IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.291 of 2007 Judgment reserved on:19.5.2008. Decided on: May 30, 2008. Surender Kumar & Anr. …Appellants. VERSUS State of H.P. ….Respondent. Coram The Hon’ble Mr.Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellants: Mr Anup Chitkara, Advocate. For the respondent: Mr A.K.Bansal, Addl.A.G. Kuldip Singh, Judge: This appeal is directed against the judgment dated 9.8.2007 passed by learned Additional Sessions Judge, Sirmaur District at Nahan in Sessions Trial No.5-N/7 of 2003 whereby the appellants have been convicted for offence punishable under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short ‘the Act’) and each appellant has been sentenced to undergo rigorous imprisonment for a period of 5 years and to pay a fine of Rs.20,000 and in default of payment of fine each appellant shall further undergo imprisonment for a period of one year. Whether the reporters of the local papers maybe allowed to see the judgment? Yes …2… 2. The prosecution case, in brief, is that on the intervening night on 17/18.8.2002 at about 3.50 a.m. the appellants / accused were found in exclusive and conscious possession of 30 Kgs poppy husk and 90 Kgs poppy seeds at a distance of about 2 kilometers from Khajurna Bridge near Nahan. It has been alleged that on 17.8.2002 at about 7.15 p.m. PW-10 Inspector Kishan Singh, Incharge CIA Nahan, PW-6 HC Lajja Ram, PW-3 Constable Azam Ali, Constable Saleem Khan and Constable Suresh Kumar left for traffic checking on a Government Gypsy and two scooters. On 18.2.2002 at about 1.10 a.m. they reached Khajurna Bridge and laid a Naka and at that time a secret information was received that accused Surender Kumar along with another person indulge in smuggling of poppy husk to Haryana via Khajurna Bridge, both of them were smuggling the contraband on that night and if the informer was provided a vehicle he could get them apprehended along with the contraband. This information was reduced into writing Ext.PW-9/A under Section 42 of the Act and was sent to Superintendent of Police through PW-3 Azam Ali, he was also directed to arrange for a vehicle and bring the vehicle along with him. PW-3 Azam Ali brought the vehicle bearing No.HP-18-4739 at about 2.30 a.m. which was driven by PW-1 Nitin Gupta. This vehicle was sent towards Paonta Sahib along with the informer and the Naka was laid on Saketi Road at a distance of about 2 Kilometers from Khajurna Bridge. At about 3.30 a.m. vehicle No.HP-18-4739 came with two persons besides the driver. This …3… vehicle was intercepted at the Naka and on inquiry the persons sitting in the vehicle disclosed their names as Surender Kumar and Ravi Kant, accused. The search of the vehicle was conducted and one jute bag, two plastic bags, one cement bag and one plastic bag were found in the vehicle. The consent memos Ext.PW-6/A, Ext.PW-6/B were obtained from the accused to search the aforesaid bags and thereafter the search of the bags was conducted. On search, 30 packets containing poppy husk which were packed in plastic bags were recovered from the jute bag and the poppy seeds were found in the remaining bags. 3. There was no shop or house or light at the place of Naka, therefore, the vehicle along with the case property and the accused were taken to CIA office Nahan where the contraband so recovered was weighed and 30 packets were found each containing one kg of poppy husk. In the remaining bags 90 Kgs of poppy seed was found. Three samples of 500 grams each were separated from the poppy husk so recovered and four samples of 500 grams each were separated from poppy seed so recovered. They were put into separate parcels and thereafter sample parcels and the bags containing bulk poppy husk and poppy seeds were sealed with three seals of seal impression ‘T’ and were taken into possession vide memo Ext.PW-6/E in the presence of PW-1 Nitin Kumar and PW-6 Lajja Ram and Ashok Kumar. The copy of recovery memo was given to accused and specimen impressions of seal used were taken separately which are Ext.PW-6/C and Ext.PW-6/D and the …4… seal after use was handed over to PW-1 Nitin Kumar. Ext.PW-10/A Ruka was prepared and was sent to Police Station through PW-3 Azam Ali and then F.I.R. Ext.PW-10/D was registered. NCB forms were prepared in triplicate and specimen of seal was also affixed on the same by PW-10 Inspector Kishan Singh. The site plan Ext.PW- 10/B was prepared and the case property along with specimen impressions of seal used were produced before Additional S.H.O. PW-7 Sucha Nand who re-sealed the same parcels and other parcels containing bulk poppy husk and poppy seeds with seal impression ‘L’ regarding which certificate Ext.PW-7/A was prepared, specimen impressions of seal ‘L’ were taken on different piece of cloth and was also fixed on NCB form. The case property was deposited with PW-4 MHC Balbir Singh. On 28.8.2002 two samples of poppy seeds and two samples of poppy husk were forwarded by MHC Balbir Singh to CTL Kandaghat through Constable PW-5 Inder Dutt vide RC No.179/2002 who deposited the same at CTL Kandaghat vide receipt Ext.PW-4/A. Special report Ext.PW-9/B was prepared and sent to Superintendent of Police, Sirmaur. The Chemical Examiner reports Ext.PW-10/E and Ext.PW-10/F were received according to which two samples were found to be of poppy seeds and remaining two samples of poppy husk. 4. On completion of investigation, challan was submitted and the case was committed on 13.3.2003. The charge was framed under Section 15 of the Act against both the accused who pleaded not guilty and claimed trial. The prosecution has examined 10 …5… witnesses to bring home the charge and the statements of accused were recorded under Section 313 Cr.P.C. in which they denied the prosecution case. The accused were given chance to lead defence evidence but they did not lead any evidence in defence. However, it is the case of the accused that they are innocent and they have been falsely implicated in the case. The learned Additional Sessions Judge, after conclusion of the trial, convicted and sentenced both the accused, as noticed above, hence, this appeal by both the accused. 5. I have heard Mr.Anup Chitkara, learned counsel for the appellants / accused, learned Additional Advocate General for the respondent and gone through the record. Mr.Chitkara has submitted that both the appellants have been falsely implicated in the case. The prosecution has concocted a false story. There was no necessity to bring the vehicle from Nahan to Khajurna Bridge when the police party was allegedly having definite information that both the accused were in possession of alleged contraband at a particular place. The police party was having Gypsy, therefore, the alleged place of accused where they had kept, stored contraband could have been raided then and there instead of bringing a vehicle from Nahan. It has been submitted that there are material contradictions in the prosecution story and the learned Additional Sessions Judge has misconstrued and misinterpreted the material on record. It has been submitted that prosecution has miserably failed to prove the case against both the accused beyond …6… reasonable doubt and, therefore, they are entitled to acquittal. The learned Additional Advocate General has supported the impugned judgment of conviction and sentence. 6. PW-1 Nitin Kumar is the driver of van No.HP-18-4739. He has stated that on 18.8.2002 the police took him to Batta Pul along with the van. They made him to wait there for about 2/3 hours. The police was having their own Gypsy in which they had gone to unknown destination. Then they came back and picked him to Nahan where they made him to sign. This witness was declared hostile and was cross examined by the prosecution. In the cross examination, he has stated that police took him at about 9-10 p.m. from Nahan. He has denied that one Ashok Kumar sat with him in the van at Khajurna Bridge. He has denied that all the formalities of recovery were completed in his presence but he has admitted his signatures on memo Ext.PW-1/A. He has stated that there is no population around the area where the police had intercepted his vehicle and there was no light at that place. In the cross examination, conducted on behalf of the prosecution, nothing material supporting the case of the prosecution was extracted. In the cross examination, conducted on behalf of the accused, he has stated that there are restaurants, Dhabas and tea shops near Khajurna Bridge. He has stated that Batta Pul is near to Paonta. 7. PW-2 HHC Dharam Mohan has stated that he was serving as Mess Manager in Police Line Nahan. On 18.8.2002 the case property was got weighed from him. In cross examination, he …7… has stated that he came to the mess at about 7 a.m. and at that time he was called from there. PW-3 HHC Azam Ali has stated that on the intervening night of 17/18.8.2002 he was accompanying Om Pal, Suresh Pal, Lajja Ram and Inspector Kishan Singh Pathania in the raiding party. He was standing near Khajurna Bridge and a Maruti Van came from Vikram Bagh side which was being driven by PW-1 Nitin Kumar. Both the accused were sitting in the said van. The van was intercepted and on search poppy husk and poppy seeds were found in the bags which were lying in the van. There was darkness at the spot and it was isolated and time was about 3.30 – 3.45 a.m., therefore, the vehicle was taken to Nahan Police Station where the contraband was weighed. The Ruka was handed over to him by the Investigating Officer which he took to the Police Station and on the basis of the Ruka F.I.R. was registered and the file was handed over to Inspector Kishan Singh Pathania. He has identified the case property Ext.P-1 to Ext.P-5. In cross examination, conducted on behalf of the accused, he has admitted that there are Dhabas, hotels near Khajurna Bridge. He has stated that Ruka was handed over to him at about 3 - 3.30 a.m. The Ruka was given by him in the Police Station at about 5 a.m. The case property was weighed at about 8 – 9 a.m. 8. PW-4 HC Balbir Singh has stated that on 18.8.2002 S.H.O. / Sub Inspector Sucha Nand had deposited the case property with him. On 28.8.2002 he had sent samples for depositing with CTL Kandaghat. PW-5 Constable Inder Dutt has …8… stated that on 20.8.2002 MHC Balbir Singh handed over to him four samples sealed parcels for depositing with CTL Kandaghat for conducting chemical analysis. Ashok Kumar witness was given up by the prosecution. PW-6 HC Lajja Ram has stated that on 18.8.2002 at about 7.10 p.m. he along with Inspector Pathania and other officials left CIA Office in the Government vehicle and a private vehicle for patrolling. At about 1O Clock at Markanda Bridge Inspector was informed by special informer that accused indulge in selling of poppy husk and poppy seeds via Vikram Bagh – Saketi Road from Himachal Pradesh to Haryana and Punjab in huge quantity. The special informer asked Inspector to provide a vehicle to him and he can get recovered poppy husk and poppy seeds in huge quantity. The information was reliable, the Investigating Officer sent Constable Azam Ali in his own vehicle for the arrangement of vehicle. On this vehicle No.HP-18-4739 was arranged and its driver PW-1 Nitin Kumar and the informer were sent towards Shamboowala. The information was reliable, hence, reasons of belief in writing were sent by the Investigating Officer to the superior officer at Nahan. Thereafter, the Investigating Officer and other officials went towards Vikram Bagh – Saketi Road from Khajurna Bridge at about 2O Clock in the night. At about 2 kilometers on Saketi Road a barricade / Naka was laid. At about 3.50O Clock in the night, Maruti Van HP-18-4739 reached the Naka from Khajurna Bridge side which was intercepted by the Investigating Officer. In the vehicle, besides driver Nitin Kumar, two …9… other persons were sitting who disclosed their names as Ravi Kant and Surender Kumar. In the Van, some bags were found. The Investigating Officer prepared consent memos Ext.PW-6/A and Ext.PW-6/B in writing on the spot. Poppy husk and poppy seeds were found in the bags. It was night time and in the torch light, the other formalities could not be done on the spot, therefore, the Investigating Officer along with witnesses and aforesaid two persons and recovered property took the van with the other vehicle to CIA Office Nahan at about 5 O Clock. The contraband was weighed and sampling and sealing was done. In cross examination, he has stated that vehicle No.HP-18-4739 was taken by driver Nitin Kumar alone from the spot. The informer and Constable Azam Ali were not with him. The police Gypsy did not go towards Paonta Sahib. Vikram Bagh is ahead of the point where police had put up a Naka. 9. PW-7 Additional SHO Sucha Nand has stated that on 18.8.2002 case property in sealed parcels was produced before him by Incharge CIA Nahan Kishan Singh Pathania. PW-8 Inspector Narveer Singh has stated that on completion of investigation, HC Lajja Ram handed over the case file to him and he prepared the challan. PW-9 ASI Madan Singh has stated that he remained as Reader to Superintendent of Police, District Sirmaur at Nahan from 2001 to August 2003. On 18.8.2002 at about 3.30 a.m. Constable Azam Ali brought to him reasons of belief of the case under Section 42 of the Act which were sent by Inspector Kishan Singh Pathania. …10… Thereafter, he produced the same before Superintendent of Police at about 3.45 a.m. On 19.8.2002 he received special report under Section 57 of the Act which was produced before Additional Superintendent of Police. PW-10 Inspector Kishan Singh has stated that on 18.8.2002 at about 1.10 a.m. he along with other officials reached Khajurna Bridge and laid Naka. At that time secret information was received that accused Surender Kumar and one another person indulge in smuggling of poppy husk to Haryana via Khajurna Bridge at night. They intended to smuggle the contraband on that date also and in case the informer is provided a vehicle he can get the accused apprehended and also the contraband recovered. This information was reduced into writing under Section 42 of the Act vide Ext.PW-9/A and was sent to Superintendent of Police Office, through Constable Azam Ali. He was directed to arrange for a vehicle and bring the same along with him. He brought the vehicle No.HP-18-4739 at about 2.30 a.m. which was being driven by PW-1 Nitin Kumar. On this, vehicle was sent towards Paonta Sahib along with informer which was being driven by Nitin Kumar. Thereafter Naka was placed on Saketi Road about 2 kilometers from Khajurna Bridge. At about 3.30 – 4 a.m. a vehicle No.HP-18-4739 came on Saketi Road and two persons besides the driver were sitting in that vehicle. On asking, they disclosed their names as Surender Kumar and Ravi Kant. The vehicle was searched and found to contain poppy husk and poppy seeds in bags. There was no arrangement of light, therefore, the vehicle …11… was taken to CIA Office Nahan. The contraband was weighed there. Sampling and sealing was also done at that place. In cross examination, he has stated that Ashok Kumar was the informer in the case. The accused have denied the prosecution case and took the defence of their innocence under Section 313 Cr.P.C. 10. The learned counsel for the appellants has not disputed the sampling, sealing of the contraband and the CTL Kandaghat reports. He has, however, disputed the prosecution story regarding recovery of contraband from appellants. According to him, prosecution story is concocted and the prosecution witnesses are not supporting, corroborating each other on material particulars. He has submitted that both the appellants have been falsely implicated in the case and no recovery of any contraband was made from them as alleged by the prosecution. Ext.PW-10/B is the site plan. It shows Nahan – Paonta Road and at the end of Khajurna Bridge, Saketi Road meets Nahan – Paonta Road at Point ‘C’. The Naka was placed at point ‘D’ on the Saketi Road. It has come in the evidence that Vikram Bagh is beyond point ‘D’ on Saketi Road. The prosecution case is that at Khajurna Bridge informer Ashok Kumar gave definite information to the police party regarding the accused indulging in illegal activities of taking poppy husk and poppy seeds from Himachal Pradesh to Haryana and Punjab through Saketi Road. It is also the prosecution case that Ashok Kumar volunteered to help the police party for nabbing the accused. PW-10 recorded the reasons of belief under Section 42 of the Act Ext.PW-9/A which …12… was sent through Constable Azam Ali and he was also directed to arrange for a vehicle and bring the same along with him. He brought the vehicle bearing No.HP-18-4739 at about 2.30 a.m. as per PW-10. Ext.PW-9/A was prepared by PW-10 on 18.8.2002 at 1.40 a.m. The vehicle HP-18-4739 along with driver Nitin Kumar came at about 2.30 a.m. as per PW-10 but surprisingly at 1.40 a.m. PW-10 in Ext.PW-9/A is writing that Azam Ali was sent to Nahan to arrange a vehicle and he came along with vehicle No.HP-18-4739 with driver Nitin Gupta. Ext.PW-9/A has been belied by PW-10 himself when he said in his statement that vehicle No.HP-18-4739 and its driver Nitin Kumar came at about 2.30 a.m. Moreover, when PW-10 had sent Azam Ali to arrange for vehicle with driver along with Ext.PW-9/A, how the number of the vehicle and the name of the driver were recorded in Ext.PW-9/A has not been explained. As per sequence of events, van HP-18-4739 and its driver Nitin came only after preparation of reasons of belief Ext.PW-9/A under Section 42 of the Act. In State of Punjab versus Balbir Singh (1994) 3 SCC 299 in Para-25 the Supreme Court has held as follows:- Xxx xxx xxx xxx xxx “(2-C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may finish evidence of commission of such offences are concealed in any building etc. he may carry out …13… the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. (3) Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non- compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case.” 11. This has been established on record that the report under Section 42 of the Act Ext.PW-9/A is not genuine and it has been prepared in order to match the prosecution story. Therefore, in the present case, mandatory requirement of sending the report under Section 42 of the Act has not been complied. 12. The prosecution case is that Ashok Kumar met the police party at Khajurna Bridge. The police party was already having a Gypsy with them. Ashok Kumar allegedly supplied definite information about both the accused and the contraband. In these circumstances, it is not understandable why the Investigating Officer …14… opted to call for additional vehicle from Nahan and not to proceed further to raid and catch the culprits red handed along with the contraband as disclosed by Ashok Kumar. It is not the prosecution case that the Gypsy which was with the police party at that time was required for some other purpose. Why police Gypsy was not used to raid and nab the culprits on the spot that has not been explained. It creates a suspicion in the prosecution case. 13. PW-3 Azam Ali has stated that Maruti Van bearing No.HP-18-4739 was being driven by PW-1 Nitin Kumar came from Vikram Bagh side. The perusal of site plan Ext.PW-10/B would show that this part of the statement of PW-3 Azam Ali is in complete contradiction to the prosecution case inasmuch as according to the prosecution, van HP-18-4739 came from Paonta Sahib side and then proceeded on Saketi Road on which at about 2 kilometers from Khajurna Bridge a Naka was laid and at that place van along with accused was intercepted but the statement of PW-3 Azam Ali is not in consonance with the prosecution case. PW-3 in his statement has further stated that two accused were sitting in the van. He has nowhere stated that Ashok Kumar was also in the van at that time. PW-6 Lajja Ram has stated that vehicle No.HP-18-4739 was taken by the driver Nitin Kumar from the spot, informer and Constable Azam Ali were not with him from there. Thus, police officials are not corroborating each other on material point regarding the fact that who accompanied Nitin Kumar to the place from where he brought accused and the contraband. …15… 14. The prosecution has not led any evidence to show that at whose instance poppy husk and poppy seeds were actually loaded in the van. There is no specific evidence on record that the poppy husk and poppy seeds were loaded in the van at the instance of both the accused. It is not the prosecution case that accused had hired the van or van was owned by them. PW-1 Nitin Kumar has denied that Ashok Kumar sat with him in the van at Khajurna Bridge. It is not the prosecution case that PW-1 Nitin Kumar knew the accused and the place where they had actually kept the poppy husk and poppy seeds. 15. It has also come in evidence that at Khajurna Bridge there are Dhabas, restaurants, hotels and tea-shops but cogent and reliable evidence has not been led that at the time of alleged recovery of contraband from accused all the Dhabas, restaurants, tea-shops around Khajurna Bridge were closed. It is common knowledge that on highways eating places, tea-shops etc. remain open almost round the clock. There is contradiction in the prosecution case as to when the van No.HP-18-4739 carrying poppy husk and poppy seeds was taken to police line for weighment of the contraband. PW-6 has stated that weighing and sampling of the case property was done at about 5o Clock in the morning but PW-2 HHC Dharam Mohan who weighed the case property has stated that he came in the Mess at about 7 a.m. in the morning and from there he was called. In other words, the weighment of the case property was done after 7 a.m. PW-3 HHC Dharam Mohan …16… has stated that weighment was done at about 8-9 a.m. This also creates suspicion about the truthfulness of the prosecution case. 16. Ashok Kumar informer, under what circumstances, met the police party that has also not been explained. It is not the prosecution case that Ashok Kumar has regular place of work at Khajurna Bridge and how he was there at midnight that has remained unexplained. The prosecution has failed to prove the case beyond reasonable doubt. It is the case of prior information and, therefore, compliance of Section 42 of the