IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.377 of 2009. Judgment Reserved on:01.06.2010. Decided on: July 16, 2010. Avtar Singh …Appellant. VERSUS State of H.P. ….Respondent. Coram The Hon’ble Mr.Justice R.B.Misra, Judge. The Hon’ble Mr.Justice V.K.Sharma, Judge. Whether approved for reporting?1 For the Appellant: Mr.Anup Chitkara, Mr.Chaman Negi & Ms.Nidhi Chawla, Advocates. For the respondent: Mr.Rajinder Dogra, Addl. A.G. with Mr.Vikas Rathore, Dy.A.G. R.B.Misra, Judge The present appeal has been preferred under Section 36-B of The Narcotic Drugs & Psychotropic Substances Act, 1985 (in short ‘the NDPS Act’) read with Section 374(2) of the Code of Criminal Procedure, against the judgment dated 30th July, 2009, passed by learned Special Judge, Fast Track Court, Chamba, H.P., in Sessions Trial No.6 of 2009 (State of Himachal Pradesh versus Avtar Singh), whereby learned Trial Court convicted the accused Whether the reporters of the local papers maybe allowed to see the judgment? …2… under Section 20(C) of the NDPS Act and the accused has been sentenced to undergo rigorous imprisonment for ten years and also to pay a fine of Rs.1 lac and in case of default of payment of fine, he was further to undergo rigorous imprisonment for a period of one year. 2. In order to adjudicate the present appeal, it is necessary to give the brief facts of the prosecution case. On 25.10.2008, a police party, headed by ASI Lal Singh, had set up a “Naka” at Parel Pul. At about 11.30 PM, an HRTC bus, bearing No.HP-48-4529, was coming from Chamba side and proceeding for Amritsar. Bus was stopped by the police party for checking. During the checking, two Borus and one bag were found kept on the roof of the bus. On being asked by the police party, PW-2, Ashwani Kumar, (Conductor) disclosed that Borus and bag were of the passenger / accused, occupying seat No.3, who was called on the roof of the bus where he disclosed his name as Avtar Singh and admitted that the bag and Borus belonged to him. On search, Borus and bag were found to contain Neyojas and a polythene bag kept concealed in the Neyojas. The words ‘Mayur School Bag’ were printed on the bag. On search of the polythene, it was found to contain black colour hard substance in the shape of sticks, smelling like Charas, on …3… weighment it was found 4 Kgs. 800 Grams. Out of the recovered Charas, two samples of 25 grams each were separated which were separately sealed. The remaining Charas was put in that very polythene and the polythene was put in that very bag and the bag was parceled and sealed. Sample parcels and parcel containing remaining Charas were sealed with seal ‘H’. Three seals were affixed on each sample parcel while six seals were affixed on parcel containing remaining Charas. Specimen seal was separately taken. NCB forms in triplicate were filled-in on the spot. Seal after use was handed over to Constable Rakesh Kumar. The recovered Charas was taken in possession by the police. The proceedings were carried out in presence of Ashwani Kumar, who was conductor on the bus and Mahesh Nand, who was driver of the said bus. Rukka was sent to the Police Station, on the basis of which, FIR No.226/2008 was recorded at Police Station Sadar, Chamba. Accused was arrested and communicated about the grounds of his arrest. ASI Lal Singh handed over all the parcels, along with sample seal, and NCB forms to Sh.R.P. Jaswal, Inspector / SHO, who re-sealed the parcels with seal ‘A’ and also filled in the relevant columns of the NCB forms. During personal search of the accused, a ticket was recovered from the accused and it was taken in …4… possession by the police. One part of the sample was sent to FSL Junga, which on chemical examination, was found to be of Charas. 3. The accused was charged for the offence under Section 20 of the NDPS Act, to which he pleaded not guilty and claimed to be tried. 4. In order to prove its case, the prosecution has examined as many as 12 witnesses. PW-1 Constable Rakesh Kumar (No.536), PW-2 Ashwani Kumar, PW-3 Mahesh Nath, PW-4 Constable Neeraj Kumar (No.133), PW-5 Head Constable Vijay Kumar (No.16), PW-6 Constable Mehar Singh (No.295), PW-7 Constable Om Parkash (No.461), PW-8 Head Constable Kailash Chand (No.65), PW-9 R.P.Jaswal, Inspector / SHO, Police Station, Chamba, PW-10 Gian Chand, HHC (No.556), PW-11 Surinder Mohan, Booking Clerk, HRTC, Chamba Depot and PW-12 Lal Singh, ASI, Police Station, Chamba, were examined. 5. PW-1, Rakesh Kumar, has stated that on 25.10.2008, at about 11.30 PM, ASI Lal Singh constituted a police party, headed by him, which included Constable Neeraj, Lady Constable Ratto Devi, Driver Suresh Kumar, who were taken to Parel Pul. PW-1, accompanying the police party, had gone there in official vehicle No.HP-48-0068 being driven by Suresh Kumar and at 11.40 PM, the police party stopped an HRTC Bus for checking bearing …5… No.HP-48-4529 coming from the side of Chamba and proceeding to Amritsar. Some passengers were sitting while some were standing in the bus and their belongings kept inside the bus were checked. On enquiry about two Borus and one bag, kept on the roof of the bus, the conductor of the bus disclosed that Borus and bag lying on the roof of the bus, belonged to passenger sitting on seat No.3 in the said bus. Accused Avtar Singh was called on the roof of the bus. Driver of the bus also came on the roof of the bus. The accused admitted that the Borus and bag lying on the roof were belonging to him (however, such statement was objected to by learned counsel for the accused). On search of the Borus, Neyoja was found to be kept in the Borus and on search of the bag of blue colour, it was found containing another cloth bag having two Tanies. On search of that cloth bag, it was found to contain polythene of white and blue colour. The word printed on the polythene bag was “School Bag” and on checking of that polythene, it was also found to contain Neyoja and Charas in the shape of sticks. The entire bag, including recovered Charas, was brought down from the roof of the bus and on weighment, the recovered Charas was found to be 4 Kgs and 800 Grams. Out of the recovered Charas, two samples of 25 grams each were drawn, which were …6… put in two separate polythenes and both polythenes containing samples separately parceled and sealed with three seals of seal ‘H’ each, balance Charas i.e. 4.700 Kgs was put in that very polythene. 6. In cross examination, PW-1 has stated that the bus, in which the accused was travelling, was 52 seated and there were about 70 passengers and the bus was proceeding from Chamba to Amritsar. There was no other luggage on the bus except two Borus and bag. PW-1 did not see any person taking the Borus and bag from the roof of the bus. PW-1 has further stated in his cross examination that he did not state to the Police that ASI and one Constable entered from the front door while he entered the bus from the rear door and the police party remained there for about half an hour for checking the bus. The Investigating Officer did not ask the Conductor about the ticket of the luggage found kept on the roof of the bus. PW-1 has also indicated in his cross-examination that it is incorrect that the conductor told the Investing Officer in his presence that tickets for the luggage, found on the roof of the bus, had not been issued. PW-1 has further stated that about one hour was spent on the spot. The bus left the spot at about 2.30 AM and the passengers remained in the …7… bus till that time and the proceedings were carried out in search light. 7. (PW-2) Ashwani Kumar has stated that he was the Conductor and (PW-3) Mahesh Nath was the Driver of the bus bearing No.HP-48-4529 on the date of incident. He did not support the prosecution case. The bus was stopped by the police party and about 65 passengers were sitting in the said bus. At that time, he was issuing the tickets. The police started checking the bus by entering inside it and thereafter the police officials went on the roof and on search of the luggage, Charas was recovered from there from one of the bag. Police asked PW-2 about the luggage found kept on the roof but he stated that he did not know as to whom that luggage belonged. PW-2 has further stated that he cannot tell as to who was the owner of the bag in which the Charas was allegedly found. However, in cross examination, PW-2 admitted his signatures on memo Ext.PW-1/A and has also admitted that the ticket Mark X-1 was issued in respect of seat No.3. PW-2 has also admitted that Borus and bag were taken into possession by the police. PW-2 has also stated in his cross examination that the bag was checked by the police party in his presence and Charas was recovered from that bag. …8… 8. PW-3, Mahesh Nath, the driver of bus bearing No.HP-48-4529, has not supported the prosecution case except that he had put his signatures on memos Ext.PW-1/A and Ext.PW-1/B. PW-3 has stated that on 25.10.2008, he was driving bus No.HP-48-4529 which left Chamba for Amritsar and Ashwani Kumar was the Conductor in the said bus. At about 11.30 PM, when the said bus reached Ballu bridge the police had laid Naka. On police signal, the bus carrying about 70 passengers, was stopped. Police officials asked the passengers to get down from the bus. The police entered inside the bus and checked the luggage of the passengers kept inside the bus but nothing was found. Thereafter the police officials went on the roof of the bus and called the conductor on the roof. PW-3 has further stated that thereafter he slept and was not aware about anything, however, PW-3 has admitted his signatures on the memos Ext.PW-1/A and Ext.PW- 1/B. 9. PW-4, Constable Neeraj Kumar, has stated that he was in the raiding party headed by ASI Lal Singh and the police party was present at Parel Pul along with Constable Rakesh Kumar, Lady Constable Ratto Devi and ASI Lal Singh. The bus was stopped and on search of the roof of the bus, two Borus and one bag of black colour were found kept there. On …9… being asked from the conductor of the bus, it was disclosed that two Borus and bag belonged to passenger occupying seat No.3. Thereafter, the passenger, occupying seat No.3, was called on the roof who admitted that he was the owner of the Borus and bag kept on the roof (which was objected to for and on behalf of the accused). PW-4 has further stated that on search of the bag, it was found to contain another bag having two Tanies which was of white, blue and yellow colour and on search of that bag, it was found to have another polythene bag having Charas in it in the shape of sticks. Samples were taken and sealed and PW-4 has taken Rukka to S.P. Office, Chamba. In cross examination, PW-4 has stated that luggage of other passengers was also found kept on the roof of the bus. PW-4 has also stated in his cross examination that 15 to 20 minutes were spent in checking the bus inside and 5 to 10 minutes were spent in searching the luggage kept on the roof of the bus and the bus was allowed to go after 30 - 45 minutes. PW-4 has also stated that the I.O. did ask the Conductor in his presence as to whether the tickets were issued in respect of the luggage kept on the roof of the bus. In his further cross examination, PW-4 has stated that the bus was carrying about 65 - 70 passengers. …10… 10. PW-5, HC Vijay Kumar, has stated that he was associated in the investigation. PW-6 Mehar Singh, PW-7 Om Parkash, PW-8 Kailash Chand, PW-9 R.P.Jaswal, Inspector / SHO, Police Station, Chamba and PW-10 Gian Chand, in usual discharge of their duties, have endeavoured to support the prosecution version. 11. PW-11, Surinder Mohan, has stated that he was Booking Clerk in Chamba Depot of HRTC and it was stated by him that ticket Mark X-1, now PW-11/B was issued by him. The said ticket was for Chamba to Amritsar. 12. PW-12, ASI Lal Singh, has stated that the police party headed by him had set up a Nakka at Parel Pul, where an HRTC bus came from Chamba side which was got stopped for checking and two Borus and one bag were found kept on the roof of the bus and Conductor of the bus disclosed that the Borus and bag belonged to passenger travelling on seat No.3 and, therefore, the accused was also called on the roof of the bus and admitted himself to be the owner of Borus and bag. Thereafter, the Borus, on search, were found to contain Neyoja, while bag was found to contain another bag inside, which on search, was found containing Neyoja and inside Neyoja, a ploythene was found kept concealed containing Charas in it. His further evidence is …11… that Polythene was found containing Charas which on weighment was found 4 Kgs 800 Grams. He has deposed about carrying out of proceedings on the spot. He has also stated that he handed over the case property along with sample seal and NCB form to SHO R.P.Jaswal for re-sealing purpose. This witness has proved the sample seal as Ext.PW-12/A, Rukka Ext.PW-12/B and site plan Ext.PW-12/C. He has also proved the statements of witnesses Ashwani Kumar, recorded under Section 161 Cr.P.C. as Ext.PW-12/D, Mahesh Nath as Ext.PW-12/E and Constable Rakesh Kumar as Ext.PW-12/F. He has stated that the accused was arrested and he was communicated the grounds of arrest vide memo Ext.PW-12/G. He has stated that on receipt of report of Chemical Examiner Ext.PX and on completion of investigation, the case file was handed over by him to the SHO for the purpose of preparation of the Challan. In cross-examination, he has stated that apart from the Conductor, he did not verify from any of the passengers about the ownership of the bag and Borus found to be kept on the roof of the bus. 13. According to PW-12, ASI Lal Singh, on being asked about the owner of the Borus and bag, the Conductor of the bus disclosed that the passenger occupying seat No.3 was the owner of the Borus and …12… bag. Thereafter, passenger, occupying seat No.3, was called on the roof and on being asked he disclosed his name as Avtar Singh and admitted himself to be the owner of the Borus and bag. However, the same was objected to by the defence. PW-12, in his cross examination, has stated that the ticket taken from the possession of the accused was not containing the name of the passenger. PW-12, however, did not verify as to how many tickets were issued for Amritsar. According to him, there were 65 to 70 passengers on that day in the bus and 15 to 20 minutes were spent in checking the bus from inside. PW-12 could not disclose the number of bags kept by the passengers inside the bus. According to PW-12, besides Borus and bag, there were other bags of the passengers on the roof of the bus. However, he did not remember the names of the passengers whose bags were lying on the roof of the bus. PW-12, in his cross examination, has stated that he did not record the statement of any passenger whose bags were found kept on the roof along with the Borus and bag in question. PW-12 has further stated that apart from the Conductor, he did not verify from any of the passengers about the ownership of Borus and bag in question. According to PW-12, proceedings were carried out on the spot and police officials were present on the …13… spot for three hours. Bus and passengers remained there during that period. PW-12 has further stated that nobody told him that tickets were only issued by the Conductor. 14. Mr.Anup Chitkara, learned counsel for the appellant, has submitted as follows:- (a) There is no legally admissible evidence that the bag, allegedly containing Charas, recovered from the bag was from the exclusive and conscious possession of the accused / appellant; (b) The bag and Borus allegedly containing Charas from the bag is not proved to be connected or belonging to the accused / appellant; (c) The appellant was neither the driver or the Conductor of the bus and was not shown to be the person in charge of the said bus from whose roof, the bag was allegedly recovered; (d) It is not for the Driver and Conductor of the bus to prove that the said bag was placed on the roof of the bus by the appellant or on behalf of the appellant / accused; (e) It is not for the accused to prove that he did not own the said bag, rather it is …14… for the driver and conductor of the bus to prove that the said bag was placed on the roof of the bus by the appellant or on behalf of the appellant; (f) It is for the prosecution to prove that the appellant / accused had dominion or control over the said bag; (g) The bag found on the roof of the bus containing the Charas could be said to be belonging probably to one of the persons sitting in the bus including its driver and conductor; (h) In respect of the recovery of Charas from the bag kept on the roof of the bus, the first presumption could be that the bag belonged to the driver or conductor of the bus and only if such presumption is rebutted by cogent and reliable evidence only then the passengers can be burdened with the articles found in the bus. Moreso, in the facts and circumstances, the accused has taken a plea that the bag allegedly containing Charas and the alleged Charas recovered from the bag did not belong to him. …15… 15. It has also been argued on behalf of the appellant that no evidence was brought on record that anybody had seen the accused keeping or handling the bag. The mere possession of the alleged bag, containing the alleged Charas, being found from the roof of the bus, in which the accused was allegedly travelling, satisfies the requirement of possession as contemplated in the NDPS Act. When mere possession of the alleged bag, containing the alleged Charas being found from the roof of the bus, in which the accused was allegedly travelling, satisfies the requirement of possession as contemplated in the NDPS Act. When mere possession itself is enacted as an offence, the possession for constituting the offence must be conscious possession. The possession must mean possession with requisite mental element i.e. it must be conscious possession and not mere custody without awareness of nature of such possession. The essential elements of possession, which makes the very essence of the offence under NDPS Act, are missing in this case. The possession is not purely a legal concept but also a matter of fact. It is a relationship between a person and a thing and implies a right as well as fact. It involves power of control. Although the accused is not required to explain still it cannot be said that the accused …16… / appellant had any knowledge about the contents of bag, allegedly containing Charas and the alleged Charas recovered from the bag. Even otherwise, the possession connotes something more than mere knowledge of the presence of the articles. It has not come in evidence that the appellant was aware of the existence of the alleged contraband good. 16. The entire investigation in the case is highly suspicious, doubtful and incredible. The burden was on the prosecution to prove beyond the reasonable doubt that substance allegedly recovered from the bag kept on the roof of the bus was Charas and was belonging to the appellant and none else. Putting signatures by the Conductor of the bus does not mean that recovery of Charas from the bag was belonging to the accused. Only one ticket Ext.PW-11/B was recovered from the accused which he purchased from Chamba and there was no separate ticket issued for the alleged luggage, namely, Borus and bag kept on the roof of the bus and the Conductor has never stated that he was going to issue tickets for the luggage (Borus and bag) which was being carried by the passenger occupying seat No.3. Statement of conductor and driver in the form of confession before the police officials regarding the recovery of Charas was protected under Section 25 of the Evidence Act. The learned Sessions Judge, while …17… convicting the appellant for the offence under Section 20 of the NDPS Act, has relied upon the testimony of PW-12 (ASI Lal Singh) who stated that the bag and two Borus were found on the roof of the bus and on search of the bag Charas was found wrapped in a polythene which on weighment was found to be 4 Kgs and 800 Grams and the testimony of PW-12 was supported by PW-1 Constable Rakesh Kumar and PW-4 Constable Neeraj Kumar has stated that the testimonies of PW-1, PW-4 and PW-12 have not been shaken in the cross examination, as such, the recovery of Charas from the bag found to be kept on the roof of the HRTC bus was said to be established. From the testimony of PW-2 Ashwani Kumar, PW-3 Mahesh Nath, Conductor and Driver of the bus and PW-12 ASI Lal Singh and PW-9 RP Jaswal, Inspector / SHO and on the basis of report of the Laboratory, the learned Sessions Court has established that the substance recovered from the bag kept on the roof of the bus was of commercial quantity being more than 1 Kg. The learned Sessions Court has also noted down the contention of the defence i.e. the appellant herein that the prosecution has failed to bring on record that the bag from which the Charas was recovered was of the accused and, therefore, prosecution cannot be said to have proved that the recovery was effected from …18… the conscious and exclusive possession of the accused. 17. Shri Anup Chitkara, learned counsel for the appellant, has submitted that in consequence to the case law referred and relied upon by the defence before the learned Sessions Judge, he has to rely upon more decisions which shall prove that the Charas recovered from the bag kept on the roof of the bus was not at all relatable to the accused. The learned Sessions Judge in the impugned judgment has noted the submission of defence (appellant) that memo prepared by the Investigating Officer which shows that the accused admitted himself to be the owner of the bag is not admissible in view of the provisions contained under Section 25 of the Evidence Act. The learned Sessions Judge has noted the cases referred to by the defence in the impugned judgment. The learned Sessions Judge, however, has not given much weightage to the referred cases and has indicated that the question whether the recovery was taken from the conscious possession would depend upon the facts and circumstances of the case and in the present case since the accused was travelling in the bus occupying seat No.3 and PW-2 Ashwani Kumar was the Conductor of the said bus, as indicated that the bag kept on the roof from which the Charas was …19… recovered was belonging to the passenger / accused occupying seat No.3, PW-1, PW-4 and PW-12 have