IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.207 of 1997. Judgment reserved on: 19.8.2010. Date of decision: 17.12.2010 State of H.P. ... Appellant Versus Sher Mohd. and another … Respondents 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.Vivek Singh Thakur, Addl.A.G. For the respondent: Mr.N.K. Thakur, Advocate. ____________________________________________________________ Deepak Gupta, J. This Appeal by the State is directed against the judgment of the learned Sessions Judge, Chamba dated 30.11.1996 passed in Sessions Case No.4 of 1996 whereby the accused have been acquitted of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). The prosecution story, in brief, is that on 8.11.1995, PW-11 Dy.S.P. N.L. Chogal alongwith Inspector Sanjeev Lakhanpal, HC Surinder Kumar, Constable Rajinder and Constable Daljeet were going from Chamba towards Tissa. At about 6.30 a.m. when they were short of Madhuwar, they noticed two persons having sack loads on their back coming from the opposite direction. PW-11 directed the driver HC 1Whether reporters of Local Papers may be allowed to see the judgment? Yes 2 Surinder Kumar to stop the vehicle. As soon as the vehicle came to a halt, one of the two persons threw the sack on the road and fled away. The other person was apprehended by PW-11 and PW-10 and disclosed his name to be Sher Mohd. Son of Ramzan, accused No.1. He also disclosed that the person who had fled away was Jumma Khan, accused No.2. The sack was inspected and was smelling of charas and immediately a Ruqua Ext.PC was prepared and sent through constable Daljeet to the Police Station, Tissa. The place where the occurrence took place was a desolate place and there was no house nearby. No independent witnesses were available and as such Inspector PW-10 Sanjeev Lakhanpal and HC Surinder Kumar were joined as witnesses. An option was given to the accused of being searched. After search the sack being carried out by Sher Mohd. was opened and it was found to contain 28 k.g. of charas in the shape of sticks and balls. Out of this contraband, two samples of 25 gms. each were taken out for chemical examination. These samples and the bulk charas were sealed in three separate parcels with seal having impression ‘CID’. The seizure memo Ext.PT was prepared. Thereafter, the other sack was searched. It was found to contain 25 k.g. of charas. Again two samples of 25 gms. each were taken out from the contraband and the three parcels were sealed with seal ‘CID’ and were separately marked as ‘B’. Thereafter, PW-11 prepared the site plan Ext.PK. The accused was arrested after informing him of the grounds of arrest vide memo Ext.PV. Statements of the witnesses were recorded. In the meantime, SHO, Police Station, Tissa reached the spot at about 12.15 p.m. The six parcels were handed over to him for safe custody in the Police Station. The SHO resealed the said parcels with seal bearing impression ‘K’ and then he handed over two sample parcels for being 3 sent to the chemical examination. Parcels were distinctly marked ‘A’ & ‘B’. Then they returned to Shimla and on 9.11.1995 special report Ext.PK was sent to the Superintendent of Police, CID (Crime Branch), Shimla. Two sample parcels were handed over to Constable Ram Nath, PW-7, for being taken to the Chemical Laboratory at Kandaghat. On 11.11.1995, Constable Ram Nath returned the sample parcels to PW 11 Dy.S.P. N.L. Chogal, since the Laboratory had refused to accept them for analysis on the ground that necessary proforma had not been sent. Thereafter, samples were again sent to the Laboratory on 13.11.1995 through PW-4 HC Rampal. On analysis, the samples were found to be those of charas and therefore challan was filed against the accused. The accused were made to face trial and the learned Trial Court acquitted the accused mainly on the ground that the evidence relating to the investigation does not inspires confidence. We have heard learned counsel for the parties and gone through the evidence. The prosecution case is that this is a case of chance recovery. This is not a case where a local police party was on routine patrolling. In the ruqua Ext.PC it is mentioned that the raiding party was proceeding from Chamba to Tissa in connection with some secret work. However, what is the secret work was not mentioned. It is true that in the ruqua it was not necessary to mention what the secret work was but when the witnesses appeared in Court and were specifically asked as to in what connection they were proceeding towards Tissa, they should have given some explanation, otherwise the defence version that this is a case of prior information cannot totally be discarded. However, even if it was a case of prior information it would have no material effect since search was done during day time and in an open area. 4 There are glaring contradictions in the prosecution case. PW-11, when cross examined, stated that he had made an attempt to search for independent witnesses by sending a constable but the constable came back within five minutes without any witness. He further states that the weights and scales were arranged by Head Constable Surinder Kumar but further goes on to state that while the proceedings were going on Surinder Kumar did not leave the area. Then who arranged the weights and scales? Unfortunately, Surinder Kumar was not examined. In a case where independent witnesses are not available the prosecution should have examined all the official witnesses. PW-10, Sanjiv Lakhanpal, states that even on the previous day they had recovered charas in some other case at the mid night hours and then they had gone to the Police Station, Chamba and they left Chamba at about 3.30 a.m. for Tissa. He admits that even the parcels in other case were sealed with seal impression ‘CID’. There is no explanation as to how there were two seals with seal impression ‘CID’. In case there is more than one seal of the same inscription the possibility of tampering with the seals cannot be ruled out. This witness also admitted that in the statement Ext.DC recorded under Section 161 Cr.P.C. it is not recorded that the parcels of Sher Mohd. and Jumma Khan were marked as ‘A’ & ‘B’ for distinction. Both he and PW-11 did not belong to the area. According to them, they did not leave the spot. There is no explanation as to how they knew that this place is short of Madhuwar. According to him, the scales and weights were already with HC Surinder Kumar and had been brought by him from Shimla. Even this fact is not mentioned in the earlier statements and has come out for the first time in Court. PW-5, SI, Hirdu Ram, was SHO, Police Station, Tissa at the relevant time. According to him, on 8.11.1995, PW-11 produced six parcels before 5 him and he had put his own seal ‘K’ on these parcels and thereafter deposited the same with MHC. He also arrested Jumma Khan. He states that he reached the spot at about 12.15 p.m. According to him, the spot was at a distance of about one k.m. from Madhuwar towards Kalhel. He states that there are some houses, shops and hotels at Madhuwar and there is a ‘Kotha’ (temporary shed) of Gujjars just above the road at the scene itself and according to him Gujjars reside there permanently. From the aforesaid evidence, it is apparent that the prosecution version that the place of occurrence is totally desolate and no independent witnesses were available is not correct since a ‘Kotha’ of Gujjars is located just above the place where the accused were apprehended. This shows that no proper effort was made to associate independent witnesses. According to PW-11, a constable was sent to search for the independent witnesses but such constable has neither been named nor examined in the Court. There is also material contradiction with regard to the place from where the scales and weights were arranged. According to PW-11, they were arranged by HC Surinder Kumar. PW-10 states that HC Surinder Kumar had brought these weights from Shimla. If that were so then PW-11 would have been aware of the said fact especially when the same officials had recovered some other contraband a few hours earlier. In the Ruqua Ext.PC it is specifically mentioned that there is no means of weighing the charas. If there was no means of weighing the charas when Ruqua Ext.PC was sent, from where did these weights and scales appear. This shows that the version that the scales and weights were available with HC Surinder Kumar is totally false. There are some missing links in the link evidence also. There is no explanation where the samples were kept from 11.11.1995 to 13.11.1995 when they were brought back from the Laboratory and again sent to the 6 Laboratory. The special report Ext.PK brought on record on the face of it shows that it was a supplementary special report. This means that there was some other special report which had been sent earlier. That special report has not been brought on record and this material evidence has been withheld from the Court. Another reason to doubt the prosecution version is that according to PWs 10 and 11, the parcels relating to the two accused were distinctly marked as ‘A’ & ‘B’ respectively at the scene of occurrence itself. However, PW-8 ASI Piar Chand clearly states that marks ‘A’ & ‘B’ were put on the parcels only after the Public Prosecutor had raised an objection in this behalf. This shows that PWs 10 and 11 are not telling truth and therefore it is very difficult to rely upon their statements. In view of the above discussion, we are of the considered view that there is no merit in the appeal which is accordingly dismissed. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ), J. December 17, 2010 ( Sanjay Karol ), J. PV