IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cri. Appeal No. 315 of 1997 Reserved on : 13th July, 2010 Date of Decision: 22nd October, 2010 State of Himachal Pradesh Appellant Versus Ratti Ram Respondent Coram The Hon’ble Mr. Justice Deepak Gupta,J. The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? For the appellant: Mr.Vivek S.Thakur, Addl. Advocate General. For the respondent: Mr.G.S.Rathore, Advocate. Sanjay Karol, J. For an offence which is alleged to have been committed on 17.1.1992, accused was put to trial. In terms of judgment dated 30.4.1992 passed by learned Additional Sessions Judge, Sirmaur District at Nahan, H.P., in Sessions trial No. 1-NS/7 of 1992, titled as State of H.P. vs. Ratti Ram, the accused stands acquitted of the charged offence. 2. As per the case of the prosecution on 17.1.1992 at about 8 a.m., HC. Dhani Ram (PW-8) alongwith C. Bir Chand (PW-4) and C. Dayal Chand were present at Whether the reporters of Local Papers are allowed to see the Judgment? 2 Bhojnagar Chowk. Accused Ratti Ram was seen coming from the side of Johardji. On the basis of suspicion, he was stopped by the police. Suspicion arose in view of the fact that the accused was carrying something under his “Loia” (woolen overcoat) which he was wearing and seeing the police tried to hurriedly run away from the spot. Two witnesses Gulab Singh (PW-1) and Shiv Naryan (PW-2) were called. Accused was given an option to get himself searched in the presence of Magistrate or gazetted officer or by the police officer vide notice Ext.PW-1/B. Accused agreed to be searched by PW-8. Accused was searched. Under “Loia” he was carrying a bag on his shoulder. In the bag there was a polythene bag from which a packet containing Charas like substance was found. It was in the shape of 28 big and 25 small balls. Weighing scales were brought from the shop of PW-1 and upon weighing contraband substance was found to be 900 gms. Two samples of 50 gms. each were prepared and sealed with four seals of Seal Mark ‘A’. Remaining stuff was wrapped in a separate parcel which was also sealed with Seal ‘A’ and all parcels were taken into possession vide memo (Ext.PW-1/A), witnessed by PW-1 and PW-2. PW-8 prepared Rukka (Ext.PW-4/A) on the spot and sent it through PW-4 to the Police Station, Parwanoo for registration of the case, where FIR (Ext.PW-7/A) dated 17.1.1992 was recorded by Constable Naresh Kumar under instructions of SHO Varinder Singh (PW-7). PW-4 took the file back to the 3 Police Post at Bhojnagar and proceedings at the spot were completed. Special report (Ext.PW-6/A) was sent by PW-8 through PW-4 to the Police Station for onward forwarding to appropriate authority. Site plan (Ext.PW-8/A) was prepared at the spot. PW-8 deposited the sealed samples/parcels at Police Station Parwanoo where PW-7, resealed the same with Seal ‘H’. Sealed sample was sent through C. Vinod Kumar (PW-5) to the Chemical Testing Laboratory, Kandaghat. Report (Ext.PW-7/A) showed that contraband substance was Charas. Statement of witnesses were recorded and with the completion of investigation challan was presented in the Court. 3. Accused was charged for having committed an offence under Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985, to which he did not plead guilty and claimed trial. 4. In order to prove its case prosecution examined eight witnesses. Statement of the accused under Section 313, Cr.P.C. was also recorded in which he claimed false implication. 5. Court below acquitted the accused. Hence the present appeal. 6. Having minutely examined the statements of the prosecution witnesses, we are of the considered view that no ground for interference is made out. We find that their 4 statements stand contradicted by themselves as also the material on record. 7. PW-8, who was Incharge of Police Post, Bhojnagar Chowk, simply states that accused Ratti Ram was coming from the side of Johardji and stopped on the basis of suspicion. What was the basis of such suspicion is not substantiated by him. Now According to PW-4 accused tried to run towards the Pukdandi (pedestrian track) which raised their suspicion. Now these police officials had no reason to be patrolling at the spot. The contradiction is minor, however, as the events would unfurl hereinafter this contradiction gains significance. 8. According to spot witness PW-1, police called the accused and took him to the Police Post where both he and PW-2 were also called inside. According to PW-8 witnesses PW-1 and PW-2 were called by him, whereas according to PW-4, PW-1 and PW-2 were standing outside their shops which are situated next to the Police Post. According to PW-2, PW-1 was sitting inside his shop and called by the Constable. Now this version stands contradicted by PW-4 according to whom PW-1 was standing outside the shop. According to PW-2, he was sitting on the bench outside his shop and was not called by the police, who were standing there, whereas according to PW-1, PW-2 was standing outside his shop where the buses stop. Site plan (Ext.PW- 8/A) bears no mention of shop of either PW-1 or PW-2. It 5 only gives reference of one shop. Name of owner is not there. 9. According to PW-8 at the spot where search took place 3-4 houses are located. Site plan does not depict this fact. Further, it has come on record that 10 to 12 persons had gathered on the spot and police had asked them to go away. Now why were these persons not associated by the Investigating Agency at the time of conducting the search is not clear. In fact they were sent away. Police chose to associate only PW-1 and PW-2. It is the prosecution case that these persons being local shopkeepers were the most reliable witnesses. There is nothing wrong with that but we find these witnesses are not fully reliable. We also find that on the question of search and seizure they have a different version to give. 10. According to PW-1 on the ground floor is his shop and first floor is the Police Post, Bhojnagar. He admits that he was tried for an offence punishable under Section 307, IPC. He also admits that on his complaints police has registered various cases against the complainant in the said case. He does not know whether these cases are still pending or not. Importantly this witness does not remember the name of the Police Hawaldar and Police Constable, who were present at the spot. He is an immediate neighbour. Case stands registered against him. Bhojnagar is a small place yet he does not know the names of the police officials. 6 Most importantly, he states that police took the accused and him to the Police Post where the proceedings were conducted by the police. Now, this version of his stands contradicted by PW-8, according to whom, not only search and seizure but in fact all proceedings were carried out at the spot and not in the Police Post. Most importantly, he does not know how many balls were recovered by the police from the accused. He also do not know the different sizes of the balls of Charas recovered from the accused. He also does not remember the number of seals fixed on the samples of Charas. 11. Statement of PW-2 on the point of search and seizure also does not help the prosecution. According to PW- 8, PW-2 owns a tea stall at Bhojnagar from where the police take tea and he is also a prosecution witness in other cases. No doubt initially he states that accused was searched by the police in his presence, but clarifies that search and seizure took place inside the Police Post. He states that he does not remember the number of seals put on the sample parcels. PW-1 and PW-2 may or may not be interested witnesses but they do not advance the prosecution case. 12. No doubt PW-4 and PW-8 have narrated the events as per the prosecution case but we find that their testimonies are not worthy of credence. There are material contradictions on various points. PW-8 cannot be said to be a truthful witness. Even though they state that search and 7 seizure took place at the spot and not in the Police Post but this version of theirs unanimously stands materially contradicted by PW-1 and PW-2. All this renders the prosecution story with regard to search and seizure of the contraband at the bazaar of Bhojnagar town to be extremely doubtful. 13. Further according to PW-8 it took 2 – 2 ½ hours to complete the proceedings at the spot, whereas according to PW-4 it took about one hour. This witness had taken the rukka to the Police station for registration of FIR hence his statement may not be contradictory in nature, but, however, according to PW-1 entire proceedings were completed within 15-20 minutes and according to PW-2 it took 1 - 1½ hours. 14. Now PW-8 admits that in report (Ext. DA) time 8.15 a.m. was written under his instructions. PW-8 admits that accused was spotted at about 8 a.m. therefore, prosecution wants us to accept the unbelievable that within 15 minutes accused was apprehended; served with a notice of search; actually searched; scales were called for; contraband was weighed and after drawing two samples therefrom were sealed alongwith the remaining parcel. 15. According to PW-8 in the documents prepared at the spot FIR number was filled in later at the Police Station, Parwanoo. Now this version stands materially contradicted by PW-1, who in no uncertain terms has deposed that portion A to A, (particulars of case including FIR No.), on 8 memos Ext.PW-1/A and Ext. PW-1/C was written at the spot in his presence. Now if the FIR was registered at Police Station, Parwanoo which is at a distance of 36 kms. from Bhojnagar then how is it that reference thereof is there. PW-1 admits that his statement Mark A was also recorded by the police in Police Post and all the documents were written by Munshi Uma Ram under the dictation of Head Constable. This Munshi has not been examined in the Court nor associated by the police during investigation. Whether FIR number on documents Ext.PW-1/A to Ext.PW-1/C was filled in subsequently would have been clarified by him. 16. Even on the point of Special Report alleged to have been prepared and sent by PW-8 to Superintendent of Police, we find there is contradiction and missing links. According to PW-8 Rukka (Ext.PW-4/A) and special report (Ext.PW-6/A) were prepared at the spot. Both these documents have been scribed by different persons. The handwriting is different. Importantly, in Ext.PW-4/A there is no reference of Ext.PW-6/A. Even in the statement of PW-4, there is no mention of Ext.PW-6/A. According to PW-8 the same was sent to the Police Station through PW-4. PW-4 is silent on this aspect of the matter. Version of PW-8 stands contradicted by PW-7, according to whom, it was PW-8, who had given it to him at the Police Station. Karnail Singh (PW- 6), Reader to Dy. S.P. no doubt states that Ext.PW-6/A was received in the office, but in cross-examination he admits 9 that the same was received by C.Kamal Chand. He further admits that entry of receipt of the same is written in two inks and also that Special Report is not signed by the Constable who received it in the office nor does it find any mention of any date against the entry made in the Register. Now Kamal Chand has not been examined in the Court. 17. Also on the point of link evidence we feel the prosecution case to be extremely doubtful if not false. Now according to PW-8, four seals of Mark ‘A’ were fixed by him on all the parcels including the sealed samples. The same were handed over at the Police Station. Now he does not state that as long the samples were in his possession, they were not tampered with. Further according to PW-7, PW-8 had produced the case property to him and he resealed the same with seal ‘H’. The “samples” were got sent to CTL, Kandaghat vide letter Ext.PW-7/B. Importantly he is talking of “samples” (plural) and not “sample” (singular). Now in cross-examination this witness admits that parcel containing the remaining contraband, other than the sample, was not put in a parcel and again sealed by him. But, however, he contradicts himself by subsequently admitting that in the final report prepared by him it is so mentioned otherwise. It only indicates the manner in which the investigating agencies have prepared the record. That apart, H.C. Kanwar Singh (PW-3), MHC at the relevant time, states that he made entries in the Malkhana register. On 18.1.1992 the 10 samples were sent through C. Vinod Kumar (PW-5) to the CTL. It is reiterated that PW-7 states that samples were sent by him whereas according to PW-3 samples were sent by him. Be that as it may be, PW-3 does not state that as long as the samples remained with him they were not tampered with. Importantly, though this witness states that the sealed samples were having impression of seal ‘A’ but does not remember the number of seals on the samples. He is absolutely silent with respect to seal impression ‘H’, which were subsequently put by PW-7. Now the version of PW-3 stands materially contradicted by PW-5, according to whom, he had taken only one sealed parcel with seal impression ‘H’ which was handed over at CTL. He admits that this sample was having only four seals of impression ‘H’. Now, his statement is partly contradicted by reports (Ext.PW-7/B and Ext.PW-7/C) of the Chemical Examiner, which shows that only one sample of 500 gms. with seal impressions ‘A’ and ‘H’ was received in the laboratory, who deposited this sample and what happened to the other sample containing seal impression ‘A’ has not been explained. All this renders the prosecution case to be extremely doubtful. 18. We further feel that on the preparation of memos, notice and rukka version of PW-8 is not only self contradictory but is contradicted by PW-4. Firstly, PW-8 states that all proceedings took place at the spot. He further admits that notice (Ext.PW-1/B) was prepared at the spot, 11 but, however, later on clarifies that all the memos, notice and Rukka and statements were prepared in the Police Post as many people had gathered outside. PW-4 categorically states that memos Ext.PW-1/A to Ext.PW-1/C were prepared at the spot and not in the Police Post, which in fact was the initial case set up by the prosecution. 19. The accused have 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 accused 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. (Deepak Gupta) Judge. October 22, 2010 (Sanjay Karol) (C) Judge.