IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.Appeal No.250 of 2002. Date of decision: 05.08.2011. State of H.P. … …Appellant Versus Sat Pal & Others … …Respondents Coram The Hon’ble Mr.Justice R.B. Misra,J. The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 For the Appellant: Mr.R.K. Sharma, Senior Additional Advocate General with Mr.Rajinder Dogra, Additional Advocate General. For Respondents 2 to 6: Mr.Anup Chitraka, Advocate. Per Dev Darshan Sud,J. The State has challenged the acquittal of the respondents herein for offences under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the `Act’). 2. The case pleaded by the prosecution is that on 2.3.2001 at around 2.30 A.M., PW-1 Vijay Kumar Head Constable, Police Post Narkanda alongwith PW-5 Bal Krishan Constable and Harnam Singh Constable were on traffic checking duty. At that time, one Maruti Van bearing Registration No.HP-01-3302 was noticed by this 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 police party coming from Kumarsain and proceeding towards Narkanda-Shimla. PW-1 HC Vijay Kumar signaled this van to stop. Initially the driver slowed down the van, but then suddenly picked up speed. At this juncture, PW-5 Constable Bal Krishan jumped in front of the van, forcing the driver to stop it. According to the prosecution, there were six persons traveling in the van and barring the driver respondent No.1 Sat Pal, (who is since dead) the others escaped. Bag Ex.P5 is stated to have been recovered from the front seat, bags Ex.P1, Ex.P3 and Ex.P7 were recovered near the back seat. These were checked in presence of both the Constables and respondent Sat Pal, respondent No.1, and was found to be containing `Charas’ in the form of billets. It is then stated that these bags were said to contain Charas’ in various quantity, namely, Ex.P5 and Ex.P6 contained 4 Kg 650 gm., Ex.P1 and Ex.P2 contained 6 Kg 350 gm, Ex.P3 and Ex.P4 contained 5 Kg 400 gm, Ex.P7 and Ex.P8 contained 3 Kg 300 gm. Sample of 100 grams each from these four bags was taken, sealed with seal `A’ and recovery memo Ex.PW-1/B was prepared in presence of the witnesses and Sat Pal respondent No.1. The Maruti Van was impounded and follow up action was taken. Respondent No.1 had informed the police that the van infact, was hired by Mast Ram, respondent No.2, for journey from Ani (Skalar) to Shimla and respondents No.3 to 6 boarded this van alongwith bags Ex.P1, Ex.P3, Ex.P6 and Ex.P7. 3 Mast Ram was accordingly arrested. Respondents No.3 to 6 applied for anticipatory bail and vide order dated 15.3.2001/20.3.2001 passed by this Court, they were granted protection against their arrest. The learned trial Court on the evidence on record acquitted all the respondents. 3. The learned Court holds that Sat Pal deceased had been working as a driver which was owned and possessed by one Partap Singh resident of Chuai (Ani), was only driving the van. There was no evidence that he had in fact either colluded/connived with the other respondents for smuggling the contraband. Rather the proved facts, according to the learned Court, were that the fare had been paid directly to the owner. On the evidence on record, namely, PW-1 Vijay Kumar Head Constable has stated that when he signaled the van to stop, it initially slowed down and then picked up speed. The Court holds that PW-5 Bal Krishan, who is supposed to have jumped in front of the van, did not support this fact. The main plank of the evidence of the prosecution is of PW-3 Gopi Chand, who is the nephew of Sat Pal, respondent No.1. He is supposed to have boarded the Maruti Van at his instance. He states that the van was stopped in response to the signal given by the police in the normal course. He then states that the occupants of the van, except Sat Pal and he himself, kept sitting in the van, the others 4 managed to escape. When the Police was searching the van he also managed to escape. 4. We advert to the evidence of PW-3 Gopi Chand. Initially his version in examination-in-chief is that respondents No.3 to 6 were in possession of the bags containing the contrabands Ex.P1, Ex.P3, Ex.P5 and Ex.P7 and at a later stage, Kishori Lal respondent, handed over bag Ex.P5 to Mast Ram. He says that he kept sitting when the police was searching the van and that when such search was being conducted he managed to escape. He admits his statement Ex.PW-3/A made before the Sub Divisional Judicial Magistrate, Rampur on 19.3.2001. He states that he ran away from the van and the police had not recorded his statement. At a later stage he states that the police had his statement recorded on 7.3.2001. In conclusion of the cross- examination with reference to Ex.PW-3/A he says that: “The police had informed me that I was required to disclose the names of the person who had escaped or else the charas was to be foisted on me.” This is the main part of his testimony. So far as Ex.PW-3/A is concerned, there is a clear denial by the petitioner, appellant herein that he made this statement. We find that this statement has not been proved in accordance with law as the Magistrate who recorded the statement did not appear as a witness. Once he had stated that the statement under Section 164 5 Cr.P.C. was not made of his own free will, it was the duty of the prosecution to have proved the statement in accordance with law which would be by examining the Judge who had so recorded the statement. 5. Adverting to the facts of the case what we find is that the learned Court below rightly holds that it was the case of the prosecution that, barring Sat Pal, the other accused had fled from the van as soon as it stopped. PW-1 Vijay Kumar Head Constable neither said a word of having recognized them nor such fact was recorded by the police. They were charged on the purported statement made by deceased Sat Pal while in police custody which could not be treated as substantive piece of evidence. 6. We also find that the statement Ex.PW-3/A cannot be urged to implicate the accused for the reasons that as noted by us the maker of the statement has resiled by stating it on oath that this statement was made as he had been told that unless he states before the Magistrate that the other accused were in conscious possession of the Narcotic Drugs he would be charged with the offence. The learned Magistrate, who has recorded the statement, has not been produced as a witness to state that this witness was under no threat/ blandishments held out by the police. 7. Learned counsel appearing for the respondent also relies upon a decision of the Supreme Court in P. Sirajuddin etc. vs. The State of Madras etc., AIR 1971 6 SC 520 to urge that PW-3 was nothing but a co-accused and in these circumstances, having recorded the statement under Section 154 Cr.P.C. by letting him off and having the crime foisted on the other accused amounted to grant pardon to him which was not permitted by law. The Court therein holds:- “18. … … … … … … …In order that statements made in the course of such investigations be recorded without any pressure or inducement by an investigating officer, Section 163 (1) lays down an embargo on the investigating authorities using any inducement, threat or promise to the maker which might influence his mind and lead him to suppose that thereby he would gain any advantage or avoid any evil in reference to his conduct as disclosed in the proceedings. It is to be noted that whereas the other sections hereinbefore referred to contain guidelines for the police officers in making investigation, this section expressly provides that any person in authority even if he is not a police officer must guide himself accordingly, in case where a crime is being investigated under this Chapter of the Code. All this is however subject to the provisions of sub-section (2) which allows a person to make any statement against his own interest by way of confession if he does so of his own free will. Even then the law enjoins by Section 164 that such a statement or confession can only be recorded by a Magistrate of the Class mentioned therein and even such a Magistrate must explain to the person making the confession before recording the same, that he is not bound to make it and 7 if he does so it may be used as evidence against him. Further the Magistrate must make sure that the person was making the confession voluntarily and not acting under any pressure from an outside source. 19. All the above provisions of the Code are aimed at securing a fair investigation into the facts and circumstances of the criminal case: howsoever serious the crime and howsoever incriminating the circumstances may be against a person supposed to be guilty of a crime the Code of Criminal Procedure aims at securing a conviction if it can be had by the use of utmost fairness on the part of the officers investigating into the crime before the lodging of a charge sheet. Clearly the idea is that no one should be put to the harassment of a criminal trial unless there are good and substantial reasons for holding it. 26. In our view the granting of amnesty to two persons who are sure to be examined as witnesses for the prosecution was highly irregular and unfortunate. It was rightly pointed out by the High Court: "Neither the Criminal Procedure Code nor the Prevention of Corruption Act recognises the immunity from prosecution given under these assurances and that the grant of pardon was not in the discretion of police authorities". 8. We do find some substance in the submissions made by learned counsel as the prosecution case, if accepted, does show that this witness and the driver 8 deceased Satpal were sitting in the van when the seizure was made. However, even that fact is sought to be disputed by this witness. But beyond that, we do not find from the evidence whether the other accused were sitting in the van and could be said to be in conscious possession of the contraband. To implicate the other accused the only statement is that of PW-3. 9. In these circumstances, we hold that the prosecution has not been able to establish its case. In any case, we cannot find fault with the judgment of acquittal passed by the learned Court below. The appeal is accordingly dismissed. (R.B. Misra) Judge. August 5, 2011. (Dev Darshan Sud) (aks) Judge.