IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 725 of 2001. Date of decision: 26.05.2011. State of H.P. ….. Appellant. Vs. Piar Singh …. Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant : Mr. R. K. Sharma, Sr. Addl.A. G. For the respondent : None Sanjay Karol J. (Oral. For an offence, which is alleged to have been committed on 29.12.2000, accused was put to trial. In terms of judgment dated 28.8.2001 passed by learned Sessions Judge, Bilaspur, in Sessions Trial No. 8 of 2001 titled as State of H.P. vs. Piar Singh, accused stands acquitted of the charged offence. 2. It is the case of the prosecution that S.I. Tameshwar Thakur (PW-1) along with C. Dhani Ram and C. Jiwan Kumar were at Swarghat in connection with their duty for checking the vehicular traffic. One bus No.HR-37-A-1593 came from Bilaspur side. The bus was stopped and the police party checked the passengers and their luggage. On seat No. 17, accused Piar Singh was sitting. He had kept a blue coloured bag on his Whether the reporters of the local papers may be allowed to see the Judgment? 2 legs. PW-1 searched the bag and found one box of card board wrapped with rubber tape. Police made inquiry from the accused, who informed that the same had been given as a gift to him by his friend. Suspecting that the accused may be carrying some contraband substance, police associated the driver of the bus Jai Parkash (PW-3) and one passenger Prem Dass for conducting the search. The box was opened and four polythene envelopes wrapped in rubber tape were found therein. The packets were opened and contraband substance in the form of sticks was found inside. Accused along with the bag was brought down from the bus, where the remaining proceedings were conducted on the road. Weighing scales and weights were brought by C. Dhani Ram. Upon weighing, the contraband substance was found to be of 3 kgs. and 900 gms. Two samples each of 25 gms. were taken out of the contraband substance and put in empty cigarette boxes. They were sealed with seal impression ‘A’. The remaining stuff was also packed into parcels and seized with seal impression ‘A’. Parcels were sealed vide seizure memo Ext.PA, witnessed by two independent witnesses. PW-1 prepared rukka (Ext.PB)and sent it for registration of F.I.R. through C. Dhani Ram. In the meanwhile, SI Hemant Kumar (PW-7) arrived at the spot and PW-1 handed over the investigation and case property to him. PW-7 carried out further proceedings. He sent special report to the superior officer, recorded statements of 3 the relevant witnesses and deposited the case property in the Police Station. Prior to that, he resealed the case property including the samples with seal impression ‘V’. On the basis of rukka, F.I.R. No. 323/2000 (Ext.PD) under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘NDPS Act’) was registered by H.C. Ram Lal (PW-5) at Police Station, Sadar, Distt. Bilaspur, who sent the samples to the Forensic Science Laboratory for chemical analysis through HHC Sukh Ram (PW-4). Chemical report (Ext.PH) from the Laboratory was obtained which indicated that the contraband substance was ‘charas’ With the completion of investigation challan was presented in the Court for trial. 3. Accused was charged for having committed an offence punishable under Section 20 of the NDPS Act, to which he did not plead guilty and claimed trial. 4. In order to prove its case prosecution examined 7 witnesses and the statement of the accused under Section 313 Cr.PC was also recorded. 5. Court below acquitted the accused of the charged offence on the ground that independent witness Jai Parkash (PW-3) did not support the prosecution and another independent witness Prem Dass was not examined by the prosecution. Further, the testimony of the police officials did not inspire confidence. There were major contradictions in their statements 4 rendering the prosecution story to be extremely doubtful. 6. The first point, which needs to be considered is as to whether the police actually recovered the contraband substance from the conscious possession of the accused. In this regard, testimonies of SI Tameshwar Thakur (PW-1), Jiwan Kumar(PW-2) and Jai Parkash(PW-3) are relevant. 7. At this juncture, we may observe that PW-7 is not a witness to the recovery and testimonies of all other witnesses i.e. police officials are with regard to registration of FIR and link evidence. 8. According to PW-1, he along with C. Dhani Ram and C. Jiwan Kumar were on checking duty. They stopped the bus in question and started checking luggage and the passengers inside the bus. On seat No.17, accused was sitting with a blue coloured bag, which he had kept on his legs. The bag was searched and one box of card-board was found in side. In the box, there were four packets of polythene envelopes in which charas was found in the form of sticks. Now the version with regard to the place where the bag was kept stands materially contradicted by PW-2, according to whom, the bag had been kept by the accused below the seat near the feet. The bag was not on the legs but in between the legs. At this juncture, the contradiction may not appear to be material, but however, when viewed with other contradiction it stands magnified 5 and acquires significance. Further, according to PW-2, it was he who picked up the bag and asked the accused for the contents therein. He then asked the accused to open the bag. Inside the bag, he found one box of card board. Accused told him that the box had been given to him by his friend as a gift. He became suspicious about the explanation. Therefore, he informed PW-1 about the same and then the same was opened. PW-1 does not narrate the incident of recovery as is so stated by PW-2. According to PW-1, the bag was in fact recovered by him. He made inquiries from the accused and thereafter searched the bag. Thus the version of PW-1 stands materially contradicted by PW-2. 9. That apart, PW-1 states that he did not search any passenger after seat No.17 which version stands materially contradicted by PW-2, according to whom passengers beyond seat No.17 were also searched. It is not the case of the prosecution that the accused was sitting alone on seat No.17. In fact PW-1 admits that there were about 40 passengers in the bus at the relevant time. For the reasons best known to the prosecution, independent witness Prem Dass has not been examined in Court. Why so? has not been explained. Significantly except for the accused, PW-1 does not remember the names of any of the passengers whom he had searched in the bus. Now this version of his does not inspire confidence. In fact, it stands belied by the version of PW-2, according to whom, PW-1 6 had written down the names and addresses of the passengers who were searched in the bus. Why this material piece of evidence has not been placed on record has not been explained. It acquires significance from the record that from the bag nothing could be found which could link the accused to the same. These passengers would have disclosed the exact segment of events with regard to the alleged search and recovery of charas. Prosecution story is rendered doubtful for yet another reason i.e. the colour of the bag allegedly recovered from the accused. According to PW-1, the bag was blue in colour. In Court, PW-2 has also supported this version, but however, he was confronted with his earlier statement recorded by the police under Section 161 Cr.PC (Ext.DA), with which he was confronted, wherein it was recorded that the bag was red in colour. PW-2 is not colour blind. His statement was correctly recorded by his colleague policeman. He has thus made a false statement, at least on one occasion. 10. PW-3 has yet come out with another story. No doubt, he was declared hostile and cross-examined by the Public Prosecutor, but however, in his examination-in-chief, he states that the bus was actually checked about half kilometer before Swarghat barrier at about 12 noon. At that time, there were 45 passengers in the bus. The bus was checked by only two police officials. ASI did not enter the bus for 7 checking. The police found one box of card board kept in the carriage of the bus and took it outside. Thereafter the bus was taken to Swarghat, where the box was opened in his presence as also in the presence of conductor Dev Raj and other passengers. Significantly, this version of his goes unrebutted and prosecution did not object to his testimony and he was not declared hostile on these facts. We notice that this witness was declared hostile and cross-examined by the Public Prosecutor. In his testimony, there is nothing, which would show that he has falsely deposed. Significantly, C. Dhani Ram has not been examined in Court. In this backdrop, his examination was necessary as he would have disclosed the whole truth. 11. Further, from the record we find that the rukka was sent to the Police Station from Swarghat only at 2.15 p.m. and the FIR was registered in the Police Station at about 4 p.m., but SI Hemant Kumar (PW-7) reached the spot at about 2.30 p.m. Now according to Hemant Kumar, he reached the spot after receiving a wireless message from Swarghat at 1.00 p.m. This wireless message has not been placed on record. It is not the case of PW-1 or PW-2 that they had given information at the police station through a wireless message. Who sent the message? What was the same? Who received the same?, has not been disclosed by the prosecution. It does not appear that PW-7 was 8 on the spot at 2.30 p.m. or that he carried out further investigation on the spot. 12. Not only that according to this witness, case property was re-sealed with seal impression ‘V’ which version stands belied by PW-4, according to whom, the parcel sealed with seal impression ‘A’ was carried by him from the Police Station to the Laboratory at Kandaghat. On the NCB form, there is no facsimile impression of either seal ‘A’ or seal ‘V’ on the record. There is also no separate seal impression of either seal ‘A’ or seal ‘V’ on a piece of cloth or on paper. Seals have also not been produced in Court. Now, if the police had re-sealed the sample with seal impression ‘V’, then obviously PW-4 did not carry the said sample to the Laboratory for analysis. All this renders the prosecution version to be extremely doubtful. The link evidence in support of prosecution case is missing. Neither the Malkhana register nor the road certificate has been produced on record. True it is that there is no cross-examination by the accused on this point, but nonetheless it was the duty of the prosecution to have placed the same on record in order to conclusively prove the link evidence inspiring confidence about the prosecution case. 13. Accused was charged for having committed an offence punishable with a minimum sentence of rigorous imprisonment for a period of 10 years and fine. Prosecution was required to adduce strict proof of 9 evidence. Consistent, cogent, convincing and reliable evidence ought to have been produced by the prosecution, which in the instant case is missing. The police officials cannot be said to have deposed truthfully. Absence of clear, cogent, convincing and reliable evidence would only lead to the conclusion that the contraband substance was not recovered from the conscious possession of the accused. 14. Accused has had the advantage of having been acquitted by the Court below. Keeping in view the principles laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (R.B. Misra) Judge (Sanjay Karol) Judge May 26, 2011 (rana)