1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 417 of 2002 Decided on July 27, 2011 _____________________________________________________ State of H.P. …Appellant. Versus Kamlesh Kumar ...Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. ¹Whether approved for reporting? No For the appellant: Mr.R.K.Sharma, Senior Addl. Advocate General with Mr.Rajinder Dogra, Additional Advocate General. For the respondent: Mr. Y.P.S.Dhaulta, Advocate. Justice Sanjay Karol,J . (oral) For an offence, which is alleged to have been committed on 15.9.2000, accused was put to trial. In terms of judgment dated 21.1.2002 passed by Additional Sessions Judge, Mandi, in Sessions Trial No. 3 of 2001, titled as State of H.P. vs. Kamlesh Kumar, accused stands acquitted of the charged offences. 2. It is the case of the prosecution that on 15.9.2000, in Aut Bazar Dy.S.P. Shubra Tiwari (PW.7) along with Sub Inspector Om Prakash, Sh.Ramesh Kumar (PW.9) 2 Head Constable Shankar (PW.7) and Sharwan Kumar were on patrol duty. At about 9.00 P.M. they saw the accused carrying a bag. Seeing the police party accused got perplexed and briskly started walking away. On suspicion he was stopped. Police apprehended the accused and suspected him of carrying some contraband substance. Accused disclosed his name to be Kamlesh Kumar and Dy.S.P. Shubra Tiwari (PW.7) served memo of search (Ex.PW.1/A) upon him. From the person of the accused nothing incriminating was recovered but however from the bag carried by him, charas like substance was recovered. Search was carried out pursuant to the option (Ex.PW.1/A) given by the accused. PW.7 asked Sh.Shankar Ram (PW.3) to bring the scales and the weights from the nearby shop. Upon weighment the contraband substance was found to be of 400 grams and two samples of 25 grams each were taken out. The samples and the remaining stuff were sealed with two seals having impression 'A'. The accused was arrested on the spot and memo served upon him. Thereafter, Dy.S.P. Shubra Tiwari (PW.7) handed over the case property to Sh.Ramesh Kumar (PW.9). The sealed samples were sent for analysis to the Forensic Science Laboratory and report (Ex.PX) obtained. PW.7 also sent special report (Ex.PW.5/A) to the superior officer. During 3 investigation accused was found to be possessed with charas and as such challan was presented in the Court after completion of codal formalities. 3. The accused was charged for having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act), to which he did not plead guilty and claimed trial. 4. In order to prove its case, prosecution examined 11 witnesses and statement of the accused under Section 313 Cr.P.C. was also recorded. 5. The Court below acquitted the accused of the charged offence, hence the present appeal. 6. In the instant case we have no doubt that independent witnesses Sh.Gulab Singh (PW.1) and Sh.Chunni Lal (PW.2), who were associated by the police on the spot, have not supported the prosecution case at all. Having carefully examined their testimonies we are of the considered view, that inspite of extensive cross- examination by the Public Prosecutor, after they were declared hostile, nothing fruitful could be elicited from their testimonies in favour of the prosecution. These witnesses had no reason to falsely depose in favour of the accused. On the other hand, Sh.Chunni Lal (PW.1) has 4 deposed that he has studied only upto 6th standard and there are many shops in the bazar at Aut. PW.1 is not a respectable person yet police did not associate any respectable person present at the spot during the course of the investigation. PW.9 in his unrebutted testimony has also deposed that police usually threatens and challans the shop keepers as a result of which they remain frightened. Thus the independent witnesses, being associated by the police under fear cannot be ruled out. 7. However simply because independent witnesses have not supported the prosecution case that fact by itself would not render the prosecution case to be fatal. Nonetheless testimonies of the police officials have to be carefully scrutinized and perhaps with circumspection. We have carefully gone through the testimony of Sh.Shankar Ram (PW.3), Dy.S.P. Shubra Tiwari (PW.7) and Sh.Ramesh Kumar (PW.9) who were alleged to be present at the spot at the time of commission of the alleged offence. We are of the considered view that they have contradicted each other on material particulars and thus their testimonies do not inspire confidence rendering these witnesses to be untrustworthy. 8. In fact, presence of Sh.Shankar Ram (PW.3) on the spot appears to be doubtful. He appears to have been 5 introduced by the prosecution subsequently. It would be noteworthy that, PW.3 is not a signatory to any of the memos recorded by PW.7 on the spot. Even though in his examination-in-chief, he has fully supported the prosecution case and has deposed that he was present at the time when recovery of charas was effected by PW.7 from the accused, but however in his cross-examination, he admits that there is no mention of the same in his statement recorded under Section 161 Cr.P.C. (mark 'C') with which he was confronted with. Further according to this witness weights were brought from the shop of Sh.Chunni Lal (PW.2), who has not been associated by the police during investigation. Why so? has not been explained. Record does not corroborate this fact by trustworthy material. Examination of Sh.Chunni Lal (PW.2) would have only strengthened the case of the prosecution. 9. Dy.S.P. Shubra Tiwari (PW.7) is the star witness of the prosecution. According to her she recovered the contraband substance from the conscious possession of the accused on the spot in presence of Sh.Shankar Ram (PW.3) and Sh.Ramesh Kumar (PW.9). According to her she was on patrol duty along with constable Om Prakash and Sharwan Kumar. Now there is nothing on record to show that police party were on patrol duty on the day of the alleged offence. 6 That apart, neither Sharwan nor Om Prakash has been examined by the police in the Court. Credibility and not number of witnesses matters. But she does not appear to have deposed truthfully. According to this witness she prepared a special report (Ex.PW.5/A) and handed over the same to the MHC Police Station, Aut on the spot for onward transmission to the office of the Superintendent of Police, Mandi. Now this version of hers stands materially contradicted by PW.5 who in his cross-examination has unambiguously admitted that report was in fact handed over to him by PW.7 on the day of his deposition in the Court i.e. 22.5.2001. This has rendered the testimony of PW.7 to be false. The alleged offence took place on 15.9.2000. Report according to PW.7 was prepared and handed over the very same day, which fact stands belied by the testimony of PW.5. That apart, according to PW.7, Sh.Shankar Ram (PW.3) and Sharwan Kumar remained present throughout the investigation and Sub Inspector Om Prakash and Head Constable Ramesh Kumar left the spot after the accused was apprehended, which fact stands belied by Ramesh Kumar (PW.9) according to whom he and Om Prakash continued to remain at the spot till about 11-11.30 P.M. Now admittedly proceedings on the spot were completed by that time. 7 10. Thus, we find the testimonies of the police witnesses not to inspire confidence apart from the fact that mandatory provisions of Section 42 (2) of the Act stood not complied with by the prosecution. 11. We also find the link evidence in the instant case to be weak. According to the police witnesses two parcels were sealed with two seals having seal impression 'A', whereas, in the NCB form, it is clearly recorded that 7 seals with seal impression 'A' were found on the parcels sent for chemical examination who put the remaining seals is not clear. Possibility of the sample being tampered with can not be ruled out. None of the police officials have deposed that sample of the seal was sent to the Forensic Science Laboratory along with NCB form. Yet the Chemical Examiner has certified that seal found on the sample tallied with the specimen impression of the seal sent separately. All this has rendered the prosecution case to be extremely doubtful, if not false. We also note that NCB form bears the FIR number which appears to have been written in the same hand, with the same pen and in a continuous manner so as to give an impression that the NCB form was fully filled-up, later at leisure. 12. For the aforesaid reasons, we find that prosecution has been able to have established / proved its 8 case beyond reasonable doubt, by leading clear, cogent, convincing and reliable evidence. 13. The accused has had 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 persons has resulted into travesty of justice. 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 July 27, 2011 (Sanjay Karol) (Purohit) Judge