IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 276/2009 Judgment reserved on 18.3.2011 Date of decision: 22. 3. 2011 Bhim Bahadur …..Appellant Versus State of H.P. ……Respondent Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . For the Appellant: Mr. Ashok Sharma, Advocate. For the respondent : Mr. A.K. Bansal, Addl. Advocate General. Surinder Singh, Judge. Appellant hereinafter referred to as the ‘accused’ was charge-sheeted, tried and convicted by the learned trial Court for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short “the Act” for allegedly keeping in possession 2.100 kg. of charas, and was sentenced to undergo imprisonment for a period of six years and to pay a fine of ` 60,000/- and in default of payment of fine to 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - further undergo simple imprisonment for six months. Hence the present appeal. 2. Briefly stated, the prosecution case is that on 28.1.2006 PW9 S.I. Parshotam Dutt was heading a police patrol-party and going towards “Chhoj” near Kullu. To this effect, the departure was recorded in the daily-diary Ext. PW6/A. While going through “Chhoj forest” they spotted the accused coming from the opposite side carrying a bag. On seeing the police party, he took ‘U’ turn and tried to escape. Entertaining suspicion, the police stopped and overpowered him. His identify was asked. Sub Inspector aforesaid gave in writing a memo to exercise his option to be searched either before a Gazetted Officer or a Magistrate. The accused consented to be searched by the Police officer aforesaid. To this effect memo Ext. PW7/A was prepared by him. It was a secluded place. Though an attempt was made through constables Chaman Lal and Lagan Chand to associate some independent witnesses but after about 15 minutes they returned and informed the Sub Inspector that independent witnesses were not available. Then PW7 ASI Lal Man and HC Yash Pal, who were with him were associated as the witnesses to the search - 3 - and carried out the search of the bag in their presence. The police recovered a polythene bag which was having 2.100 kg. of charas. On further search of the bag, one album containing the photographs of the accused and a wrist watch were recovered. Two samples of 25 grams each were separated from the recovered stuff and sealed with seal impression ‘T’. The remaining bulk was also sealed with the same seal and taken into possession vide memo Ext. PW7/C. 3. PW9 S.I. Parshotam Dutt also filled in the NCB forms in triplicate out of which one is Ext. PW1/D. He also took its facsimiles on the said form and also on the piece of cloth Ext. PW7/B. 4. Ruka Ext. PW1/A was prepared and handed over to PW8 H.C. Chander Prakash for its registration in Police Station Kullu which culminated into FIR Ext. PW1/B. 5. Investigating Officer also prepared the site plan Ext. PW9/A of the place of recovery. 6. Accused was arrested and grounds of arrest Ext. PW7/D were informed to him. 7. On 29.1.2006 accused along with the case property was produced before PW1 S.I. SHO Joginder Singh in Police Station at Kullu. He re-sealed - 4 - the case property with seal impression ‘C’ and also took its sample on a piece of cloth Ext. PW1/C. Further, he filled-in the relevant column of NCB forms Ext. PW1/D and handed over the seal along with three parcels, NCB forms in triplicate to MHC PW2 Jia Lal for its deposit in the Malkhana to which he entered entry No. 22 in the relevant register, abstract of which is Ext. PW2/A. On the same day, i.e. 29.1.2006, one sample parcel along with the sample of seals and NCB forms in triplicate were handed over by the MHC aforesaid to PW3 constable Pratap Chand vide RC Ext. PW2/B to deposit it in CTL Kandaghat for its analysis. 8. On 30.1.2006 PW3 constable aforesaid deposited the sample parcel along with other items stated above in the laboratory and obtained receipt Ext. PW2/C, which on his return was handed over by him to MHC. 9. A Special report Ext. PW4/A was handed over to Dy. S.P., Kullu within the statutory period which was entered in the relevant Register and is Ext. PW4/C. On analysis, the sample parcel tested positive for charas. The report is Ext. PA. It contained cystholithic hair and resin content of cannabis plant 31.8%. weight-in-weight. In the opinion of the - 5 - Chemical Examiner, sample parcel contained the contents of charas. Thus, in the recovered stuff resin contents were found 670 grams approx. which is less than the ‘commercial quantity’. 10. After completing the investigation, accused was charge-sheeted by the learned trial Court for the offence punishable under Section 20 of the Act to which he pleaded not guilty and claimed trial. 11. To prove its case, prosecution examined its witnesses and accused was also examined under Section 313 of the Code of Criminal Procedure. His case was denial simplicitor but the trend of the examination of the prosecution witnesses shows that he had tried to take the defence that the bag in question was found abandoned at Bus Stand Kasaul and he was falsely implicated in this case. 12. The learned trial Court, disbelieved his defence and on examination of the prosecution witnesses, was of the opinion that the accused had committed the offence under the aforesaid Section as such he was convicted and sentenced as stated above. 13. Shri Ashok Sharma, learned counsel for the accused forcefully argued that there are material - 6 - contradictions in the statements of the official witnesses with respect to the timing of departure from the place of alleged recovery to the police Station and also of taking ruka to police station which make the case of the prosecution all the more doubtful. He also led me through the statements of the witnesses to pin-point that the contradictions with respect to timing are material in the present case. He also argued that it was a deliberate attempt of police not to associate independent witnesses, therefore, prosecution case is doubtful. 14. On the other hand, Shri A.K. Bansal, learned Additional Advocate General supported the impugned judgment of conviction and sentence and ventilated that the place where the accused was apprehended was a secluded place in the forest and there was no inhabited area from where the independent witness could have been arranged in a short time. He also argued that the recovery from the accused is from an open place from the bag to which he was carrying, therefore, the requirement of associating two independent witnesses is not mandatory and further that the official witnesses who have been examined in the Court cannot be doubted solely on the ground that - 7 - they are official witnesses and timing with respect to departure from the spot and reaching the police Station is fatal but it is not very material owing to the time-gap. 15. I have given my thoughtful consideration to the rival contentions of the parties and have closely and cautiously examined the evidence on record. 16. The point taken by the learned counsel for the appellant that the prosecution witnesses are the police personnel and in absence of any public/independent witness, their testimony alone should not be held sufficient for sustaining conviction on the accused is too broadly stated and cannot be accepted. The testimony of the official witnesses, in fact should be treated in the same manner as the testimony of any other witness and there is no principle of law that without corroboration by the independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much as in favour of the police personnel as of other persons. The apex Court in Karamjeet Singh versus State (Delhi Administration) 2003 Cr.L.J. 2021 also held that it is not a proper judicial approach to distrust and suspect them - 8 - without good grounds. It will all depend upon the facts and circumstances of the each case and no principle of general application can be laid down. 17. True it is that as a rule of caution while appreciating the evidence of the official witnesses, the Court should be more cautious and careful if non-official independent witnesses are not associated. Merely by their non-association, the Court cannot lead to the conclusion that the entire seizure and recovery is illegal. Further it is equally settled that if the recovery of the contraband stands proved from the accused, presumption is to be drawn against him as per provisions of Section 35 as well as 54 of the Act if he fails to give satisfactory explanation for its possession. In that event, onus shifts upon him by the doctrine of reverse burden. 18. The subsequent contradictions about the timing with respect to reaching the police Station by the police party would be of no consequence at all, if the case property from the time of its recovery and seizure remained un-tampered and was deposited in the Malkhana and link evidence up to the point of its analysis is complete. - 9 - 19. Keeping in view the above settled principles of law in mind, I proceed to examine the prosecution evidence. 20. PW9 ASI Purshotam Dutt has supported the prosecution case in toto. Precisely he testified that he carried out the search of the bag of the accused in presence of ASI Lal Man and H. C. Yash Pal aforesaid and recovered charas which was in the different shapes, from the bag to which the accused was carrying along with one album Ext. P5 containing photographs of the accused and a wrist watch Ext. P6. Samples were separately sealed and the documentation was done on the spot, as aforesaid. He also identified the bag Ext. P3, the remaining bulk Ext. P1 and second parcel Ext. D2 during the trial of the case. Precisely there is no examination on the point that the album and the watch of the accused were not found in the bag from where the charas was recovered. That connects him with the recovery. He denied the suggestion that the bag aforesaid was unclaimed at Bus Stand Kasaul and this case was planted upon the accused being a Nepali National. Pertinently when he was examined under Section 313 of the Code of Criminal Procedure he did not make even a - 10 - fleeting reference about this suggestion which was put to this witness. 21. PW7 A.S.I Lal Man has offered corroboration to his version. In cross-examination he stated that ruka was sent through HHC Chander Prakash around 5 p.m. but they remained on the spot for about one hour. They proceeded from the spot of recovery around 6.30/7 p.m. and reached the main road within 40 minutes, as against the statement given by the Investigating Officer PW9 in his cross-examination they reached at 7 p.m. from where they went to Kullu in a private vehicle and reached Kullu on the following day. This discrepancy with respect to timing and reaching the police station, in my opinion is attributable to the irresponsible statement made by the said police officer but it no way effect the merits of the case for the reason that there is no contradiction in the statement of the aforesaid witnesses with respect to the recovery of the contraband from the accused and there is also nothing on record to show that they had tampered with or fabricated the samples in between. 22. PW1 S.I. Joginder Singh categorically stated that the case property and the accused were - 11 - produced before him on 29.1.2006 and ruka was received in the police Station on 7.40 p.m. on 28.1.2006 which was handed over to him by HHC Chander Prakash and on 29.1.2006 around 12.45 p.m. ASI Partap Chand produced the case property before him to which he re-sealed with seal impression ‘C’ and facsimiles of the seal was affixed on the NCB forms. He also took the sample of seal on a piece of cloth Ext. PW1/C and filled-in relevant forms Ext. PW1/D. These facsimiles were handed over by him along with NCB forms in triplicate with the sample of seals to the Additional MHC Jia Lal (PW2) for his custody in the Malkhana which is also testified by him. He made entry in the Malkhana register Ext. PW2/A and further stated that one of the samples along with NCB forms and sample of seals were handed over to PW3 Costable Partap Chand for its deposit in the Laboratory for analysis and on its deposit, he handed over the receipt Ext. PW2/C. Constable Partap Singh endorses his statement having taken the case property vide RC No. 20 of 2006 and on the reverse of it he obtained receipt Ext. PW2/C. Both these witnesses stated that so long as the case property remained with them, it was never tampered with. - 12 - 23. Further, report of the analysis Ext. PA shows that said Shri Partap Singh had deposited the sample parcel on 30.1.2006 and the seals, which it contained tallied with the specimen impression of the seals and this certificate is signed by the Chemical Examiner. Facsimiles of the seals used at the spot as well as at the time of re-sealing also find mentioned in the NCB forms aforesaid. Therefore, the link evidence is complete. Thus, the discrepancy about the time of handing over the case file in the Police station itself to the Investigating Officer by Chander Parkash aforesaid and after the recovery, the discrepancy about time as pointed out by the learned counsel for the accused is of no consequence in the instant case. The false implication of the accused without any reason is completely ruled out. 24. Thus, on the scrutiny of the evidence on the principles of law discussed above, I do not find it a case where a doubt can be raised against the version given by the police officials with respect to the recovery from the accused more specifically in absence of the explanation rendered by the accused with respect to the album Ext. P5 containing his photo and his watch which were - 13 - found in the bag, is an additional evidence connecting him with the bag and the recovery of the contraband. 25. Therefore, for the reasons aforesaid I do not find fault in the conviction of the accused for the offence charged and the appellant was rightly sentenced to undergo imprisonment for a period six years but the fine of ` 60,000/- appears to be on higher side and it is reduced to ` 25,000/- without disturbing the default clause. 26. The appeal filed by the accused sans merit and is accordingly dismissed with the slight modification in the fine as aforesaid. March 22, 2011 (Surinder Singh), (cm) Judge