HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 65 of 2011. Reserved on: 12.10.2011. Decided on: 23.11.2011. Purshotum Singh ……… Appellant. Versus State of Himachal Pradesh ………Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the Appellant: Mr.M.S. Chandel, Senior Advocate, with Mr.Dinesh Thakur, Advocate. For the respondent: Mr.J.S. Guleria, Assistant Advocate General. Justice V.K. Ahuja, J.: This is an appeal filed by the appellant under Section 374 of the Cr.P.C. against the judgment of the court of learned Special Judge, Kinnaur at Rampur Bushahr, dated 23.3.2011, vide which the appellant was held guilty and was convicted and sentenced to undergo imprisonment for six year and to pay a fine of Rs.50,000/- under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, hereinafter referred to as the Act. In default of payment of fine, the appellant was to undergo simple imprisonment for a further period of six months. 2. Briefly stated, the facts of the case are that on 7.2.2005, at 4.30 p.m., Rupinder Singh, Addl.SHO, Police __________________________________________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - Station, Rampur (now deceased), was on patrol duty alongwith ASI Ramesh Lal PW-9, H.C. Chaman Lal and other police officials. When they reached near the house of Rattan Halwai, one person was standing on the stairs, who tried to run away on seeing the police party. He was carrying a polythene bag and on suspicion, he was overpowered and on inquiry, he gave his name as Purshotum, appellant. SI Rupinder Singh associated PW-2 Chaman Sharma and Chaman Gupta and conducted the search of the polythene bag in presence of these witnesses. The bag was found containing charas, which, on weighment, was found to be 720 grams. The accused was given an option whether he wanted to be searched and he gave his option to be searched by the police vide memo Ext.PW-2/G, which was signed by the witnesses. Two samples of 25 grams each were drawn from the charas recovered from the polythene bag, which were sealed with seal ‘D’ and seal impressions were also taken separately. The charas was taken in possession as per procedure and the Investigating Officer after preparing the recovery memo, spot map etc., sent a ruka Ext.PW-9/D for registration of FIR. He also recorded the statements of the witnesses and sent the special report Ext.PW-6/B to the SDPO, Rampur. The samples were sent to Forensic Science Laboratory and on receipt of the report and on completion of the investigation, the challan was filed before the learned trial Court, who tried the appellant for the aforementioned Section leading to his conviction and sentence, as detailed above. 3. I have heard Mr.M.S. Chandel, learned Senior Advocate, for the appellant and Mr.J.S. Guleria, learned - 3 - Assistant Advocate General for the respondent-State, and have gone through the record of the case. 4. The submissions made by the learned counsel for the appellant were that there are many contradictions and infirmities in the persecution case and in view of these, the guilt of the appellant cannot be said to have been established beyond any reasonable doubt. I shall refer to the contradictions and infirmities pointed out by the learned Senior Advocate for the appellant in the following paragraphs. 5. The first contradiction pointed out was in the evidence of PW-9 ASI Ramesh Lal, who was also accompanying SI Rupinder Singh, Incharge of the raiding party, at the time of apprehending the accused. It has come up in his statement that at that time it was raining and they brought the witnesses and the accused to the Police Station where the charas was weighed and the formalities were completed by SI Rupinder Singh. He specifically stated that the distance in between the place i.e. the stairs to the Post Office from where the two independent witnesses were associated is about 80-90 meters. He has not mentioned the exact distance in between the Police Station and the place of recovery. 6. PW-2 Chaman Sharma, the independent witness, has stated that he was called by the police near Post Office adjacent to the Police Station, which corroborates the version given by PW-9 ASI Ramesh Lal. His statement proves that the Police Station was just nearby where the accused was apprehended. He identified the accused person in the court, stated about the charas recovered from the possession of the - 4 - accused and he also stated that from the spot, they all came to the Police Station alongwith the police officials and the accused. He stated that he does not remember the total weight of the charas and as to what was done to the charas after recovery, but he identified his signatures over the recovery memo Ext.PW-2/B. He also stated that the other witnesses had also signed the memorandum. He admitted that he is Graduate and has been running a business and has never become a witness to any falsehood. In cross examination, he admitted that the charas weighing 720 grams was recovered from which two samples were taken and these were sealed separately and NCB form was also filled. He also admitted his signatures as well as that of another witness on seizure memo Ext.PW-2/B and has also identified the packets of charas and samples Ext.P-1 and Ext.P-2. He also stated that in his presence the Additional SHO has sought option of the accused as to whether he wanted to give his search to a Gazetted Officer or a Magistrate and the accused signed himself opting to be searched by the police itself. He again stated in cross examination that no search of the accused was conducted in his presence, which version is contrary to the one given by him in examination in chief and he was cross examined by the learned Public Prosecutor for the State. His statement that he signed these papers at the instance of the police does not inspire confidence since he is a Graduate, running a business and there is nothing to show that he was involved himself in any illegal activity or that the was having a fear of police. 7. SI Rupinder Singh, Additional SHO and the Investigating Officer in this case, had died and, therefore, - 5 - could not be examined. However, the recovery memos and other documents prepared by him have been clearly proved from the statement of PW-9 ASI Ramesh lal, who was accompanying him and other police officials at the time of apprehension of the accused and his search. The other independent witness, namely, Chaman Gupta was given up by the prosecution as having been won over by the accused, but he was examined in defence by the accused as DW-2. His statement shall be referred below. 8. Apart from the above, the prosecution has also examined PW-3 ASI Devi Lal, the then MHC Police Station, Rampur, who received the ruka mark A from SI Rupinder Singh and recorded FIR Ext.PW-3/A. He also stated that Rupinder Singh deposited three parcels alongwith NCB forms and specimen seal impressions, which he deposited in the Malkhana. He has also stated that R.C. Ext.PW-3/D was brought back by Constable Ranjit Singh from CTL, Kandaghat and he also identified the parcel Ext.P-1 and the sample Ext.P-2, which were deposited by him in the Malkhana. He has proved the entries of the Malkhana register also and admitted that NCB form is not mentioned in the road certificate, but it was attached with the forwarding letter. 9. PW-4 Constable Ranjit Singh has taken the sample and deposited in the office of FSL Kandaghat. PW-5 Constable Ashok Kumar has taken the special report to the office of SDPO Rampur. PW-6 Kanwar Singh, Reader to the SDPO Rampur, has proved the report, which was brought by Ashok Kumar, Constable, and he produced it before the SDPO, Rampur. PW-7 Ramesh Kumar has taken the photographs of the accused - 6 - and other persons and has proved the same. PW-8 Inspector B.D. Bhatia had prepared the challan in this case. 10. Coming to the contradiction, PW-9 ASI Ramesh Lal has stated that since it was raining and Police Station was nearby, they went to the Police Station and completed the formalities there. PW-2 Chaman Sharma was not asked any such question and he did not state that all the formalities were completed at the Police Station and no documents were prepared at the spot. On the other hand, the defence has examined DW-1 Purshotam, who is running a Halwai shop at the spot. He stated that the accused was brought to his shop by the police, who told him that the accused had been caught with a bag and he refused to be associated since the bag did not belong to the accused. He stated that thereafter, the accused was taken to the Police Station. His statement suggests that his shop is adjacent to the stairs from where the accused was seen coming and was apprehended. This clearly shows that this witness may be anxious to help the accused, who was coming from the stairs adjoining to his shop. He rather stated that it was a clear day and that there was no rain and the mere fact that PW-9 ASI Ramesh Lal has stated that it was raining in itself is not sufficient to discredit the statement of the prosecution witnesses since part of the investigation may have been done at the spot and the rest at the Police Station. He is specific that it was not raining on that day. He admitted that he did not disclose to any person that the accused had been caught wrongly by the police and in case he had seen that the bag was not recovered by the police from the accused, he could have easily lodged a report with - 7 - the higher authorities, which is not so in the present case. He admitted that the accused was not known to him prior to the case but again stated that the accused was running a shop in Rampur Bazar, which clearly shows that the accused was known to him and he must be anxious to help him. He admitted that he had not seen any person running ahead of the police officials or throwing a bag or picking of the bag by the police, which is the defence plea taken by the accused in his statement under Section 313 Cr.P.C. as well as in the form of suggestion to the witnesses. This witness is specific that he had not seen any person throwing the bag or picking up the bag by the accused. This version was sought to be proved from the statement of DW-2 Chaman Lal Gupta, who is specific that the accused was claiming that one person has run away towards Rampur bazaar by throwing a bag while the suggestion made to PW-2 Chaman Sharma and PW-9 ASI Ramesh lal were that one of the person going ahead had thrown a polythene bag and the accused was going from there and thus was falsely implicated. His version is not that the accused picked up the bag and proclaimed, as stated by DW-2, that somebody has thrown the bag and had run away and, therefore, he was implicated. The statements of both these witnesses on this fact suggests as to whether the bag was picked up by the accused and he proclaimed that some person had thrown it or the bag was thrown by someone and the police was following him and the accused was apprehended. Therefore, it is clear that a specific defence was taken by the accused in this statement under Section 313 Cr.P.C. that one of the person had thrown the bag on seeing the police party and run away - 8 - from the spot and he was implicated but the evidence led suggests that the accused had picked up the bag and proclaimed that it had been thrown by somebody. The plea taken by the accused in his statement under Section 313 Cr.P.C., in view of the statements of two witnesses referred to above, is not sufficient to raise a doubt in the mind of the Court that this plea may be correct. 11. Another plea taken by the learned counsel for the appellant was that both the witnesses associated at that time were not independent witnesses. The suggestion made was that they were members of the Police Community Scheme. PW-2 Chaman Sharma admitted that he was a member of Police Community Scheme and this was also stated by DW-2 Chaman Lal Gupta, the other independent witness. Both these witnesses have admitted that they were members of Police Community Scheme. But this, in itself, is not sufficient to hold that they are tools in the hands of the police or are stock witnesses since no such facts were brought on record to show that these witnesses had been appearing regularly for the police in cases pertaining to Police Station Rampur or there are some other reasons to hold that they cannot be termed as impendent witnesses. These witnesses were having shops near the Post Office and were associated at that time and the mere fact that they were the members of the Police Community Scheme in no way makes them a tool in the hands of the police to be used by them to falsely prove their cases. There are no reasons to hold that they are not respectable witnesses or are not reliable. Therefore, the Investigating Officer had complied with the mandatory provisions of Section 100(4) - 9 - Cr.P.C. and associated two independent witnesses. The mere fact that one of the witnesses did not support the prosecution fully while other was examined in defence is not sufficient to hold that the prosecution case cannot be relied upon. The duty of the Investigating Officer is to associate impendent witnesses, which he associated and it is not his duty to ensure that they also support the prosecution on all material particulars during the trial of the case. 12. It is clear from the above discussion that there are no material contradictions or infirmities in the prosecution. The only infirmity which could be pointed out was that somebody had thrown the bag and the accused was falsely implicated, which part of the evidence does not inspire confidence or even raise a presumption that this plea taken by the accused may be correct. Therefore, the defence version put up by the accused cannot be believed and the statements of the prosecution witnesses are consistent. The only contradiction pointed out in regard to the fact whether it was raining or not is not sufficient to hold that the prosecution case cannot be relied upon. 13. Coming to the other contradictions, the mere fact that the NCB form was not mentioned in the road certificate or forwarding letter is not such an infirmity so as to disbelieve the prosecution story. In the NCB form, it was not specifically mentioned about the sample seal but it was separately sent to the office of the chemical examiner and according to the report of the chemical examiner Ext.PW- 11/C, the seals were found intact on the samples and they tallied with the specimen seals sent by the forwarding - 10 - authority on the form NCB-I and as such the report of the FSL can be linked with the accused. 14. In regard to compliance of the provisions of Section 50 of the NDPS Act, a reference can also be made to the decision of the Apex Court in Ajmer Singh versus State of Haryana, (2010) 3 Supreme Court Cases 746, wherein it was clearly observed that the provisions of Section 50 are not required to be complied with for search of bag, brief-case, container etc. It was also observed that it may not be possible to find out independent witnesses on all places at all times. The observations were being made in connection with a case under Section 20 of the NDPS Act. It was further observed as under: “The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence.” 15. The next point urged by the learned counsel for the appellant was that there was non-compliance of the provisions of Section 52-A of the NDPS Act. Section 52-A(2) reads as under: “(2) Where any narcotic drug or psychotropic substances has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under Section 53, the officer - 11 - referred to in sub-section(1) shall prepare an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any Magistrate for the purpose of – (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such magistrate and certifying the correctness of any list of samples so drawn.” 16. It was also submitted that there was non- compliance of the provisions of Section 55 of the NDPS Act, which reads as under: “55. Police to take charge of articles seized and delivered. – An officer in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in- charge of the police station.” - 12 - 17. The submissions made were that though these provisions have not been held to be mandatory, but still compliance was required to be made since the punishment prescribed is too much and, therefore, non-compliance of these provisions leads to the result that the prosecution version cannot be relied upon. In support of his submission, the learned counsel for the appellant had placed reliance upon the decision in Gurbax Singh versus State of Haryana, AIR 2001 Supreme Court 1002. Observations made in para 9 are relevant and are being reproduced below: “It is true that provisions of Ss.52 and 57 are directory. Violation of these provisions would not ipso facto violate the trial or conviction. However, I.O. cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article. In the instant case, I.O. has admitted that the seal which was affixed on the muddamal article was handed over to the Panch witness and was kept with him for 10 days. He has also admitted that the muddamal parcels were not sealed by the officer in charge of the police station as required under S.55 of the N.D.P.S. Act. The prosecution has not led any evidence whether the Chemical Analyzer received the sample with proper intact seals. It creates a doubt whether the same sample was sent to the Chemical Analyzer. Further it is apparent that the I.O. has not followed the procedure prescribed under S.57 of the N.D.P.S. Act of making full report of all particulars of arrest and seizure to his immediate superior officer. The conduct of the panch witness is unusual as he offered himself to be a witness for search and seizure despite being not asked by the I.O., particularly when he did not know that the substance was poppy husk; but came to know about it only after being informed by the police. Further, it is the say of the Panch witness that Muddamal seal used by the - 13 - PSI was a wooden seal. As against this, it is the say of other prosecution witness that it was a brass seal. On the basis of the aforesaid evidence and faulty investigation by the prosecution, it would not be safe to convict the accused for a serious offence of possessing poppy-husk.” 18. Reliance was also placed upon the decision in State of Gujarat versus Ismail U Haji Patel and another, (2003) 123 Supreme Court Cases 291. The observations made in paras 5 and 6 are relevant and are being reproduced below: “5. We find that there was really no material brought on record to show as to where the seized articles were kept. The High Court after analyzing the evidence on record came to hold that the identity of the articles sent for analysis was not established and it was not established that the articles seized were in fact sent for chemical examination. In view of the judgment of this Court in Valsala v. Station of Kerala the view of the High Court is in order. It is not the delay in sending the samples which is material. What has to be established is that the seized articles were in proper custody, in proper form and the samples sent to the Chemical Analyst related to the seized articles. 6. Further, there was nothing brought on record to show as to under whose directions the samples were sent for chemical examination. The High Court relied on Section 55 of the Act to hold that the absence of such information also vitiates the proceedings. Section 55 of the Act provides that the officer in charge of the police station has to take charge of and keep in safe custody the seized articles pending orders of the Magistrate. Since there is no material to show that there was any order of the Magistrate as to where the seized articles were to be kept, and there was no material to show that there was safe custody as is required under Section 55 of the Act, the view of the High Court is in order. Judgment of the High Court does - 14 - not warrant any interference in our hands and the appeal is dismissed.” 19. On the other hand, Mr.J.S. Guleria, learned Assistant Advocate General for the respondent-State had relied upon the observations made in Gurbax Singh’s case (supra), as referred to above. He also relied upon the decision in State of Punjab versus Jasbir Singh and others, (1996) 1 Supreme Court Cases 288, wherein it was observed in para 2 as under: “…………………….However, the evidence collected in breach of mandatory requirement does not become inadmissible. It is settled law that evidence collected during investigation in violation of the statutory provisions does not become inadmissible and the trial on the basis thereof does not get vitiated. Each case is to be considered on its own backdrop………………………………”. 20. Coming to the facts of the present case, it is true that neither the case property was taken and produced before a Magistrate nor orders were obtained in that regard. The SHO, as per the evidence, had not resealed the property and it was sealed by the Additional