IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.359 of 1996 Date of decision:15.3.2010 State of H.P. ... Appellant Versus Prem Lal … Respondent Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr.Vivek Singh Thakur, Additional Advocate General. For the respondent: Mr. Rama Kant Sharma, Advocate. ____________________________________________________________ Deepak Gupta, J (Oral). This appeal by the State is directed against the judgment dated 26.6.1995 passed by the learned Additional Sessions Judge, Shimla in Sessions Trial No.6-S/7 of 1995, whereby he acquitted the accused of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act). The prosecution case, in brief, is that on 7th December, 1994 a police party headed by PW-6, who at the relevant time was SHO, Police Station, East, Shimla, 1Whether reporters of Local Papers may be allowed to see the judgment? Yes 2 was on patrol duty. At about 7 a.m. when they were near the Nav Bahar Chowk, they saw one person near the said crossing who was carrying a bag in his hand. On seeing the police this man got perplexed and tried to run away towards the side of St. Bedes College. This aroused suspicion in the mind of the Investigating Officer. The person was chased and apprehended. He disclosed his name to be Prem Lal i.e. the accused. According to the prosecution one witness Gulaba Ram, PW-1, was present at the bus stop near the place of occurrence. He and other police witnesses were associated with the search. On search of the bag which the accused was carrying, charas was recovered which on being weighed was found to weigh 7 k.g. Out of this bulk charas two samples of 50 gms. each were separated for the purpose of chemical examination. Thereafter, the bulk charas and the two sample parcels were sealed separately with seal ‘N’. The seal was handed over to Gulaba Ram. During investigation the accused disclosed that he had concealed some more charas in his village Niharkhan. The Investigating Officer PW-6 obtained a search warrant from the Court at Shimla and visited the spot. On disclosure being made by the accused a tin was 3 recovered from a heap of sand near the Naina Devi Temple at Village Niharkhan. From this tin, 400 gms. charas was recovered. Again two samples of 10 gms. each were taken and again sealed with seal ‘N’. The other codal formalities were completed both at Nav Bahar Chowk and at village Niharkhan. Two reports Exts.PW-6/H and PW-6/J (though this report is actually marked as Ext.PWG) were received. Both the samples were opined to be of charas and thereafter the challan was filed against the accused. The defence of the accused was of denial and he claimed that he has been falsely implicated in this case by the Investigating Officer PW-6. After trial the learned trial Court acquitted the accused holding that the provisions of Sections 42 and 50 of the NDPS Act have not been complied with. Section 42 is not applicable since the recovery was not made in a private place and Section 50 is not attracted since the recovery was made from the bag which the accused was carrying and not from his person. Reference may be made to the decision of the Apex court in State of H.P. vs. Pawan Kumar, Latest HLJ 2004 (SC) 1247. 4 We shall deal with the two recoveries separately. Firstly the recovery at Nav Bahar chowk. As per the prosecution Gulaba Ram was already available at the spot at about 7 a.m. The search was conducted in his presence. While appearing in the witness box PW-3 Head Constable Nirmal Dass states that Gulaba Ram was already present on the spot. He was associated with the investigation. The accused was searched by the SHO in the presence of this witness and the charas was recovered from the bag being carried by the accused. This witness further states that he was deputed by the SHO to bring the weighing scale which he brought from Chhota Shimla Bazaar. He further states that the seizure memo of the charas which was prepared by him Ext.PW- 3/A bears his signatures as well as the signatures of Gulaba Ram and accused Prem Lal. He further states that Gulaba Ram was not called by them but was already present on the spot and no other witness was associated. He however states that the residence of DIG Minhas was hardly 100 yards away from the spot. This witness was confronted with his statement made under Section 161 Cr.P.C. (Ext.DA), which has been proved by the Investigating Officer, in which it is mentioned that the 5 weighing scale was brought from Nav Bahar Bazaar. In his deposition in the Court the witness states that he has brought weights of 5 kg, 2 kg, 1 kg, 500 grams, 100 grams and 50 grams but this is not mentioned in the statement Ext.DA. This witness has stated that he does not know where the residence of Gulaba Ram is and why he was standing at Nav Bahar Chowk. Other than the Investigating Officer he is the only witness who has supported the prosecution with regard to the search at Nav Bahar Chowk. PW-1 Gulaba Ram gives a totally different version. According to him at about 7-7.30 a.m. on 7.12.1994 when he was standing outside his shop where he sell milk a police jeep came and a number of people got down from the said jeep and went to the police station. After about 15 minutes the witness was called to the Police Station and the ASI told him that the accused had been arrested and charas had been recovered from him. The witness saw the charas and states that it was not weighed in his presence. He states that the police told him that the charas recovered was 7 kg. Thereafter, he was declared hostile. He states that he is totally illiterate and does not know what was written on his statement. He reiterated in 6 cross examination that nothing was recovered in his presence. As far as the Investigating Officer is concerned he has supported the prosecution version and according to him also Gulaba Ram was present at the spot. However, there is a contradiction between the statement of this witness and that of PW-3 Nirmal Dass. The Investigating Officer states that he tried to associate the witnesses from the hostel (probably he means the Hostel attached to the St.Bedes College) but none was present in the Hostel. He also states that he did not call DIG Minhas whose residence is about 100 yards from the spot. He has also proved the statement of Head Constable Nirmal Dass and states that he recorded the version as given to him by Nirmal Dass. An important factor which is to be noted is that this witness admits that the shop of Gulaba Ram adjoins the Police Station, Chhota Shimla. The provisions of NDPS Act are very stringent in nature. Once recovery is proved mens-rea is not required to be shown and the burden shifts upon the accused. Therefore, it is necessary for the prosecution to prove that the recovery is legal, valid and has actually been made in the manner set out by it. If 7 serious doubt is cast on the manner of recovery then the prosecution case must fail. In this case, allegedly the recovery was made at Nav Bahar Chowk. The prosecution witnesses have admitted that there is a School and College as well as residence of DIG close to the spot. Though the Investigating Officer states that he tried to associate some witnesses from the Hostel, this statement appears to be false. PW-3 states that only Gulaba Ram who was present on the spot was associated. The presence of Gulaba Ram on the spot is highly doubtful. Gulaba Ram in his statement has stated that he was at his shop and was called to the Police Station. He was declared hostile but no suggestion was put to him in cross examination by the Public Prosecutor that he was actually standing on the bus stop at Nav Bahar to catch the bus. The accused was apprehended at about 7 a.m. in the morning. What was Gulaba Ram doing at Nav Bahar? Either the prosecution should have proved that the residence of Gulaba Ram is near Nav Bahar which may have given some credence to the prosecution version or given some other reason for his presence there. Gulaba Ram totally denies his presence on the spot. When an independent witness turns hostile 8 the Court can look into the evidence of the police witnesses. As repeatedly held by the Apex Court that police witnesses are as good witnesses as any other members of the public. However, it is an equally well settled proposition of law that when independent witnesses turn hostile the testimony of police witnesses must be scrutinized with great care and caution and if there are contradictions in the statements of the witnesses these assume importance. The prosecution must also show that some genuine effort was made to actually associate credible independent witnesses. The search has taken place on a busy road where there is sufficient traffic at any time on the day. A House of a senior police officer was close to the spot. There is a School and a College both with hostels adjacent to the spot. A Bazaar is close to Nav Bahar chowk. In Ext.DA it is recorded that PW-3 stated before the Investigating Officer that he had got the weighing scale from Nav Bahar bazaar. However, in his testimony in Court he states that he got them from Chhota Shimla Bazaar. This is a material contradiction and casts a doubt on the prosecution version. We are dealing here with a police party which was having a Jeep with it. Why was the driver 9 of the Jeep not sent to the nearest market of Nav Bahar or Sanjauli to get the scales? There would be no reason to depute a constable for this job. Admittedly Gulaba Ram has a shop next to the Police Station, Chhota Shimla. It has also come in evidence that he has appeared as a witness in one other case for the police. Therefore, the version of the defence which in fact has been supported by Gulaba Ram that he was not present at the spot cannot be discarded easily. We now come to the search at the village of the accused. Two persons were associated with this search; PW-2 Sohan Lal and Suneharu Devi who was not examined in the Court. Sohan Lal does not belong to the village of the accused. He states that he and Suneharu were waiting for a bus at Brahm Pukhar where a police jeep came and asked them to accompany them to the temple of Mata Naina Devi. PW-6 had obtained search warrant to search the house of the accused at his village. No disclosure statement under Section 27 has been proved on record. Sohan Lal states that the police officials asked him to accompany him to the temple of Mata Naina Devi. In case disclosure was made by the accused at the spot how did the police know before 10 hand that the contraband was near the temple and not in the house of the accused. PW-2 Sohan Lal has also not supported the prosecution version. According to him, the police recovered one plastic tin form a heap of sand. This heap of sand was lying in an open place. The House of PW-2 Sohan Lal is 4-5 kms. away from the place of recovery. This witness also admits that the village of the accused is at a distance of about 200-300 yards from the place from where the alleged tin was recovered. He also admits that the Investigating officer PW-6 has some land in his village and the father of the Investigating Officer, PW-6, sold some land to Smt.Suneharu Devi the other witness. He also states that PW-6 visits his village frequently. The version of PW-6 in examination-in-chief supports the prosecution. He however in cross examination states that the land in village Mungrani did not belong to him but to his father which was sold to witness Suneharu about 12-15 years ago. He gives an evasive answer when asked whether this land adjoins the land of the accused. He admits that no person from the village near the place where the second recovery was made was associated with the search. He also admits that the heap of sand 11 was in an open space. This search is also surrounded by certain facts which casts doubt on the recovery itself. How could Sohan Lal and Suneharu Devi who belong to the village where the land of the father of the Investigating Officer is situate be present at Brahmpukhar at the same time? This cannot be a sheer coincidence. Why did the Investigating Officer not first go to the village and search the house of the accused? How did he, in the absence of any disclosure statement, know that the tin was buried in a heap of sand near the temple? The defence of the accused is that PW-6 was inimical to the accused and has roped him in a false case. Suggestions have been put toPW-6 in this regard in reply to which he has given evasive answers. When asked whether a criminal case was pending against the accused in his Police Station, this witness states that he did not remember. He was then specifically asked whether he was investigating a case of dacoity or murder against the accused. Again his answer was that he does not remember. Cases of dacoity and murder do not happen every day and the witness should have given a clear-cut answer in this regard. He also first gave an evasive answer when asked whether he had registered another case 12 under the NDPS Act against the accused. However, when given certain specific suggestions he was forced to admit that one case State vs. Prem was registered against the accused. He however again gave an evasive answer to the question whether that case was registered before or after the present case. Keeping in view these facts and also the fact that the witnesses of the second recovery both belong to the village where the father of the Investigating Officer owned some land and the witness of the first recovery runs a shop adjacent to the Police Station at Chhota Shimla, it appears to us that the recoveries have not happened in the manner in which they are stated to have occurred. Once the recovery is not shown to be proper the accused has to be acquitted. In view of the above discussion, we uphold the acquittal of the accused though on totally different grounds. The appeal is dismissed. Bail bonds, if any, furnished by the accused are ordered to be discharged. Case property shall be destroyed in accordance with law. ( Deepak Gupta ), J. March 15, 2010 ( Sanjay Karol ), J. PV