1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 431 of 2000 Decided on December 21, 2010 _________________________________________________________ State of H.P. …Appellant. Versus Hukam Ram & Others. ...Respondents. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. ¹Whether approved for reporting? For the appellant: Mr.R.K. Sharma,Senior Additional Advocate General, with Mr. Rajinder Dogra, Additional Advocate General. For respondents No.1 and 2 : Mr.Anup Chitkara, Advocate. For respondent No.3 : Mr.Chaman Negi, Advocate. Justice R.B. Misra,J. (Oral) The present Criminal Appeal has come up for adjudication after granting of leave to appeal under Section 378 (3) of the Code of Criminal Procedure in reference to judgment dated 1.4.2000, passed by Learned Special Judge, Kullu, H.P., in Sessions Trial No.2/1998 acquitting the accused/respondents under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act'), whereas, accused/respondent Hukam Ram was held guilty of offence under Section 419 of the Indian Penal 2 Code and was accordingly sentenced to undergo rigorous imprisonment for three months and to pay fine amounting to `1000/- and in default of payment of fine he was to further undergo simple imprisonment for one month. 2. The prosecution case, in brief, is that on 4.10.1997, when SI Prem Singh (PW.10) alongwith other police officials while patrolling, reached at Hathithan, they observed one van No.HP-02-0107 coming from Manikarn side, on suspicion, the same was stopped and on asking for papers, the driver could not produce any document, however, one male and one female sitting at the back seat of the driver, disclosed their names as Parshotam son of Dayalu Ram and Maya wife of Keshab Ram. One attache was also lying at the back seat, therefore, on associating two independent witnesses, namely, Paras Ram (PW.7) and Salochana Devi (PW.8) and after taking consent of the accused regarding search 14 sealed tin were recovered containing charas, which on weighing was found tobe 5Kg.250 grams, out of which two samples of 25 grams each were sealed on the spot and remaining charas was also sealed in presence of witnesses. After fulfilling all the formalities, accused were charged for the offence punishable under Section 20 of 'NDPS Act' and accused Hukam Singh has casually given wrong name as Parshotam to the police, for that he was charged for the 3 offence punishable under Section 419 of the Indian Penal Code. 3. In order to prove its case, prosecution has examined as many as 11 prosecution witnesses, namely, Sh.Chet Ram (PW.1), Sh.Jas Pal (PW.2), Sh.Sato Kumar (PW.3), Sh.Chaman Lal (PW.4), Sh.P.N. Banyal (PW.5), Sh.Noor Din (PW.6), Sh.Paras Ram (PW.7), Smt.Salochna Devi (PW.8), Smt.Saraswati (PW.9), SI Prem Singh (PW.10) and Dr.Suresh Kumar(PW.11), whereas, accused / respondents through their statements under Section 313 of Cr.P.C., have denied the prosecution case and shown their innocence. The accused have also taken the plea that accused/respondent Maya Devi, suffering from severe stomach pain was brought for medical treatment to Bhunter in a taxi and when they reached near Hathithan, one stranger having attache in his hand stopped their taxi for taking lift from driver upto Manali but he was refused and in the mean time police reached at the spot. The stranger threw attache on the road which was taken in possession by the police and a false case has been registered against accused/respondents. 4. Constable Chet Ram (PW.1), Jas Pal (PW.2), Head Constable Sato Kumar (PW.3), Chaman Lal (PW.4), Secretary Gram Panchayat Manikarn and L.H.C. Saraswati (PW.9) have endeavoured to support prosecution case in due discharge of their duties to the 4 extent role assigned to them, however, their assistance is formal. 5. PW.5 Inspector P.N. Banyal, on receipt of Rukka (Ex.PC) recorded FIR (Ex.PD) and also resealed the case property when it was produced before SI Prem Singh (PW.10). PW.6 Constable Noor Din, has brought Rukka to the Police Station and also went back at the spot along with the case file, and also taken the case property to CFSL Chandigarh vide R.C. No. 160/21. 6. PW.7 Sh.Paras Ram has stated that on 4.10.1997, he alongwith Smt.Salochna Devi (PW.8) Pradhan of Gram Panchayat was called to Police Post, Bhunter by the police and search was made in their presence and only Bidi & Cigarette were recovered from the accused/respondent. PW.7 has not supported the prosecution case and has only stated in cross- examination that his statement was never recorded by the police, however, he has seen the Memos (Ex.PF to Ex.PJ), which were signed by him. PW.7 has also denied that papers were read over to him and Salochna Devi (PW.8). PW.7 and PW.8 have denied joining raiding party on 4.10.1997 and also denied that vehicle No.HP.02-01017 was stopped at Hathithan in their presence and has also denied of giving any notice to the accused. Paras Ram (PW.7) and Smt.Salochna Devi (PW.8) have also denied search and recovery in their presence. Even during cross-examination at length 5 nothing probable could be extracted from their testimonies. 7. Smt. Saraswati, LHC (PW.9) being Assistant Reader to Superintendent of Police, Kullu, gave a special report, which was entered into the register at Sr.No.20 dated 6.10.1997. Sh.Prem Singh (PW.10) Inspector, has supported the entire prosecution case and has stated that van in question was stopped by him in which accused were sitting and since driver of the vehicle was not having any document, however, on the back seat of driver, one attache was lying. On associating Sh.Paras Ram (PW.7) and Smt.Salochna Devi (PW.8), search of the taxi was made and 5 Kg and 350 grams charas was recovered. After fulfilling all the formalities, samples were sent for chemical examination. In cross-examination, PW.10 has stated that accused Parshotam told that he is known as Parshotam alias Hukam Ram. PW.11 Dr.Suresh Kumar examined the accused persons and issued MLCs (Ex.PW.11/A to Ex.PW.11/D). 8. On analysis of the prosecution witnesses and materials on record, we notice that two independent witnesses, namely, Sh.Paras Ram (PW.7) and Smt.Salochna Devi (PW.8), associated with the raiding party during search and recovery, have not supported the prosecution case at all. So much so, they have stated that they were called in Police Post, Bhunter, 6 where, the personal search of accused was taken and only personal articles i.e. Bidi & Cigarette were recovered form the possession of accused persons. They have also denied the recovery of contraband goods and taking out samples and sending of the same to Chemical Examiner. Two independent witnesses, namely, Sh.Paras Ram (PW.7) and Smt.Salochna Devi (PW.8) has not supported the prosecution case, making the prosecution case doubtful. 9. It shall be highly unsafe to base conviction on the sole and uncorroborated testimony of the Investigating officer, whose version is contradictory to the other evidence available on the record. As per the prosecution, PW-10, Prem Singh, Incharge CIA staff, Kullu, at the time of search and seizure was accompanied with HC Ram Dev (Not examined), Constable Noor Din / (PW-6), Constable Alam Din (Not examined), Constable Suresh Chand / (Not examined). Out of these five police personnel, only two, Namely Noor Din (PW-7) and Prem Singh (PW-10) were examined and the remaining three witnesses were leftover. As per the testimony of the investigating officer, PW-10 (Shri Prem Singh), he was accompanied with all the above mentioned personnel, where two independent witnesses, namely Shri Paras Ram, PW-7, Panch of the Gram Panchayat and Smt. Salochna Devi, PW-8, Pardhan of the gram Panchayat were associated 7 but both did not support the case of the prosecution and were declared hostile. Therefore, PW-6, Constable Noor Din was examined by the prosecution to corroborate the statement of the investigating officer. When testimony of PW.6 is analyzed, instead of rendering corroboration to the statement of the investigating officer, PW-10, Shri Prem Singh, has contradicted him on the following material particulars:- a) PW-6 / Noor Din, testified only to the extent that he along with SI Prem Singh had gone on patrolling, but he did not state about the presence of the other police personnel. b) PW-6 did not testify that SI Prem Singh stopped the van and the respondents / accused were sitting in the van and there was an attaché case and no person could produce its key and then Shri Paras Ram and Salochna Devi were associated and that the scale was brought from the shop of Salochana Devi and they were asked about their search and for search of the attaché case, same was opened with a screw driver and alleged charas was recovered and seizure and sampling etc. were made. c) PW-6 did not state that who was sent to bring scale and weights and through whom the same were brought. PW.6 did not state that scales were brought from the shop of Salochna Devi. 8 (d) Both PW-7 and 8, during their cross-examination by public prosecutor, denied that the scale and weights were brought from the shop of Salochana Devi, whereas, as per prosecution, Salochna Devi was Pardhan and there is no evidence to prove that Salochana Devi was also running any shop and she had kept the scale in such shop. 10. According to Mr.Anup Chitkara, the testimony of Investigating Officer alone cannot be relied upon to prove the prosecution case in view of the observations made by Hon'ble Supreme Court as follows:- a) Jagdish vs State of M.P.; 2004 SCC (Cri) 1171, the relevant paragraphs are extracted as below:- “4. The only evidence on which the prosecution case hinges is that of PW 1 Shri Dudhnath Ram who at the relevant time was working as Sub- Inspector Narcotics. Both the panch witnesses, Shankar Lal, PW 2 and Chhoga Lal, PW 3 have not supported the prosecution case. Even the driver of the bus Hari Singh, PW 5 and conductor of the bus Afsar-ud-din, PW 6 turned hostile and did not support the prosecution case. Our careful analysis of the deposition of PW 1 Dudhnath Ram shows that his testimony suffers from many infirmities and it would not be safe to rely upon his sold testimony to hold the appellant guilty. .........PW 2 Shankar Lal deposed that no search or seizure took place in his presence and that he was asked to mark his thumb impression on a paper after being summoned from his fields. According to Chhoga Lal PW 3, his signatures were obtained on the panchnama in the house of one Masij Khan and that no recovery of opium took 9 place in his presence from the appellant. In the face of all this evidence, we do not find it safe to conclude that the prosecution has established the case we do not find it safe to conclude that the prosecution has established the case against the appellant beyond a reasonable doubt. The appellant, in our opinion, is entitled to the benefit of doubt.” b) State of H.P. vs Khem Singh, Latest HU 2010 (HP) 1129; the relevant paragraph is extracted as below:- “7. PW-4 Govind Ram has stated that police was having the scale as against the statement of ASI Tenzin that the respondent-accused was having the scale and the weights were brought by him. Such contradiction is also notice. We also notice that PW-2 Karan Chand happened to be present with the police whereas PW-3 Govind Ram and Moti Ram was not there and respondent-accused had alleged enmity with Karam Chand and it is also admitted by PW-2 that some land of Hima Ram was in his possession and he had paid Rs.10,000/- only two months prior to the alleged recovery of the charas. It has also come in evidence that construction where from the alleged recovery was effected, whereas one of the witness stated that Khem Singh respondent-accused was not residing there at the time of the recovery. On close scrutiny of the prosecution witnesses, we find that prosecution witnesses are not reliable. Official witnesses are also incoherent. The place of recovery could not be ascertained. Contradictions and inconsistent are appearing.” c) State of H.P. vs Jasmer Slngh, Cr.A no. 409 of 2000, decided on 02-11-2010, H.P. High Court (DB), relevant paragraph is extracted as below:- “7. The sole independent witness, namely Intazar Ahmad, examined as PW-1, denied that search of the respondent was conducted in his presence and 10 charas recovered. PW-7 Inspector O.P. Yadav, who conducted search, no doubt stated that charas was recovered on personal search of the respondent, but the prosecution did not examine any of the other police officials accompanying him, though as per report Ext. PF, which was sent to the Police Station for registration of the case, three police officials were accompanying him. Though it is not the requirement of law that every witness of a fact should be examined, but in a situation like the present one, where out of the two independent witnesses one is examined and he turns hostile and the other is given up with the statement that he has been won over, it is desirable that one of the official witnesses, accompanying the officer, conducting search is examined. This is especially so, when a small quantity of contraband is recovered on personal search and that too in the darkness of the night.” 11. In our considered view the prosecution could not prove that the attaché case found from the van belonged to accused/respondent Nos. 1 & 2. Even no such article was found from the said attaché case which could have led to the presumption that the said attaché case belonged to any of the accused persons. There is no other evidence to connect the respondents / accused with the attache in question. Ext. PF, is the memo vide which the accused persons were given their option of their search and search of their belongings. All the accused/respondents agreed to their personal search by the police. It means even the search of their persons was also carried out but no key was found in the said search. PW-10 has stated that in presence of Pradhan 11 and Panch the key of the attaché was demanded from the accused but none of the accused had the key, then the attaché was opened with the help of screw driver. Before opening the attaché, the accused were asked whether they wanted to give search to him or before a Magistrate or gazetted officer and notice in writing Ext. PF was given to the accused, on which accused responded in writing that they were ready to give search to the police, which was thumb marked by accused / respondent Hukam Ram and Maya Devi and Charanjit put his signatures on the same. 12. Since, the attache was locked, then it cannot be presumed that both of the occupants of the rear seat were aware of its contents, as such, the possibility of one of them being not aware of its contents cannot be ruled out. On such aspect, Mr.Anup Chitkara has referred and relied upon the following observations of Hon'ble Supreme Court:- In lsmailkhan Aiyubkhan Pathan v. State of Gujrat, (2000) 10 SCC 257; where 6 persons were found present in a room, from which a gunny bag containing charas was recovered, in these circumstances, Hon'ble Supreme Court has observed as follows:- “9. Either those persons would have been casually present in the room or at least one of them would have been unaware of what was going on inside the room. 12 We are not told who among the many accused that one possible innocent person could have been.” In view of observations made by this High Court (DB) in Sot Ram vs State of H.P., (DB), 2007 (2) Shim.LC 184, “Mere presence in the vehicle will not attract any criminal liability.” 13. Respondent No. 3, Charanjit, was the driver of the van and other accused persons/respondents No. 1 & 2, were sitting on the back seat of the van and the alleged attaché case was also kept in front of the back seat but behind the driver’s seat. There is no other evidence to connect the driver with the attaché. As such, the prosecution could not prove that said attaché case belonged to the driver or he was aware of its contents. PW-10 has stated that vehicle was stopped by him and, the papers of the vehicle were demanded from driver Charanjit. The said accused could not produce the documents. In the vehicle in question, one male and one female were sitting on the back seat. PW-10, Sh. Prem Singh in cross-examination, has stated: “The attache was on the back of the driver seat and in front of the back seat”. PW-10, Sh. Prem Singh, has further stated in cross-examination: “It is correct that during investigation it was revealed that this taxi was hired by Maya Devi and Purshotam alias Hukam Ram for Rs. 250/- from Jan to 13 Shuntar, it is correct that the driver of the taxi has no authority to check the luggage of the passengers. It is correct that the back seat is meant for passengers”. Mr.Anup Chitkara has further placed reliance on the observations made in State of H.P. vs Dile Ram and others, 2010 (1) Drugs Cases (Narcotics) 150, paragraph 2:- “2. Respondents No.1 and 2 are Nepali citizens. They could not be served and therefore, have been declared as proclaimed offenders. We heard this appeal only in respect of respondent No.3 and are not expressing any opinion on the merits of the case qua respondents No. 1 and 2. 3. The prosecution case is that on the night intervening 31.1.1995, taxi No.HPZ-242 was intercepted at Dalah Nalla at about 1.30 a.m. This place is between Mandi and Jogindernagar. The taxi was going from Mandi towards Jogindernagar. When respondent No.3 was driving the taxi in question, on the back seat of the taxi, the other two accused Dile Ram and Rajender Kumar were sitting. They had kept a bag in between them and from this bag, 5 Kgs and 120 grams charas was recovered. 4. There is no evidence whatsoever to link the driver of the taxi with the bag from which the charas was allegedly recovered. Even according to the prosecution, this bag was kept on the rear seat of the taxi where two passengers were sitting. Other than the mere fact that the bag was being carried in the taxi being driven by respondent No.3, there is no other material on record to link him with the bag or the contraband in the said bag. 5. In view of the above discussion, we find no merit in the appeal against respondent No.3 which is accordingly dismissed on merits.” 14 14. We also notice following aspects:- (a) There is no evidence that the sample parcel which was tested by the laboratory was the same, which was taken from the bulk substance allegedly seized from the respondents/accused. PW-10, Sh. Prem Singh, Incharge CIA Staff stated “ NCB forms were filled in on the spot”. However, did not state in his testimony about taking of impressions of the seal on clothes or papers or even on 'NCB' form. (b) PW-5, Shri P.N.Banyal, the then SHO, in his examination-in-chief, has stated that: “On 4.10.97 on receipt of ruqa (Ex PC) through Noor Din constable FIR (Ex. PD) was recorded correctly and file was sent through Noor Din constable to the I.O. on the same day at about 11.45 in the night, SI Prem Singh brought the case property and samples sealed with seal 'T' along with NCB form which were resealed by PW.10 with seal 'P' and the case property samples and NCB form were deposited with MHC”. PW-5, Shri P.N.Banyal, in his cross-examination has stated that: “It is also incorrect that no case property and samples were resealed by him and he is deposing falsely”. (c) PW-3, Shri Sato Kumar, MHC, in examination-in- chief has stated that: “ On 4.10.1997 at 11.30 P.M Shri P.N.Banyal SHO 15 PS Kullu deposited with him one sealed gunny bag, which was sealed with seal 'T' and two samples sealed with seal 'T', which he entered in Register Malkhana and kept the same in the Malkhana. On 5.11.1997, one sealed parcel was sent to CFSL, Chandigarh through constable Noor Deen No. 203 vide RC No. 107/21 along with 'NCB' form and Noor Deen returned the RC to him after depositing the same at Chandigarh”. (d) PW-6, Constable Noor Din, has stated that: “On 5.11.97, MHC gave him sample along with RC no. 160/21 which he took to CFSL Chandigarh and after depositing the same there, RC was returned to MHC”. PW-6, Constable Noor Din, in cross-examination, has stated that: “On that day he took only one sample in this case”. 15. In view of above analysis it appears that link evidence is not complete in view of the observations made in State of Rajasthan vs Bher Singh, (2010) 3 SCC (Cri) 268, paragraph-2:- “2. We have perused the evidence of PW-7 who seized the opium in question, as also the evidence of PW 9 who was the officer in charge of the malkhana and from their evidence, we find that it is not possible to hold that the seal allegedly put by PW 7 while taking the sample opium remained intact right through the time it reached the forensic science laboratory. This being a mandatory requirement to establish the fact that the seized goods was in fact a prohibited drug 16 under the NDPS Act, we agree with the High Court on facts of this case that the prosecution has failed to establish this part of its case, hence, we find no reason to interfere in this appeal. Therefore, we dismiss the same.” State of H.P. v. Deen Mohammad ;(DB) Latest HLJ 2010 (HP) 1386. The relevant paragraphs are extracted as below:- “16. No evidence is brought on the record by the prosecution to establish that the specimen impression of seal 'I' was also sent along with the sample parcel to the laboratory to enable the Chemical Examiner for comparing the same with 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 'I' 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 specifim impression of seal 'I'. 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 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 17 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 Court has found that the seal on the sample sent for chemical analysis could not be compared with the seal on the seized article kept in the Police malkhana because the seal on the sample sent to the analyst not produced in the Court for verification, whereas, articles seized on the Railway Platform and seal of Station Master used but the Station Master was not examined to