HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.202 of 1999 Decided on: July 01,2010 State of H.P. …Appellant. VERSUS Deen Mohammad ….Respondent. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge Whether approved for reporting?1 Yes. For the Appellant: Mr.Anil Jaswal, Dy.AG. For the respondent: Mr.Anup Chitkara with Mr.Chaman Negi, Advocates. R.B.Misra, Judge (Oral) The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378(3) of the Code of Criminal Procedure, in reference to judgment dated 22nd December, 1993, passed by learned Sessions Judge, Chamba Division, at Chamba, in Sessions Case No.12 of 1996, thereby acquitting the respondent / accused for offence under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short ‘the Act’). 2. In order to adjudicate the present criminal appeal, it is necessary to give the factual Whether the reporters of the local papers maybe allowed to see the judgment? …2… background of the prosecution case. The facts, as per the prosecution story, are that on 29.12.1991, PW-8, Bidhi Chand, the then SHO Police Station, Dalhousie was present at Tunnuhatti barrier on patrolling, along with PW-9, ASI Om Parkash, other police officials and PW-7, Kashmir Singh, when at about 4 AM accused came from the side of Nanikhad and tried to slip away on seeing the police. He was apprehended on suspicion and notice Ext.PE was issued to him as to whether he wanted to give his search before a Magistrate or Gazetted Officer and the accused gave in writing on Ext.PC that he is ready to give search before the police. After search of bag, carried by the accused in one container of Vanaspati, containing Charas, was found and on weighment it was 2 Kilograms. Out of the same, 10 grams of Charas was separated as sample and both the sample and bulk Charas were sealed with seal ‘T’ in separate parcels. Seal impression was taken on cloth Ext.PD and the Charas was taken into possession vide memo Ext.PF, which was also signed by PW-9, ASI Om Parkash and PW-7 Kashmir Singh. Copy of recovery memo was given to the respondent / accused. Personal search memo Ext.PF was prepared. PW-8, Bidhi Chand, also sent Ruka, Ext.PG, through PW-5, Constable Pritam Singh, who gave it to MHC PW- 4, Dev Raj, who recorded F.I.R. Ext.PB and returned …3… the file to the SHO on the spot. PW-8 Bidhi Chand prepared site plan Ext.PH, recorded statement of the witnesses and told the grounds of arrest to the accused. The sample of Charas was sent by PW-4, Dev Raj through PW-6, Constable, Sher Singh, who deposited it with the Chemical Examiner and gave the receipt to the MHC on return. Special report regarding recovery of Charas and arrest of accused was sent by the MHC to PW-1, Lal Chand, Wireless Operator, who transmitted the same to Wireless Operator, Chamba PW-2, Rakesh Kumar, who sent it to the office of S.P.Chamba and the said message Ext.PA was put up by PW-3, ASI Kulwant Singh before S.P.Chamba. 3. Charge under Section 20 of the NDPS Act was filed and the case was committed to the Sessions Court. 4. In order to prove its case, prosecution has examined as many as nine witnesses, whereas, the respondent / accused through his statement under Section 313 Cr.P.C., has denied the prosecution case. 5. PW-1, Lal Chand, PW-2 Rakesh Kumar, Wireless Operators, PW-3 ASI Kulwant Singh, PW-4 MHC Dev Raj, PW-5 Constable Pritam Singh, PW-6 Constable Sher Singh, PW-7 Kashmir Singh, PW-8 Bidhi Chand, SI/SHO, Police Station, Khairi and PW-9, ASI Om Parkash, …4… Incharge Security, S.P.Chamba, were examined by the prosecution. 6. PW-1, PW-2 and PW-3 are formal witnesses, who, in their due discharge of official duties, have played their role, however, are not very material. PW-4 HC, Dev Raj, has stated that on 29.12.1991 Constable Pritam Chand produced one Ruka written by Bidhi Chand Patyal (PW-8)for registration of the case, accordingly, F.I.R. Ext.PB was recorded and PW-8 deposited the case property, i.e. two sealed parcels bearing seal impression ‘T’ with PW-4, which were deposited in the Malkhana. PW-4 has also stated that he sent sample parcel to Kandaghat through Constable Sher Singh on 16.1.1992 vide R/C No.4/92. 7. PW-5, HC Pritam Singh, has stated that PW-8 Bidhi Chand, SHO, gave him Ruka on 29.12.1991 for registration of the case. PW-7, Kashmir Singh, said to be an independent witness, has stated that he was associated with the police raiding party at about 4 AM and police apprehended the accused at Tunnuhatti Barrier on suspicion. After asking his name, a notice regarding search was also given to the accused / respondent in writing as to whether he wanted to be searched before a Magistrate or Gazetted Officer, to which the accused gave in writing that he may be searched by the police …5… itself. PW-7 has further stated that the bag of the accused was searched from which one container of Vanaspati Ghee cotaining Charas was recovered and on weighment it was found 2 Kilograms out of which sample of 10 grams was taken separately. Remaining Charas was sealed in a separate parcel with seal and thereafter the seal was handed over to PW-7. Seal impression was taken separately on a cloth which is Ext.PD, thereafter, the Charas was taken in possession vide memo Ext.PE. 8. In cross examination, PW-7, has stated that he is resident of Palampur, a place at about 200 kilometers from Tunnuhatti and PW-7 had appeared as witness in a case of Charas earlier which was also apprehended by Bidhi Chand Patyal. PW-7, in cross examination, has further stated that there were many shops at Tunnuhatti and there was Excise Barrier and Barrier of Forest Department where Deputy Ranger and Forest Guard are posted and liquor vend was at a distance of 50 yards from the spot. On 29.12.1991, PW-7 got up at 3.30 AM and police met him there at about 4 AM on the call of police. Accused was already standing with the police party and he remained there for about 15 – 20 minutes. PW-7 has further stated that he did not remember as to how long the accused was standing with the police and without knowing the contents of the papers he had …6… put his signatures as the papers were prepared by the police at the Barrier. In presence of PW-7 during 15 – 20 minutes, the police enquired from the accused, prepared documents and recovered Charas. The Charas was weighed and seals were affixed. According to PW-7, there were 2 - 3 other Police Inspectors, whom he did not know. PW-7, in his cross examination, has further stated that he did not know from where 3 - 4 weights were arranged. 9. PW-8, Bidhi Chand Patyal, SI/SHO, while supporting the prosecution case, has stated that he, along with ASI Om Parkash, Constable Pritam Singh, Constable Ramesh Chand and ASI Balwant Singh, Incharge Barrier Tunnuhatti, were present for patrolling at Tunnuhatti Barrier along with PW-7 Kashmir Singh. At about 4 AM, accused came from the side of Nanikhad and tried to escape towards Bakloh road on seeing the police party and on suspicion, he was apprehended. Accused was carrying a bag with him and after asking his whereabouts, he disclosed his name as Deen Mohammad R/o Dhutta Parg Diur. On suspicion, notice Ext.PE regarding search was given to the accused in writing after affording opportunity as to whether he wanted to be searched by a Magistrate or Gazetted Officer. The accused gave in writing that he was ready to give his search before PW-8. The bag of the accused was searched, …7… out of which, one container of Vanaspati was recovered containing Charas. On weighment, it was found to be 2 (two) Kilograms, out of which 10 grams of Charas was separated as sample and both the sample and the bulk were sealed with seal ‘T’ in separate parcels, Seal impression was also taken separately on a cloth which is Ext.PD and Charas was taken in possession vide memo Ext.PE in presence of the witnesses. In his cross examination, PW-8, has stated that ASI Om Parkash, posted at Police Station, Dalhousie, however, did not accompany PW-8 from the Police Station. 10. PW-8, in his cross examination, has stated that he had not gone with PW-9 from Police Station but met PW-9 at Tunnuhatti and PW-8 was not aware as to whether PW-9 (ASI Om Parkash) had left prior or after PW-8 as according to PW-8, he had left the Police Station on 28.12.1991 and reached Tunnuhatti on the same day at noon. PW-8 has further stated in his cross examination that he kept on patrolling throughout the night. ASI Om Parkash and Balwant Singh were with him and PW-7 Kashmir Singh met PW-8 and other police officials after 10 PM at night and remained with police officials up to 6 or 6.30 AM PW-8 in his further cross examination has stated that the he saw the accused from a distance of 5 – 6 meters and over powered the accused after covering a …8… distance of 5 – 6 meters. However, the same was not mentioned in the Ruka that PW-8 apprehended the accused after running and PW-8 has further stated that it took about 1 ½ - 1.45 hour to complete the papers and personal search was carried out by him in presence of PW-7 Kashmir Singh and recovery memo etc. were read over to Kashmir Singh before he put his signatures on the same. PW-8 has further stated that he did not know as to whether Kashmir Singh (PW-7) was a prosecution witness in another case. 11. PW-9, ASI Om Prakash, Incharge Security, S.P.Office Chamba, has stated that he, along with S.I. Bidhi Chand, Constable Pritam Singh, Constable Ramesh Chand, ASI Balwant Singh, HC Dalbir Singh, Constable Mohinder Singh and one another Constable were present in connection with patrolling at Tunnuhatti. At about 4 AM they noticed that one person coming from the side of Nanikhad towards Bakloh holding a bag on his shoulder and on interception he disclosed his name as Deen Mohammad, however, he was given an option to be searched by SHO, Bidhi Chand or by a higher officer or by a Magistrate. The accused gave his option in writing Ext.PC and this was signed by Kashmir Singh (PW-7) present at that time. On search of the bag of the accused, which he was carrying on his shoulder, a container capacity of 5 Kgs. bearing mark ‘Rath’ was …9… recovered from the accused. On opening the said container, Charas was found in it. On weighment, the Charas was found to be 2 Kilograms. Out of the recovered Charas, 10 grams of Charas was taken separately as sample and sealed in a match box with seal ‘T’ for chemical analysis. As stated by PW-9, in his cross examination, that Kashmir Singh remained with the police for about 1 or 1 ½ hours, scale and weights were in the bag of the Investigating Officer and SHO told at the time of handing over the seal to Kashmir Singh that he should retain the seal with him till the result of the chemical analysis is received. 12. On analysis of the prosecution witnesses and perusal of the record, it is not clear as to how Kashmir Singh (PW-7) came on the spot and the version of PW-7 appears to be improbable as the notice Ext.PC bearing the signatures of PW-7 was given to the accused and the accused had also put his signature on it and the accused gave in writing that he may be searched by the police, this aspect itself appears improbable. From the testimony of PW-7, it appears that he was not aware from where the weights were arranged for weighing the recovered Charas, whereas, as per testimony of PW-9 the weights were being carried by the Investigating Officer. According to PW-7, enquiry from the …10… accused, preparation of documents, recovery of Charas and weighing all were completed within 15 to 20 minutes in presence of PW-7 and nothing has been revealed from the testimony of PW-7 as how long he remained there on the spot. As per the testimony of PW-8, PW-7 Kashmir Singh met police party after 10 PM and remained there on the spot in their association up to 6 or 6.30 AM, as such, statements of PW-7 and PW-8 are not reliable in respect of his presence. PW-7 has very categorically stated in his cross examination that without knowing the contents on the paper he has put his signatures, whereas, PW- 8 Bidhi Chand Patyal has stated that the personal search of accused was made in the presence of PW-7 Kashmir Singh and recovery memo was made before him and weights were brought by Constable from a nearby shop, but PW-8 did not remember the name of Constable who arranged the weights from the nearby shop, whereas, PW-9 ASI Om Parkash, who is not said to have accompanied PW-8, Bidhi Chand Patyal, had been carrying weights as per his own testimony. PW- 7 Kashmir Singh remained in the association of police officials for about 1 or 1 ½ hours, whereas, PW-8 Bidhi Chand Patyal has very categorically stated in his cross examination that PW-7 Kashmir Singh, after meeting the police officials after 10:00 PM in the night of 28.12.1991, remained with …11… them till 6 AM or 6.30 AM on 29.12.1991. PW-8 Bidhi Chand Patyal has stated that recovery memos etc. were read over to Kashmir Singh (PW-7) before he had put his signatures, is contrary to the version of Kashmir Singh (PW-7) who has very categorically stated that he has put his signatures on all the papers without going through the contents therein. PW-8, in his cross examination, has stated that PW-9 ASI, Om Parkash, though posted during the days of incident in Police Station, Dalhousie, had not accompanied the team of PW-8, who was not aware about the arrival of PW-9 at Tunnuhatti. However, PW-9, ASI, Om Parkash, has very categorically stated that he had accompanied PW-8, SI Bidhi Chand Patyal, along with Constable Pritam Singh, Constable Ramesh Chand, ASI Balwant Singh, Head Constable Dalbir Singh, Constable Mohinder Singh and one another Constable in connection with patrolling at Tunnuhatti. 13. Mr.Anil Jaswal, learned Deputy Advocate General, appearing for the appellant / State, has submitted that the prosecution witnesses in due discharge of their duties have supported the case of the prosecution and one independent witness PW-7, Kashmir Singh, has supported the prosecution case and the recovery of Charas was made and all the proceedings, right from the search of accused up to …12… recovery of Charas, were made in consonance to the provisions of ‘NDPS Act’ and relying on the testimonies of the prosecution witnesses, the impugned judgment has to be set aside and the accused / respondent has to be convicted for the offence punishable under Section 20 of the ‘NDPS Act’. 14. On the other hand, following aspects emerge from the submissions of Mr.Anup Chitkara, learned counsel for the accused / respondent:- (1) (a) The police party did not associate any independent witness to show the credibility of prosecution version about the quantity, time and place of the recovery in question. In support of this submission, the learned counsel for the respondent / accused, has relied upon the decision in State of Punjab versus Balbir Singh, AIR 1994 SC 1872; Para- 26(1) where it has been observed by Hon’ble Supreme Court as follows:- “If a police officer without any prior information, as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation in reference to an offence or suspected offence as provided under the provisions of Cr.P.C. and when such search is completed at that stage then Section 50 of the ‘NDPS Act’ would not be attracted and the question of complying with the requirements …13… thereunder would not arise. If during such search or arrest there is a chance (of) recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act.” (b) PW-7 Kashmir Singh was a stock witness of PW-8, SHO / SI, Bidhi Chand Patyal; (c) PW-7 Kashmir Singh, in his cross examination, has stated that he had appeared as witness in a case of Charas earlier and the said case was also apprehended by Bidhi Chand Patyal (PW-8) (d) The following decision in Rajesh Jagdamba Avasthi versus State of Goa, AIR 2005 SC 1389, Para-16 is relevant, which reads as below:- “16. There is one other aspect of the matter. PW-2, the panch witness associated in this case appears to be a stock witness. The other panch witness has not been examined. PW-2 admitted in very clear terms that he was earlier associated in two other cases under NDPS Act as panch witness. In both those cases, PSI Thorat was the investigating officer. On 14th December, 1994, he had …14… been summoned by PSI Thorat and acted as a panch witness in the case against P.C. Kulbi, who as noticed earlier, disclosed the complicity of the appellant. Thereafter, in the instant case, he was requested by PW-4 to act as a panch witness. It appears that PSI Thorat was also associated with this case as he was present with PW-4 when P.C.Kulbi was apprehended and thereafter when the appellant herein was apprehended and searched at the instance of the aforesaid Kulbi.” (e) PW-8, SHO, Bidhi Chand Patyal, has stated that weights were brought by a constable, from a nearby shop. (f) The person in the shop, who handed over the weights, could have been associated as an independent witness to the seizure and sampling, which would have lend corroboration to the quantity, time and place. (g) In view of the decision in State of Punjab versus Partap Singh, 2004 Drugs Cases (Narcotics) 104, associating independent witnesses makes the prosecution mode more reliable. The relevant observations are given as follows:- “We also noticed the fact that the investigating agency has not associated …15… any independent witnesses even though they were available in the nearby vicinity.” (h) In Raj Bahadur Versus State of Punjab, 2009(2) Crimes 190 (P&H), relevant observations were made in Para-10, which are reproduced as below:- “... ... On account of non-joining of an independent witness, it was held that the accused was entitled to be given the benefit of doubt. The principle of law, laid down in the aforesaid authorities, is fully applicable, to the facts of the instant case. On account of non-joining of an independent witness, at the time of the alleged search and seizure, the case of the prosecution, became highly doubtful. The trial Court failed to take into consideration, this aspect of the matter, as a result whereof miscarriage of justice occasioned.” 15. Following analysis shall indicate that the case of the prosecution is full of contradictions and hence is not proved beyond reasonable doubts:- A) Contradictory versions have come from the evidence of police personnel present on the spot: (a) PW-8, Bidhi Chand Patyal, SI/SHO, has stated that on 29.12.1991, he, along with ASI Om Parkash, Constable Pritam Chand, Costable Ramesh Chand and ASI Balwant Singh, I/C Barrier Tunnuhatti, was present on patrolling at Tunnuhatti Barrier. …16… (b) PW-9, ASI Om Parkash, has stated that on the day of incident he, along with SI Bidhi Chand, Constable Pritam Singh, Constable Ramesh Chand, ASI Balwant Singh, HC Dalbir Singh, Constable Mohinder Singh and one other constable, was present in connection with patrolling at Tunnuhatti. (c) As per the testimony of SHO PW-8, Bidhi Chand Patyal, the total number of police personnel present on the spot was five. He did not state about the presence of HC Dalbir Singh, Constable Mohinder Singh and another constable. (d) As per the testimony of ASI, PW-9, Om Parkash, the total number of Police personnel present on the spot was 8. (B). Following aspect shall indicate that there is a material contradiction about the date and time when the police party reached at Tunnuhatti Barrier: (a) PW-8, Bidhi Chand Patyal, SI/SHO, has stated that he reached Tunnuhatti on 28.12.1991 at about noon and he had no prior information. He kept on patrolling throughout the night there. ASI Om Parkash and Balwant Singh were with him. (b) PW-9, ASI Om Parkash has stated that he, along with SHO, left Dalhousie Police Station on 28th December, 1991 for patrolling and checking. It may be that he left earlier then SHO from PS Dalhousie …17… but we went together to Tunnuhatti. They reached Tunnuhatti at 2.30 or 3 AM. (C) Different versions have come in the evidence about the time when PW-7, Kashmir Singh, joined the patrolling party: (i) PW-8, Bidhi Chand Patyal, SI/SHO has stated that PW Kashmir Singh met them after 10:00 PM in the night. He remained with the police party till 6 AM or 6.30 AM. (ii) PW-9 ASI Om Parkash has stated in his statement that Kashmir Singh (PW-7) met them at the barrier at 2.30 AM or 3 AM. (iii) PW-7, Kashmir Singh, has stated that the police people met him there at about 4 AM. (D) As per the version of PW-8, Bidhi Chand and PW-7 Kashmir Singh, the search, sampling and scribing of ruqua took 15 -20 minutes. There proceedings will take much more time than 15 – 20 minutes: (i) PW-7, Kashmir Singh, has stated that he kept standing there nearly for 15 – 20 minutes. (ii) PW-7 has also stated that in his presence during 15 – 20 minutes, the police enquired from the accused, prepared documents and recovered Charas. …18… (iii) PW-8, Bidhi Chand Patyal, SI/SHO, has stated that Ruka was also sent in presence of PW-7 Kashmir Singh. 16. No evidence is brought on the record by the prosecution to establish that the specimen impression of seal ‘T’ was also sent along with the sample parcel to the laboratory to enable the Chemical Examiner for comparing the same with the seal impression affixed on the sample: (i) PW-4, MHC Dev Raj, In-charge of Malkhana, did not say that when he handed over the sample to Constable Sher Singh, he also handed over the specimen impression of seal ‘T’ to him. (ii) PW-6, Constable Sher Singh, did not say that along with the sample, MHC Dev Raj also handed over to him the specimen impression of seal ‘T’. He did not testify that he also handed over the said specimen impression to the Laboratory. (iii) In State of Rajasthan versus Gurmail Singh; (2005) 3 SCC 59, the Hon’ble Supreme Court has found that the link evidence adduced by the prosecution was not at all satisfactory, though the seized articles were said to have been kept in the malkhana on 20.5.1995, the malkhana register was not produced to prove that it was so kept in the malkhana till it was taken over by PW-6 on 5.6.1995. No sample of the seal was sent along with the sample …19… to the Excise Laboratory, Jodhpur for the purpose of comparing with the seal appearing on the sample bottles. Therefore, there is no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband goods. In such facts and circumstances, the link evidence, adduced by the prosecution, was not found satisfactory and in view the loopholes in the prosecution case, the acquittal of the respondent / accused was held to be correct. (iv) In State of Rajasthan versus Gopal, (1998) 8 SCC 449, the Hon’ble Supreme