IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. A. No. 387 of 1997 Date of decision: 30.09.2010 State of H.P. …Appellant. Versus Sher Mohd. …Respondent. Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Sanjay Karol, J. Whether approved for reporting?1No. For the appellant: Mr. Vivek Thakur, Additional Advocate General. For the respondent: Mr. M.S. Guleria, Advocate. Deepak Gupta, J. (Oral) 1. This appeal by the State is directed against the judgment of the learned Sessions Judge, Chamba, in Sessions Trail No. 10 of 1997 whereby the accused was acquitted of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the Act’). 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. 2. The prosecution story, in brief, is that on 27.10.1996, PW-7, SI Jeet Singh, alongwith PW-2, constable Om Parkash and three other constables was on patrolling duty in Village Kareri. When they reached near the house of accused Sher Mohd., he allegedly ran outside his house towards the fields. This aroused the suspicion of the police officials and he was apprehended. 3. Three local persons, namely Shri Jagdish Chand, Dhani Ram and Gulzar Mohd., were summoned through constable Shekhar and associated with the search and seizure operations. The accused was then given an option of being searched either before the police officials or before a Magistrate or Gazetted Officer. He agreed to be searched by the police officials. He was carrying a cloth (Parna), which was being hold by him in his hands closed to his chest. On search of this Parna, which was in the form of a bundle, it was found that it contained charas in the form of balls. The weights and scales were arranged and on weighment, charas was found to be 950 gms. One sample of 10 gm was separated out of the bulk charas. The sample as well as the bulk charas were sealed in two separate parcels bearing seal impression ‘X’. The sample of seal impression was prepared on a piece of cloth. Codal formalities were completed on the spot ad the case property was deposited with PW-3, HC Tilak Singh, who was the then working as MHC, P.S. Kihar. He kept the same in the Malkhana and on 3rd November, 1996, he handed over the sample parcel to PW-4, Constable Piaru Ram, who took it to the Chemical Laboratory at Kandaghat. The report of the Chemical Analyst, Ex. PK, shows that the sample was containing contents of charas up to 31.65% resin. On this basis, challan was filed against the accused for having committed the offence aforesaid. The accused pleaded not guilty and claimed trial. The learned trial Court acquitted the accused mainly on the ground that out of the three independent witnesses, only one was examined and he had not supported the prosecution version. It also came to the conclusion that there were contradictions in the statements of witnesses. 4. We have carefully gone through the record of the case and heard the learned counsel for the parties. 5. There is no manner of doubt that out of the three independent witnesses, only one, i.e. PW-1, Jagdish Chand, has been examined. He also has not supported the case. His version is that by the time he was associated, charas had already been recovered and further that the accused was denying that the charas was recovered from him. He was declared hostile and cross-examined at length by the learned Public Prosecutor for the State. This witness has studied till class five. He admitted that he had signed the documents, but his version is that he signed the documents on the asking of the police and he signed because the charas was there at the spot. The other two witnesses, namely Gulzar Mohd. and Dhani Ram, were given up as having been won over. 6. The law is well settled that merely because independent witnesses do not support the prosecution version, the accused cannot be acquitted straightaway. The official witnesses are also equally good witnesses and their testimony can be relied upon. However, there is an important caveat to this proposition of law, i.e. that the statements of the official witnesses should be consistent. In case, there are contradictions and variations in the statements of these witnesses, then these assume greater significance since we are dealing with the official witnesses. 7. PW-7, SI Jeet Singh, stated that on seeing the police officials, the accused ran outside his house towards the fields. He further stated that he deputed constable Shekhar to call the witnesses. According to him, the weights and scales were arranged through PW-Gulzar Mohd. and seal and piece of cloth, after use, were handed over to PW- Gulzar Mohd. He has been cross-examined and in cross- examination, he has admitted that there were three-four houses and one or two cow-sheds in village Kareri. Though, he has denied the suggestion that the house of Sher Mohd. was at a distance of about 4 kms. from village Kareri and that the houses of witnesses were at a distance of 5 kms. from the place of occurrence, even, according to him, these were at a distance of 400-500 mtrs. He admitted that none from village Kareri was joined in investigation and the only explanation is that none was available. This version of investigating officer cannot be accepted, since according to him, he had sent constable Shekhar to get the witnesses. It was only constable Shekhar, who could have deposed whether the witnesses were available in village Kareri or not. As pointed out above, constable Shekhar has not been examined. 8. PW-2, constable Om Parkash supported the prosecution version, but there are some contradictions in the statement made by him and the statement of PW-7. The first is that whereas according to PW-7, the accused ran towards the fields, according to PW-2, the accused ran upwards towards the hill side. This witness also states that it was either Dhani Ram or Jagdish, who brought the scales, whereas PW-7 states that it was Gulzar, who brought the scales. Similarly, with regard to handing over the seal, this witness states that seal after use was handed over to either Jagdish Chand or Dhani Ram, whereas PW-7 states that the seal was handed over to Gulzar Mohd. None of the documents, which were prepared at the spot, bear the signatures of PW-2 Om Parkash. Even, the Ruka, Ex. PF sent to the Police Station, does not contain his name. 9. The spot map prepared by PW-7, Ex. PG, shows that near the place where the accused was apprehended, there are a number of houses and there is no plausible explanation why no attempt was made to get any witness from these houses and also why constable Shekhar was not examined to prove what attempt he made to obtain the independent witnesses. 10. There is another lacuna in the prosecution version. The incident took place on 27.10.1996. The case property was deposited with PW-3, who kept it in the Malkhana in safe custody. On 3rd November, 1996, PW-3 handed over the smaller parcel containing the sample to PW- 4 to take it to Chemical Laboratory at Kandaghat. PW-4, in his examination-in-chief stated that he deposited the sample with the CTL, Kandaghat on 04.11.1996. He was, however, confronted with the road certificate, which he himself had produced and after seeing the road certificate, he stated that, in fact, date of receipt issued by the CTL, Kandaghat is 07.11.1996. In the examination-in-chief, this witness had stated that he had only taken the case property, which was the subject matter of the FIR relating to the present case, but in cross-examination, he admitted that his earlier statement that he had taken only the case property of the present case is incorrect and he had also taken case property of other cases through the same road certificate. Thus, this witness is not telling the whole truth and there is no explanation, why the sample which he took from Chamba on 03.11.1996, was not deposited till as late as 07.11.1996. 11. It may be true that each of the contradictions by itself may not be sufficient to acquit the accused, but when they are cumulatively taken together, it casts a cloud on the prosecution case, which the prosecution only could have dispelled by examining the other official witnesses, which it chose not to examine. 12. Therefore, in the facts and circumstances of this case, we find that no case is made out for interference in the judgment of the learned trial court. The appeal is dismissed accordingly. Bail bonds discharged. (Deepak Gupta) Judge (Sanjay Karol) Judge September 30, 2010 (rajni)