IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No.224 of 2007 Judgment reserved on: 24.10.2008 Decided on: 7.11.2008 Pancani Stefno John and others …Appellants Versus State of Himachal Pradesh …Respondent Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 For the Appellants : M/s. Suhail Dutt, Vibhu Shankar and Virender Singh Chauhan, Advocates. For the Respondent : Mr. P.K. Sharma, Additional Advocate General with Mr. P.M. Negi, Dy. Advocate General. Surjit Singh, Judge Appellants in this case are foreign nationals. Three of them, namely Elio Mario, Simone Santinelli and Lulli Maurizio are Italians and appellant Pancani Steno John is a British. They have appealed against the judgment dated 10.5.2007 of the trial Court, whereby three of them, namely Pancani Stefno John, a British national, and Elio Mario and Simone Santinelli, Italian nationals, have been convicted of offence, punishable under Section 29 read with Section 20 of the Narcotic Drugs and Psychotropic Substances Act, and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/- each; in default of payment of Whether reporters of the local papers may be allowed to see the judgment? …2… fine to undergo imprisonment for a further period of one year each, and the fourth appellant, namely Lulli Maurizio, has been convicted of offence, punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/-; in default of payment of fine to undergo imprisonment for a further period of one year. 2. Case of the prosecution, which has led to the conviction and sentencing of the appellants, as aforesaid, may be stated thus. On 26th November, 2005, at 4 P.M, police party headed by PW-5 ASI Lal Chand with PW-1 HHC Ajay Kumar, PW-2 Constable Rajiv Kumar and two more constables, named Uttam Chand and Tek Chand, left Police Station, Manali, for patrolling and crime detection duty, within the limits of the Police Station. The party boarded a private Tata Sumo vehicle and went to Malana Dam via Patli Kuhl, Bhuntar and Jari. The party stayed in the vehicle for the night at the site of Malana Dam. Next morning, i.e. on 17th November, 2005, the members of the party went towards a nearby forest. When the party reached a place called Kailli Agge, the appellants were seen winding up a tent. On seeing the police party they got perplexed and tried to run away, but were overpowered. The conduct of the appellants aroused suspicion of police people. They suspected that the appellants were carrying some contraband. PW-5 ASI Lal Chand informed them in English language that he suspected that they were having with them some narcotic drug or …3… psychotropic substance and, therefore, it was intended to search them and that they had a right to be searched in the presence of a Magistrate or a gazetted officer, and if they so desired, search could be arranged in the presence of a Magistrate or a gazetted officer. Appellants opted to be searched on the spot. Thereafter their tent was searched. One of the bags lying in the tent was found to contain Charas, which on being weighed, was found to be 7 Kgs. The bag belonged to appellant Lulli Maurizio. 3. Two samples, each weighing 25 grams, were separated from the recovered stuff and made into two separate parcels. The parcels were duly sealed. The bulk stuff was made into a separate parcel and that too was sealed with the same seal as the sample parcels. Search and seizure memo. was prepared. Report of search and seizure was drawn and sent to Police Station through PW-1 Ajay Kumar for formal registration of the case. Case was formally registered at Police Station, Manali. Parcels containing samples and bulk stuff were deposited with the SHO by PW-5 ASI Lal Chand. SHO affixed his own seal on the parcels and deposited the same with the MHC/Incharge of Malkhana. One of the two samples was sent by the MHC to Chemical Laboratory for analysis. As per report of the Chemical Examiner Ext.PA, sample contained Charas. On receipt of the report, challan was prepared and presented in the Court of Special Judge, Kullu. …4… 4. First named three appellants were charged with an offence, punishable under Section 29 read with Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The fourth one was charged with an offence, punishable under Section 20 of the said Act. All of them pleaded not guilty to the charge. They were, therefore, put on trial. 5. Plea taken by the police during the trial is that on 26th November, 2005, they all had gone to a place called Vashisht, situated just close to Manali, to take bath in hot water pools, when a police party headed by Deputy Superintendent of Police, Khushal Sharma, examined as CW-1 by this Court, came there in the company of some other police officials and spotted one bag containing Charas and suspected that the bag belonged to them. They further stated that Dy. S.P. started questioning them about their passports and other papers, authorizing them to visit India and an exchange of hot words took place between them and the Dy. S.P. with regard to the original pass port of one of the appellants, which had been misplaced and then the Dy. S.P. took all the four appellants to Police Station and planted on them the bag containing Charas, found by the side of the pool. 6. Trial court believed the evidence of the prosecution. As regards the defence plea, it was held that the same was not proved. Consequently, the appellants were convicted and sentenced, as aforesaid. 7. We heard the matter on 24th and 27th June, 2008 and reserved the judgment. When submissions were …5… being made on behalf of the appellants, on 24th June, 2008, we felt the need to examine daily diary of Police Station, Manali, containing entries dated 26th and 27th November, 2005. So, we directed that the daily diary be produced in original. When we were going through the entries in the daily diary, we noticed that there were certain entries, indicating that vehicle No.HP-34A-3830, a gypsy, had also been used by the police party, headed by PW-5 ASI Lal Chand, to perform the return journey. This fact entered in the daily diary was contrary to the testimony made by PW-5 Lal Chand, in the trial Court, that he travelled back to the Police Station by the same private Tata Sumo vehicle, by which he had performed forward journey. So, instead of writing the judgment, we directed the State to produce the log book of Vehicle No.HP- 34A-3830, and also to ensure the presence of PW-5 ASI Lal Chand and the driver of the aforesaid vehicle, named Joginder Singh, in the Court. 8. On the date fixed for production of log book, instead of log book of vehicle No.HP-34A-3830, log book of the ear-marked vehicle of Dy. S.P. was produced and in the said log book, we noticed entries dated 26th and 27th November, 2005, indicating that Dy. S.P. had travelled by the vehicle from Manali to Malana Dam and back on the aforesaid two dates. So, we directed the State not only to produce the log book of vehicle NO.HP-34A-3830, as directed by us earlier, but also to produce Dy. S.P. Khushal Sharma, and Uttam Chand, who according to the evidence led before the trial …6… Court, was one of the members of the party that nabbed the appellants and was also driver of the ear-marked vehicle of the Dy. S.P, so that they could be examined as Court witnesses. Log book of the second vehicle was produced and Dy. S.P. Kushal Sharama, HHC Uttam Chand, PW-5 ASI Lal Chand and Joginder Singh, driver of vehicle No.HP-34A-3830, also appeared on the next date and they were examined as Court witnesses. Thereafter we reheard the matter. 9. Three witnesses of search and seizure, namely PW-1 Ajay Kumar, PW-2 Rajiv Kumar and PW-5 ASI Lal Chand, examined in the trial Court, no doubt testified that all of them accompanied by two other constables, Tek Chand and Uttam Chand, went by a Tata Sumo vehicle to Malana Dam site, on 26th November, 2005, and spent the whole night there in the said Tata Sumo vehicle and next day they went to a nearby forest and at a place called Kailli Agge, they spotted the four appellants uprooting a tent, who noticing the police party, got nerved and tried to run away and that they were overpowered and on search of their tent, a bag containing 7 Kgs of Charas, belonging to appellant Lulli Maurizio, was recovered, but we find a large number of contradictions and unexplained inconsistencies in their testimony as also in the testimony of four persons, examined by us as Court witnesses, which not only render the prosecution version highly doubtful, but to certain extent lend credibility to the defence plea. It also appears from the evidence that the witnesses, who all are …7… police officials, have lied with respect to certain material facts, rendering their testimony all the more unreliable. 10. Contradictions are there in the testimony of the witnesses even with regard to the very introductory fact, viz. mode of journey from the Police Station to Malana Dam, on 26th November, 2008. PW-1 Ajay Kumar, PW-2 Rajiv Kumar and PW-5 ASI Lal Chand though stated, with one voice, that they had travelled by a Tata Sumo vehicle, yet none of them could tell either the number of Tata Sumo vehicle or the names of the owner and/or the driver of that vehicle. PW-5 ASI Lal Chand stated that the vehicle had been arranged by PW-6 Jagdish Chand, the SHO of the Police Station, but PW-1 Ajay Kumar stated that Tata Sumo vehicle was hired by PW-5 ASI Lal Chand and that it was a taxi. No payment was made to the Tata Sumo vehicle, though fuel expenses were borne by the police party, per testimony of PW-5 ASI Lal Chand. 11. Also there are contradictions about the route that was followed for going to Malana Dam site from Police Station, Manali. According to PW-1 Ajay Kumar, they travelled from Manali to Bhuntar along the left bank of river Beas and from there they went to Jari, but PW-2 Rajiv Kumar stated that they travelled from Manali to Kullu along the right bank of the river and then crossed the river at Kullu, where there is a Gamon bridge, and from Kullu to Jia (distance is about 8-10 kilometres) they travelled along the left bank. 12. The witnesses also contradicted each other as to the time when they reached a place called Jari, where they …8… had their evening meals and also the time at which they reached Malana Dam site. According to PW-1 Ajay Kumar, the party reached Jari at 5.30 or 6 PM, and after taking their evening meals, they proceeded towards dam site at 8 PM and reached there at 10 PM. PW-2 Rajiv Kumar says that the police party started from Jari around 10.30 or 11 PM and it took 1 ½ to 2 hours to reach the site of Malana Dam, meaning thereby that the party reached Malana Dam site between 12 midnight to 1 AM. PW-5 ASI Lal Chand says that the party reached dam site at 11 PM. 13. Also the witnesses contradict each other as to the time when the party started form dam site and the time when it reached the place called Kailli Agge, where the appellants were allegedly intercepted, as also the distance between the dam site and the place called Kailli Agge. According to PW-1 Ajay Kumar, the distance between the dam site and the place where the appellants were removing the tent, is 1 kilometre. PW-2 Rajiv Kumar stated that the distance is 3 kilometers and PW-5 ASI Lal Chand stated that distance is 2 kilometers. PW-1 Ajay Kumar stated the party started at 7 AM from the dam site and reached there around 8.30 AM. PW-2 stated that the party started at 5 AM or 6 AM and reached the spot two hours later. PW-5 ASI Lal Chand stated that the party started from dam site at 6 AM and reached the place of recovery of Charas within two hours. 14. Again PW-5 ASI Lal Chand and PW-1 Ajay Kumar are contradicted by the entry, copy Ext.PW1/A, in the …9… Rojnamcha as to the weapons which were carried by the police party. PW-5 Lal Chand categorically stated that he was having one pistol and all other members of the party were armed with dandas (sticks) only. PW-1 Ajay Kumar stated that the members of the party were not carrying any fire arms, but only sticks. However, relevant entry in the Rojnamcha (daily diary) Ext.PW1/A, shows that the police party carried with them two carbines, one pistol and 30 cartridges. 15. Witnesses contradicted each other as to how far the appellants had gone, by fleeing, on seeing the police, before they were overpowered. According to PW-1 they ran to a distance of about 30 feet, before they were apprehended. PW-2 Rajiv Kumar stated that the appellants were overpowered at a distance of about 2 metres from the site of the tent, which they were uprooting. PW-5 ASI Lal Chand stated that they were overpowered there and then and were only trying to flee. 16. Contradictions are there as to which witnesses and the appellants went inside the tent to effect recovery. PW-2 Rajiv Kumar stated that PW-5 ASI Lal Chand, PW-1 HHC Ajay Kumar and HHC Uttam Chand had gone inside the tent to make search, but PW-5 ASI Lal Chand stated that he, PW-2 Rajiv Kumar and Uttam Chand were inside the tent. Again, PW-1 Ajay Kumar and PW-2 Rajiv Kumar stated that the appellants were taken inside the tent one by one, when search was being conducted, but PW-5 ASI Lal Chand stated that the appellants were not called inside. …10… 17. Further, the witnesses contradicted each other as to the number of persons, the tent could accommodate. While according to PW-1 Ajay Kumar the tent had the space to accommodate four persons, PW-2 Rajiv Kumar stated that it could accommodate only two persons and PW-5 ASI Lal Chand stated that the tent had the capacity to accommodate only one person. 18. Prosecution story, that the police party headed by PW-5 ASI Lal Chand travelled by a Tata Sumo vehicle from Police Station, Manali to the site and back, does not inspire confidence. There is no entry in the Rojnamcha as to by what vehicle the party left the Police Station nor is there any mention in the said entry, copy Ext.PW1/A, as to the place or the direction in which the party went. However, there is an entry in the Rojnamcha to the effect that the party returned to the Police Station on 27th November, 2005, at 9 PM, by vehicle No.HP-34A-3830, belonging to Police Station, alongwith the four appellants. PW-5 ASI Lal Chand, when examined by this Court as a Court witness, was asked to reconcile this entry with his statement in the trial Court that he had travelled back by the same Tata Sumo vehicle by which forward journey was undertaken. He stated that upto the gate of the Police Station, he travelled by a Tata Sumo vehicle and then he boarded Police Station vehicle, bearing the aforesaid registration number, and went to the Police Station complex by that vehicle. The explanation is too funny to be believed. …11… 19. When asked as to how the Police Station vehicle reached the spot, PW-5 ASI Lal Chand stated that he had requisitioned the vehicle from the Police Station, after the appellants had been apprehended. He stated that he deputed a constable, whose name he could not recollect, to make a telephonic call to the Police Station to send the vehicle. According to prosecution story, appellants were apprehended at 8.30 or 9 A.M. Entries in the in the Rojnamcha show that on 27th November, 2005 at 6 AM, a telephonic command was received from Dy. S.P. to send the Police Station vehicle at the site of dam and there is another entry, indicating that the vehicle left for the spot at 7.30 AM, with driver Joginder Singh, on the wheel. 20. It has come in evidence that Dy. S.P. Khushal Sharma, examined by us as CW-1, also went to Malana Dam site on 26th November, 2005. According to testimony of PW-1 Ajay Kumar, PW-2 Rajiv Kumar and PW-5 ASI Lal Chand, Uttam Chand, one of the police officials accompanying them, was posted as driver for the ear-marked vehicle of Dy. S.P. those days and PW-2 Rajiv Kumar was the Assistant Reader- cum-Securityman of the Dy. S.P. Although, CW-1 Khushal Sharma and CW-2 Uttam Chand denied that the driver of the Dy. S.P’s ear-marked vehicle was CW-2 Uttam Chand and CW-1 Khushal Sharma, Dy. S.P. also produced a copy of office order, Ext.CA, to the effect that Uttam Chand stood transferred in August, 2005, yet in view of the categorical statements of PW-1 Ajay Kumar, PW-5 ASI Lal Chand and …12… particularly PW-2 Rajiv Kumar, who was working as Assistant Reader with the Dy. S.P those days, as also the statement of PW-6 SHO Jagdish Chand, who also testified that Uttam Chand was working as driver with Dy. S.P. in those days, testimony of CW-1 Khushal Chand and CW-2 Uttam Chand cannot be taken to be a gospel truth. 21. CW-1 Khushal Sharma, Dy. S.P. stated that on 26th November, 2005, he went to Malana village via Rasol on foot and directed his driver to reach Malana Dam site and that he came back to the site of Malana dam from Malana village on the next following day around 3 or 4 PM and on the way he saw PW-5 ASI Lal Chand and other police officials conducting investigation of the case in hand and the four appellants in their custody. This part of the statement of CW-1 does not appear to be correct. As noticed hereinabove, there are two entries in the Rojnamcha to the effect that on 27.11.2005 at 6 AM, a telephonic call was received from the Dy. S.P. at Police Station, Manali, commanding that Police Station vehicle be sent to the site of Malana dam and that the vehicle left the Police Station for the dam site at 7.30 AM. These entries suggest that CW-1 Dy. S.P. Khushal Sharma knew at 6 AM that additional vehicle was required for carrying some persons, in addition to the police party, from the site of the dam to the Police Station. He could not have had the intuition (nor does he say so), while in village Malana at 6 A.M, as per his testimony, that a police party headed by ASI of …13… Police Station, Manali, would be going to the forest at 8.30 or 9 AM and apprehending the appellants with Charas. 22. Also we find an entry in the log book of the vehicle of Dy. S.P. to the effect that he was at the site of the dam, in connection with FIR No.250 of 2005, i.e. the FIR of the present case. When asked to explain this entry, he stated that he came to know about this case only at 3 or 4 PM, when he reached the spot on his way back from village Malana to the site of the dam. This part of his statement can also not be true or at least is not reconcilable with the fact that at 6 AM he called a vehicle from Police Station, Manali, apparently, for the purpose of carrying some persons, in addition to the members of the police party, back to Manali. He could not have called a vehicle for his own journey back to Manali, as his own vehicle was at the dam site, according to his own statement. 23. Evidence of the prosecution that a written report of search and seizure was sent to the Police Station for formal registration of the case through PW-1 Ajay Kumar also does not inspire confidence. PW-1 Ajay Kumar stated that written report was handed over to him at 11.30 AM by PW-5 ASI Lal Chand and he carried the same to Police Station, Manali. According to him, he reached Police Station, Manali at 5 PM and soon thereafter FIR was registered and a copy thereof was given to him for being delivered to PW-5 ASI Lal Chand and that he delivered the same to said ASI Lal Chand at the Police Station, when he returned around 9 AM. To the same effect is the testimony of PW-5 ASI Lal Chand as also PW-2 Rajiv …14… Kumar. However, entry in the Rojnamcha is to the effect that all the members of the Police Party, including PW-1 Uttam Chand, returned to Police Station, Manali at 9 PM, travelling by Police Station Gypsy. 24. From an over all reading of the evidence of the prosecution, which consists of the testimony of only police officials, including that of CW-1 Dy. S.P. Khushal Sharma, it appears that an attempt has been made to conceal the true version, otherwise why there should have been so many contradictions and inconsistencies, with regard to the material facts. Not only that there are contradictions and inconsistencies, but some of the facts, stated by the witnesses, are even contrary to the entries, appearing in the daily dairy of the Police Station and the log books of the vehicles of the Dy. S.P. and the Police Station, as noticed hereinabove. 25. Evidence adduced by the prosecution is also insufficient to attribute conscious possession of the recovered stuff to the appellants. According to prosecution’s own evidence, the stuff was recovered from a bag, which belonged to appellant Lulli Maurizio. The bag, as per testimony of PW-5 ASI Lal Chand, was recovered from a tent, which had the capacity to accommodate only one person. Now if the bag belonged to appellant Lulli Maurizio and it was found lying in a small tent, which could accommodate only one person, it cannot be said that all the four persons were in joint possession of the bag or had the knowledge that the bag …15… contained Charas. Prosecution has not led any evidence in support of its allegation that the bag belonged to appellant Lulli Maurizio. Witnesses of search and seizure, examined by the prosecution, stated that the appellants, including Lulli Maurizio, told that the bag belonged to Lulli Maurizio. All the appellants have denied that the bag belongs to them. That means the alleged admissions made by the appellants stand retracted. 26. No attempt was made to associate independent witnesses. This was a case of search of a tent and, therefore, the provision of Section 100(4) of the Code of Criminal Procedure was attracted. We find from the evidence on record that independent witnesses could have been available near the spot, but no attempt was made to associate them. 27. In view of the above stated position, we are of the considered view that the case of the prosecution does not stand established beyond reasonable doubt. Consequently, the appeal is accepted and judgment of the trial Court convicting and sentencing the appellants is set aside and all the appellants are acquitted. Appellants being in custody, serving out the sentence awarded by the trial Court, are ordered to be set at liberty, forthwith, in case their detention is not required in any other case. Appeal stands disposed of. ( Surjit Singh ), J. November 7, 2008(ss) ( Surjnder Singh ), J.