IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Appeal No.135 of 2000 Reserved on : 29th October, 2010 Date of Decision: 12th November, 2010 State of Himachal Pradesh Appellant Versus Mohan Lal Respondent Coram The Hon’ble Mr. Justice Deepak Gupta,J. The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellant: Mr.Vivek Singh Thakur, Addl. Advocate General. For the respondent: Mr. B.C.Negi, Advocate. Sanjay Karol, J. For an offence, which is alleged to have been committed on 14.10.1998, accused was put to trial. In terms of judgment dated 10.9.1999 passed by learned Sessions Judge, Kangra at Dharamshala, H.P., in Sessions Case No.7-F/VII/99 as State of H.P. vs Mohan Lal, accused stands acquitted of the charged offence. 2. It is the case of the prosecution that on 14.10.1998 at about 4.30 p.m., Inspector Sanjay (PW-7), S.H.P., Police Station, Baijnath, alongwith other police Whether the reporters of Local Papers are allowed to see the Judgment? 2 officials were present at Bus Stand Chowk, Baijnath. There he saw accused standing with a green bag on his shoulder. Seeing the police accused tried to run away towards the Bus Stand and thus on suspicion was apprehended. PW-7 suspected that accused may be carrying some contraband substance. Accordingly in the presence of independent witnesses Sudhir Katoch (PW-1), Harish Kumar (PW-2) and Hans Ram, inquiries were made from the accused, who disclosed his name as Mohan Lal. Thereafter PW-7 sent intimation (Ext.PW-3/A) to superior office (SDPO, Baijnath). Option (Ext.PW-1/A) for search was given to the accused to which, in writing (Ext.PW-1/B) he offered himself to be searched in the presence of a gazetted police officer. PW-7 accordingly informed DSP Bashir Khan (PW-3) who arrived at the spot and in the presence of independent witnesses personal search of the accused was carried out. Memo Ext.PW-1/C was prepared in this regard. On search it was found that accused was carrying Charas like substance in the shape of “Battis”. Scales from the shop of Shiv Kumar were brought and on weighing contraband substance was found to be 1 kg. and 240 gms. Two samples of 20 gms. each were taken out from the contraband substance and sealed with seal impression ‘S’. Remaining substance was also packed and sealed with the same seal impression. Seizure memo (Ext.PW-1/D) was prepared in the presence of independent 3 witnesses. Rukka (Ext.PW-4/A) was sent through Constable Tilak Raj to the Police Station, on the basis of which HC Pyare Lal (PW-4) registered FIR (Ext.PW-4/B) under Section 20 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to NDPS Act), at Police Station, Baijnath. Accused was arrested and grounds of arrest conveyed to him vide memo Ext.PW-7/B. Further necessary investigation on the spot was carried out. Sealed parcels were deposited by PW-7 in the Police Station and two sealed samples were sent to the Chemical Examiner through C. Parveen Singh (PW-5), who deposited the same and got receipt thereof. Copies of Special report (Ext.PW-3/B) were sent to the superior officer. Report of the Chemical Examiner (Ext.PW-7/E) confirmed that narcotic substance was Charas. 3. With the completion of investigation, challan was presented in the Court for trial. Accused was charged for having committed an offence punishable under Section 20 of NDPS Act, 1985. In order to prove its case prosecution examined seven witnesses and statement of the accused under Section 313, Cr.P.C. was recorded wherein he took the following defence:- “On 14.10.98, two persons came to my house and asked for water. I served water to them. Then they told me that they need Charas and I told them that I do not deal in Charas nor I possess Charas. They kept on persuading me 4 and I told them to leave the house. They told that they are from the police. Then 3-4 other persons came and accused me as to why I was pushing there people and then they took me to the police station. Those persons told that they were from Dharamshala police. On of the persons gave his address to my wife in his own handwriting which is mark X. I am innocent. I have falsely been implicated in this case.” 4. In defence accused also led evidence and examined six witnesses. 5. The Court below acquitted the accused inter alia on the ground that prosecution had failed to prove, beyond reasonable doubt, that search and seizure operation as alleged by the police was actually carried out and that Charas was recovered from him. 6. We have heard the learned counsel for the parties and perused the record. 7. Prosecution has tried to prove its case of search and seizure through the testimonies of Shri Sudhir Katoch (PW-1), Shri Harish Kumar (PW-2), both independent witnesses, and police officials Sh. Bashir Khan, Dy.S.P. (PW-3) and SHO Police Station Baijnath Shri Sanjay (PW-7). Before we deal with their testimonies we shall first deal with the evidence led by the accused in his defence. 5 8. It is the version of Miss Raj Kumari (DW-5), daughter of the accused, that on 14.10.1998 two persons, one of whom was S.P., had come to their house. They offered money and asked her father (accused) to give Charas. Her father refused and told them that he does not deal with Charas. Then they took away her father and while leaving gave her a slip (Ext.P-5), which contained the address of the place where her father was being taken. Her version is supported by Pradhan Vijay Kumar (DW-6), An attempt has been made by the prosecution to show that these witnesses are unreliable and it will be unsafe to reply upon their testimonies. We may not agree with the same. However, assuming that the testimonies of these witnesses are to be ignored even then from the statement of Shishu Patial (DW-4), it stands evidently proved that on 15.10.1998 a news item was published in the daily newspaper Jansatta to the effect that in a raid conducted by Shri Veenu Gopal, ASP at Baijnath, 1.5 kg. of charas was recovered. 9. The fact that Veenu Gopal was at Baijnath in connection with some NDPS case stands evidently proved by C.Gopal Sood (DW-1) and ASI Rajender Prasad (DW-2). According to DW-1 on 14.10.1998 Shri Veenu Gopal had travelled in a police vehicle on 14.10.1998 from Dharamshala to Baijnath for conducting raid in a case under NDPS Act. DW-2, has also proved the tour 6 programme of Shri Veenu Gopal. He has also proved TA bills of Sh. Veenu Gopal for having undertaken such journey. Record does not show that on 14.10.1998 police had registered any other case under the provisions of NDPS Act in which recovery was effected. No other case under the NDPS Act was registered with Police Station either at Dharamshala or at Baijnath. Prosecution has failed to show any other case in which Shri Veenu Gopal had undertaken his journey on 14.10.1998 in which charas was recovered. All this has rendered the defence taken by the accused to be plausible and probable and prosecution case to be doubtful. Shri Veenu Gopal has not been examined in Court. Why so, has not been explained. He could have clarified that he had visited Baijnath in connection with some other case. It appears that certain relevant material has been concealed from the Court. 10. Admittedly search and seizure operation took place in broad day light at Bus Stand Chowk, Baijnath. It is a crowded place and even as per the prosecution witnesses large number of people were present there. As per the version of PW-7 he did not associate any of the residents of the locality and nearby shopkeepers. Why so, has not been explained. He associated only independent witnesses i.e. PW-1 and PW-2. Now PW-1 is a taxi driver. He was declared hostile. He neither supports the prosecution nor the accused. He has taken a vacillating 7 stand and is definitely not a reliable witness. Though in examination-in-chief he supports the prosecution, but, in cross-examination admits that “it is also correct that when I went there, ‘Charas’ had already been taken out and kept and many people were watching the same. It is also correct that I saw the ‘Charas’ for the first time” and “ It is correct that since the ‘charas’ had already been kept there, there was no question of taking the search in my presence”. Hence his testimony is of no use to the prosecution. 11. Now PW-2 is a resident of Nagrota Bagwan, which is at a distance of 28 kms. from Baijnath. He admits that in connection with his business he had visited Baijnath for the first time. Accused has been able to successfully show through the testimony of H.C. Santokh Singh (DW-3) that FIR No.459 of 1997 dated 1.11.1994 under Section 61 of the Excise Act stood registered against this witness. Why did police associate an accused as an independent witness in this type of matter is unexplainable. Obviously he would state only what is desired by the police. His testimony cannot be relied upon. He is an unreliable witness. 12. It is a settled law that even in the absence of any corroboration by independent witnesses, version of police officials, if found to be truthful, can be relied upon to hold the accused guilty of the charged offence. We find 8 that even police officials are not reliable and truthful witnesses. PW-7 has not deposed complete truth. On the date of the alleged incident ASP Shri Veenu Gopal had visited Baijnath and at that time PW-7 was the SHO of the concerned police station. Now surprisingly in Court he states that Shri Veenu Gopal had visited Baijnath on 14.10.1998. He also did not see him there. His version is contradicted by DW-1 and DW-3. Shri Veenu Gopal was not on a secret mission. He had visited with a raiding party. Hence version of this witness is highly unbelievable. Similarly PW-3, who was the Dy.S.P. also admits that there are about 100 – 150 shops in the bazaar and 20-23 people had gathered when search operation was carried out. He also admits that local residents were not associated at that time. He admits that at Baijnath there is Executive Magistrate and Sub Divisional Magistrate, yet none was associated by them. Why so, has not been explained. All this renders the prosecution case to be extremely doubtful. 13. Further perusal of Ext.PW-1/B shows that it was prepared by the police in the manner in which they had desired it to be written. Statement meant to be that of the accused was first written down by the Investigating officer and then immediately below the same accused was asked to re-write the same in verbatim, in his own hand. The gazetted officer could have been Shri Veenu Gopal. 9 Further Shiv Kumar from whom scales were brought has not been examined in the Court. 14. Thus we find the statements of the police officials to be unworthy of credence and it cannot be said that prosecution has been able to prove its case by leading clear, cogent, reliable and convincing material on record. The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused persons has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (Deepak Gupta) Judge. November 12, 2010 (Sanjay Karol) (C) Judge.