IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 122 of 1995 Date of Decision : March 9, 2010 State of Himachal Pradesh Appellant Versus Sunil Kumar Respondent Coram: Hon’ble Mr. Justice Deepak Gupta, Judge Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Ram Murti Bisht, Dy. Advocate General for the appellant. For the respondent : Mr. Baldev Singh, Advocate, for the respondent. Deepak Gupta, J. (Oral) This appeal by the State is directed against the judgment dated 2.4.1994 passed by the learned Sessions Judge Chamba Division at Chamba, H.P. in Sessions Case No. 4 of 1993 whereby he acquitted the accused Sunil Kumar of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). Whether reports of Local Papers may be allowed to see the judgment? Yes. 2 Briefly stated the prosecution case is that on 31.1.1992 at about 10.45 a.m. Head Constable Surinder Singh (PW-2) alongwith other Constables checked HRTC bus No. HP-48-0813 which was going from Chamba to Delhi. Accused Sunil Kumar was sitting in the bus alongwith two other persons Subhash Chand and Gurjeet Singh. On seeing the police personnel these three persons got perplexed. Each of these persons was holding a bag in his hands. This aroused the suspicion of the Head Constable who asked these three persons to get off the bus. On inquiry the accused person as well as the other two persons disclosed their names. PW-2 did not check them and according to him he wanted to take them to the Police Station, Dalhousie and was waiting for a bus at Tunnahatti Barrier. In the meantime ASI Om Prakash (PW-11) reached there. He, therefore, produced these persons alongwith the bags to ASI Om Parkash (PW- 11). According to ASI Om Prakash (PW-11) he reached Tunnahatti barrier at about 12 noon alongwith Constable Daulat Ram and Constable Ramesh Kumar. He found that PW-2 was there alongwith the accused and two independent witnesses Sh. Kuldeep Singh and Sh. Yugal Kishore. They were waiting for a bus to go to Dalhousie. PW-2 produced the accused as well as two other persons Gurjeet Singh and Subhash alongwith the bags before PW-11 who in turn informed the accused that he wanted to search them since he suspected that they are carrying Charas. He also gave them option of being searched before a Gazetted Officer or a Magistrate. The 3 accused gave consent to his being searched by PW-11. On search of the bag which the accused was holding 1 kg 310 gms of contraband substance was found. A sample of 10 grams was taken. Both the sample and the bulk parcels were sealed with seal-T and taken into possession vide memo Ext. PB. The seal impression of seal-T was taken separately on a piece of cloth. Search was allegedly conducted in the presence of Kuldeep Kumar (PW-1) and Yugal Kishore (PW-7). Thereafter the codal formalities were completed at the spot. Special Report was sent to the superior officer. On 1.2.1992 that is on the next day the case property which had been sealed with seal-T was deposited with SHO- Bidhi Chand (PW-9) who in turn fixed his own seal – ‘C’ on the parcels and the case property was deposited in the Maalkhana with MHC – Dev Raj (PW-3). On 11.2.1992 MHC – Dev Raj handed over one sealed parcel along with specimen seal to Constable Ravinder Kumar (PW- 6) for being sent to Chemical Examiner, Kandaghat. PW-6 took the sample to Kandaghat and deposited it with the Chemical Examiner. The Chemical Examiner after analysis submitted his report Ext. PK and found that the sample was that of Charas and the resin content was 28.33%. After trial the accused has been acquitted mainly on two grounds. Firstly, that the provisions of Section 50 of the Act were not complied with and the personal search was not done in accordance with law and secondly that the statement of the 4 Investigating Officer is not corroborated by independent witnesses or HC – Surinder Singh (PW-2). Hence the present appeal by the State. We have heard Sh. Ram Murti Bisht, learned Deputy Advocate General on behalf of the State and Sh. Baldev Singh, learned counsel, on behalf of the accused. As far as Section 50 of the Act is concerned we are of the view that the same is not applicable in view of the law laid down by the Apex Court in State of Himachal Pradesh versus Pawan Kumar, Latest HLJ 2004 (SC) 1247 that in a case of search of a bag Section 50 of the Act is not attracted. Now we come to the merits of the case. Sh. Kuldeep Kumar (PW-1) one of the independent witnesses associated with the search has turned hostile and states that on 31.1.1992 at about 10/11 a.m. he was sitting in the residential quarters of the police at Tunnahatti where the police brought the accused and stated that they have recovered Charas. Nothing was however recovered in his presence. He was declared hostile and cross examined. He denied having made statement under Section 161 Cr. P.C. He however admitted that when he alongwith HC-Surinder Singh (PW-2) and Yugal Kishore (PW-7) were waiting for bus to take the accused and two other persons to Dalhousie then ASI Om Prakash reached the spot and on search of the bag 1 kg 310 grams of Charas was recovered. In cross examination by the prosecution, he has virtually admitted whatever has been put to him by the prosecution. However, when 5 cross examined by the accused he states that Charas was lying under the table when he was called by the police. He also deposed that he has deposed in eight – ten cases of narcotics on behalf of the police. HC-Surinder Singh (PW-2) is the person who apprehended the accused with other two persons. He states that the accused and the other two persons were asked to alight from the bus and at that time Kuldeep (PW-1) and Yugal Kishore (PW-7) were also present there. It is important to note that this witness nowhere states that he associated Kuldeep Singh and Yugal Kishore or asked them that they would have to join investigation. His only statement is that they were present at the spot. As already observed above PW-11 reached at the spot at 12 noon i.e. one hour and fifteen minutes after the accused had been apprehended. This witness is totally silent as to what he did for one hour and fifteen minutes. His only explanation is that he was waiting for bus to take the accused to Dalhousie. This witness does not even whisper that he made attempts to ensure that the bag being carried by the accused remained in the same condition and was not tampered with by the accused or any other person. In his examination he states that he was accompanied by “other constables”. This means that there were atleast two other police officials with him. Who were these police officials? This question remains unanswered and there is no explanation as to why these police officials were not named or associated with the search and not cited as witnesses. PW-2 in 6 cross examination states that bag Ext. P1 from which Charas was recovered was kept on the floor of the bus. Then he changed his version and stated that it was lying on the seat beside the accused. Therefore this witness has given three different versions with regard to the bag. In the examination- in-chief he stated that the accused was holding the bag. In cross examination he first stated that it was lying on the floor and lastly he stated that it was lying on the seat beside the accused. This last statement appears to be totally false since according to his statement the accused and the other two persons apprehended on the spot were sitting next to each other. Sh. Yugal Kishore (PW-7) is the other so called independent witness. He has stated that bag was being carried by the accused on his shoulder. He also states that on seeing the police the accused became nervous and so the police officials asked him to alight from the bus. This testimony of the witness is obviously false. He was not travelling in the bus. He is a shop keeper in the market. According to PW-7 he came only after the accused and the other two persons alighted from the bus. He could not have known what would have happened before the accused alighted from the bus. It is obvious that he is making a false and tutored statement. This is also obvious from the fact that this witness admits that he has deposed in 20 - 22 cases of NDPS Act on behalf of the police. He is a stock witness and therefore his statement is to be read with great care and caution. 7 Another unexplained lapse in the present case is that according to the prosecution for more than one hour PW-2 was waiting with the accused and two other persons to take them to Dalhousie. The said persons had not been arrested till that stage. They could have only been requested to join him. It is obvious that PW-2 could not have been alone at that time and there must have been other persons to restrain the accused from running away. No such police officials have been examined. PW-11 states that he came to Tunnahatti just by chance. This does not appear to be correct. There is a phone facility available at Tunnahatti and if PW-2 had apprehended three persons on suspicion of carrying Charas he should have either searched them immediately which he was authorised to do under Section 41 of the Act being a Head Constable or he in natural course would have sent a wireless or telegraphic message to his immediate superior. Surprisingly PW-11 has not placed Rojnamcha showing the entry of his departure from Dalhousie which would have revealed his exact reason of his departure from Dalhousie. Another circumstance which cast doubt on the prosecution version is that admittedly at Tunnahatti there is a barrier of the Excise and Taxation Department. In the site plan Ext. PG prepared by the Investigating Officer it is shown that there is an Army Check Post, large number of shops, check post of police as well as Excise Office and residence of police officials near the barrier. Therefore, there was no dearth of reliable independent witnesses. Why in such 8 circumstances reliance was placed on stock witnesses only. In fact PW-2 does not state that he called these two independent witnesses. He also does not state that he made any efforts to associate other witnesses. These two witnesses who have appeared in so many cases for prosecution are obviously stock witnesses and no conviction can be based on their statements which too are contrary to each other. In fact PW-7 though he supports the prosecution version to some extent clearly states that PW-1 was not present when the search was conducted. In view of the aforesaid facts and circumstances the learned trial Court was justified in acquitting the accused. We find no reason to interfere with the well reasoned judgment of the learned trial Court. The appeal is dismissed. Bail bonds furnished by the accused are ordered to be discharged. (Deepak Gupta), Judge. (Sanjay Karol), Judge. March 9, 2010 (PK)