the appellant opened the attaché it was found to contain a bag which had black substance init. The panchas smelt the same and opined it to be opium. It was weighed and seized and two samples of 30 gm. each were taken out from the same for purposes of chemical examination. Those were sealed in two empty cigarette boxes. The cigarette boxes were wrapped with a thread and sealed. The panch witnesses PW2 and PW3 signed on the wrapper as well as on the 10 panchnamas which were prepared at the spot. The seized articles were produced by PW1 before PW7 Shri Rajdev Ram who was working as District Opium Officer at the relevant time. The samples were sent for chemical examination and according to the report of the Chemical Examiner, the samples were found to be of opium. The appellant was, thereafter sent up for trial for offences under Sections 8/18 of the NDPS Act……………………………….” 17. Learned counsel submits that once the inherent contradictions in the evidence are brought on record, no conviction can follow. 18. Adverting to the question of conscious possession, we find that this Court in Sot Ram Vs. State of H.P. 2007 (2) Shim. L.C. 184 has considered the law in extenso holding: 12. Learned counsel for the State has drawn our attention to judgment of his Court in Chet Ram and others versus State of H.P. and others (2004 (2) Shim. L.C.423) and referred to the principles of law laid down that it is well settled that failure to cross examine witnesses on particular aspect lead to a presumption that such aspect is not disputed. Learned counsel relies upon the judgment of the Hon’ble Supreme Court in Madan Lal and another versus State of H.P. (supra). According to the learned counsel, the law laid down by the Apex Court clearly establishes that the presence of the appellant in the vehicle itself was sufficient to have established the conscious possession. He relies upon paras 22 to 25 of the judgment which run as under: “22. The expression “possession” is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Supdt. & Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja 1979) 4 SCC 274) to work out a completely logical and precise definition of “possession” uniformly applicable to all situations in the context of all statutes. 11 23. The word “conscious” means awareness about a particular fact. It is a state of mind which is deliberate or intended. 24. As noted in Gunwantlal v. State of M.P. (1972) 2 SCC 194) possession in a given case need not be physical possession but can be constructive, having power and control over the article in the case in question, while the person to whom physical possession is given holds it subject to that power or control. 25. The word “possession” means the legal right to possession (see Heath v. Drown (1972) 2 All ER 561). In an interesting case it was observed that where a person keeps his firearm in his mother’s flat which is safer than his own home, he must be considered to be in possession of the same.(See Sullivan v. Earl of Caithness (1972) 2 All ER 561).” 13. There is no dispute to this proposition. However, this case was followed and applied by this Court in Bruce Claridge ‘s case (supra). Their Lordships have held that conscious possession would be dependent upon the facts and circumstances of each case. If the ratio is to be applied as submitted by the learned counsel for the respondent, there is no explanation as to why PWs 1 and 2 had not been treated as suspects. In the totality of the circumstances, we hold that the evidence on record is insufficient to establish the guilt of the accused. (Pp.188 & 189) 19. We find that conscious possession of the contraband by the respondent has not been established in accordance with law by the evidence on record. 20. Learned counsel for the respondent also places reliance on the decision of the Supreme Court in Ram Swaroop and others Vs. State of Rajasthan, 2004 Cri.L.J.5043, to urge that if two views of the evidence are possible, the High Court should not ordinarily interfere in the findings by the learned trial Court unless they are perverse or such that no reasonable person can come to this conclusion. In this case the Supreme Court held: 12 25. Having regard to the findings recorded by the trial court and having gone through the evidence on record, we are of the view that this was not a case in which the High Court ought to have interfered with the order of acquittal passed by the trial court. It is well settled that if two views are reasonably possible on the basis of the evidence on record, the view which favours the accused must be preferred. Similarly it is well settled that if the view taken by the trial court while acquitting the accused is a possible, reasonable view of the evidence on record, the High Court ought not to interfere with such an order of acquittal merely because it is possible to take the contrary view. It is not as if the power of the High Court in any way is curtailed in appreciating the evidence on record in an appeal against acquittal, but having done so, the High Court ought not to interfere with an order of acquittal if the view taken by the trial court is also a reasonable view of the evidence on record and the findings recorded by the trial court are not manifestly erroneous, contrary to the evidence on record or perverse. (P. 5049) 21. Having considered the case from any angle, we find that the prosecution has been unable to prove that it was the respondent who was in conscious possession of the contraband. This appeal is accordingly dismissed. 22. The bail bonds furnished by the respondent shall stand discharged. (R.B.Misra), Judge. (Dev Darshan Sud), Judge. August 25,2011(R) 13