IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. : 664 of 1996 Date of decision: 3.5.2010 State of H.P. …. Appellant. Vs. Uma Nand ... Respondent. Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1. No. For the appellant-State: Mr. Rajesh Mandhotra, Deputy Advocate General For the respondents: Mr. B.B.Vaid, Advocate. Deepak Gupta, J.(oral) This appeal by the State is directed against the judgement dated 30.4.1996 delivered by the learned Sessions Judge, Shimla, in Sessions Trial No. 29-S/7 of 1993 whereby he acquitted the accused of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (here-in-after referred to as the Act.) The prosecution story, in brief, is that on 8th May, 1992 Dy.S.P. PW-6 Gita Ram was on V.I.P. duty at Kufri alongwith PW- 5 Gurmeet Singh and certain other police officials. PW-6 received secret information that accused Uma Nand of village Chanauli was coming from Chini-Bungalow to Kufri and was carrying some charas. On receipt of this information PW-6 formed a raiding party and associated two independent witnesses, namely, PW-3 Lekh Raj and PW-4 Krishan Chand. This party started moving towards Chini-Bungalow. Barely at a distance of 150 yards from 1 Whether the reporters of the local papers may be allowed to see the Judgment. Yes. 2 Kufri they came across the accused who was carrying a bag on his shoulder. On seeing the police officials, the accused tried to run away but was over-powered on the spot. PW-6 gave his identification to the accused and expressed his desire to search his bag. He also gave an option to the accused of being searched before a magistrate or before the police officer. The accused opted to be searched before the Dy. Superintendent of Police. Thereafter, consent memo Ext.PB was prepared. PW-5 and PW-6 gave the search to the independent witnesses before conducting search of the accused vide search memos Ext. PE and Ext.PF. Thereafter, bag of the accused was searched and inside the bag one polythene cover was found in which charas had been kept. Thereafter, the charas was weighed and it was found to be 1 Kg. and 500 grams. Two samples of 25 grams each were taken out of this charas for the purpose of chemical analysis. The samples and the remaining bulk charas were sealed in separate parcel sealed with seal “A” and taken into possession vide seizure memo Ext.PJ. Thereafter, PW-6 sent special report Ext.PK to the police. PW-5, Inspector, Gurmeet Singh informed the accused about the grounds of his arrest orally as well as vide memo Ext.PG. He also recorded the statements of the witnesses and prepared the site plan Ext.PL. According to him he deposited the case property with MHC Sita Ram in the Police Station. On receipt of the report of the Chemical Examiner Ext.PM whereby 3 the sample was found to be that of charas, challan was filed against the accused. The accused was charged with having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act. The accused pleaded not guilty and claimed trial. After trial the accused was acquitted. Hence, the present appeal by the State. Out of the two independent witnesses, PW-3 Lekh Raj did not at all support the prosecution. He was declared hostile and cross-examined. According to him, he was called by PW-5 SHO, Gurmeet Singh from his shop and taken to the road leading to Chini-Bungalow and at a distance of ½ kilometer the accused was sitting on the road alongwith other police officials who had already taken him in custody. This witness stated that no search of the accused was conducted in his presence. In cross- examination by the public prosecutor he admitted that 1 Kg. 500 grams of charas was weighed in his presence by the police, but according to him, this was never recovered from the accused in his presence. He also admitted the fact that two samples were drawn. According to him, he had signed certain papers but he had neither read nor inquired about the contents thereof since he was in a hurry. He further stated that he and Krishan Chand (PW-4) had gone together to the spot in question. The other independent witness PW-4 Krishan Chand partly supported the prosecution case. This witness used to work at a 4 liquor shop at Kufri. According to him, he was taken by the police official on the Kufri-Chail road where one Dy.S.P was also present. One person carrying a bag was also there. Thereafter search was conducted and during the search 1 Kg.500 grams of charas was recovered from the accused. This witness, however, could not identify the accused person in Court as the person from whose possession the charas was recovered. In cross- examination this witness admitted that it was PW-5 Gurmeet Singh who took him to the spot alongwith Shri Lekh Raj and only three persons had gone to the spot. After signing the papers he had come back to his shop. He also admitted that he had also appeared as a prosecution witness in one other case. From the statements of these witnesses, it is apparent that they do not support the prosecution. PW-3 did not support the prosecution on any issue. PW-4 partly supported the prosecution but if his statement is read as a whole it is apparent that his version is totally different from the original prosecution version. According to PW-6 Gita Ram, after receiving the prior information he constituted a raiding party and associated two independent witnesses and then they approached towards Chini-Bungalow. However, the version of the independent witnesses is that it was only PW-5 Gurmeet Singh, SHO, who took them from their shops and at that time PW-6 had not accompanied them. PW-6 was already on the spot alongwith the accused. Therefore, it is apparent that the statement of PW-6 that he constituted a 5 raiding party and associated two independent witnesses and took them with him, is totally false. By now the law is well settled that even if independent witnesses turn hostile, conviction can be recorded on the basis of the statements of the official witnesses. Official witnesses are as good witnesses as any other. However, if the independent witnesses do not support the prosecution and there are contradictions in the statements of the official witnesses then the benefit must go to the accused. In the present case, there are glaring contradictions in the statements of PW-5 and PW-6. As already pointed out above, the story set up by the prosecution that a raiding party was constituted which proceeded from Kufri towards Chini-Bungalow appears to be incorrect. It is apparent that the accused had already been apprehended and then the so called independent witnesses were associated. The provisions of Section 50 of the Act may not be applicable in this case. But according to the prosecution, the police official had given an option to the accused whether he wanted to be searched in the presence of PW-6, who is a Gazetted Officer, or before a Magistrate. This option was given vide memo Ext.PD. This memo makes interesting reading. The memo is in question-answer form and the question raised by PW-6, Gita Ram, Dy.S.P., is addressed to the accused Uma Nand and positively states that he is carrying charas in his bag and 6 whether he wants to be searched before him (Dy.S.P.) or before a Magistrate. Even before the search how could PW-6 have been certain that there is charas in the bag. Faced with this situation, the Deputy Superintendent of Police when put a question in cross-examination replied that he had signed Ext.PD without reading the same. If this be true, it makes the entire process of seizure illegal because according to the officer heading the raiding party he did not even care to read the document which he had signed and which as pointed out above is in the form of questions addressed by him to the accused. This itself casts a great doubt on the prosecution story. In view of the above discussion, we are of the considered opinion that the learned trial Court was justified in acquitting the accused. We find no merit in the appeal, which is accordingly dismissed. The bail bonds furnished by the accused are discharged. (Deepak Gupta) Judge. 3rd May, 2010. (Rajiv Sharma) ™ Judge.