IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No.: 225 of 2002 Date of Decision: 27.12.2011. State of Himachal Pradesh. …Appellant. Versus. Tendu Chhering alias Tundap Chhering son of Dawa Ram, Tibetian National, resident of H.N. 34/4, Suhra Muhallah, Mandi, H.P. …Respondent. Criminal Appeal under Section 378 of the code of Criminal Procedure. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for Reporting? No. For the Appellant-State: Mr. Ramesh Thakur, Assistant Advocate General. For the Respondent: Mr. Anoop Chitkara, Advocate. Per Deepak Gupta, J.(Oral). 1. This appeal by the State is directed against the judgement dated 1.1.2002 passed by the learned Sessions Judge, Kullu, in Sessions trial No. 61 of 2001 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 NDPS Act). 2 2. The prosecution case, in brief, is that on 13.3.2001 PW-10 ASI Bhupender Pal alongwith other police officials, namely, HC Bhim Sen, PW-3 constable Narain Singh was on traffic checking duty outside the hotel Kenilworth on National Highway-21 at Manali. At about 5.15 p.m they stopped a bus bearing registration No.HP-01-1849 belonging to Himachal Pradesh Tourism Development Corporation (HPTDC). This bus was going from Manali to Delhi. First the luggage of the passengers inside the bus was checked and nothing was found. Thereafter, the luggage in the storage compartment of the bus was checked. All the passengers identified their luggage. One blue rucksack was not identified by any passenger and nobody claimed to be owner of the same. Thereafter inquiry was made from PW-1 Om Prakash conductor of the bus, who disclosed that the said rucksack belonged to the passenger sitting on seat No. 22 and according to him this rucksack had been loaded by PW-2 coolie Bir Singh. Thereafter constable Narain Singh was sent to bring the coolie Bir Singh to the spot. He identified the accused as the passenger who was occupying seat No. 22 as the owner of rucksack. Thereafter the rucksack was taken out from the bus and then the occupant of the seat was asked his name who revealed his name to be Tendu 3 Chhering (accused). The rucksack was locked and the key of the same was taken from the accused in the presence of the coolie. Thereafter the lock was opened. Then the rucksack was opened and inside the rucksack a sheet was found which contained 13 envelops containing charas in the shape of sticks and Chapati. On weighment the entire charas was found to be 12 Kg. and 100 grams. From the charas so recovered, three samples of 25 grams each were separated and thereafter these three samples and remaining bulk charas were sealed in separate cloth packets bearing seal impression ‘H’. NCB form was filled up and the case property was taken into possession vide memo Ext.PW-1/A. Other codal formalities were completed at the spot. Ruka Ext.PW- 10/A was sent through PW-3 to the Police Station on the basis of which F.I.R. Ext.PW-10/B was registered. After completing the formalities at the spot the case property was produced before PW-9 SHO B.S.Negi, who resealed the same with seal bearing impression ‘T’. Thereafter one of the samples was sent to the CTL Kandaghat and on chemical analysis vide report Ext.PW- 9/B the sample was opined to be that of Charas having resin contents of 31.33%. On the basis of the aforesaid material the accused was charged with having 4 committed an offence punishable under Section 20 of the Act. After trial, he has been acquitted. Hence, this appeal by the State. 3. The prosecution was required firstly to prove that the contraband was recovered from the conscious possession of the accused. No doubt, PW-3 and PW-10 have supported the prosecution version but the independent witnesses i.e. coolie PW-2 and conductor PW-1 of the bus have turned hostile. The case of the prosecution is that the accused was a passenger in the bus and that he was sitting on seat No.22. This fact has been admitted by the accused. According to the prosecution when nobody claimed to be the owner of the bag then the conductor informed the investigating team that the rucksack belonged to the passenger sitting on seat No.22 and had been loaded by the coolie. The coolie, when he came identified the accused as the passenger who has got the rucksack loaded. However, while appearing in the witness box both these witnesses have not supported the prosecution story at all. According to Om Prakash conductor of the bus (PW-1) when one bag lying in storage compartment (dickey) of the bus was not claimed by any passenger that bag was taken inside the police station by the police officials. Thereafter Bir 5 Singh was called by the police but he did not identify the seat number or the passenger who had kept the said bag. This witness has been cross-examined at length and he has denied that the key of the rucksack was handed over by the accused to the police officials. According to him when he was called to the police station the rucksack was already opened and 13 packets containing charas lying in the police station. He has admitted the fact that the weighing etc. of the charas took place in his presence. PW-2 states that he had loaded luggage of the passengers in the bus in question. He was called to the police station where the bus of the HPTDC was parked outside. Inside the police station the police showed him a bag but according to him he was not aware who had kept that bag. He states that no seat number was marked on the bag because it was raining and the bus was getting late. 4. No doubt both these witnesses have admitted that their signatures appear on the recovery memo Ext.PW- 1/A but according to them these signatures were taken in the police station when they were called there. They both denied that the memos were read over to them. 5. The access to the storage compartment of the bus would only be available to the conductor and the coolie and may be even to the driver of the bus but to no 6 other person. These persons can themselves be the culprits in such a case. Therefore, it was imperative upon the prosecution to have associated with the recovery some other independent witnesses. When a rucksack is recovered from the storage compartment of the bus then the suspicion will fall either on the passenger who had loaded the luggage into the storage compartment or on the conductor or coolie who have access to such storage compartment. In the present case there was no seat number marked on the bag which is normally done. Therefore, the complicity of the coolie could not have been ruled out. Even if they were not arrayed as accused the prosecution should have associated other independent witness. We are saying this because of the reason that the search was conducted in the heart of Manali town. Admittedly, the search was conducted in the afternoon and there was no reason why other indepent witnesses who belonged to the area in question were not associated. 6. The law by now is well settled that police officials are as good witnesses as independent witnesses. Merely because they are police officials is not a ground to doubt their testimony. However, when independent witnesses turn hostile then if there is discrepancy in the statements of the official witnesses then the accused 7 cannot be convicted on the basis of such statements. In the present case the two so called independent witnesses did not support the prosecution version at all and denied that the accused was the owner of the rucksack in question. It is the prosecution case that the coolie PW-2 Bir Singh had loaded the rucksack at the behest of the accused. He has totally denied this. There is a material contradiction in the statements of PW-3 and PW-10. According to PW-10 the entire proceedings were carried out at the spot and the rucksack was unloaded from the bus and taken to the police station after Bir Singh identified the accused to be the owner of the rucksack. However, PW-3 constable Narain Singh, who was called to bring the coolie Bir Singh states that he went to the bus stand and brought back PW-2 Bir Singh to the police station. This means that the rucksack had already been taken to the police station which belies the statement of PW-10. In fact the statement of PW-10 is also contradictory because firstly he stated that after the accused was identified to be the owner of the rucksack the same was taken to the police station but later stated that the entire proceedings including codal formalities were completed at the spot. If the rucksack had been taken 8 to the police station how could the codal formalities be completed at the spot? 7. Another missing link in the prosecution case is that according to the prosecution the key of the lock with which the rucksack had been locked was obtained from the accused. However, no memo in this regard was prepared which casts a doubt on the prosecution version. The independent witnesses have not supported the police version that the key was handed over by the accused to the police officials. 8. Another serious lacuna in the prosecution case is that according to prosecution 13 packets were recovered which all allegedly contained charas. If there were thirteen packets then either the samples should have been taken from each packet or the contents of the thirteen packets should have been mixed together in such a manner that they formed one homogeneous mixture. None of the witnesses has stated as to how the sampling was done. When there were thirteen packets of charas it is not clear whether the sample was taken from one packet or from separate packets. Even the weight of each packet has not been disclosed. Therefore, it would not be proper to convict the accused on the basis of such sampling. 9 9. In view of the above discussion, we find no merit in the appeal, which is accordingly dismissed. The bail bonds are discharged. ( Deepak Gupta ) Judge. 27th December, 2011 ( V.K.Ahuja ) ™ Judge.