IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 273 of 2001 Judgment Reserved on : 18.5.2011. Date of Decision : June 15 , 2011 State of Himachal Pradesh Appellant Versus Jagat Singh alias Jagga Respondent Coram: The Hon’ble Mr. Justice R. B. Misra, Judge The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. R. K. Sharma, Senior Addl. Advocate General with Mr. Rajinder Dogra, Addl. Advocate General, for the appellant-State. For the respondent : Mr. Rajiv Jiwan, Mr. Tarlok Jamwal and Mr. Sandeep Sharma, Advocates, for the respondent. Justice Sanjay Karol, J. For an offence, which is alleged to have been committed on 5.7.2000, accused was put to trial. In terms of judgment dated 22.1.2001, passed by the learned Sessions Judge, Bilaspur, H.P. in Sessions Trial No. 7 of 2000, titled as State of Himachal Pradesh versus Jagat Singh alias Jagga, the accused stands acquitted of the charged offence. Whether reports of Local Papers may be allowed to see the judgment? 2 2. It is the case of the prosecution that on 4.7.2000, police party headed by Dy. S.P. Diwakar Sharma (PW-8) after making entry in the ‘rapat roznamcha’ (Ext. PF) had gone to Majhari from Police Station Kot for laying a ‘Naka’. Police party comprised of four Investigating Officers and eight constables. At a distance of half a kilometer from Majhari, the party was divided into two. First party headed by the Dy. S.P. stopped outside village Majhari near the tube-well and the second party headed towards the bifurcation of Nangal – Ganguwal Road. In the night intervening 4th/5th July, 2000, at about 4.10 a.m. one person was seen coming from Majhari side carrying a ‘gathari’ (bundle) on his head. Seeing the police he tried to flee away but was overpowered by the police party. On inquiry he disclosed his name to be Jagat Singh, the accused. The second police party was called who reached the spot immediately. Since it was dark and none other was present, Constable Shyam Lal (PW-2) was sent with a ‘ruka’ to village Majhari for bringing independent witnesses. Constable Shyam Lal did not return till 6.30 a.m. therefore accused was searched by the police party and contraband substance recovered from his conscious possession. The substance was found kept in eleven polythene packets. ASI Moti Ram (PW-1) was carrying scales in his investigation kit. The contraband substance was weighed and found to be 7 k.g. and 150 gms. Two samples each of 25 gms. were taken and kept in empty matchboxes. The remaining contraband was put in three separate cloth parcels. Samples and the parcels were sealed with seal impression-M. 3 Recovery memo (Ext. PA) was prepared and witnessed by police officials SI-Moti Ram and ASI-Suru Ram. Thereafter seal was handed over to Sh. Moti Ram. Ruka (Ext. PD) was sent to police station on the basis of which F.I.R. (Ext. PE) No. 92 of 2000, dated 5.7.2000, under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘Act’) was registered at Police Station Kot Kehloor, Distt. Bilaspur, H.P. On the spot, accused was arrested after serving memo (Ext. PH). Special Report (Ext. PC) was sent to the superior officer. The seized samples/parcels were handed over to the MHC (PW-3) along with the NCB form by PW-8. The samples were sent by HC-Surender Pal (PW-3) to the Chemical Examiner, Kandaghat through Constable Madan Gopal (PW-4). The report (Ext. PJ) of the chemical analyst revealed that contraband substance was opium. With the completion of investigation challan was presented in the Court for trial. 3. The accused was charged for having committed offences punishable under Section 18 of the Act to which he pleaded not guilty and claimed trial. 4. In order to prove its case prosecution examined nine witnesses and statement of the accused under Section 313 Cr. P.C. was also recorded. 5. Appreciating the entire evidence on record, the Court below acquitted the accused on the grounds that mandatory provision of Section 50 of the Act stood violated; no independent witnesses were associated; and contradiction in the version of the police officials 4 rendered their testimonies to be unconvincing and the witnesses unreliable and unbelievable. 6. With regard to the finding on the first point, in view of change in the position of law, benefit of Section 50 of the Act cannot be given to the accused. Recovery was not affected from the person but from the bundle carried by the accused on his head. 7. It is now well settled that if the version of the police officials otherwise inspire confidence, then solely for the reason that no independent witnesses were associated during search and seizure operation, prosecution case cannot be thrown out. However, the question is whether they do inspire confidence. 8. As per the prosecution, an attempt was made to associate independent persons prior to the search and recovery of opium but however since none was available operation was carried out by the Investigating Officer in the presence of other police officials present at the spot. Having gone through the entire ocular and documentary evidence on record, we find the prosecution story to be extremely doubtful. The prosecution case primarily hinges upon the testimonies of ASI Moti Ram (PW-1), Constable Shyam Lal (PW-2), HC-Surender Pal (PW-3) and Dy. S.P. Diwakar Sharma (PW-8). 9. According to Dy. S.P. Diwakar Sharma (PW-8), Constable Shyam Lal (PW-2) was part of the team which he had lead from the police station. Police had wanted to lay down a barrier at Majhari. Half kilometer prior to Majhari the party was split into two. Now in examination-in-chief PW-8 does not state that Const. Shyam Lal was 5 part of the team but in cross examination admits that Const. Shyam Lal was not part of party No. 1 headed by him and it took time for party No. 2 to reach the place where accused was nabbed. Now if this were so, then version of PW-8 that Const. Shyam Lal was sent to get independent witnesses from the village does not appear to be true. Even if this version of PW-8 is to be ignored, we otherwise feel that the prosecution case about the presence of Const. Shyam Lal who was sent to get independent witnesses to be doubtful. Offence is alleged to have taken place in the month of July when day breaks early. According to PW-8, Const. Shyam Lal was sent to get independent witnesses. They waited for him to return for more than two hours and it was only at about 6.30 a.m. they searched the accused. Const. Shyam Lal returned after search had been conducted and proceedings completed. Const. Shyam Lal informed him that “no-one was available as a witness despite his best efforts”. We find this version to be false as we shall discuss herein later. Majhari is a rural area. Villagers normally wake up early and go to their fields in the early hours. Having waited for two hours what was the urgency for the police to have carried out the search. It is not that the accused was trying to flee away from the spot. He was all alone and surrounded by a large contingent of police. They could have waited a little further to ensure presence of independent witness or taken the accused to the police station or the nearest Revenue Officer/Pradhan of the village for search. In fact PW-8 does not give reference about the presence of Const. Shyam Lal or that 6 he had sent him for getting independent witnesses, either in the ‘ruka’ (Ext. PD) or in the special report (Ext. PC ). Absence of such an important fact raises little doubt about the efforts made by the police to associate independent persons. 10. Most importantly, in this regard we find the version of Const. Shyam Lal (PW-2) to be extremely contradictory and unbelievable. For proper appreciation his testimony is reproduced in toto:- “On 5.7.2000 I was with Dy. S.P. Diwakar and other police officials to Majari for laying barrier (naka). After we had laid naka, we had apprehended the accused present in the court who was at that time going away from village Majari. At that time, accused was carrying a Gathri (bundle) on his head. Then Dy. S.P. Diwakar gave me a ruqa for calling two independent witnesses and I went to village Majari. I tried to search independent witnesses in five six houses but no one was prepared to accompany me for associating as independent witnesses on the ground that the police had been implicating them in false cases. Ext. PB is the said ruqa. Ext. PB/1 is my report. xxx xxx xxx :- by Shri R. L. Sharma, Advocate for accused. Majari village was half kilometer from the place where the accused was apprehended. I was with party No. 1. I did not enquire the names of those persons who were contacted by me in their house. I did not know their names because I was newly posted. I do not know if there was president and vice president of the panchayat in that village.” (Emphasis supplied) 7 11. To begin with, he contradicts the version of PW-8 by stating that he was with party No. 1. That apart, and most importantly in ‘ruka’ (Ext. PB) he records that “he went to the village in which there were eight/ten houses. He stood by the gate and shouted loudly. Since none responded he came back without any witness”. Therefore in Court, he has falsely deposed that none was ready to come for the reason that police falsely implicated them. Most importantly ‘ruka’ (Ext. PB) prepared by PW-8, for the purposes of getting independent witnesses, records that opium stands recovered from the accused. Now this totally demolishes the prosecution case. Search and seizure operation had not even begun by that time. Thus the story of the prosecution that they had sought independent witnesses if obviously false. It cannot be said that prosecution has been able to prove, beyond reasonable doubt, by leading clear, cogent, convincing and reliable evidence to show that opium was recovered from the conscious possession of the accused. 12. That apart, according to PW-8 two samples each of 25 gms. were taken from the recovered opium and the remaining contraband substance was packed in three separate parcels. PW-1 also corroborates this fact. Thus in all there have to be five parcels which were seized by the police. However according to the testimony of PW-3, PW-8 handed over only three parcels which he kept in the ‘maalkhana’. Now where did the other two parcels go? Why were they not deposited in the police station has not been explained. 8 13. We further find that even on the question of link evidence prosecution case is very weak. According to both PW-8 and PW-1, samples were sealed with seal impression-M and seal kept by PW-1. It is a matter of record that the sealed parcels, when received by PW-3, were never resealed again. Seal kept by PW-1 was also not kept in the police station, sent to the laboratory or produced in Court. The NCB form (Ext. PJ), with the report of the expert, shows that there is no lithographic/facsimile impression of seal-M thereupon. The word “M” on the NCB form is written in hand. Further, lithographic seal impression of the seal was also not taken on separate cloth during the search and seizure operation and sent to the police station. The possibility of the samples being tampered with or the record pertaining to search and seizure operation being prepared later on, in the police station, cannot be ruled out. In the NCB form the number of the F.I.R. appears to be written by one and the same person, in a continuous flow and with the same pen. From the testimony of PW-3 it is apparent that in the ‘maalkhana’ register he had made entries of having received the samples. Yet the same was not produced in the Court. No doubt Const. Madan Gopal (PW- 4) states that he had taken the samples to the laboratory along with the Road Certificate, and there is no cross examination by the accused on this point, but then this fact by itself would not make the prosecution case to be truthful or having been proved. In the attending circumstances, to strengthen their case it was incumbent 9 upon the prosecution to have placed on record the road certificate and the ‘maalkhana’ register. 14. Version of the prosecution about the presence of the entire police party at the spot and the manner in which the accused was nabbed and recovery effected is not convincing at all. In this regard there is material contradiction in the statements of PW-1 and PW-8. According to PW-8, after police party had split into two he headed party No. 1 but however does not remember who was heading party No. 2. He specifically denies party No. 2 was headed by ASI-Suru Ram. He is categorical that Suru Ram was member of his party. Whereas according to PW-1, party No. 2 was headed by ASI-Suru Ram. Significantly ASI-Suru Ram was not examined and given up by the prosecution being unnecessary. In the background of the contradictions and the version of the prosecution being doubtful, it was incumbent upon the prosecution to have examined ASI-Suru Ram. There are also other contradictions in the statements of PW-1 and PW-8 but we feel that in view of the other overwhelming material establishing the prosecution story not to be true we are not going into the same. 15. Further PW-8 admits that in the special report there is no reference who gave the weighing scales and weights. Prosecution story that they were in the kit does not inspire confidence. He also admits that the statement of police officials Madan Gopal and Surender Pal were only recorded on 18.7.2000. The possibility of these witnesses being introduced later on cannot be ruled out. The 10 accused was charged for having committed an offence punishable under the Act for which sentence of rigorous imprisonment for a period of ten years can be awarded. Thus burden to prove the charged offence was heavy on the prosecution which in the instant case they have failed to discharge. 16. 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 versus 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 person 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. (Justice R. B. Misra), Judge. (Justice Sanjay Karol), Judge. June 15 , 2011 (PK)