IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. 482 of 1997 Decided on: 26.7.2010. State of H.P. Appellant. Versus Desho Respondent. Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice Kuldip Singh, Judge. For the appellant : Mr. J.K. Verma, Dy. Advocate General. For the respondents : Mr. Vidushi Sharma, Advocate. ------------------------------------------------------------------------------------------ Justice Kuldip Singh. J. (Oral): The State has come in appeal against the acquittal of respondent by the learned Sessions Judge, Chamba on 25.7.1997 in Sessions Case No. 17 of 1997 under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the Act’). 2. The prosecution story, in brief, is that on 9.11.1996 at about 3.30 PM, PW-9 Jeet Singh SHO, Police Station Kihar was patrolling in village Garjindu alongwith PW-2 Sadiq Mohammad Head Constable, PW-5 Desh Raj Constable, ASI Bhagwan Dass, Madan Gopal Head Constable, Raj Kumar, Hoshiar Ram, Kamal Kashyap Constables, PW-1 Chain Lal and Bansi Lal. It was noticed by police party that respondent Desho was running away near his house. PW-9 Jeet Singh apprehended respondent, who was carrying a bag. PW-9 suspected that respondent was carrying some contraband, therefore, he wanted to conduct the search of 2 respondent. PW-9 conducted the search of the bag of respondent for which the respondent gave his consent vide writing Ext.PA. 3. On search of the bag of respondent, charas weighing 3 Kgs was recovered. The sampling and sealing was done on the spot, sample was put in sealed parcel, which was sealed with seal ‘S’. The remaining charas was also put in sealed parcel which was sealed with seal ‘S’. The grounds of arrest were disclosed to respondent by PW-9. Ext. PF rukka was sent to Police Station Kihar on the basis of which FIR Ext. PG was registered under Section 20 of the Act against Desho. The statements of witnesses were recorded, site plan was prepared so also the other documents. The sample of charas was sent to Chemical Examiner, Kandaghat. On receipt of Chemical Examiner report Ext.PM, it was found that the contents of sample were that of Charas. On completion of investigation, challan was presented in the court. The respondent was charged under Section 20 of the Act, who pleaded not guilty and claimed trial. 4. The prosecution has examined 9 witnesses and has also proved some documents. The statement of respondent was recorded under Section 313 Cr.P.C., he denied the prosecution case. The respondent led no evidence in defence. The learned Sessions Judge acquitted the respondent on 25.7.1997, hence appeal. 5. We have heard Mr. J.K. Verma, learned Deputy Advocate General for the State and Ms. Vidushi Sharma, Advocate appearing for respondent. On behalf of appellant, it has been submitted that the learned Sessions Judge has mis-construed, misinterpreted the evidence on record more particularly statements of PW-1 Chain Lal, PW-2 Sadiq Mohammad and PW-9 Jeet Singh. 3 The prosecution has proved the case against the appellant, who was apprehended with huge quantity of 3 Kgs charas. The learned Sessions Judge in view of material on record has erred in acquitting the respondent. 6. The learned counsel for the respondent has submitted that prosecution has miserably failed to prove the case against the respondent. The only independent witness PW-1 Chain Lal has not supported the case of the prosecution. PW-2 Sadiq Mohammad and PW-9 Jeet Singh are police witnesses, who have interest in the case, but even the police witnesses have not proved the case against the respondent. The presence of PW-2 Sadiq Mohammad on the spot is doubtful. The learned counsel for the respondent has supported the impugned judgment and has prayed for dismissal of the appeal. 7. In order to appreciate the rival contentions of the learned counsel for the parties, it is necessary to refer to the evidence which has come on record. PW-1 Chain Lal is the Pradhan Gram Panchayat Kharkota, he has stated that on 9.11.1996, the police had recovered in his presence charas from ‘Ghara’(heap of grass) in a field. He does not know who was the owner of the field and grass. He was declared hostile and was cross-examined by Public Prosecutor. In cross-examination, he denied that accused was apprehended by the police on suspicion and thereafter the police took his consent for search. He admitted his signature on consent memo Ext. PA but stated that it was not read over to him. He denied the contents of Ext.PB statement under Section 161 Cr.P.C. He denied that charas was weighed and it was found 3 Kgs. He denied that sample of the charas was taken and seal ‘S’ was put on the parcels. He admitted his signature on 4 recovery memo Ext.PC which was not read over to him. He has admitted his signature on arrest memo Ext.PD but stated that it was not read over to him. He has stated that he signed the documents at the instance of the police. He admitted his signature on Ext.PE information regarding arrest, but stated that he signed the same at the instance of the police and the contents of the document were not read over to him. He came to know about arrest of the accused on the next day. He has education up to 3rd standard. He admitted his signature on the sealed parcel Ext.P.1. He had signed in confidence at the instance of the police. In cross- examination conducted on behalf of the respondent, he has stated that there are 10 families in Gharjindoo village. The accused does not own house in the village and the house belongs to his father. 8. PW-2 Sadiq Mohammad, Head Constable has stated that in November, 1996 he was posted in Sanghni Police Post, Kihar. On 9.11.1996, he was in village Gharjindoo with Jeet Singh SHO and other police officials. They saw the accused was running with a bag, he was nabbed in his presence. Jeet Singh SHO asked the accused if he wanted to be searched before a Gazetted Officer or a Judge or he was willing to be searched by him. The accused gave his consent to be searched by Jeet Singh SHO. Thereafter consent memo Ext.PA was prepared. SHO searched the bag of the accused and charas was recovered, sampling and sealing was done. He brought the weighing scale and weights and on weighment, charas was found to be 3 Kgs. In cross-examination, he has stated that he does not know the name of the person from whom he brought the weighing scale and weights. He had not singed any paper concerning the present case. He was called by SHO to Police Station, Kihar from Police Post on that date. He had 5 not recorded his departure report at the Police Post. Later on he stated that he had recorded his departure in the Police Post and also the arrival. 9. PW-3 Rajinder Kumar Constable is a formal witness regarding the fact that he carried the rukka to Police Station, Kihar which he handed over to MHC Police Station, Kihar. The MHC handed over the case file to him which he handed over to SHO at village Telka. PW-4 Tilak Singh was MHC at Police Station, Kihar and has stated that on the basis of rukka Ext. PF, he recorded FIR Ext.PG. He has proved endorsement Ext.PF/1 on rukka. He has also stated that on 9.11.1996 SHO Jeet Singh had deposited two sealed parcels which were sealed with seal ‘S”. He had kept those parcels in Malkhana. He had sent sample parcels to Chemical Examiner, Kandaghat through Constable Desh Raj through RC dated 12.11.1996. Desh Raj handed over the RC to him with receipt. 10. PW-5 Desh Raj constable handed over the sealed sample to Laboratory at Kandaghat. PW-6 Babu Ram ASI has proved special report Ex.PH and remarks Ex.PH/I recorded by Superintendent of Police. PW-7 Deep Kumar constable has proved Ex.PJ copy of message sent by SHO, Police Station, Kihar regarding the case. PW-8 Suresh Kumar, Head Constable has stated that message Ex.PK was transmitted by him to Superintendent of Police, Chamba. 11. PW-9 Jeet Singh, SHO has stated that on 9.11.1996 he was patrolling in village Gharjindoo alongwith other police officials, Chain Lal and Bansi Lal were also with him. He saw Des Raj running away from his house towards the village. He was nabbed and was served a consent notice. He was told whether he 6 wanted to be searched by him or by Gazetted Officer or Magistrate. He gave his consent for search by him vide Ex.PA. On search, 3 Kgs. charas was recovered from a bag which respondent was carrying. The sampling and sealing were done on the spot. Recovery memo Ex.PC was prepared. He sent rukka Ex.PF to Police Station. The respondent was disclosed grounds of arrest vide memo Ex.PD. The site plan Ex.PL was prepared. Statement Ex.PB of Chain Lal was recorded correctly by him. He deposited the articles in malkhana. Thereafter the sample was sent for chemical examination and report Ex.PM was received from chemical examiner. The Special Report Ex.PH was sent to Superintendent of Police, Chamba. In cross-examination he has stated that Sadiq Mohd. was posted during those days at Police Post, Sanghni. He was called from there. 12. The consent memo Ex.PA is allegedly signed by Chain Lal and Bansi Lal witnesses and similarly recovery memo Ex.PC is signed by Chain Lal and Bansi Lal. In rukka Ex.PF dated 9.11.1996 it has been stated that Chain Lal and Bansi Lal were included in the raiding party which consisted of Jeet Singh, ASI Bhagwan Dass, HC Madan Paul, constable Des Raj, constable Hoshiara Ram, Rajinder Kumar and Kamal Kashyap. The police party was patrolling in village Gharjindoo area. Desho was carrying old white bag in his right hand. On search 3 Kgs charas was recovered from the bag, sampling and sealing were done on the spot. On the basis of Ex.PF, FIR Ex.PG was registered. Ex.PH is the Special Report. It has been stated in Ex.PH that Jeet Singh, SHO with HC Madan Paul, HC Sadiq Mohd, ASI Bhagwan Dass, constable Kamal Kashyap, constable Deh Raj, constable Rajinder Parshad, Chain Lal and Bansi Lal were in village 7 Gharjindoo. They saw Desho was carrying cloth bag in his hand. He was apprehended and on search 3 Kgs. charas was recovered from the bag. The sampling and sealing were done on the spot. Ex.PL is the site plan, Ex.PM is the chemical examiner report which indicates that net weight of sample in the laboratory was found 10.8310 gms. The chemical examiner has opined that the exhibit contains contents of charas. Ex.PN is the sample of seal impression mark as reverse ‘S’. The respondent in his statement under Section 313 Cr.P.C. has denied the prosecution case. 13. PW-1 Chain Lal, PW-2 Sadiq Mohd. and PW-9 Jeet Singh are the witnesses in whose presence 3 Kgs charas was allegedly recovered from the bag, which respondent was carrying. PW-1 Chain Lal has stated that on 9.11.1996, police recovered the charas from ‘Ghara’ which was in the field. He was declared hostile and cross-examined by the public prosecutor, but in cross- examination conducted by the public prosecutor he stated nothing favourable to the prosecution. However, he has admitted his signatures on Ex.PA, Ex.PC, Ex.PD and Ex.PE. His education is upto 3rd standard, he signed the documents at the instance of police in confidence. He has stated that the contents of Ex.PC were not read over to him. The documents were not read over to him. The simple admission of signatures on the documents Ex.PA, Ex.PC, Ex.PD and Ex.PE by PW-1 does not prove the documents. Bansi Lal other witness of the recovery has not been examined. 14. It has come in evidence that PW-2 Sadiq Mohd. on 9.11.1996 was posted at Police Post, Sanghni. He claims that he was present at the time of recovery of charas from respondent. He brought weighing scales and weights for weighing the charas but he could not tell the name of the person from whom he brought the 8 weighing scales and weights. He has stated that he had not signed any paper concerning the case. He had not recorded his departure at the police post then he stated that he had recorded his departure report at police post and also the arrival. PW-2 on this point has made contradictory statement. The departure report of PW-2 from Police Post Sanghni could have been easily proved but that has not been proved. This creates suspicion regarding the very presence of PW-2 when alleged recovery of charas was made from respondent. 15. PW-9 is the Investigating Officer, he has supported the case of the prosecution. The presence of PW-2 Sadiq Mohd on the spot at the time of alleged recovery is doubtful. PW-1 Chain lal has not supported the prosecution case. The other independent witness Bansi Lal has not been examined, nor any worth believing explanation has been given for not examining the other independent witness Bansi lal. PW-2 and PW-9 have stated that 20 gms of charas was taken as sample but chemical examiner report Ex.PM indicates weight of the sample 10.8310 gms. There is no explanation how weight of the sample which was sent to laboratory reduced to almost 50%. This further creates suspicion in the prosecution case. Therefore, in these circumstances, it is not safe to convict the respondent on the sole testimony of PW-9, more particularly when the Court below after due appreciation of evidence on record has acquitted the respondent. The learned Sessions Judge has rightly appreciated the material on record; the view taken by him in acquitting the respondent emerges from the evidence on record. Therefore, no fault can be found with the acquittal recorded by the learned Sessions Judge. 9 16. In view of the above discussion, the appeal fails and is accordingly dismissed, bail bonds of the respondent are discharged. 17. Before parting with the judgment, we feel inclined to observe certain aspects regarding the conduct of the public prosecutor who conducted the prosecution on behalf of the State in the Court below. The entire oral evidence of the prosecution was recorded on 24.7.1997. PW Bansi Lal was present in the Court on 24.7.1997. The statements of prosecution witnesses were fresh in the mind of public prosecutor who conducted the prosecution case. PW-1 Chain Lal independent witness of recovery did not support the prosecution, he was declared hostile but despite that public prosecutor gave up the only other independent witness of recovery Bansi Lal on 24.7.1997 on the ground that he was won over. 18. It is unfortunate that public prosecutor has not examined the other independent witness Bansi Lal. The public prosecutor at his own level decided the issue and did not examine Bansi Lal and thus deprived the prosecution to take the help of statement of Bansi Lal for proving the case. The prosecution was not to lose anything by examining Bansi Lal, even if, he would not have supported the prosecution in view of the fact that PW-1 Chain Lal had not supported the prosecution. The public prosecutor by not examining Bansi Lal left no chance to the prosecution to prove the case of recovery through Bansi Lal, the important witness to the recovery. The Secretary(Home) to the Government of Himachal Pradesh and Director Prosecution, Government of Himachal Pradesh are directed to look into these aspects and take appropriate action to ensure that both the investigation and prosecution are made spot free, effective and fruitful. The Registrar 10 General is directed to communicate a copy of the judgment to Secretary(Home) to the Government of Himachal Pradesh and Director(Prosecution), Government of Himachal Pradesh for necessary action. (Justice Kurian Joseph), Chief Justice. (Justice Kuldip Singh), Judge. July 26, 2010 (vt/sks)