IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No.224 of 2002 Reserved on: July 07, 2011 Date of Decision : August 03, 2011 State of H.P. …Appellant. Versus: Parma Nand …Respondent. Coram: The Hon’ble Mr. Justice R. B. Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes For the appellant: Mr. R.K.Sharma,Sr. Addl. A. G. For the respondent: Mr. Y.P.S. Dhaulta, Advocate Sanjay Karol, J. For an offence, which is alleged to have been committed on 3.10.2000, accused was put to trial. In terms of judgment dated 29.11.2001 passed by learned Sessions Judge, Mandi, in Sessions Trial No. 3 of 2001 titled as State of H.P. vs. Parma Nand, accused stands acquitted of the charged offence. 2. It is the case of the prosecution that HC Jagat Singh (PW-11), was going from Thachi to Bagi Bhanwas along with LHC Narpat Kumar (PW-7), HC Shanti Kumar (PW-3) and Narinder Kumar, in connection with 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 patrolling duty. When they reached near the shop of one Chainu Ram, they saw the accused carrying a bag on his shoulder. Seeing the police party, he tried to run away from the spot. However police officials apprehended him. Inder Singh (PW-2), an independent witness also happened to be there who was requested by the police to associate in the investigation. PW-11 also deputed PW-6 to call an elected member of the ward of the area. Accordingly, Kurum Dev (PW-1), the elected member of the ward of the area was contacted by PW-6 and requested to associate with the police party. On inquiry, accused informed his name to be Parma Nand, resident of village Bala. The accused was informed that the police suspected him of carrying some contraband substance. PW-11 informed the accused of his right of being searched in accordance with the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘NDPS Act’) and memo (Ext.PB) was served upon him. Accused consented to be searched by PW-11. The bag carried by the accused on his shoulder was searched and polythene packet containing charas like substance in the shape of batties and balls was recovered. On the asking of PW-11, PW-6 brought the scales from the nearby shop. Contraband substance was weighed and on weighment found to be of 550 gms. Police took photographs on the spot. Two samples of 25 grams each were taken separately. Remaining contraband and the sample were sealed with 3 seal impression ‘H’. Specimen of seal impression was taken separately (Ext.PR) and seal handed over to PW-1 vide memo Ext.PD. PW-11 also prepared rukka (Ext.PS) and sent the same through H.C. Shanti Kumar (PW-3)for registration of the case. On the basis of rukka, F.I.R. No. 103/2000 (Ext.PL) under Section 20 of the Act was registered at Police Station, Aut. On the spot police arrested the accused after serving memo (Ext.PF) and codal formalities were completed. Thereafter, PW-11 handed over the case property to Dy.SP Ms. Shubhra Tiwari (PW-5) who resealed the sample with seal impression ‘T’. The same was thereafter handed over to MHC Naresh Kumar (PW-7). Special report (Ext.PO) was also sent to the superior officer. Sealed sample was taken by Hoshiar Singh (PW-4) to the C.T.L., Laboratory, Kandaghat, from where report (Ext.PQ) was obtained, which confirmed the contraband substance to be charas. 3. With the completion of investigation challan was presented in the Court for trial. 4. Accused was charged for having committed an offence punishable under Section 20 of the Act, to which he did not plead guilty and claimed trial. 5. In order to prove its case prosecution examined 11 witnesses. Statement of accused under Section 313 Cr.PC 4 was also recorded wherein he pleaded innocence and false implication. 6. Appreciating the material on record, the Court below acquitted the accused of the charged offence. Hence, the present appeal. 7. The accused stands acquitted on the following grounds:- i) Mandatory provisions of Sections 42 & 50 were not complied with by the police at the time of carrying out search and seizure operations. ii) PW-11 being the complainant, could not have proceeded with the investigation. Hence keeping in view the decision rendered by the Apex Court in Megha Singh vs. State of Haryana AIR 1995 SC 2339 prosecution case stands vitiated. iii) Independent prosecution witnesses i.e. PW-1 & PW-2 turned hostile and did not support the prosecution case. iv) Version of the prosecution that they had associated independent witnesses is concocted. Police had no reason to call independent witness (PW-1) from a far of place in view of the fact that other independent witnesses were available on the spot at the relevant time. This conduct of the police only renders the prosecution case to be doubtful if not false. Non-examination of other independent witnesses available at the spot has further rendered the prosecution case to be doubtful. 5 8. We have heard learned counsel for the parties and also perused the record. We are of the considered view that the factors which weighed with the learned trial Court in acquitting the accused are not only contrary to the settled position of law, but are based on incorrect and erroneous appreciation of material on record resulting into travesty of justice and wrongful acquittal of the accused. 9. Learned Judge erred in presuming that the contraband substance was recovered on the basis of prior information and from the premises belonging to the accused. 10. In the instant case recovery was effected from the bag carried by the accused on his shoulder. At that time the accused was walking on the road. PW-1 has categorically deposed that accused was spotted on the road. Seeing the police party when the accused tried to flee, he was apprehended by them. This version has been corroborated by PW-3 & PW-6 also. In this view of the matter, applicability of the provisions of Sections 42 & 50 of the Act does not arise at all. 11. Decision rendered by the Apex Court in Megha Singh (supra) came up for consideration subsequently in Megha Singh vs. State of Haryana (1996)11 SCC 709, State, represented by Inspector of Police, Vigilance & Anti Corruption vs. V. Jaya Paul (2004) 5 SCC 223, S. Jeevanatham vs. State (2004) 5 SCC 230, Mukhtiar Ahmed Ansari vs. State (N.C.T. of Delhi) (2005) 5 SCC 6 258 & Bhaskar Ramappa Madar & Others. Vs. State of Karnataka (2009)11 SCC 690, wherein it is categorically held that there is no bar in law for the investigation to be carried out by the same police officer who had lodged the F.I.R.. In the instant case, accused has not been able to show as to in what manner investigation carried out by the complainant has caused any prejudice or any bias to him. Merely because the complainant has conducted the investigation that fact by itself would not be sufficient to cast a doubt on the prosecution version. This fact by itself would not make the prosecution case to be vulnerable. Hence acquittal on the ground that the complainant could not have proceeded with the investigation of the case, in the absence of any prejudice, cannot be said to be legally sustainable. 12. PW-1, who happened to be present at the spot, at the time when the accused was apprehended, was asked to associate with the police. Thereafter PW-6 was asked to fetch the ward member. Now this version stands fully corroborated by PW-3 & PW-6. It is not in dispute that at the relevant time PW-2 was serving as a teacher and PW-1 was the elected member of the Gram Panchayat. PW-11 has also proved on record statements of Inder Singh (Ext.PB) and Kurum Dev (Ext.PU), recorded under Section 161 Cr.PC, which he had correctly recorded during the course of his investigation. Independent witnesses PW-1 & PW-2 were confronted with the relevant 7 portion of these statements also. These statements are totally in line with the prosecution version. However, in Court both these independent witnesses took a contrary view and as such were declared hostile. Having minutely examined their testimonies, we are of the view that in Court they have deposed falsely. Both these witnesses are educated and know how to read and write. Both these witnesses admit that they were associated by the police during investigation and that the consent memo (Ext.PC), receipt of sealed memo (Ext.PD), Seizure memo (Ext.PE) & Search memo (Ext.PG), bear their signatures. According to PW-1, he was called by the police and PW-2 reached after his arrival. Significantly, PW-1 does not state that he met the police party in Patwarkhana which in fact is the case of PW-2. However both these witnesses unanimously state that no search of the bag of the accused was conducted by the police in their presence and that nothing was recovered from the conscious possession of the accused. They have not supported the prosecution case only on this aspect, even though they admit that photographs (Ext.PH/1 to Ext.PH/3) were taken in their presence by the police as also charas was weighed and sealed in their presence. On a suggestion put by the prosecution, PW-1 first admitted but later denied that he had come in a Van, expense of which was born by the brother of the accused. PW-2 admits to have signed the documents in blank but this act of his was voluntarily in nature. 8 He admits not to have made any complaint about this fact to any superior officer. Why did he sign blank papers without any valid justification. Even though subsequently he has tried to justify his acts by stating that papers were signed under pressure from the police but in the very next breath he clarifies that he could not assign any reason as to why he had signed on blank papers. Thus, to us it appears that these witnesses have falsely deposed in Court. 13. Hence, it cannot be said that they have given a version which is reliable, truthful or trustworthy. These witnesses had no reason to sign blank papers. It is not their case that they had involuntarily associated themselves with the police during investigation or had associated themselves only under threat, pressure or coercion. Apparently they were witnesses to the sealing of the contraband substance as also preparation and serving of the search and seizure memos prepared at the spot. It cannot be said that through their testimonies a different or contradictory version has come on record. 14. From the conjoint reading of the testimonies of PW-6, PW-7 & PW-11, it can safely be said that they have proved the prosecution case to be true to the hilt. PW-11 searched the bag carried by the accused on his shoulder. He found a polythene packet from which charas was recovered. It was weighed and thereafter he took the sample and sealed the same and the remaining 9 charas with seal impression ‘H’. He took impression of the seal (Ext.PR) and after seizing the property handed over the same to PW-5, who after resealing the same with seal impression ‘T’ deposited the same with PW-7 from whom, PW-4 took the sample and deposited the same with the Laboratory. These witnesses have categorically deposed that the case property was under their safe custody and not tampered with at any point in time. We find the testimonies of these witnesses to be clear, cogent, consistent, trustworthy and reliable. There is nothing inconsistent in the same. In our considered view, they have proved the prosecution case to the hilt. 15. It is true that PW-1 admits that Chainu Ram was present in his shop at the time when search and seizure operations were carried out, but it stands explained that he was alone in his shop and the proceedings were conducted on the road, at a distance of 8-10 feet from the shop of Chainu Ram. Police had wanted to associate an elected representative of the area and for this very reason had called PW-1 before conducting the search and seizure operations. There was nothing wrong in the same. After all accused had tried to flee away from the spot and it did not take much time for PW-1 to arrive at the spot. He came just within 10-15 minutes as is evident from the testimony of PW-11. Kurum Dev admits that he met the police at a distance of about 30 mtrs. from the shop of Chainu Ram. No doubt there is 10 discrepancy with regard to the distance but nonetheless that fact by itself would not make the prosecution case weak or render the testimony of police officials to be untrue or untrustworthy. Whether the distance is 20 feet or 30 mtrs., it would not make any difference. What matters is the place where the alleged offence took place which undisputedly was identified to be near the shop of Chainu Ram. 16. From the testimonies of police officials, it stands fully proved that the contraband substance was recovered from the conscious possession of the accused. Memos Exts. PB, PC, PD, PE & PF fully corroborate the version of the prosecution witnesses in this regard. 17. In fact on a pointed query put to learned counsel for the accused, it was fairly conceded that there were no contradictions in the statements of the police officials rendering their testimonies to be untrustworthy, unreliable or false. 18. On the question of link evidence, testimonies of PW-4, PW-5 & PW-7 are amply clear. They have supported the prosecution case to the hilt. In fact on this aspect there is not much cross-examination by the accused. Police has also exhibited photographs (Exts.PH-1 to PH-3). Prosecution has also proved the receipt of the report (Ext.PO) by the superior officer. As per the report of the Chemical Examiner, the contraband substance was containing resin to the extent of 27.16%. Thus the prosecution has been able to prove 11 beyond reasonable doubt, complicity of the accused in the crime by leading clear, cogent, convincing and reliable evidence. 19. We thus hold the accused guilty of carrying charas and having committed an offence punishable under Section 20 of the NDPS Act. 20. Learned counsel for the accused was also afforded opportunity to argue on the quantum of sentence. Considering the fact that the offence took place in the year 2000, the age of the accused and that he has a family to support, on the question of sentence, we find that ends of justice would be met with if slightly lesser punishment is imposed upon the accused. Accordingly, we sentence him to undergo rigorous imprisonment for a period of two years along with fine of Rs.25,000/-. In the event of fine not being deposited within a period of three months, the accused shall further undergo rigorous imprisonment for a period of six months. Bail bonds furnished by the accused are cancelled and he is directed to henceforth surrender himself. The warrant be issued accordingly. ( R. B. Misra ) Judge. ( Sanjay Karol ), Judge. August 3, 2011. (rana)