1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 727 of 2001 Decided on May 18, 2011 __________________________________________________________ State of H.P. …Appellant. Versus Atma Singh ...Respondent. 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 the respondent: Mr. Ramesh Sharma, vice counsel. Justice R.B. Misra,J. (Oral) The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of Criminal Procedure in reference to judgment dated 4.7.2001, passed by Learned Sessions Judge, Una, H.P., in Sessions Case No.3 of 2001 under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act'), acquitting the alleged respondent-accused in reference to FIR No.136 of 2000, dated 12.9.2000. 2. The prosecution case, in brief, is that ASI Askhay Kumar (PW.10) on 12.9.2000, at about 4.35 P.M. while on patrol duty near Police Station, Amb, got information at about 6.30 P.M., that accused Atma Singh was indulging in sale of poppy husk. PW.10 ASI Akshay Kumar reached the spot and 2 associated two independent witnesses, namely, Uttam Chand (PW.2) and Bidhi Chand (PW.3) and after informing the accused regarding search of the shop of the accused was made and poppy husk weighing 1 kg. 300 grams was recovered. Two samples of 100 grams each were separated from the recovered poppy husk and sealed in separate parcels with seal 'HS'. Remaining poppy husk was sealed in a parcel Ex.P1 and after taking into possession the seal impressions, the seal was handed over to Uttam Chand (PW.2) for safe custody. The Investigating Officer, thereafter, prepared the site plan (Ex.PP) and filled in NCB form (Ex.PR). The accused was taken to SHO Police Station, Amb and the case property was submitted, which was resealed with seal 'S', thereafter, information was sent to Superintendent of Police, Una alongwith a special report (Ex.PA). 3. After investigation, accused-respondent was charged for the aforesaid offences. In order to prove its case, the prosecution has examined as many as 11 prosecution witnesses, namely, Constable Subhash Chand (PW.1), Sh.Uttam Chand (PW.2), Sh.Bidhi Chand (PW.3), Constable Vipin Kumar (PW.4), Constable Kulbhushan Kumar (PW.5), LHC Gulzari Lal (PW.6), ASI Bhagwant Singh (PW.7), Lady Constable Anupam Kali (PW.8), SI Kailash Walia (PW.9), ASI Akshay Kumar (PW.10) and Head Constable Mehar Singh (PW.11), whereas, the accused through his statement under Section 313 of Cr.P.C., has denied the prosecution case. 3 4. PW.1 Constable Subhash Chand stated that while he was present at Mairi on patrol duty for detecting crime on 12.9.2000, he received a secret information that accused was selling Narcotic Drugs in his shop, at Amb. PW.1 had gone to Mairi on the direction of Akshay Kumar (PW.10) and he was not knowing earlier for what purpose he was going there. 5. PW.2 Sh.Uttam Chand, an independent witness, and member of the raiding party, has stated that he went to the shop of the accused, where accused was asked by the police personnel as to whom the accused wanted to give the search, on his agreeing, search of the shop of the accused was conducted in which poppy husk was recovered vide memo (Ex.PD). The poppy husk was kept in a polythene wallet, however, PW.2 Uttam Chand did not know where the wallet was kept. Out of recovered 1 kg. 300 grams of poppy husk, two samples of 100 grams each were separated from the same and were sealed in two separate parcels with seal having impression 'HS'. The specimen impressions of the seal (Ex.PE) were taken in his presence and the seal was handed over to PW.2 Uttam Chand for safe custody. The personal search of the accused was also conducted vide memo (Ex.PG), during search some papers were recovered. PW.2 Sh.Uttam Chand, in cross-examination, has stated that there was great rush due to “Puranmashi” on that day in the Mairi Fair and about 40-50 thousands people were present there and the shop of the accused was in a tent which was put up on all sides. Anyone could enter the shop through the walls 4 of the shop, which were of tarpaulin and actually people were entering the shop through tarpaulin. The entire family members of the accused were working in the shop. The accused has four sons and wife. Accused has one daughter-in- law also and all those family members visit the shop in question. There is a passage to the well through that tarpaulin and people were going to fetch water from the well through the shop of the accused. In view of the testimony of PW.2 Sh.Uttam Chand, made in cross-examination, the police party entered the shop and took the search and brought out the polythene wallet. Thereafter, the police party sat on a wooden bench outside the shop and prepared the papers. All the papers were prepared after the aforesaid recovery. 6. PW.3 Sh.Bidhi Chand, another independent witness, has stated that on 12.9.2000 the police told him that accused was suspected to be in possession of charas etc. and the search was required to be conducted. Thereafter, police took the key from the accused and opened a trunk locked box lying there in the shop. A polythene wallet was recovered from the locked trunk, in which poppy husk was recovered, which on weighment found to be 1 kg. 300 grams. Two samples of 100 grams each were separated from the recovered poppy husk and all the three parcels were sealed with seal 'HS'. In cross-examination, PW.3 Sh.Bidhi Chand has stated that there were about 50,000 people present in the fair on that day and there was a huge rush in the shop. All the shops were 5 made of tarpaulin. The back side of the shop was covered with tarpaulin and all other sides were open. PW.2 has further stated that there is a well towards the back of the shop of the accused and people go to the well through the shop of the accused. PW.2 Sh. Bidhi Chand has further stated in cross- examination that the police brought out the polythene wallet from the shop, then the police officials sat on a Bench and prepared all the papers. No paper was prepared by the police before conducting the search. In view of the testimony of PW.2 Sh.Uttam Chand, it reveals that though as per prosecution contraband goods were recovered from the shop of the accused and the shop of the accused was in a tent which was put up on all sides and at the relevant time, 40-50 thousands people were there in the fair and people were entering through the shop of the accused at the relevant time. In view of the testimony of PW.3 Sh.Bidhi Chand, it further reveals that the contraband goods recovered from the trunk locked lying there in the shop of the accused and the trunk was opened after obtaining key from the accused. Whereas, PW.2 Sh.Uttam Chand was said to be present in the shop as an independent witness, has not stated in the manner as indicated above and has only stated that poppy husk kept in the polythene wallet was brought and he was not aware from where the polythene wallet was brought. Testimonies of two independent witnesses have not supported the prosecution case in respect of the manner of recovery of the contraband 6 goods. From the testimony of PW.2 Uttam Chand and PW.3 Sh.Bidhi Chand, it further reveals that family members of the accused were also having easy access to the shop and at the relevant time they were present in the shop. However, prosecution has not named any of the family members of the accused alleged to have been involved in the present case. 7. PW.4 Constable Vipin Kumar has taken the information report (Ex.PJ) to Superintendent of Police, Una and handed over the same to him. PW.5 Constable Kulbhushan Kumar has brought the statement (Ex.PA) of Constable Subhash Chand to Police Station, Amb, on which formal FIR (Ex.PK) was registered. PW.6 LHC Gulzari Lal has taken the sample of poppy husk to CTL Kandaghat on 15.9.2000 from MHC Mehar Singh, Police Station, Amb, from where the Chemical Examiner report (Ex.PQ) was received. PW.7 posted as Reader to Superintendent of Police, Una to whom the special report and information report was brought from S.P., Una on 13.9.2000. PW.8 Lady Constable Anupam Kali has proved on record the daily diary reports Exts. PM, PN and PO. PW.9 SI Kailash Walia, SHO Police Station, Amb has stated that the case property was produced before him on 12.9.2000 by ASI Akshay Kumar (PW.10). 8. ASI Akshay Kumar (PW.10), the Investigating Officer, in examination-in-chief, has stated that after recording the statement (Ex.PA), he sent the information report (Ex.PJ) to S.P., Una through Constable Vipin Kumar (PW.4). Thereafter, he constituted a raiding party comprising of two independent 7 witnesses, namely, PW.2 Sh.Uttam Chand and PW.3 Sh.Bidhi Chand. PW.10 ASI Akshay Kumar has further stated that on visiting the shop of the accused, he obtained the consent of the accused vide memo (Ex.PB) and thereafter he obtained the key from the accused and opened the locked trunk box lying in the shop and on search, poppy husk was recovered in a polythene bag. On weightment, the poppy husk was found to be 1 kg. 300 grams, out of which two samples of 100 grams each were separated from the same and were sealed with seal 'HS'. The remaining poppy husk was sealed in a separate parcel (Ex.P1). The parcels were taken into possession vide memo (Ex.PD). Seal impressions were taken on Ex.PE and the seal was handed over to Uttam Chand (PW.2) for safe custody. PW.10 ASI Akshay Kumar has stated in cross-examination that shop of the accused was covered with a tarpaulin. PW.10 has stated that wife and son of the accused were also present in the shop at the relevant time, however, he had not taken into possession the trunk box and key from the shop. PW.10 has also stated in cross-examination, that shop of the accused was not a constructed shop, but it was a shop covered by a tarpaulin. PW.10 ASI Akshay Kumar, however, was not aware that the people collecting water from a well on the back of the shop of the accused. PW.10 Akshay Kumar is said to have visited the shop of the accused and sat on a wooden bench, however, PW.10 was not aware that the accused was made a prosecution witness by him in an excise case. PW.10 ASI Akshay Kumar was also not aware that the accused was 8 examined in that case in the Court on 5.9.2000, as such, he has not supported the prosecution case. 9. In view of the testimony of PW.10 ASI Akshay Kumar, it reveals that the shop from where alleged recovery was made, was of temporary nature, where people had an easy access and family members of the accused were also present at the relevant time in the shop in question. The locked trunk box, which was opened with the help of the key after obtaining the same from the accused, was not taken into possession and nothing has been divulged by the Investigating Officer (PW.10) that after opening the locked trunk box, what size and type of material was inside the trunk, in which contraband goods was kept. Nothing is known as to whether only contraband goods were kept inside the locked trunk box, as suspicion is created as to why other articles kept, if any, in the locked trunk box, were neither recovered nor taken into possession by the Investigating Officer. Neither it was proved nor indicated that the trunk in question was actually belonging to the accused and the same was in exclusive and conscious possession of the accused. 10. None of the prosecution witnesses including ASI Akshay Kumar (PW.10) has divulged that how the contraband goods were recovered from the shop of the accused and was deposited in the 'Malkhana' with the SHO or Incharge of the Police Station concerned and the SHO had put another seal over the contraband goods received at Police Station and whether any facsimiles were put over it or not. The perusal of 9 NCB form also reveals that at Sl.No.1 FIR No.136/2k dated 12.9.2000 was mentioned in the same ink, as such, doubt is created as to how the FIR could be inserted in this NCB form when NCB form was prepared at the shop and FIR was not available at the relevant time. Both the prosecution witnesses PW.2 Sh.Uttam Chand and PW.3 Sh.Bidhi Chand said to be independent witnesses, however, have not stated in coherency about the recovery of alleged contraband goods. From the testimonies of PW.2, PW.3 and PW.10, prosecution has not come forward with the certainty that the trunk actually belonged to the accused and the contraband goods so recovered were taken from the exclusive and conscious possession of the accused. Moreso, prosecution witnesses create doubt when the possession of key and lock was not taken by the Investigating Officer in the shop in question, so as to know from where alleged recovery of contraband goods was made. The possibility cannot be ruled out that contraband goods, if at all, alleged to have been recovered in the manner claimed by the prosecution, was belonging to some other persons, therefore, in the facts and circumstances, suspicion is created in the prosecution case. 11. On appraisal of the evidence and materials on record, learned Sessions Judge has rightly arrived at a conclusion that the prosecution has failed to prove its case beyond reasonable doubt. In our considered view also the prosecution has failed to bring home the guilt to the accused. Therefore, there is no scope of interference in the findings 10 given by learned Sessions Judge. Accordingly, the present criminal appeal, being devoid of any merit, is dismissed. 12. The bail bonds furnished by the accused/respondent are hereby discharged. (R.B. Misra) Judge (Sanjay Karol) Judge May 18, 2011 (Purohit)