IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Appeal No. 4 of 2010 Judgment reserved on: 14.3.2011 Date of decision: 16. 3. 2011. Pawan Kumar …Appellant. Versus State of Himachal Pradesh ..Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? No For the Appellant : Mr. Rakesh Jaswal, Advocate. For the Respondent : Ms. Ruma Kaushik, Addl. A.G. with Mr. J.S.Rana, Asstt. A.G. __________________________________________________________ Kuldip Singh, Judge The appellant is aggrieved by judgment dated 7.9.2009 passed by learned Special Judge, Bilaspur in Sessions trial No. 1 of 2009. 2. The brief facts of the case are that appellant was tried for offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘Act’) on the allegations that on 2.10.2008 the police party consisting of PW-7 Deep Ram, ASI, PW-1 H.C. Surjan Kumar, PW-6 C. Suman Kumar and PW-10 C. Piar Chand , Police Post Shri Naina Devi Ji was ______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 patrolling and present near Jhiri Bowri at about 5.00 p.m. They noticed one person carrying polythene envelope in his right hand, who tried to escape from the spot on noticing police. He was over powered by the police. On interrogation, he disclosed his name Pawan Kumar. 3. The polythene envelope carried by appellant was checked and opened by PW-7 Deep Ram, ASI and was found containing one brass scale and two weights of 10 grams and 50 grams. One packet of white colour was also found kept in the envelope and on opening this white packet, opium was found. PW-7 weighed the opium with the help of weighing scale recovered from the accused and on weightment it was found 200 grams. Two samples of 25 grams each were taken from the recovered opium for chemical analysis which were put in empty match boxes and wrapped with cloth and were sealed with five seals with seal impression ‘K’ on each sample. The remaining 150 grams opium was put in same polythene envelope and was also sealed with seal impression ‘K’ affixing seven seal impressions on it. The scale and weights recovered from the possession of appellant were sealed in separate parcel. The specimen seal impressions were also taken on three pieces of cloths. NCB forms were filled in triplicate. The recovered contraband including its samples and balance opium were taken into possession in presence of PW-1 HC Surjan Kumar and PW-6 C. Suman Kumar. The copy of seizure memo was given to appellant. PW-7 prepared rukka Ex.PW-7/B and sent the same 3 through PW-6 C.Suman Kumar for registration of case, on this, FIR Ex.PW-3/A was registered at Police Station, Kot Kehloor. 4. PW-7 arrested the accused and disclosed him the grounds of arrest. The case property was handed over by PW-7 to PW-9 Jagtar Singh for resealing purpose, who after resealing the case property issued re-seal certificate Ex.PW-7/F. The special report Ex.PW-2/A was prepared and sent to Superintendent of Police, Bilaspur, through PW-10 C. Piar Chand. The sample of opium was sent by PW-3 MHC Dalip Kumar alongwith NCB forms in triplicate to FSL Junga for chemical analysis through PW-4 C. Daulat Ram vide R.C. No. 102/08. The report of Chemical Examiner Ex.PA was obtained and the sample was found derivative opium. On completion of investigation, challan was presented in the Court. 5. The appellant was charge-sheeted for offence punishable under Section 21 of the Act, he pleaded not guilty and claimed trial. The prosecution examined 10 witnesses. The appellant was examined under Section 313 Cr.P.C. He denied the prosecution case but led no evidence in defence. On conclusion of trial, the learned Special Judge, convicted the appellant under Section 21 of the Act and sentenced him to undergo rigorous imprisonment for three years and fine of ` 30,000/-. In default of payment of fine, the appellant was directed to suffer rigorous imprisonment for six months. Hence, this appeal. 6. I have heard the learned counsel for the parties and have also gone through the record. It has been submitted by the 4 learned counsel for the appellant that no independent witness was joined at the time of alleged recovery of opium from appellant nor even an attempt was made to join independent witnesses. It has been submitted that on NCB form Ex.PW-7/G and sample seal impression Ex.PW-7/A, FIR number has been written in the same flow of writing as on the rest of Ex.PW-7/G and Ex.PW-7/A. These documents were allegedly prepared before the registration of the case. The investigation in the case is not fair. The seals have not been produced and explanation for non-production of the seals is not believable from the police personnel. PW-3 has not explained where the case property remained from 2.10.2008 to 13.2.2009. Mr. J.S.Rana, Assistant Advocate General has supported the impugned judgment. He has submitted that independent witnesses were not available at the time of recovery and the case has been fully proved against the appellant. He has submitted that case file after registration of the case was returned to Investigating Officer and therefore, no fault can be found mentioning of FIR number on NCB form Ex.PW-7/G and seal impression Ex.PW-7/A. 7. PW-1 HC Surjan Kumar has stated that he alongwith Deep Ram, Incharge Police Post, Naina Devi Ji, C. Suman Kumar and C. Piar Singh were patrolling towards Jhiri Bowri on foot. The appellant was carrying polythene bag, he was searched on suspicion and one weighing machine and weights of 10 grams and 50 grams were recovered. There was another polythene bag inside the bigger polythene bag and opium was found in the polythene bag which was found inside the bigger polythene bag. On 5 weightment opium weighing 200 grams was found, two samples of 25 grams each were taken. The sampling and sealing was done on the spot, his signature and signature of C. Suman Kumar and appellant were taken on the seizure memo. He was cross- examined. PW-2 ASI Kishori Lal, Reader to S.P. Bilaspur, is a witness to special report Ex.PW-2/A. PW-3 HC Dalip Kumar has registered FIR Ex.PW-3/A on the basis of rukka. He has also stated that on 3.10.2008, PW-9 ASI Jagtar Singh had deposited the case property etc. which was entered in the malkhana register. On 4.10.2008 sample parcel was handed over to C. Daulat Ram vide R.C. No. 102/08 alongwith NCB form in triplicate which were deposited by C. Daulat Ram on 4.10.2008 and the receipt was issued by FSL, Junga. 8. PW-4 C. Daulat Ram has stated that he deposited the seal impressions and NCB forms, one sample parcel, copy of FIR with FSL Junga. PW-6 C. Suman Kumar has stated that on 2.10.2008 he alongwith ASI Deep Ram, HC Surjan Kumar and C. Piar Singh were patrolling towards Jhiri Bowri. He has stated how 200 grams of opium recovered from appellant was weighed with the help of weights 50 grams and 10 grams. He has also stated regarding recovery of opium as well as sampling and sealing of the contraband. He has stated that seizure memo Ex.PW-1/A bears his signature and HC Surjan Kumar as marginal witness. The memo is also signed by accused Pawan Kumar. This witness was cross- examined. 6 9. PW7 Deep Ram, Investigating Officer has supported the prosecution case. He has stated that Jhiri Bowri falls in village Ghawandal. He prepared rukka Ex.PW-7/B, spot map Ex.PW-7/C. In cross-examination, he has stated that those days Navratra festival was going on. No independent person from the nearby village was attempted to be associated. PW-8 Mool Raj SI/SHO has prepared the final report. PW-9 ASI Jagtar Singh has stated that he was holding the charge of Additional SHO, P.S. Kot Kehloor and ASI Deep Ram handed over him case property duly sealed. He re-sealed the case property by his own seal ‘T’. Thereafter, the case property was handed over to MHC Dalip Chand for keeping the same in proper custody in Malkhana. 10. PW-10 C. Piar Singh has stated that on 2.10.2008 he alongwith ASI Deep Ram, HC Surjan and C.Suman Kumar were patrolling towards Jhiri Bowri. He has stated that opium weighing 200 grams was recovered from the envelope being carried by the appellant. The case property was taken into possession vide seizure memo Ex.PW-1/A in his presence. The Chemical Examiner report Ex.PA was tendered in evidence. The appellant was examined under Section 313 Cr.P.C., he denied the prosecution case. 11. It has come on record that no independent witness was associated during investigation. PW-7 ASI Deep Ram has admitted that he did not make an attempt to associate any independent witness. It is the stand of prosecution that no independent witness was available on the spot and, therefore, no 7 such witness was associated during investigation. The availability or non-availability of independent witness depends upon the facts of a particular case. There is no thumb rule that in absence of independent witness the statement of police witnesses cannot be believed, but in order to give credence to the police case, it is always desirable to associate independent witnesses where they are available. PW-7 ASI Deep Ram has stated that he made no attempt for locating independent witnesses, even though Jhiri Bowri is in village Ghawandal. 12. The statements of PW-1 HC Surjan Kumar, PW-6 C. Suman Kumar, PW-7 ASI Deep Ram, PW-10 C. Piar Singh are relevant regarding the recovery of opium. Ex.PW-1/A is the seizure memo which is signed by the appellant and two witnesses PW-1 HC Surjan Kumar and PW-6 C. Suman Kumar. PW-7 ASI Deep Ram, Investigating Officer has not stated that he had seen PW-1 HC Surjan Kumar and PW-6 C. Suman Kumar signing recovery memo Ex.PW-1/A. PW-10 C. Piar Singh claims himself to be a member of the patrolling party but he has not stated that recovery memo Ex.PW-1/A was signed by PW-1 and PW-6 and appellant in his presence. 13. The cross-examination of PW-1 and PW-6 reveals glaring facts. The cross-examination of PW-1 and PW-6 is verbatim the same, though their cross-examination is quite lengthy. It is not possible that two witnesses were put exactly the same questions in sequence and they gave exactly the same answers in sequence. The cross-examination of PW-1 and PW-6 creates suspicion 8 regarding the authenticity of the cross-examination of PW-1 and PW-6 who are only witnesses of recovery memo Ex.PW-1/A. In view of serious suspicion regarding the authenticity of the cross- examination of PW-1 and PW-6, their statements cannot be believed with the result the prosecution has failed to prove that opium was recovered from appellant vide recovery memo Ex.PW- 1/A. 14. The learned Assistant Advocate General has submitted that the prosecution should not suffer for the fault committed by the trial court in recording the cross-examination of PW-1 and PW-6. He has submitted that case be remanded for fresh cross-examination of PW-1 and PW-6. I am not inclined to accept the submission made by the learned Assistant Advocate General. The appellant is in custody since 2.10.2008, the appellant should not suffer for the fault committed by trial Court in recording the cross-examination of PW-1 and PW-6. The remand of the case will not be of any help to appellant, who is already in jail for the last about 2 ½ years. 15. It has been submitted on behalf of the appellant that documents such as NCB form Ex.PW-7/G and sample seal impression Ex.PW-7/A on cloth bear FIR number which appears to have been written in the same flow of hand when Ext. PW-7/G and Ex.PW-7/A were prepared. On the contrary, on recovery memo Ex.PW-1/A, spot map Ex.PW-1/C, grounds of seizure Ex.PW-7/D, FIR number has been separately written with red ink. According to learned counsel for the appellant, writing of FIR number on many 9 documents including documents noticed above indicates that such documents were prepared after the registration of FIR and not when recovery was made. 16. PW-7 ASI Deep Ram, Investigating Officer has been cross-examined at length, but no specific question was put to him how FIR number was written on many documents in the same flow of hand and ink when such documents were prepared whereas on many documents FIR number has been written in red ink. PW-6 C. Suman Kumar has stated that ASI Deep Ram prepared rukka and handed over to him which he handed over to him which was again brought by him and handed over to the SHO/ASI Jagtar Singh for registration of the case, who prepared the case file and handed over to him which was again brought by him and handed over to ASI Deep Ram. The possibility cannot be ruled out that after receiving the case file the FIR number was written on the documents. In any case, the attention of the Investigating Officer PW-7 ASI Deep Ram was not invited in the cross-examination how FIR number was written on various documents. In these circumstances, the appellant cannot be permitted to raise this question in appeal. 17. The contention of learned counsel for the appellant that the explanation given for non-production of seals is not believable, has no force. PW-9 ASI Jagtar Singh has stated that he has not produced seal impression ‘T’ in the Court as it was not brought by him. In so far seal impression ‘K’ is concerned, PW-1 HC Surjan Kumar has stated in the cross-examination that the seal 10 which was entrusted to him has been misplaced. No doubt, the cross-examination of PW-1 has been disbelieved by this Court but non-production of seals in the Court in itself is not such a serious lapse which vitiates the trial. The non-production of the seals in the Court is to be appreciated alongwith the other material on record. In so far non-explanation of the case property where it remained from 2.10.2008 to 13.2.2009 is again of no significance. It has come on record that case property was deposited in the Malkhana. PW-3 has referred to period 2.10.2008 to 13.2.2009 in the context that during said period he might have proceeded on leave. He denied that the case property was not deposited with him. 18. The learned Special Judge has erred in convicting and sentencing the appellant. On the basis of material on record, the conviction and sentence of the appellant is not sustainable. 19. In view of above, the appeal is allowed, conviction and sentence of the appellant under Section 21 of the Act is set-aside. The appellant is acquitted of the charge. The fine amount if any deposited by him, be refunded to him. The appellant be released immediately, if not required in any other case. March 16, 2011 ( Kuldip Singh ), (GR) Judge.