IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No.151 of 2006 Judgment reserved on: 15.7.2008 Decided on: July 25, 2008. Chet Ram …Appellant Versus State of Himachal Pradesh …Respondent Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr. M.S. Guleria, Advocate. For the Respondent : Mr. P.K. Sharma, Additional Advocate General. Surjit Singh, Judge Appellant Chet Ram has preferred this appeal against the judgment of trial Court, whereby he has been convicted of an offence, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1,00,000/-, for allegedly being in possession of 5 Kgs. of Charas, on 11.1.2004 at 6 AM at a place called Salari Nullah in Bali Chowki Police Post area. 2. Factual matrix of the case, as per prosecution evidence, is like this. A police party headed by PW-8 HC Ram Lal of which PW-6 LHC Narpat Ram, Constable PW-7 Dhan Dev and Kuldip Singh were the other members, organized a “Nakka” at a place called Salari Nullah, around 4 in the Whether reporters of the local papers may be allowed to see the judgment? …2… morning. At about 6 AM, appellant was seen coming from Mani side carrying a bag. On seeing the police, he turned back and tried to run away, but was over-powered by the police. PW-8 HC Ram Lal and the officials accompanying him suspected that he was carrying some contraband in the bag, which he was carrying. Option was given to him whether he wanted to be searched on the spot by PW-8 HC Ram Lal or in the presence of some Magistrate or a gazetted officer of any of the notified departments. Appellant opted for his search on the spot by PW-8 HC Ram Lal. In the course of search of his bag, Charas was recovered, which on weighment, was found to be 5 Kgs. Two samples, each weighing 25 grams, were separated. Samples were made into two separate parcels. Remaining bulk stuff was also made into a parcel. All the three parcels were sealed with a seal that produced the impression of English letter ‘T’. A written report of the matter was sent to the Police Station. The same is Ext.PW6/E. On the basis of the said report, case was formally registered, vide FIR Ext.PW3/E, at Police Station, Aut. All the three parcels, two containing samples of recovered stuff and the third containing bulk stuff, were produced before SHO PW-3 Dave Ram, who resealed them with his own seal, which produced the impression of English letter ‘K’. One of the two sample parcels, alongwith NCB form etc., was sent to Chemical Examiner, who vide report Ext.PW3/G, opined that the sample contained contents of Charas. …3… 3. Trial Court charged the appellant with offence, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act and on his pleading not guilty, he was tried. 4. Prosecution examined PW-8 HC Ram Lal and PW-7 LHC Narpat Ram to prove the search of the bag of the appellant and recovery of Charas therefrom. PW-3 Dave Ram was examined to prove the fact that the case property was produced before him and he resealed all the three parcels with his own seal and deposited those parcels with MHC PW-1 Gandhi Ram. PW-1 Gandhi Ram testified that case property alongwith NCB form and specimen impressions of the seal etc. was deposited with him and he sent one of the two sample parcels, through Constable PW-7 Dhan Dev to the Chemical Examiner. PW-7 Dhan Dev was examined to prove that the sample was carried by him to the Chemical Examiner. 5. Appellant in his statement, under Section 313 Cr. P.C., denied that he was intercepted at Salari Nullah on the relevant date or that Charas was recovered from his bag. He stated that he was innocent and had been falsely implicated. He took no specific defence nor did he give any reason for his alleged false implication by the police. 6. On the conclusion of trial, appellant was convicted and sentenced by the trial Court, as aforesaid. 7. We have heard the learned counsel for the appellant and gone through the record. A number of submissions were made on behalf of the appellant, to seek …4… reversal of judgment of conviction and sentence, passed by the trial Court. The same are as follows: i) No independent person was associated to witness the alleged search and seizure, even though according to the evidence on record, village abadi and a water mill were situated close to the place where the appellant was allegedly intercepted. ii) Evidence of PW-8 HC Ram Lal and PW-6 LHC Narpat Ram was full of contradictions, which rendered their testimony highly doubtful. iii) Search was conducted by PW-8 HC Ram Lal in the presence of PW-6 LHC Narpat Ram and PW-7 Constable Dhan Dev, but Constable Dhan Dev did not make even a whisper of search and recovery of the stuff, when examined in the Court. iv) Entries in the Rojnamcha regarding departure of the police team headed by PW-8 HC Ram Lal to the spot on the relevant date had not been proved to show that the police team in fact went to the place where the appellant was allegedly intercepted. v) There was no compliance of the provision of Section 50 of the Narcotic Drugs and Psychotropic Substances Act. vi) Special report Ext.PW5/B bears a mention that house of the appellant was also searched, which indicates that this was a case of search based on …5… prior information, but none of the witnesses, including PW-8 HC Ram Lal, said anything about house search and this renders the prosecution story highly doubtful. vii) Memo. Ext.PW6/A regarding the appellant having been informed of his arrest and right to intimate some close relative or friend about his arrest, appears to have been falsely prepared, because its reading shows that it was prepared on the spot and a relative of the appellant, named Puran Chand, had also been informed on the spot, but nobody has said that Puran Chand, a relative of the appellant, was present on the spot. 8. We have examined the aforesaid submissions made on behalf of the appellant, in the light of the evidence on record and the statement of the accused-appellant, under Section 313 Cr. P.C. Our findings qua the aforesaid submissions are as under: Submission (i) 9. PW-6 LHC Narpat Ram and PW-8 HC Ram Lal admitted in their cross-examination that there is a village at a distance of about 200 feet from the place where the appellant was intercepted. PW-6 LHC Narpat Ram stated that there were about 30 houses in the village. He also stated that there existed a Gharat (water-mill) at some distance and a house of one Shambhu Ram at a distance of about 40 feet from the place where the appellant was intercepted. Both PW-6 LHC …6… Narpat Ram and PW-8 HC Ram Lal admitted that no effort was made to associate any witness from the nearby village. 10. Learned counsel representing the appellant argued that when village abadi was situated at a distance of 200 feet from the place where the appellant was allegedly intercepted, PW-8 HC Ram Lal, Investigating Officer of the case, was supposed to have associated some residents of that village, before searching the person and the bag of the appellant. 11. No doubt a police officer or an investigating officer, conducting search of the person or baggage of a suspect, should try to associate local independent witnesses so that chances of false implication of innocent persons, by police officers or other investigating officers are minimized, but statutory requirement of association of local independent witnesses is confined only to house search or search of conveyance or any enclosed place or the search of a person when he is in a house, a conveyance or an enclosed place, as is clear from a bare reading of Section 100 of Criminal Procedure Code. Therefore, search of a person or his baggage, on suspicion, when such person is walking along a road or a path or is present at a public place, will not be illegal, if local independent witnesses are not associated. 12. In the present case, appellant was intercepted at 6 AM on 11.1.2004 at an open place. Sun rises around 7.30 AM in the second week of January. Appellant was intercepted in remote hilly area where people keep sleeping well after even sun rise in winter season. So, the presumption is that nobody …7… was awake in the nearby village when the appellant was intercepted. If that is so, it could not have been possible for PW-8 HC Ram Lal to associate local independent witnesses from the abadi of the nearby village. 13. Above stated position apart, appellant was intercepted and search of his bag was conducted on suspicion, when he turned back and tried to flee, on seeing the police. Police officials did not have any prior information nor did they have any reason to believe that he was carrying any contraband. They overpowered him, when he tried to run away and suspected that he might be carrying some contraband in his bag. So, the bag was searched and charas was recovered. After recovery of Charas, there was hardly any need to associate any person from the nearby village, because there remained nothing to be witnessed. 14. It is by now well settled that non-association of independent witnesses or non-supporting of the prosecution version, by independent witnesses where they are associated, by itself is not a ground to acquit an accused. It is also well settled that testimony of official witnesses, including police officials, carries the same evidentiary value as the testimony of any other person. The only difference is that Courts have to be more circumspect while appreciating the evidence of official witnesses to rule out the possibility of false implication of accused, especially when such a plea is specifically raised by the defence. Therefore, while scrutinizing the evidence of official witnesses, in a case where independent witnesses are …8… not associated, contradictions and inconsistencies in the testimony of such witnesses are required to be taken into account and given due weightage, unless satisfactorily explained. Of course, it is only the material contradictions and not the trivial ones, which assume significance. 15. For the foregoing reasons, we hold that neither independent witnesses were available for being associated nor was there any occasion to associate them when the recovery had been effected immediately after the interception of the accused and in any case non-association of independent witnesses does not affect the search and recovery, to an extent that the appellant may be acquitted. 16. In view of our aforesaid conclusion, we may not dwell on the argument advanced by the learned counsel for the appellant that non-association of available independent witnesses, at the time of personal search of an accused, renders the prosecution story highly doubtful nor do we think that the judicial precedents viz. Ritesh Chakarvarti Vs. State of M.P., (2006) 12 SCC 321 and Ganga Ram Vs. State of H.P., Latesh HLJ 2005 (HP)552, relied upon by the learned counsel, in support of this argument, are applicable to the facts of the present case, because in those cases the witnesses were available on the spot, when search was carried out, but they were not associated. It is not so in the present case, as already demonstrated hereinabove. …9… Submission (ii) 17. Learned counsel pointed out that there were contradictions in the testimony of PW-8 HC Ram Lal, the Investigating Officer, and PW-6 LHC Narpat Ram, whom prosecution examined to prove the search and recovery of Charas, from the bag of the appellant and the said contradictions rendered the testimony of the two witnesses highly suspicious. The contradictions pointed out by the learned counsel are as follows. PW-6 LHC Narpat Ram stated that 2-3 vehicles were checked on the spot, before the appellant was intercepted, but PW 8 HC Ram Lal stated that no vehicle was checked. Again, PW-6 Narpat Ram stated that there was a water-mill (Gharat) at some distance from the place where the appellant was intercepted, but PW-8 HC Ram Lal denied the existence of any water-mill. Similarly, PW-6 LHC Narpat Ram stated that a house of one Shambhu Ram was there at a distance of 40 feet from the place where the appellant was nabbed, but PW-8 HC Ram Lal denied the suggestion to this effect. 18. We do not think these contradictions are so material as to bring their testimony, with regard to the interception of the appellant and the recovery of Charas in the course of search of his bag, within the realm of doubtful evidence. PW-8 HC Ram Lal, on a suggestion by the appellant himself, stated in the course of his cross-examination, that he was a man of weak memory and could remember only those things, of which record is kept by him. If it is so, it is quite …10… likely that because of his weak memory he had forgotten about the existence of a water will and the house of one Shambhu Ram near the place of occurrence. This is particularly so, when the record shows that statement of the witness was recorded two years after the occurrence. It is also quite possible that the witness may not be so keen an observer, as PW-6 LHC Narpat Ram. 19. Otherwise also, these contradictions are not so material as to affect the testimony of the witnesses with regard to the gravamen of the charge against the appellant. 20. A reading of the judgments relied upon by the learned counsel for the appellant shows that it is only in the case of material contradictions that the testimony of the official witnesses are doubted. Citations of the judgments relied upon by the learned counsel are Balwinder Singh Vs. State of Punjab, 2005(3) Criminal Court Cases 327 (P&H), Bhola Ram Kushwaha Vs. State of Madhya Pradesh, AIR 2001 SC 229 and Gurbax Singh Vs. State of Haryana, AIR 2001 SC 1002. Submission (iii) 21. It was argued that even though according to the testimony of PW-6 LHC Narpat Ram and PW-8 HC Ram Lal, Constable Dhan Dev (PW7) was with them when the appellant was intercepted and Charas was recovered from his bag, but he did not make even a whisper of his being present on the spot and witnessing the search and recovery of Charas. It was argued that his silence was enough to hold that he was not …11… there and hence, testimony of PW-8 HC Ram Lal and PW-6 LHC Narpat Ram that recovery was effected in Dhan Dev’s presence cannot be believed and consequently, their entire version regarding search and seizure becomes unbelievable. 22. PW-7 Dhan Dev was examined by the prosecution to prove another fact, viz. he carried one of the two sample parcels from Malkhana to the laboratory of Chemical Examiner. So, he confined his statement only to this fact. It was known to the defence side that PW-7 Dhan Dev was cited as a witness of search and recovery, because copies of challan and other papers filed therewith had been supplied to the appellant before the start of the trial. Memo. Ext.PW6/C not only records that Dhan Dev was one of the two witnesses of search and seizure, but it also bears his signature as one of the witnesses. Now when it was known to the defence that Dhan Dev was a witness of search and seizure and the prosecution examined him to prove some other fact and not the fact of search and seizure, because one witness, namely PW-6 LHC Narpat Ram had already been examined and Investigating Officer PW-8 HC Ram Lal was also going to be examined to prove the fact, defence could have cross-examined PW-7 Dhan Dev with regard to the search and recovery. No suggestion was put either to PW-6 LHC Narpat Ram or PW-8 HC Ram Lal that Dhan Dev (PW7) was not on the spot nor was any such suggestion put even to PW-7 Dhan Dev, in the cross- examination. …12… 23. In view of the above stated position, no inference or presumption is required to be drawn against the prosecution for PW-7 Constable Dhan Dev not testifying about the search and seizure, even though he was a witness thereto and had even signed the search and seizure memo. as a witness. Submission (iv) 24. It is true that Rojnamcha was not produced in the Court to prove departure of PW-8 HC Ram Lal and other police officials for organizing a “Nakka” at the site, in question, or to prove their return to the Police Station from the said site, but merely for this omission it cannot be held that PW-8 HC Ram Lal, accompanied by PW-6 LHC Narpat Ram, PW-7 Constable Dhan Dev and other police officials, did not go to the spot to organize a “Nakka”, especially when the appellant has not taken the plea that he was picked up from some different place and brought to the police station. Submission (v) 25. Learned counsel submitted that from prosecution’s own record, it appeared that the police had prior information about the possession of Charas and that is why it gave an option to the accused vide Memo. Ext. PW6/A, whether he wanted to be searched on the spot by PW8 HC Ram Lal or desired to be searched in the presence of a Magistrate or a gazetted officer of any of the notified departments. He argued that a reading of Ext.PW6/A showed that the appellant had not been apprised that he had a right to be searched in the presence of a Magistrate or a gazetted officer and thus the …13… mandatory provision of Section 50 of the said Act cannot be said to have been complied with. He argued that when both, the person of an accused and his baggage, are searched, Section 50 of the Narcotic Drugs and Psychotropic Substances Act comes into play, even if on search of person no Narcotic Drug or Psychotropic Substance may be recovered. He supported his contention by a judgment of the Hon’ble Supreme Court in Dalip and another Vs. State of M.P., (2007) 1 SCC 450. 26. Before proceeding to deal with the legal aspect of this submission of the learned counsel for the appellant, we would like to deal with its factual aspect. 27. There is absolutely no evidence on record indicating that the police party, which laid Nakka at the place, where appellant was intercepted, had any prior information, nor is there any evidence indicating that PW-8 HC Ram Lal or any member of the party headed by him had any reason to believe that the appellant was carrying any psychotropic drug or psychotropic substance. Appellant was seen coming along a path, on one side of the road, around 6 AM, in the second week of January, when it was supposed to be somewhat dark. On seeing the police officials, present by the side of the road, he turned back with intent to slip away. Police officials spotted him and overpowered him and suspected that he might be carrying some contraband in his bag. The fact that the police officials suspected that the appellant was carrying something in his bag and not on his person is made out from the …14… testimony of PW-6 LHC Narpat Ram and PW-8 HC Ram Lal, both of whom testified that they searched the bag of the appellant. They did not say that the person of the appellant was also searched. In the earliest version, which was sent to the Police Station for formal registration of the case, in the form of report Ext.PW6/E, also there is no mention that PW-8 HC Ram Lal suspected that the appellant was carrying some contraband in his wearing apparels or on his person. The mention in the said report is that it was suspected that the appellant might be carrying some contraband in the rucksack, which was slung on his shoulder. 28. Similarly, in the special report Ext. PW5/B, which was sent to superior police official, it is mentioned that PW8 HC Ram Lal suspected that the appellant was carrying some contraband in his bag only. It is true that in consent memo. Ext.PW6/A, it is mentioned that it was suspected that the appellant had been carrying some narcotic drug in the clothes worn by him and the bag slung from his shoulder, but merely on the basis of this mention in Ext. PW6/A, it cannot be said that PW-8 HC Ram Lal expected recovery of some contraband from the search of the person of the appellant. The testimony of PW-8 HC Ram Lal and PW-6 LHC Narpat Ram is to the effect that they only searched the bag of the appellant. 29. Turning to the legal angle of the submission, the judgment relied upon by the learned counsel, i.e. Dalip and another Vs. State of MP, (2007) 1 SCC 450 is distinguishable. As per this judgment, case of the prosecution …15… was that when the Investigating Officer (SHO) stepped out of the gate of the Police Station, he saw two persons coming on a scooter, which was being driven at a fast speed. Their scooter was got stopped. Their persons were searched, but nothing was found. Thereafter search of the dickey of their scooter was conducted and opium weighing 5.890 Kgs was recovered. Evidence indicated that SHO had prior information, because it was found that there were memos. wherein it was recorded that option had been given to the accused to get themselves searched either on the spot by the SHO or in the presence of a Magistrate or a gazetted officer of any of the notified departments. It was held that even though nothing was recovered on the personal search of the accused and opium was recovered on search of the dickey of the scooter that followed the search of the persons of the two accused, Section 50 of the Narcotic Drugs and Psychotropic Substances Act was attracted and since no evidence had been led that the accused had been apprised of their right to be searched before a Magistrate or a gazetted officer of any of the notified departments, accused were entitled to acquittal. 30. In the present case, as already discussed hereinabove, evidence on record is to the effect that only the bag, which the appellant was carrying on his shoulder, was searched and Charas was recovered therefrom. No doubt memo. Ext.PW6/A records that option was given to the appellant to get his person and baggage searched in the presence of a Magistrate or a gazetted officer of any of the …16… notified departments and it is also recorded in the search and seizure memo. Ext.PW6/D that on search of the person of the appellant nothing was recovered, but as already noticed, the suspicion that was entertained by PW-8 HC Ram Lal was that the appellant had some narcotic drug or psychotropic substance only in his bag. 31. Moreover, judgment relied upon by the learned counsel for the appellant is rendered by a two Judge Bench of the Hon’ble Supreme Court. There is another judgment rendered by a three Judge Bench of the Hon’ble Supreme Court wherein the facts were more or less similar to the case in hand and it was held that Section 50 of the Narcotic Drugs and Psychotropic Substances Act was not attracted. Citation is State of H.P. Vs. Pawan Kumar with State of Rajasthan Vs. Bhanwar Lal, (2005) 4 SCC 35. Facts of the case were that two Head Constables and other police personnel were checking buses at a bus stand, when accused Pawan Kumar slipped away from the backdoor of the bus, that was being checked, and ran towards