IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Appeal No.2 of 2002 Date of Decision: 19th May, 2011 State of Himachal Pradesh Appellant Versus Naresh Kumar Respondent Coram The Hon’ble Mr. Justice R.B.Misra, J. The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No For the appellant: Mr.R.K.Sharma, Sr. Addl. Advocate General. For the respondents: Mr. R.Kant Sharma, Advocate. Sanjay Karol, J. (Oral) For an offence, which is alleged to have been committed on 2/3rd May, 2001, accused was put to trial. In terms of judgment dated 12.10.2001 passed by learned Sessions Judge, Bilaspur, H.P., in Sessions trial No. 14 of 2001 titled as State of H.P. vs. Naresh Kumar, the accused stands acquitted of the charged offence. 2. It is the case of the prosecution that in the intervening night of 2/3rd May, 2001, accused was travelling in Bus No.HR-55-8086 from Manali to Delhi. He was sitting on seat No.47. The said Bus was checked at Kenchi-Mor near Whether the reporters of Local Papers are allowed to see the Judgment? 2 Sawarghat by ASI Rajinder Singh (PW-7), H.C. Raghubir Singh, C. Daulat Ram, C.Madan Gopal (PW-2). A bag which the accused has kept on his lap was searched by the police. Three packets of contraband substance, two shirts and one pant were recovered therefrom. Accused was asked to alight from the Bus. Madan Gopal (PW-2) was asked to bring the scales and weights from the nearby shop owned by Madan Lal. Upon weighing the contraband substance was found to be 2 kg. and 500 gms. Two samples each of 25 gms. were taken out of the three packets of contraband substance recovered from the bag. Thus in all six samples were sealed with seal impression ‘A’. The remaining contraband substance was packed into three separate cloth parcels and also sealed with seal impression ‘A’. The contraband substance was seized vide seizure memo Ext.PA. NCB form (Ext.PL) was filled up on the spot, accused was arrested and Rukka (Ext.PE) sent through C. Daulat Ram to Police Station Kot Kehloor where FIR No. 77 of 2001 (Ext.PF) dated 3.5.2001 under Section 20 of Narcotic Drugs Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) was registered. Separate report (Ext.PG) was sent through C. Madan Gopal to Superintendent of Police, Bilaspur. The statements of the witnesses were recorded. The sealed samples were deposited at the police Station with MHC Surinder Paul (PW-3) and sent to the Chemical Examination 3 Laboratory vide road certificate No.43/2001 through C. Shyam Lal (PW-4). The report of the Chemical Examiner was obtained which showed that the contraband substance was Charas. With the completion of investigation challan was presented in the Court for trial. 3. Accused was charged for having committed an offence punishable under Section 20 of the Act, to which he did not plead guilty and claimed trial. 4. In order to prove its case prosecution examined as many as seven witnesses and statement of the accused under Section 313, Cr.P.C. was recorded in which he took the following defence:- “I am innocent. 4/5 passengers including me were called out of the bus by the police and the police was beating us and I objected the act of the police. Therefore, a false case of Charas was made against me.” 5. The Court below has acquitted the accused of the charged offence, hence the present appeal. 6. Recovery took place in the intervening night of 2/3rd May, 2001 at about 2 a.m. According to the police officials, C. Madan Gopal (PW-2) and ASI Rajinder Singh (PW- 7), who were present at the spot, recovery took place in the presence of independent witnesses Shri Mahavir Singh (PW- 1), driver and also the Conductor of the vehicle. Now Conductor has not been examined in the Court and the driver 4 has turned hostile. Inspite of extensive cross-examination nothing favourable could come out in his testimony which would support the prosecution case. There is nothing to suggest he is falsely deposing. In fact it is the unrebutted version of this witness that police had inquired from the passengers about the ownership of the bag and none had come forward to own the same. He further states that quarrel took place amongst the passengers with regard to the possession of the same. Significantly, to this effect there is no cross-examination by the prosecution. Importantly in his examination-in-chief this witness submits that 5-6 boys were taken out from the Bus and beaten up on the road by the police. On this point also, there is no cross-examination by the prosecution. In fact this version of his lends credence to the defence of the accused. In fact on this point PW-2 herself has unequivocally deposed that “It is correct that the police had caught hold of four five boys regarding the ownership of the bag”. This renders the prosecution case to be doubtful. 7. Further, even PW-7 in his testimony admits that there were 30-35 passengers in the Bus. Yet none of them were associated at the time of search/recovery. If there was a dispute with regard to ownership and possession of the bag, police ought to have associated some other passengers also. It is not the case of the prosecution that accused was found alone to be sitting on seat No.47. PW-7 himself admits that 5 from the bag no document linking the accused was found. In fact he further admits that he did not prepare the arrest memo disclosing the ground of arrest and no memo regarding intimation of arrest was either prepared. Thus the testimony of the police officials also does not inspire confidence rendering the prosecution case to be extremely doubtful. Their testimony cannot be relied upon. It is unconvincing and their version about search and seizure unconvincing. 8. We further find that there is material contradiction between the statements of PW-2 and PW-7. According to PW-2, “two samples each of 20 gms. were taken from the Charas”, whereas according to PW-7 “two samples were taken from each of the three packets”. Further according to PW-2 four persons entered the Bus to do the checking, whereas according to PW-7 three police officials including himself, entered the Bus. There is also contradiction with regard to place of preparation of recovery memo. 9. We also find that Madan Lal was given up being unnecessary and C. Madan Gopal (PW-2) does not state that he had got the scales from the shop of Madan Lal. All this renders the prosecution version to be extremely doubtful and not fully proved. At 2 a.m. which shop would be open. How far was this shop? Was it open? Who all were in the shop? All these doubts would have been cleared by the shop owner. 6 10. Even on the point of link evidence, we find the prosecution case to be extremely weak. PW-7 sealed the samples with his seal impression ‘A”. The samples were handed over to MHC Surender Paul (PW-3). Now these samples were not resealed in Police Station either by the SHO or the MHC. NCB form is evident on this point. Also prosecution did not produce any Malkhana register to show when and from whom the samples were received in the Police Station. In the facts and circumstances of the case, the possibility of the samples being tampered with cannot be ruled out. We are dealing with the case where minimum sentence is of rigorous imprisonment for a period of 10 years with a fine of Rs.1 lac. In these type of cases, prosecution is expected and required to adduce strict proof with regard to recovery of contraband substance from the conscious possession of a person. The evidence must be consistent, cogent, convincing and creditworthy. The deposition of police officials in the instant case do not inspire confidence. 2. The accused has the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. 7 No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (R.B.Misra) Judge 19th May, 2011 (Sanjay Karol) (C) Judge.