IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 153 of 1997 Date of Decision : July 15, 2010 State of H.P. …Appellant. Versus: Lal Chand ..Respondent-accused. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. Rajesh Mandhotra, Dy. A.G. For the respondent : None Deepak Gupta, J. (Oral). This appeal by the State is directed against the judgment dated 11.12.1996 delivered by the learned Sessions Judge, Chamba Division, in Sessions Case No. 9 of 1996, whereby he acquitted the accused of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act’). 2. The prosecution story in brief is that PW-6 Inspector Ram Swaroop was posted as SHO, Police Station, Sadar, 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes 2 Chamba. On 11.11.1995 at about 10.40 p.m., the police party headed by PW-6 and comprising of ASI Rai Singh, ASI Swaroo Ram and Constables Daulat Ram and Rajinder Singh was returning to the Police Station after routine patrolling. When the police party reached near the District Hospital, Chamba, one person was found coming from the side of Puccca Tiala. He was questioned as to where he was going at that late hour. He could not satisfactorily reply to the question of the police officials. His behaviour was also suspect. This aroused the suspicion of the police officials and it was, therefore, decided to search the accused. At this stage PW-1 Dy.SP Rajinder Singh was contacted by PW-6 and he arrived at the spot and thereafter the search was conducted. The accused was found carrying a saffron coloured bag on his right shoulder. On search of the bag, 1 kg. 600 gms. of substance which appeared to be charas was recovered. A sample of 10 gms. was drawn from this bulk charas. The bulk charas as well as the sample was sealed in two separate parcels with seal bearing impression ‘PS’. The said case property was taken into possession vide memo Ext.PA. The police also prepared the seal impression Ext.PC on the spot. The seal after use was handed over to PW-1. The accused was informed about the grounds of his arrest vide memo Ext.PB and arrested. Rukka Ext.PE was sent to the Police Station, on the basis of which F.I.R. Ext.PD was registered. Special report Ext.PF was sent to the superior police officials. The Investigating Officer 3 completed other codal formalities at the spot and the case property was deposited on the same day with MHC Dalip Singh. Thereafter, the sample was sent for chemical analysis to the C. T. L. Kandaghat. Report Ext.PK was received from the C.T.L., according to which the sample was that of charas. On the basis of this material the accused was charged with having committed the offence detailed hereinabove. 3. The learned trial Court, after trial, acquitted the accused mainly on the ground that the independent witnesses were not associated and there were material contradictions in the statements of the official witnesses. 4. We have gone through the record of the case. A perusal of the evidence and the material on record clearly indicates that the accused as per the prosecution was arrested at 10.45 p.m. near the District Hospital at Chamba. It may be true that the accused was arrested at a late hour but we cannot loose sight of the fact that he was apprehended at a place where there is activity at even such a late hour. The District Hospital would normally have 24 hours service. There would be Doctors, Paramedical, Nursing and other staff on duty at that time. All that the Investigating Officer has stated is that he made an effort to associate the independent witnesses but none was available. This statement of the Investigating Officer cannot be accepted in view of the fact that the hospital was close by and we cannot believe that the Government officials, such as 4 Doctors, paramedical staff would not join the police investigation. Even with regard to the effort made there are contradictions. According to the PW-1 Dy.SP Rajinder Singh, the police party was only at a distance of 10 yards from the hospital towards Police Station and he admitted that the Doctors, paramedical staff and the attendants of the patients were available at the hospital at that time. He also admitted that the area in question “Pucca Tiala” is thickly populated. This clearly shows that serious effort was not made to associate the independent witnesses and there is no reasonable explanation for not associating the independent witnesses with the search operation. 5. It is true that even if the independent witnesses are not associated the only effect is that the evidence of the official witnesses has to be scrutinized with greater care and caution. If there are contradictions in the statements of the official witnesses their impact is greater. In the present case there are numerous contradictions between the statements of the only two police officials consisting of the raiding party examined in Court. They are PW-1 Dy.SP Rajinder Singh and PW-6 Investigating Officer Inspector Ram Swaroop. The first contradiction is as to how Dy.SP Rajinder Singh was associated with the search. Admittedly, he was not a member of the police patrolling party headed by PW-6. According to PW-6, he went to the Police Station which was close by and he (PW-6) himself rang up the 5 Dy.SP and requested him to come to the spot. The version given by PW-1 is totally different. According to him, it was not PW-6 but some constable who had telephoned him to come at the spot. The next contradiction is that according to PW-1, the person who was apprehended on the spot in his presence was Lal Chand. When asked to identify the person in Court, initially PW-1 stated that the person is not in Court. No doubt, later he had pointed out the accused but the fact that he could not point out the accused at the first instance casts a doubt on his very presence at the site of the search. Another material contradiction is that according to PW-1 when he reached the spot he asked PW-6 as to whether any independent witness had been joined. According to him, PW-6 told him that an effort had been made but no such independent witness could be associated since neither any witness had passed that area nor they were available close by. While being cross-examined, PW-1 admitted that he himself did not make any effort to join the independent witness in the proceedings. Thereafter trying to cover-up the matter he stated that he had directed PW-6 to again make an effort to search of independent witness and consequent to his direction PW-6 had gone in search of independent witness to the nearby place but returned after 10 minutes empty handed. He however, could not state as to in which direction PW-6 had gone or as to how PW-6 had gone for making search. PW-1 was confronted with his statement recorded under Section 161 Cr.PC., wherein 6 no such facts are recorded. It is thus apparent that this is an improvement made by him in Court. 6. The statement of PW-6 is in direct contradiction to the statement of PW-1. His version is that he himself did not go to procure the independent witness but had deputed ASI Rai Singh to do the needful. This fact is not mentioned in the documents prepared at the spot. When cross-examined he denied that PW-1 had directed to procure the independent witness. Therefore, the statements of these two witnesses are totally contradictory and no reliance can be placed on the same. 7. Another factor which goes against the prosecution is that as per the prosecution the seal was handed over to PW-1 Dy.SP Rajinder Singh. He did not produce the seal in Court. In examination-in-chief he did not even state a word about the seal being handed over to him. When cross-examined on this aspect of the matter he stated that the seal used for sealing and sampling was his personal seal. He denied that the seal was handed over to him after use. He was confronted with the statement recorded under Section 161 Cr.PC, where it was recorded that the seal was handed over to the witness and then he changed his statement and stated that the seal was not his personal seal but belonged to the Police Station, Sadar, Chamba and he had retained the same with him after use. Thus, it is apparent that this witness had been shifting his stand during cross-examination and trying to wriggle out of the predicaments 7 when confronted with the statement recorded by the police and what he had stated in Court. 8. In view of the above material contradictions in the statements of the police officials, the learned trial Court was justified in not relying upon their evidence. We, therefore, find no merit in the appeal, which is accordingly dismissed. The bail bonds are discharged. ( Deepak Gupta ) Judge. ( Sanjay Karol ), Judge. July 15, 2010. (rana)