1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 228 of 2002 Decided on June 30, 2011 __________________________________________________________ State of H.P. …Appellant. Versus Sayabu Ram ..Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. ¹Whether approved for reporting? No. For the appellant : Mr. R.K.Sharma, Senior Addl. Advocate General. For the respondent : Mr. Abhishek Sood, Amicus Curiae. Justice Sanjay Karol,J. (oral) For an offence, which is alleged to have been committed on 17.9.2000, accused was put to trial. In terms of judgment dated 19.12.2001 passed by Additional Sessions Judge, Solan District Solan, H.P., in Sessions Trial No.7-S/7 of 2001, titled as State of H.P. vs. Sayabu Ram, accused stands acquitted of the charged offence. 2. It is the case of prosecution that on 17.9.2000, Sh.Ramesh Chauhan (PW.1), was on investigation duty along with ASI Deva Nand, Head Constables Vijay Kumar, Ravinder Lal, Constables Om Prakash, Chhabil Kumar and Ajay Kumar, at Ashwani Khad, in connection with excise raid. They received a secret information that accused Sayabu Ram, resident of 2 Khadari Khurd, is indulging into sale of charas. The reasons of belief (Ex.PW.1/A) were recorded by PW.1 and sent to Sh.Rakesh Aggarwal, Superintendent of Police, Solan, through Constable Om Prakash. PW.1 formed a raiding party consisting of Smt.Premi Dei (PW.2) and Rajesh Kumar (PW.3). Accused was informed of the suspicion vide memo Ex.PW.1/B. The raiding party searched his house and from the trunk in one of the rooms recovered 13 match boxes containing charas. The same was measured and found to be of 120 grams. Two samples of 10 grams each were taken and sealed with seal impression 'Z'. The sample of the seal was handed over to Sh.Rajesh Kumar (PW.3). Rukka (Ex.PW.1/H) was sent through Constable Chhabil Kumar for registration of the case. Sh.Ramesh Chauhan (PW.1) filled up the NCB form (Ex.PW.1/K) on the spot and handed over the case property, documents and custody of accused who was also arrested on the spot, to ASI Deva Nand (PW.12). On the basis of rukka, FIR No.177/2000 (Ex.PW.6/B) was registered at Police Station, Solan. ASI Deva Nand (PW.12) handed over the case property to SHO Sh.Nutan Sharma (PW.6), who resealed the samples with seal impression 'A'. The sealed sample was sent to the C.T Laboratory, at Kandaghat, through Head Constable Harbhajan Singh (PW.7) and the report (Ex.PX) of the Chemical Analyst obtained by the police, which confirmed the contraband substance to be charas. With the completion of investigation, challan was presented in the Court for trial. 3 3. Accused was charged of having committed offence punishable under Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985 (in short referred to as the Act), to which he did not plead guilty and claimed trial. 4. In order to prove its case, prosecution examined 13 witnesses and statement of the accused under Section 313 Cr.P.C. was also recorded. 5. Court below acquitted the accused, hence the present appeal. 6. The prosecution case, to our mind, is full of doubts and improbabilities. Apart from the fact that independent witnesses have not supported the prosecution case, we also find that testimony of the police officials present at the spot, does not inspire confidence. 7. According to Sh.Ramesh Chauhan (PW.1), he prepared memo (Ex.PW.1/A) containing reasons of belief, which was sent to the superior officer, though the police official present on the spot, i.e. Ashwani Khad. Now this rukka was prepared by him at 3.00 P.M. and the same was received by the Superintendent of Police, at Solan, at 3.30 P.M. The distance between Ashwani Khad and office of Superintendent of Police, even in a vehicle could not cover in 30 minutes. It would take much more time. It therefore appears that the same was prepared not at the spot but sometime later. The testimony of Sh.Rakesh Aggarwal (PW.10), Superintendent of Police, in this regard, also renders the prosecution case to be doubtful. He 4 does not remember as to whether his statement under Section 161 Cr.P.C. was ever recorded by the police or not. He also does not remember having signed any documents. He also does not remember as to whether document (Ex.PW.10/A), sent after completion of the proceedings on the spot, was received by him or not. 8. Further according to PW.1, the contraband substance was recovered in the presence of independent witnesses Smt.Premi Dei (PW.2) and Sh.Rajesh Kumar (PW.3), who in fact have not supported the prosecution at all inspite of extensive cross-examination by the Public Prosecutor. The witnesses have not deposed anything in support of the prosecution. Nothing could be elicited from their testimonies, which would even remotely link the accused to the alleged crime. They have explained that the police had asked them to sign the papers which were blank. They signed the papers on the asking of the police officials, as they were informed that the police was only performing certain formalities. Most importantly, according to Sh.Ramesh Chauhan (PW.1), wife and children of the accused were also residing in the house of the accused. There is nothing on record to show that the house from where the alleged recovery took place actually belonged to the accused and none else in the family had access to the same. There is no evidence on record to show that accused alone used to reside in the same. Possibility of other family members being involved in the alleged offence, has not been 5 ruled out by the Investigating Agencies. 9. Even on the point of link evidence, we feel the prosecution case to be weak. No doubt Sh.Ramesh Chauhan (PW.1), Sh.Nutan Sharma (PW.6) and Sh. Deva Nand (PW.12) have deposed that the sealed parcels were kept in their safe custody and not tampered with, but however, this version of theirs, to our mind, does not inspire confidence. Seal having impression 'Z' has not been produced in the Court. That apart, in the NCB form there is no lithographic or facsimile impression of seal 'A' or 'Z'. The NCB form also appears to have been written in a continuous manner at the same time and by the same officer so as to give an impression that the same has been written at leisure in the office and not on the spot. The FIR number on the NCB form also appears to have been written in the same hand, with the same pen and in the same flow of handwriting. There is seal on the NCB form, certifying that the seal on the sample tallied with the specimen impression of the seal, sent separately. Now this seal has not been placed on record by any of the witness during trial. If seal had been handed over by the Investigating Officer to the independent witnesses, where was the question of same being tallied with the seal impression by the Chemical Examiner. The seal impression (Ex.PW.1/E) on a cloth of paper also does not carry seal impression 'A'. This raises doubt with regard to the prosecution case. 6 10. For the aforesaid reasons, we find that prosecution case cannot be said to have been established / proved, beyond reasonable doubt, by leading clear, cogent, convincing and reliable evidence. 11. 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. 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 June 30, 2011 (Sanjay Karol) (Purohit) Judge