IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cri. Appeal No. 605 of 2002 Reserved on : 23rd September, 2011 Date of Decision: 28th October, 2011 State of Himachal Pradesh Appellant Versus Karam Chand Respondent Coram The Hon’ble Mr. Justice Deepak Gupta,J. The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No For the appellant: Mr. Rajesh Mandhotra, Dy. Advocate General. For the respondents: Mr. M.L.Brakta, Advocate. Sanjay Karol, J. For an offence, which is alleged to have been committed on 16.2.2002, accused was put to trial. In terms of judgment dated 5.6.2002 passed by Additional Sessions Judge, Solan, District Solan, H.P. in Sessions Trial No. 17-S/7 of 2001, titled as State of H.P. vs. Karam Chand, accused stands acquitted of the charged offence. 2. As per the case of the prosecution ASI Jagdish Ram (PW- 9) alongwith C. Daya Ram, Paras Ram, C.Paramjit Singh (PW-3) were on patrol duty at Bus Stand, Parwanoo on 16.2.2001. At about 4.50 a.m. Bus bearing registration No. HP-06-2084 was stopped and checked by them. Accused was found sitting on seat No.42. At that time he was carrying a bag with himself. The same was searched and a polythene bag containing contraband substance was recovered. Accused disclosed Whether the reporters of Local Papers are allowed to see the Judgment? 2 his name as Karam Chand. The bag was searched in the presence of Conductor Ved Parkash and driver Hem Raj (PW-1) of the Bus. PW-9 asked PW-3 to bring the scales for weighing the contraband substance from the nearby shop. Accordingly, PW-3 brought the same from the shop of Shri Narata Ram alias Dassu, who also accompanied him the spot. Contraband substance was weighed and found to be of 10 kg. 300 gms. Two samples of 50 gms. each were taken out by PW-9 in the presence of the Conductor, driver, shop owner and other police officials. The samples as well as the remaining contraband substance were packed separately and sealed with seal impression ‘T’ and recovery memo (Ext.PW-1/A) prepared on the spot. PW-9 also prepared NCRB form (Ext.PW-5/D). He also prepared Rukka (Ext.PW-5/B) and sent the same through PW-3 for registration of the case to Police Station, Parwanoo. Rukka carried by PW-3 was handed over to Inspector Parmod Sukla (PW-5), Station House Office, Police Station Parwanoo, who registered FIR No. 20 (Ext.PW-5/B) dated 16.2.2001, under Section 20 of Narcotic Drugs Psychotropic and Substances Act, 1985. Sub Inspector Brij Mohan (PW-8) accompanied PW-3 to the spot. Case property alongwith documents prepared at the spot were handed over by PW-3 to PW-5 alongwith NCRB form (Ext.PW-5/D). PW-4 carried the sealed sample handed over to him by PW-5 for depositing the same to CTL Laboratory, Kandaghat. However since the Laboratory was closed, contraband substance could not be deposited on the same day and as such PW-4 deposited the same with Shri Bhupender Kumar, MHC (PW-7) posted at Police Station, Kandaghat. On 17.2.2001 PW-7 handed over the case property to PW-4 for depositing the same at CTL Laboratory, Kandaghat, and the same was deposited on the very same day. Report 3 (Ext.PA) of the CTL Laboratory, Kandaghat was obtained by the police, which showed that the contraband substance was Charas. 3. With the completion of investigation, challan was presented in the Court for trial. Accused was charged for having committed an offence punishable under Section 20 of the Narcotic Drugs Psychotropic Substances Act, 1985 to which accused did not plead guilty and claimed trial. 4. In order to prove its case, prosecution examined as many as nine witnesses and the statement of the accused under Section 313, Cr.P.C. was also recorded wherein accused pleaded false implication. No evidence in defence was led. 5. The Court below acquitted the accused of the charged offence inter alia on the ground that prosecution failed to prove, beyond reasonable doubt, the fact that contraband substance was recovered from the conscious possession of the accused. Hence the present appeal. 6. We are conscious of the fact that accused stands acquitted by the Court below. However, we are equally conscious of the fact that the contraband substance is of large quantity. As such, we have carefully examined the testimonies of the prosecution witnesses and the material placed on record by the prosecution. At the outset, we may record that the testimonies of police officials, which otherwise does not inspire confidence, have not been corroborated by any independent witnesses. In this case, as a matter of prudence it ought to have been done. 7. As per the version of the prosecution, the alleged recovery of the contraband substance took place in the presence of the driver of Bus 4 Shri Hem Raj (PW-1). However, this witness has not supported the prosecution with regard to recovery of contraband substance from the accused. In spite of exhaustive cross-examination by the Public Prosecutor, upon the witness being declared hostile, nothing fruitful in support of the prosecution could come out. In fact this witness has given a totally different version than the one projected by the prosecution. He states that the Bus was taken to the Police Chowki where the contraband substance was recovered. He further states that the scales were brought from the nearby shop-keeper and the contraband substance weighed at the Police Chowki. Though he admits that parcels were sealed in his presence but states that the seal was handed over by the police to the Conductor of the Bus Shri Ved Parkash, who incidentally has not been examined in the Court. He denies the fact that Charas was recovered from the accused or that he was a witness of the recovery. He admits that on that day 15 passengers were travelling in the Bus. He could not state as to which of the passenger was sitting on which particular seat on that day. Significantly he has not stated that accused was sitting on seat No. 42. Hem Raj was the first person to be examined in the Court. He was declared hostile. He did not support the prosecution, yet prosecution did not examine Ved Parkash for the reason that he was stated to have been won over by the accused. What was the basis on which such statement was made by the prosecution is not disclosed to the Court. Be that as it may be, simply because the witness was allegedly won over, that fact by itself would not be sufficient not to examine the witness. 8. That apart we find that there is inherent contradiction in the stand taken by the prosecution with regard to the person from whom 5 the scales were brought for weighing the contraband substance. According to C.Paramjit Singh (PW-3) he brought the scales from the shop of Narata Ram alias Dassu, who also accompanied him to the spot, where the contraband substance was weighed. However, prosecution has not examined the said Narata Ram in Court but in turn has examined his son Narayan Dass (PW-2) to prove the fact that scales were brought from his shop and that the contraband substance was weighed and samples taken in the presence of this witness. Significantly C. Paramjit Singh (PW-3) does not state that Narayan Dass son of Shri Narata Ram had accompanied him to the spot. He is totally silent with regard to the presence of Narayan Dass. Now PW-2 has also not supported the prosecution and was declared hostile. He was extensively cross- examined by the Public Prosecutor, yet nothing fruitful could come out from his testimony in favour of the prosecution. He states that police had demanded scales which he had taken to the Police Station where Charas was weighed and samples taken in his presence. He does not state that contraband substance was recovered from the conscious possession of the accused. 9. Thus in view of the inherent contradictions in the prosecution version, further testimonies of the police officials need to be examined with circumspection. No doubt some of the police officials present at the spot were examined in the Court. They are C. Parmajit Singh (PW-3), Brij Mohan (PW-8) and ASI Jagdish Kumar (PW-9). They have supported the prosecution case, but however, we find that their testimonies remain uncorroborated and not inspiring confidence. 10. We find there are inherent contradictions in their statements with regard to filling up of NCRB form (Ext.PW-5/D). Bare 6 perusal of NCRB Form would show that the same has been filled up in the same handwriting. All columns from Sl. No.1 to 10, to the naked eyes, appear to have been filled up by the very same person. However, according to PW-9 “upper portion” of NCRB form was filled up by him in his own hand and “remaining portion” was filled up by Shri Brij Mohan (PW-8). Now PW-8 is totally silent on this aspect. He does not state that the form was filled up by him. He simply stated that when he reached the spot, PW-9 handed him the case property alongwith documents including NCRB form. However, he states that NCRB form was completed by SHO, Police Station, Parwanoo, (PW-5) in his presence. This version of PW-9 stands contradicted. PW-5 states that NCRB form was handed over to him by PW-8 and that he himself filled up column Nos. 9 and 10 of the form. Now this version of PW-5 corroborated by Pw-8 stands contradicted not only by PW-9 but also by PW-5 himself, who in the very same breath has admitted that “it is correct to suggest that NCRB form has been written in the same handwriting”. That apart, PW-5 admits that there is no entry of the NCRB form in the Malkhana register. He further states that the same was not deposited in the Malkhana. There is no explanation as to why the same was not so done. In fact it is the categorical version of PW-8 that he handed over the case property and the documents to PW-5. 11. We find that prosecution version with regard to recovery of contraband substance from the conscious possession of the accused is not supported by independent witnesses. Also there are contradictions with regard to the exact place where the same was actually recovered and weighed. Whether the recovery was effected in the Police 7 Station/Chowki or at the place where the Bus was checked is not conclusively and clearly established. 12. Further we also find that link evidence in this case is weak and missing. Perusal of the Chemical Examiner’s report (Ext.PA) shows that seals on the sample were tallied with the specimen impression of the seal sent separately. There is certificate of the Chemical Examiner to this effect. However, we find that there is nothing on record to show that the sample of the seal was sent to the Laboratory. Statement of Netar Singh (PW-4) and Bhupender Singh (PW-7) in this regard does not corroborate this fact. We also find that there is no facsimile impression of the seal, with which the sample was sealed, on the NCRB form or the report of the Chemical Examiner. Hence the certificate issued by the Chemical Examiner cannot be said to be correct. Prosecution has only placed on record impression of only seal ‘P’ which, however, was not used at the time of allegedly effecting recovery of the contraband substance from the accused and carrying out search and seizure operation. We also find that the prosecution has not been able to produce the Malkhana register to prove and establish the fact that NCRB form alongwith contraband substance was actually deposited in the Malkhana at Police Station, Parwanoo or at Police Station, Kandaghat. 13. Prosecution was fully aware that independent witnesses had not supported the prosecution case. In the instance case, it was thus incumbent upon the prosecution to have also examined the other police officials i.e. Daya Ram and Paras Ram. Police ought to have also examined the other passengers who were travelling in the bus at the relevant point in time. Absence thereof further makes the prosecution case to be shaky. 8 14. Statements of police officials being contradictory in nature do not inspire confidence. For the aforesaid reasons, we find that prosecution has not been able to prove its case, beyond reasonable doubt. It cannot be held, beyond reasonable doubt, that the Charas was recovered from the conscious possession of the accused. 15. 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 and interference by this Court is warranted. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. 16. (Deepak Gupta) Judge. 28th October, 2011 (Sanjay Karol), (C) Judge.