IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 266 of 2002. Date of decision: 07.07.2011. State of H.P. ….. Appellant. Vs. Sawaran Singh & anr. …. Respondents. 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, Sr. Addl.A. G. For the respondents : M/s. Neel Kamal Sharma & Sunita Sharma, Advocates Sanjay Karol J. (Oral. For an offence, which is alleged to have been committed on 21.08.2000, accused were put to trial. In terms of judgment dated 05.01.2002 passed by learned Addl. Sessions Judge, Solan, in Sessions Trial No. 4-S/7 of 2001 titled as State of H.P. vs. Sawaran Singh & Anr., accused stands acquitted of the charged offence. 2. It is the case of the prosecution that I. O. Harmesh Kumar (PW-11) was on patrolling duty on 21.8.2000. On suspicion that accused Sawaran Singh who was running a dhaba at Manpura was indulging into illegal trade of charas and opium, he constituted a Whether the reporters of the local papers may be allowed to see the Judgment? 2 raiding party by associating independent witnesses Dev Raj (PW-1) & Kishan Dayal (PW-2). He sought consent by serving memo (Ext.PW-1) for search of the accused, who consented to be searched by the police party. From the pocket of the accused two packets of opium were recovered. They were measured and found to be of 20 grams. 5 grams was taken as sample and kept in the match box. The sample and the remaining parcel were packed and sealed with seal impression ‘H’. Thereafter, the premises where the dhaba was being run was searched and from the counter, two packets of opium and four sticks of charas were recovered. Opium was measured and found to be of 20 grams. Sample of 5 grams was taken and sealed. Remaining stuff was also sealed with seal impression ‘H’. Charas was weighed and found to be of 35 grams. Sample of 5 grams was taken and the remaining stuff and the sample were also sealed separately with seal impression ‘H’. All the sealed parcels were seized vide seizure memos Ext.PW- 1/J & Ext.PW-1/K. Rukka (Ext.PW-8/A) was prepared and sent to the Police Station, where F.I.R. No.134/2000 (Ext.PW-8/C) dated 21.8.2000 under Sections 18, 20, 61/85 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘NDPS Act’) was registered at Police Station, Barotiwala. Codal formalities were completed on the spot and PW-11 deposited the seized articles along with the NCB form with Taranjit Singh, MHC (PW-12). 3 Special report (Ext.PW-5/A) was sent to the superior officer. Sealed sample was sent to the Laboratory for chemical analysis and the report (Ext.PW-11/G) was obtained by the police. Investigation revealed complicity of the accused to the alleged crime and consequently challan was presented in the Court for trial. 3. Accused were charged for having committed offences punishable under Sections 18, 20, 61/85 of the NDPS Act, to which they did not plead guilty and claimed trial. 4. In order to prove its case prosecution examined 14 witnesses and the statements of the accused under Section 313 Cr.PC were also recorded. 5. Court below acquitted the accused of the charged offence, hence the present appeal. 6. Independent witnesses, Dev Raj (PW-1) and Kishan Dayal (PW-2) have not supported the prosecution case at all. Inspite of being cross-examined at length, nothing has come out in their testimonies which would prima facie show that they have either deposed falsely or have tried to help the accused. They have categorically deposed that the police did not recover contraband substance from the conscious possession of the accused in their presence. They have explained the circumstances under which they signed the documents. Their house is at a distance of one furlong/half km. from the place of occurrence. They were called by the 4 police and were not present at the spot by chance. Undisputedly, there were houses of other persons prior to the place where these witnesses reside. The police did not associate any one of those residents. Why so? has not been explained. 7. It is a settled position of law that even if independent witnesses do not support the prosecution, testimonies of police officials can still be relied upon to consider the guilt of the accused provided however the same inspires confidence. The only caveat is that the Court has to be slightly circumspect while examining the same. 8. In the instant case, we find the version of the police officials and more specifically PW-3, PW-9, PW- 10 & PW-11 does not inspire confidence, apart from the fact that the police case with regard to link evidence is also weak. 9. In the instant case, even according to PW-11 no steps for complying with the provisions of Section 42 were taken. It is the specific case of PW-11 that he had formed a raiding party prior to conducting raid on the premises of the accused. Now what was the purpose of constituting a raiding party, it was only to raid the premises of the accused. Thus police was aware of the accused indulging in an illegal activity, which fact was based on suspicion/prior information. Neither did PW-11 record his reasons of belief nor did 5 he communicate the same immediately to his superior officer. 10. HC Ram Nath (PW-7) is the Reader of Dy.SP Mohinder Singh, who has deposed that he received reasons of belief (Ext.PW-7/A) and entered the same at Sl. No. 5497-2NLG, but in cross-examination he admits that there is overwriting at Sl. No. 5497 and there is no explanation forthcoming justifying the same. This is only indicative of the fact the same was prepared and sent belatedly, perhaps only to fill up the lacuna in the police case. 11. That apart, we also find that during investigation police has recorded statement under Section 161 Cr.PC of only one witness. Why were the statements of the police officials who were present at the spot not recorded has not been explained. In fact during investigation PW-1 has committed a blunder. Though he has tried to explain the same but in our considered view, explanation is an after thought and only with an endeavour to cover up his mistake. During investigation, he got recorded that the contraband substance was handed over to Neelam Kumari, MHC, whereas in Court, Taranjit Singh who allegedly received the same has been examined and not Neelam Kumari. The explanation is that it is a bonafide mistake. This cannot be so and it also cannot be permitted to be so particularly in a case where penalty imposed is severe and liberty of an individual 6 is involved. The police officials in a parrot like manner have narrated the prosecution story but however falsehood has left its trail. 12. Neither does PW-9, nor does PW-11 talk about NCB form which on bare perusal shows that the same has been prepared not on the spot but subsequently. There is overwriting with regard to the number of F.I.R. and none has come forward to explain the same either. Further, there is no facsimile/lithographic impression of the seal on the NCB form and the original seal has not been produced in the Court rendering the link evidence to be weak. All this renders the prosecution case to be further doubtful. Even Taranjit Singh, MHC (PW-12) has not deposed that he received the case property sealed with a particular seal, nor does he state that he had sent the same in the very same condition. 12. Hence, there are serious loopholes and doubts in the prosecution case apart from the fact that version of the prosecution witnesses does not inspire confidence. In our considered view, prosecution has failed to bring home the guilt of the accused/respondent. 13. Accused have had the advantage of having been acquitted by the Court below. Keeping in view the principles 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 7 the Court below has not correctly appreciated the evidence on record or that acquittal of the accused 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 (Sanjay Karol) Judge July 07, 2011 (rana)