IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. A. No. 25 of 2005 Judgment reserved on 12.10.2011 Date of decision: 19 .10. 2011 Ram Pal …..Appellant Versus State of H.P. ……Respondent Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1Yes. For the Appellant: Mr. N.K. Thakur, Advocate. For the respondent : Mr. A.K. Bansal, Addl. Advocate General. Surinder Singh, J : Appellant hereinafter referred to as “the accused” was convicted by the learned trial court under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 in short ‘the Act’ for keeping in possession 200 grams of charas (noncommercial quantity) as such he was sentenced to undergo imprisonment for a period of two years and to pay a fine of `5,000/-,. In default of payment of fine to further undergo imprisonment for a period of three months. Hence the present appeal by the accused. 1 Whether the reporters of Local Papers may be allowed to see the judgment ? - 2 - 2. In short, the prosecution case can be stated thus. PW9 Harbans Lal ASI was posted as Incharge of CIA Staff, Una. On 10.12.2002 he along with HC PW14 Nardev Singh, constables Suresh Kumar, Subhash Chand, Sanjeev Kumar and HHC Sher Bahadur were present near Government Middle School at Mourbar. (ii) PW5 HHC Rajinder Singh of the CIA Staff was present at Kallon Chowk near Bangarh where he had received a secret information around 2.45 p.m. that the accused was indulging in the illicit business of charas along with his accomplice Kalyan Singh and both were present in the house of Ram Pal which was under construction. He informed PW9 Harbans Lal giving the description of the accused and his accomplice. This information was reduced into writing Ext. PH by PW9 aforesaid and an information was also sent under Section 42 (2) of the Act to the Superintendent of Police, Una through constable Suresh Kumar. (iii) A Ruka was sent through constable Sanjeev Kumar for registration of the FIR to the Police Station. Thereafter PW9 received the message from S.P. Una to report immediately to his office thus he - 3 - handed over the further investigation of the case to PW14 H.C. Nardev Singh. (iv) Nardev Singh formed the Raiding Party and included two independent witnesses PW1 Ram Dev, PW2 Sohni Khan and constable Sher Bahadur. The raiding party reached the place where the house of the accused was under construction. There they noticed the accused wearing green jacket and black pant and his accomplice red jacket and white pant. On seeing the police Kalyan Singh, who was wearing green jacket threw a polythene envelop on the spot and escaped. The other person, i.e., Ram Paul accused wearing red jacket and white pant was apprehended by the police. (v) Police asked about the identity of Ram Paul and gave him an option in writing Ext. PA to be searched before a Gazetted Officer or a Magistrate to which he has legal right in the presence of witness Ram Dev, Sohni Khan and H.C. Sher Bahadur. (vi) Accused Ram Paul opted to be searched by the police party. The raiding party rendered themselves to be searched by the accused and nothing incriminating was found as such memo Ext. PB was prepared to this effect. - 4 - (vii) Thereafter PW14 HC Nardev conducted the personal search of the accused and recovered one polythene packet containing 200 grams of charas from right side pocket of his pant. Another packet which was lying on the ground was containing small scale and weights of different specifications viz 200 grams, 100 grams, 50 grams, 20 grams, 10 grams and 5 grams along with an empty polythene envelop. (viii) The packet/envelop which was allegedly thrown on the spot by accused Kalyan Singh was containing 125 grams of charas. (ix) Police separated four samples of 10 grams each from the charas recovered from the accused and packet thrown on the spot. The sample as well as envelop were sealed by making separate parcels with seal impression producing the impression of English letter “N”. The scale, weights and sample envelops were sealed in a separate parcel with the same seal. (x) Case property was taken into possession vide memo Ext. P6. (xi) Accused was arrested and grounds of arrest were informed to him vide memo Ext. PF. - 5 - (xii) Site plan Ext. PL of the alleged place of recovery was prepared. Seal impression applied on case property on the spot were taken on a piece of cloth Ext. PW1/B The relevant portion of the NCB forms, were filled in on the spot, one of which is Ext. PK. Seal after its use was handed over to PW1 Ram Dev. 3. Accused and case property were produced before PW12 Additional SHO Jagdish Chand. He re-sealed the case property with seal impression “A” and he filed up the relevant columns in NCB forms. Thereafter he handed over the case property to PW6 MHC Ved Prakash for its deposit in Malkhana. All the seven parcels were deposited in the Malkhana by the MHC which consisted of four samples parcels and two parcels containing remaining bulk and one parcel was containing scale and weights. 4. On 12.12.2002 two sample parcels were sent by him for chemical analysis to CTL Kandaghat through PW7 constable Ranjeet Singh. On depositing the said parcel in the Laboratory,a receipt was stated to be appended on the RC No. 294/2002 and handed over it back to MHC Ved Parkash. - 6 - 5. Another accused Kalyan Singh applied for the anticipatory bail. Pursuant to the order of the court, he surrendered before the Police for investigation. On 5.1.2003 he produced his jacket vide memo Ext. PW11/A which was stated to have put on by him on the day of the alleged incident. It was also sealed with seal impression “N”. 6. On examination of the samples Mark A1 and B2 it tested positive for charas. In the opinion of the Chemical Examiner, both these samples contained content of charas. 7. Accused as well as his accomplice Kalyan Singh were chargesheeted for the offence aforesaid and on completion of the trial, accused was convicted and sentenced as aforesaid whereas Kalyan Singh was acquitted. 8. Shri N.K. Thakur, learned counsel for the accused forcefully argued that the learned trial Court did not appreciate the evidence of the prosecution in the proper manner. The evidence shows that the samples of seals and NCB forms were not deposited in the Malkhana along with case property. The link evidence is missing. Further that the independent witnesses did not support the case of the prosecution and the statement of the official - 7 - witnesses are contradictory to each other which is sufficient to doubt the authenticity of the prosecution case and the accused deserves acquittal. 9. Contra Shri A.K. Bansal, learned Additional Advocate General supported the impugned judgment of conviction and sentence. 10. I have given my thoughtful consideration to the rival contentions of the parties and have reappraised the evidence on record closely, cautiously and in meticulous details. 11. The case of the accused is denial simplicitor. From the trend of the cross-examination, it appears that the accused had taken the defence that the entire proceedings were conducted in the Police station where he was called and the independent witnesses were also called which resulted into his false implication in the present case. 12. To examine the aforesaid version, the statements of PW1 Ram Dev and PW2 Sohni Khan along with the statement of the Investigting Officer are important. PWs 1 and 2 independent witnesses did not deny their signatures on the memos prepared by the police and also on the case property. However, according to them, their - 8 - signatures were obtained in police post Mehatpur on the pretext that no independent witness was available to the police on the spot and as such they were asked to sign the aforesaid documents. 13. PW1 Ram Dev in his cross examination stated that he had social relations with the police as his tea-shop is adjoining to the police post from where he was called to sign the documents. He denied that the seal “N” which was allegedly used by the police party, was ever handed over to him. This fact has also been specifically denied by PW2 Sohni Khan. He also denied having made any statement to the police under Section 161 of the Code of Criminal Procedure with respect to the alleged recovery and sampling and stated that none of the memos were read over and explained to him by the police. In nutshell both these witnesses categorically stated that no recovery was effected in their presence. However, their signatures were obtained in the police post. So far as the official witnesses are concerned PW5 constable Rajinder Singh stated about receiving the secret information which was passed on to PW9 Harbans Lal. His statement Ext. PH was recorded and sent for the registration of the case. Thereafter Harbans Lal (PW9) - 9 - recorded the information separately and sent information Ext.PJ under Section 42 (2) of the Act to S.P. Concerned where it was received by the Additional S.P., Una at 4.30 p.m. on the same day. Since PW9 aforesaid was called by the S.P. in the office, he handed over further investigation to PW14 H.C. Nardev Singh, the recovery as aforesaid was effected by H.C. Nardev Singh which fact has been supported by PW3 constable Sanjeev Kumar, PW13 HHC Sher Bahadur. Therefore, their testimonies are required to be closely examined viz-a-viz the documents prepared on the spot. 14. Significantly, PW14 H.C. Nardev Singh in his cross-examination stated that he had joined both these independent witnesses at Chowk near village Bangarh. He further stated that both these witnesses are labourers by occupation whereas PW1 Ram Dev used to run a tea-stall near the police post. He also stated that signatures of the witnesses were not appended on the option memo Ext. PA as the accused at once agreed to it. On the contrary, the option memo bears the signatures of PW1 Ram Dev and PW2 Sohni Khan. He further admitted that he did not put the marks A1, A2 and B1 B2 anywhere on the samples. But last line of recovery memo Ext. PC - 10 - states about it and it appears to have been inserted therein lateron. None of the documents prepared on the spot shows as to which of the samples pertained to which of the recovered bulk. 15. PW13 H.H.C. Sher Bahadur in his cross examination stated that he did not remember where the witnesses signed the memo or option of the accused was obtained and also that the houses of the accused were situated nearby to the houses of the independent witnesses aforesaid where they were joined in the raiding party. He gave altogether different version than that of PW14 Nardev Singh aforesaid who stated having included the independent witnesses at Chowk near village Bangarh whereas this witness stated that they were joined at Mohala Ghaloun. 16. As per case of the prosecution, raiding party had reached the spot in a private Sumo vehicle. The driver of the Sumo was with them, he would have been the best witness but he was not included as an independent witness. Otherwise also he should have been preferred to that of HHC Sher Bahadur who was their own person. Even the statement of Sher Bahadur is discrepant with - 11 - respect to the place of joining of the independent witnesses. 17. The aforesaid discrepancy, as pointed out above is further aggravated by the fact that the seal “N”, after its use was stated to have been handed over to PW1 Ram Dev but PW constable Sanjeev Kumar had denied this fact. Further when the recovery of the jacket of Kalyan Singh co-accused was effected on 5.1.2003, it was also sealed with the same seal “N”. Thus it is not understood from where the seal was procured when it was already stated to have been handed over to PW1 Ram Dev . Which means that the seal after its use remained with the police throughout. 18. The purpose of handing over the seal to the independent witness is with the objective that there remains no possibility of tampering with the case property but in the instant case, the same seal was used for sealing the jacket after about 25 days of the alleged recovery without any explanation worth the name raises a suspicious doubt about the truthfulness of the prosecution case. Therefore, the possibility of tampering with the case property cannot be ruled out. - 12 - 19. The matter does not end with the above discrepancies and material contradictions. The prosecution did not even suggest to independent witnesses PW1 and PW2 aforesaid that samples which were separated from the bulk of 200 grams were marked A1 and A2 and other two samples as B1 and B2 taken from the packet 125 grams allegedly to have been thrown by Kalyan Singh. These numbers appear to have been inserted lateron in the recovery memo without specifying as to which of the sample parcels belongs to which of the recoveries. Even the special report Ext. PJ sent to the S.P. concerned does not make any reference thereof. Therefore, the possibility of sample mark B1 and B2 alleged to have been examined in the Laboratory might be of the packet alleged to have been thrown by Kalyan Singh, and the sample parcel taken from the recovered bulk from the accused were not sent for its analysis. This possibility from the evidence can also not be ruled out. 20. Also I find from the evidence that the sample of seals alleged to have been affixed on the spot and sample of seal used at the time of re- sealing were not deposited along with NCB forms in - 13 - the Malkhana with the MHC. The Malkhana Register has not been placed and proved on record. 21. Further, constable Ranjeet Singh is alleged to have taken the samples for its deposit in the Laboratory but he also did not say about handing over the sample of seals along with sample parcels to deposit in CTL Kandaghat. Even the copy of RC against which the case property was allegedly taken was not placed and proved during the examination either of the MHC or of PW7 Ranjeet Singh. 22. Further, the NCB forms contains facsimile of seal “N” and not of re-seal “A”. Therefore, when the sample of seals have not been sent especially that of “A”, the facsimile is also not affixed on the NCB forms, it could not have been certified by the Chemical Examiner that the samples so sent tallied with the same seal impression of the seal separately sent thus the lithographic impression to that effect appears to be mechanically put. In State of Rajasthan versus Gurmail Singh (2005) 3 SCC 59 the Supreme Court observed that the link evidence adduced by the prosecution was not at all satisfactory with respect to facts involved in that case. In the first instance, though the seized articles are said to have been kept in the malkhana on - 14 - 20.5.1995, the malkhana register was not produced to prove that it was so kept in the malkhana till it was taken over by PW6 on 5.6.1995. The Supreme Court also found that no sample of the seal was sent along with the sample to the Excise Laboratory, Jodhpur for the purpose of comparing with the seal appearing on the sample bottles. Therefore, there was no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband. These loopholes in the prosecution case led the High Court to acquit the accused were upheld by the apex Court. The aforesaid observations of the apex Court apply with full force to the case on hand. 23. Therefore, for the aforesaid reasons, the appeal is allowed, the judgment of conviction and sentence passed by the learned trial Court is set aside and the accused stands acquitted by giving him the benefit of doubt. Fine, if deposited, be refunded to the accused. 24. Since the sentence of the accused stands suspended, he is discharged of his bail bonds entered upon by him at any time during the proceedings of this case. October 19, 2011 (Surinder Singh), (cm) Judge.