IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 359 of 2001 Judgment reserved on :17.6.2011 Date of Decision : September 9 , 2011 State of Himachal Pradesh Appellant Versus Daulat Ram Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Rajesh Mandhotra, Deputy Advocate General for the appellant-State. For the respondent : Mr. Anup Chitkara, Advocate, for the respondent. Justice Sanjay Karol, J. For an offence, which is alleged to have been committed on 16.9.2000, accused was put to trial. In terms of judgment dated 9.4.2001 passed by the learned Sessions Judge, Kullu, H.P., in Sessions Trial No. 52/2000, titled as State versus Daulat Ram, accused stands acquitted of the charged offence. Whether reports of Local Papers may be allowed to see the judgment? 2 2. It is the case of the prosecution that on 16.9.2000, ASI- Dorje Ram (PW-7) accompanied by Constable Sunil Kumar (PW-1) and ASI-Narayan Singh were on patrolling duty in an official vehicle. At about 2.30 a.m. while they were on way to the Police Station, Banjar, at about 2.30 a.m. near village Thawari they found the accused coming on a scooter. He was asked to stop the vehicle and show documents of ownership. As soon as he opened the dicky of the scooter to take out the documents, five – six sticks of charas fell on the road. Police party suspected accused of carrying more charas. As such, PW-7 asked PW-1 to get some independent witnesses from the nearby village. PW-1 made local inquiry but could find none and as such returned back empty handed. In the presence of PW-1 and ASI-Narayan Singh, PW-7 served memo (Ext. PW1/A) for carrying out the search of the accused and the vehicle. Accused consented to be searched by the police officials present on the spot and accordingly scooter was searched from which charas was recovered. The same was weighed and found to be 1 k.g. & 300 gms. Three samples of 25 grams each were taken and sealed separately. Remaining charas was also sealed in a separate packet. The samples and the bulk parcel were sealed with seal impression-A and taken into possession vide memo (Ext. PW 1/C). Accused was arrested vide memo (Ext. PW 1/E). NCB form (Ext. PW7/F) was filled up on the spot. Ruka (Ext. PW7/A) was sent by PW-7 through PW-1 to Police Station, Banjar for registration of the case where HC- Mohan Lal (PW-3) registered F.I.R. No. 75 of 2000 (Ext. PW 3/A) 3 dated 16.9.2000. With the completion of investigation at the spot, PW-7 handed over the case property along with the seals to Dy.S.P./SHO Khushal Sharma (PW-6). Special report (Ext. PW 4/A) was sent to the office of the Superintendent of Police, Kullu through constable Uttam Singh (PW-2) which was received by ASI-Lal Singh (PW-4). The sealed sample was sent by PW-3 through PW-1 for chemical analysis to the C.T.L. at Kandaghat and report (Ext. PW7/F) obtained which revealed that contraband was containing charas. With the completion of investigation challan was presented in the Court for trial. 3. The accused was charged for having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) to which he did not plead guilty and claimed trial. 4. In order to prove its case, prosecution examined seven witnesses and statement of the accused under Section 313 Cr.P.C. was also recorded in which he took up a defence of false implication. 5. The Court below acquitted the accused on the ground that not only mandatory provisions of Section 42(1) of the Act were not complied with by the police but also statements of the police officials did not inspire confidence, thus rendering the prosecution case not to be proved. 6. In order to prove its case prosecution has examined seven witnesses. Testimonies of PW-7 and PW-1 who were present 4 on the spot are material from the point of proving that charas was actually recovered from the conscious possession of the accused. Admittedly no independent witnesses were associated during investigation or examined in Court. Careful scrutiny of testimonies of these witnesses would only reveal that their version does not inspire confidence. Considering the fact that no independent witnesses could be associated at the time of carrying out the search and seizure operations, prosecution ought to have also examined the two other police officials present on the spot. 7. According to PW-7, he along with ASI-Narayan Singh and PW-1 were proceeding in a vehicle driven by Sh. Khem Chand towards Larji side. They were returning from Banjar where they had laid a Naaka. To begin with, there is nothing on record to prove this fact. This witness further states that he had asked the accused, who was driving the scooter to stop the vehicle and show documents of ownership. The accused opened the dicky of the scooter when five – six sticks of charas fell on the ground. Suspecting that accused might be carrying more charas, he asked PW-1 to get local witnesses. Since none were found as the place was secluded and it was middle of the night, he carried out the search and seizure operation by associating ASI-Narayan Singh and Constable Sunil Kumar (PW-1). He served memo (Ext. PW 1/A) to which accused agreed to be searched by the police party. Upon searching the scooter, an envelop containing contraband substance was recovered from the dicky. The same was weighed alongwith the sticks which 5 had fallen on the ground and samples taken. NCB form was filled in, accused was arrested, ruka was sent to the police station through PW-1 and after completion of investigation on the spot, case property was handed over at the police station to PW-6. Special report was sent to the office of the Superintendent of Police, Kullu. 8. No doubt this version of his stands corroborated by PW- 1 but however we find that there are material contradictions in the statements of these witnesses. 9. According to PW-7 no independent witness was present at the spot as the place was secluded and the incident took place in the middle of the night. But however according to PW-1 he went to the nearby village and knocked at the doors of the houses but since none responded, he came back empty handed. Police has not examined any of the villagers to substantiate this fact. No investigation was carried out in the morning to find out whether the houses were occupied or not. There is yet another important aspect of the matter. It has come on record, through the statement of PW- 1 that at the place of the alleged offence there were houses on both the sides of the road. Police could have made serious endeavour to have woken up the occupants of such houses and associated them in the recovery proceedings. Police could have also waited for the day to break. In this background examination of the other two police officials present at the spot i.e. ASI-Narayan Singh and Sh. Khem Chand was necessary. 6 10. That apart, according to PW-7 police party was carrying weighing scales with weights ranging from 5 grams to 2 kg. and charas was weighed with the same. He states that samples were weighed four times. Now this version of his stands materially contradicted by PW-1, according to whom charas was weighed with the weighing machine which was automatic and weightless and sample was weighed only once. 11. Further according to PW-7, PW-1 took the ruka to the police station by walking on foot which version stands contradicted by PW-1 according to whom he had travelled to the police station in a jeep. Undisputedly the distance up to the police station was more than 30 kms. Surprisingly, PW-1 does not even remember the owner or the driver of the jeep or its registration number. 12. Significantly PW-7 does not even remember as to who had prepared Ext. PW 1/E though it is the version of the prosecution that all the documents were prepared on the spot by PW-7. PW-1 does not remember who had prepared the documents on the spot. PW-1 also does not remember as to whether his statement was in fact recorded by PW-7 or not. Surprisingly PW-7 states that NCB form was not filled up by him but in fact by ASI-Narayan Singh on the spot. In this regard testimony of PW-1 is absolutely silent. Investigation was carried out by PW-7 and not ASI-Narayan Singh. Bare perusal of the NCB form reveals that the same has been written by the same person, at the same time in continuity and with the same pen. It bears the number of the F.I.R. which admittedly 7 was registered at 8 p.m., whereas according to PW-7 entire investigation which started at 2.30 a.m. stood completed within 3½ hours. This only renders the prosecution version with regard to the recovery of charas and completion of the investigation on the spot to be doubtful. It appears that the witnesses have not deposed truthfully. 13. Even on the question of link evidence it cannot be said that prosecution case is beyond doubt. The maalkhana register (Ext. PW 3/C) and the Road Certificate (Ext. PW 3/D) produced on record by PW-3 shows that there is over writing with regard to the entry of the sample sent to C.T.L. Kandaghat. Initially the number of entry was “49” which by way of over writing was changed to “50”. PW-3 has tried to explain that he had over written to give clear impression of word “5”, but however bare perusal of the document reveals that it is not so and figure “49” was changed to “50” by over writing. 14. Thus on the basis of prosecution evidence it cannot be said beyond reasonable doubt, that the police had recovered charas from the conscious possession of the accused. 15. As per prosecution case, when the accused opened the dicky of the scooter to take out the documents, sticks of charas fell on the ground. Thus the factum of the accused possessing charas was already known to the police party. In this view of the matter, issuance of notice for carrying out search was not necessary. In any event, it stands proved from the testimony of constable Uttam Singh 8 (PW-2) and ASI-Lal Singh (PW-4) that Special Report (Ext. PW 4/A) was sent and received in the office of the superior officer. In this view of the matter the learned Court below erred in coming to the conclusion that there was non compliance of mandatory provisions of Section 42(1) of the Act. That part of the findings is set aside. 16. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others versus 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 person 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. (Justice Deepak Gupta), Judge. (Justice Sanjay Karol), Judge. September 9 , 2011 (PK)