1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 80 of 2009 with Cr.Appeal No. 182 of 2009 Judgment reserved on 15.9.2010 Decided on December 15, 2010 __________________________________________________________ Cr. Appeal No. 80 of 2009 Anil Kumar …Convict/ Appellant. Versus State of H.P. ...Respondent. __________________________________________________________ For the convict/appellant: Mr. Anup Chitkara, Advocate. For the respondent: Mr.R.K. Sharma, Senior Additional Advocate General, with Mr.Rajinder Dogra, Additional Advocate General. Cr. Appeal No. 182 of 2009 Rajesh Yadav …Convict/ Appellant. Versus State of H.P. ...Respondent. __________________________________________________________ For the convict/appellant: Mr. Ashok Sharma, Advocate. For the respondent: Mr.R.K. Sharma, Senior Additional Advocate General, with Mr.Rajinder Dogra, Additional Advocate General. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. ¹Whether approved for reporting? Yes Justice R.B. Misra,J. The present criminal appeal No. 80 of 2009 has been preferred under Section 36 B of the Narcotic Drugs and 2 Psychotropic Substances Act, 1985 ( in short called ‘NDPS Act') read with Section 374 (II) of Cr.P.C) against judgment dated 27.2.2009 passed by learned (Special Judge) Presiding officer, Fast Track Court, Mandi, District Mandi, H.P. in Sessions Trial Number 19/2008 (State of Himachal Pradesh Versus Rajesh Yadav and Anil Kumar), whereby learned trial Court has convicted the accused under Section 20-b (ii)(B) of the NDPS Act for the offence under Section 20 of NDPS Act, 1985 and has sentenced the convict appellant to undergo rigorous imprisonment for five years and also to pay fine of Rs. 50,000/-. In default of payment of fine, further simple imprisonment for a period of six months. 2. Criminal appeal No. 182/2009 has also been preferred under Section 36-B of the NDPS Act read with Section 374(2) of Cr.P.C against the common judgment dated 27.2.2009 passed by learned (Special Judge) Presiding officer, Fast Track Court, Mandi, District Mandi, H.P. in Sessions Trial Number 19/2008 titled State of Himachal Pradesh Versus Rajesh Yadav and Anil Kumar, whereby the learned trial Court has convicted the accused under Section 20-b (ii)(B) of the NDPS Act for the offence under Section 20 of NDPS Act and has sentenced the convict appellant to undergo rigorous imprisonment for 10 years and also to pay fine of Rs. 1,00,000/-. In default of payment of fine, convict Rajesh Yadav shall further undergo rigorous imprisonment for one year. 3. The prosecution case is that on 1.3.2008 at about 3 8.30 AM, HC Dhani Ram No.6 of Police Station, Gohar along with HHC Chet Ram No. 128, Constable Suresh Kumar No. 229, LHC Satish Kumar No. 450 vehicle driver and Constable Roshan Lal No. 222 were present near Pandoh Dam link road, in the meantime two persons (Accused) were seen coming from Kandah road side intended towards Pandoh Dam. The accused after seeing the ‘Naka’ party of the police started walking in speed turning back side. On suspicion both the accused were apprehended by the police personnel on the spot. On inquiry, the accused carrying bag and the other accused carrying suit case/Attache in his right hand disclosed their names Rajesh and Anil Kumar respectively. Both the accused could not give satisfactory answer regarding their roaming and police personnel suspected that accused might be possessing contraband. Since the place was deserted and lonely place, thus the accompanying police personnel, namely, Constable Suresh Kumar and LHC Satish Kumar were made witnesses while obtaining the consent of the accused for giving their search. On search, HC Dhani Ram took into possession the black colour bag carried by accused Rajesh Yadav on his right hand in which a towel of green colour was containing ‘Cannabis’ wrapped in three packets with plastic cover. On weighing by the I.O., 4 Kg of ‘Cannabis’ was recovered out of which two samples each sample of 25 Gms were taken for chemical examination and both the samples were put in a cloth parcels and six seal impressions as ‘P’ were put on the sample parcels and the remaining ‘Charas’ i.e. 3 Kgs 950 Gms was also put in 3rd parcel along with three 4 plastic wrappers in the bag and the bag was also sealed with seal impression ‘P’ at six places and the residue parcel was put as mark ‘A-1’ and the samples were marked ‘A-2’ and Mark ‘A’-3’ and the N.C.B-1 Form in triplicate was also filled on the spot by the I.O. The specimen of the seal impression was also separately drawn on the piece of cloth. 4. After this, the search of accused Anil Kumar was conducted during which the suit case/Attache of brown (Kaleji) colour was found being carried by him in his right hand, on search, a jacket of light blue colour was taken from that, in which two envelopes, wrapped with plastic containing ‘Battinuma’ Cannabis was found and the ‘Cannabis’ on weighment was found to be 2 Kgs 500 Gms. Two samples of 25-25 Gms each were taken from the bulk and both the samples were put in a cloth parcels and were sealed with seal impression ’T’ at six places and the residue ‘Cannabis’ was put in the same envelope along with plastic wrapper and was again put in a suit- case, covered with cloth parcel and sealed with seal impression ‘P’ at six places. The residue parcel was put Mark ‘B-1’ and the sample parcels were put mark ‘B-2 and Mark ‘B-3’ and N.C.B Form in triplicate was also filled. Specimen of seal impression was also taken on a separate piece of cloth and seal after its’ use was entrusted to Constable Suresh Kumar No. 229 and recovery memo was also prepared by HC, Dhani Ram. The signature of the accused and the witnesses were also obtained on recovery memo parcels and one copy of the recovery memo was also given to the accused. 5 5. Rukka was also prepared by the Investigating Officer for registration of the case and the same was sent through HHC Chet Ram, FIR No. 52/08 dated 1.3.2008 was lodged accordingly. HC Dhani Ram after reaching the Police Station has produced the case property along with the accused before SHO Police Station, Gohar Sh. Jagdish Chand. SHO Jagdish Chand has resealed all the parcels with his seal impression ’H’ three in number on each parcels and has also drawn specimen of the seal impression ‘H’ on a piece of cloth and later on deposited the case property with MHC Inder Dev of Police Station Gohar who deposited the same in the Malkhana after making necessary entry in the Malkhana register. The I.O. HC Dhani Ram has also prepared Special report U/S 57 of ND & PS Act and the same was sent through Constable Parkash Chand to Dy. S.P. Headquarter. After investigation accused-respondents were charged for the offence punishable under Section 20 of the 'NDPS Act'. 6. In order to prove its case the prosecution examined as many as ten prosecution witnesses, whereas, both the accused in their statements U/S 313 Cr.PC have shown their innocence and have denied the prosecution case. In their defence, Sh. Suresh Kumar, conductor of Haryana Roadways Bus Depot was examined to prove that police personnel made accused persons to get down from the bus No. HR-6A-4369 at about 8.30 AM. at Pandoh Bazar as they had boarded from Kullu to Chandigarh and at that time they were not having any bag etc. with them. 6 7. The prosecution has examined Constable Suresh Kumar PW.1, HHC Chet Ram PW.2, HC Inder Dev PW.5, Inspector Jagdish Chand PW.8 and HC Dhani Ram PW.10. The other witnesses HC Narender Kumar PW.3, Constable Tej Ram PW.4, Constable Yashwant Singh PW.6, Inspector Hemant Kumar PW.7 and Constable Prakash Chand PW.9 are formal witnesses. 8. Mr.Anup Chitkara, learned Advocate, has submitted that independent witnesses were neither called nor associated by the prosecution, as reflected from the testimony of PW.1 C. Suresh Kumar, PW.2 HHC Chet Ram and also from the testimony of PW.10 Dhani Ram. No endeavour appears to have been made by prosecution to associate independent witnesses to facilitate the Court to arrive at truth. 9. PW.1Constable Suresh Kumar in his endeavour to support the prosecution case, has stated that sample of 'Bhang' taken from accused Rajesh Yadav is Ex.P7 and sample of 'Bhang' taken from accused Anil Kumar is Ex.P8. In cross-examination PW.1 has stated that Naka was laid at a distance of about 200 meters from National Highway-21 near Pandoh Dam at a place Pandoh Kandha road. 10. PW.2 HHC Chet Ram has stated that the raiding party observed from National Highway Pandoh Dam on the Kandha road that at a distance about 8-10 meters the accused persons were coming towards National Highway-21. The point from where a link road goes to Bhakhli side from Pandoh Kandha road is about at a distance of 50 meters from National Highway-21, where Naka was laid. 7 11. PW.1, stated in cross-examination, that where the raiding party laid Naka, there are residential houses at a distance of about 20-30 feet but the I.O., had neither sent any of the members of the raiding party to arrange for the independent witnesses from the nearby area nor he himself tried to arrange the witnesses. PW.1 has further stated in cross-examination that the raiding party had laid Naka at the spot in the morning at about 7 A.M., and in between 7 A.M., and 8.30 A.M they had not checked any vehicles and they had simply checked some persons, who were passing from there but PW.1 did not remember their names and addresses. PW.1 has further stated that the raiding party had weighed each polythene bags separately to ascertain the weighed of ''Bhang'' in each packets. The weights and scales were with the I.O., as he was having the weights of 1Kg, 500 grams and only 50 grams. 12. In view of the testimony of PW.1, recovery memo Ex.PW.1/D was prepared by the I.O, on the spot at about 9.30-10.00 A.M. As per testimony of PW.1, raiding party reached at the police station on 1.3.2008 at about 8. 00 P.M. and arrival was recorded in daily diary. PW.1 has further stated in cross- examination that he could not say on 1.3.2008, accused Rajesh Yadav was travelling in Haryana Roadways bus bound from Manali to Chandigarh and the accused has boarded the same bus from Kullu to Chandigarh. It has also been highlighted by PW.1 in cross-examination that when accused was apprehended, the attachi case was locked and the raiding party started from the spot towards the police station after completing 8 all the formalities at 4.30 P.M., and it takes generally 1-1.30 hours to reach police station from the spot. The rukka was sent to the police station at about 11.30 A.M., through HHC Chet ram, who came back on the spot about 3.00 P.M. from the police station. After sending rukka, I.O. prepared the spot map, recorded their statements under Section 161 of Cr.P.C etc. and HHC Chet Ram went to the police station with rukka on Government vehicle No.HP.33A-8714 and came back to the spot without vehicle. The raiding party went from the spot to Pandoh on private vehicle, however, PW.1 did not remember the name of the private bus. From the spot Pandoh Dam is about 100 meters away by shortcut. 13. The relevant highlights of the statement of PW.2 indicate that firstly the bag of accused Rajesh Yadav was searched in which three polythene packets of grey colour containing 'Bhang' wrapped in a parrot colour towel was recovered. The recovered black material was weighed and it was found to 4 Kg 'Bhang'. Out of recovered 'Bhang' two samples of 25 grams each were separately drawn. The sample parcels were marked as Mark A-1 and Mark A-2 and the remaining 'Bhang' parcel was packed in a separate parcel alongwith polythene packets, towel and raxine bag with seal impression 'P' at six places. Sample seal was separately drawn over a piece of cloth which is Ex.PW.1/B. The personal search of accused Rajesh Yadav was carried out vide memo Ex.PW.1/E. Similarly, the search of the suit case of accused Anil Kumar was carried out and black material wrapped in a grey raxine 9 packets two in numbers were recovered. The material was weighed and found to be 2 Kg. 500 grams. Out of the recovered 'Bhang' from the suit case, two samples of 25 grams each were drawn and packed in a cloth packets each and sealed with seal 'P' and the remaining bulk 'Bhang' put into the jacket and suit case was packed with cloth parcel and sealed with seal 'P' at six places. The recovery memo Ex.PW.1/D was prepared. Thereafter, PW.2 was given rukka Mark-A by the I.O., which he took and handed over to MHC in police station, Gohar. The case file was prepared by MHC and given to PW.2 which he handed over to the I.O. on the spot. The cloth cover Ex.P1 Attachi Ex.P2, 'Bhang' Ex.P3, jacket Ex.P9 are the same which were recovered from the suit case of accused Anil Kumar. PW.2 HHC Chet Ram in his cross-examination has categorically stated that they reached at the place of Naka in the morning at 7.00 A.M. as they went to the spot in a official vehicle. In the morning on 1.3.2008 the raiding party were inspecting the vehicles on National Highway at Pandoh from 7.00 A.M. to 8.30 A.M. The raiding party also inspected so many persons and vehicles. The raiding party laid Naka on Nationa Highway-21 in the morning at 7.00 A.M., near Pandoh Dam at a point from where a link road goes from N.H.-21 to Kandha. The raiding party saw the accused persons from National Highway Pandoh Dam on the Kandha road at a distance about 8-10 meters coming towards National Highway-21. The point from where a link road goes to Bhakhli side from Pandoh Kandha road is about at a distance of 50 meters from National Highway, 10 where they had laid Naka. 14. In view of the testimony of PW.2 in cross- examination, the I.O. sent Constable Roshan Lal in a Government vehicle to stitch cloth parcels which were later on used as parcels. PW.2 however, has admitted that he did not sign any document as witness in this case. PW.2 has denied in cross-examination that the case property was shown to him is not 'Bhang' and it is 'Harbal' Dhoop, which could be analyzed from the statement of PW.10 HHC Dhani Ram that Ex.P1 cloth cover, Ex.P3 raxine bag, 'Bhang' are the same which were recovered from the possession of accused Anil Kumar. Ex.P4 cloth cover, raxine bag Ex.P5, 'Bhang' Ex.P6, sample Ex.P7 and Ex.P8 are the same which were taken in possession from accused Rajesh Yadav. 15. PW.10 in his statement has stated that they laid Naka on Pandoh-Kandha road at a distance of 20 yards from NH-21, from where National Highway was not visible. In the morning between 7.00 A.M. to 4.00 P.M., the police party had not checked any vehicle on National Highway at Pandoh and have not laid any barricade on the road. PW.10 has further stated that at the place of Naka, they checked about 20-25 persons before 8.30 A.M. on 1.3.2008, however, he did not remember those persons, were checked by him because no incriminating materials were recovered from them, therefore, he did not remember their names. PW.10 has further stated in cross- examination that from the place of Naka, there were 2-3 Dhabas/shops on the National Highway at a distance of 20-30 11 yards and has also accepted that there is a water tank of BBMB and water guard of BBMB used to be available at that place. PW.10 HHC Dhani Ram has stated in cross-examination that he did not send any police official to arrange the independent witness before conducting the search. PW.10 has also stated that he had taken the weights and scale with him from Gohar bazar from the shop of Bodh Raj. PW.10 has denied in cross-examination that at Pandoh raiding party given the tickets of accused persons back to conductor Sunil Kumar and took back the tickets amount from the conductor. 16. DW.1 Suresh Kumar has stated that he was working as bus conductor in Chandigarh depot of Haryana roadways. On 29.2.2008, he was deputed in bus No.HR-6A-4369 as conductor from Chandigarh to Mani and on 1.3.2008, he came with same bus back from Manali to Chandigarh. On 1.3.2008, when aforesaid bus reached at Pandoh bazar at about 8.00 A.M the same was stopped by the police officials. The police officials checked the luggage of the passengers of the aforesaid bus and made the passenger to get down from the bus. Nothing incriminating was recovered by the police during the search at Pandoh. The accused persons were the same persons who were made to get down from the bus by the police. The accused persons were not having any bag with them and they were empty handed when they were made to get down from the bus. Accused persons while boarding the bus at Kullu, purchased the tickets for Chandigarh. DW.1 recognize the accused because the police officials handed over their tickets to him (DW-1) and 12 demanded the bus fare from Pandoh to Chandigarh. At Pandoh two passengers boarded the bus to Chandigarh and the tickets of the accused persons were given to them by the police and about Rs.350/- were paid back to the accused persons by the police after charging the same from the two new passengers, who boarded the bus at Pandoh. In cross-examination, DW.1 Suresh Kumar has stated that he is not Sunil Kumar and he did not remember as to how many times the accused persons had travelled in his bus prior to or after the present incident. 17. In view of the testimony of prosecution witnesses, the submissions made by Mr.Anup Chitkara, learned counsel for convict/respondent Anil Kumar as well as in view of the submissions made by Mr.Ashok Sharma, learned counsel for convict/respondent Rajesh Yadav, the following aspects are noted:- (i) From the testimony of PW.1, PW.2 as well as PW.10 that no endeavour was made by the raiding party to call or associate any of the independent witness, whereas, in view of the testimony of PW.10 HHC Dhani Ram, there are 2-3 Dhabas/shops on the National Highway at a distance of 20-30 yards from the place where the Naka was laid. (ii) DW.1 Suresh Kumar has given different version, As per testimony of DW-1, the accused persons were asked to get down from the bus when it reached at Pandoh bazar the tickets were issued to the accused persons when they boarded the bus at Kullu, and these tickets were subsequently handed over to 13 DW-1 and demanded the bus fare from Pandoh to Chandigarh and at Pandoh two passengers boarded the bus to Chandigarh and the tickets of accused persons were given to them by the police and about Rs.350/- were paid back to the accused persons after charging the same from the two new passengers, who boarded the bus at Pandoh. However, such aspect has been denied by PW.10 in his testimony by saying that it is incorrect that at Pandoh, police party have given tickets back to the Conductor Suresh Kumar and took back the amount of tickets from the conductor. (iii) In view of testimony of PW.1, it appears that when accused Anil Kumar was apprehended, the attachi case was locked, it is not known at whose instance the lock was opened and where its key was kept and why it was not recovered. 18. In view of the testimony of PW.10, cloth cover Ex.P1, Attachi/suit case Ex./P2, 'Bhang' Ex.P3 are the same which were recovered from the possession of convict/respondent Anil Kumar. Cloth cover Ex.P4, raxine bag Ex.P5, 'Bhang' Ex.6 are the same which were recovered from the possession of convict/respondent Rajesh Yadav, whereas, PW.1 has given the contrary version that sample of 'Bhang' taken from convict/respondent Rajesh Yadav is Ex.P7 and sample of 'Bhang' taken and recovered from convict/respondent Anil Kumar is Ex.P8. Mr. Anup Chitkara has referred the judgment of this Court dated 20.8.2010 passed by learned Single Judge, in Amar Chand Versus State of H.P, in Criminal Appeal No. 71/2010 and relied upon the following paragraphs, which are 14 extracted as below:- In Ajmer Singh versus State of Haryana (2010) 3 SCC 746, the apex Court also observed that it may not be possible to find an independent witness at all place, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence. Further, the report of analysis Ext. PB is also not connected with the alleged recovery. PW3 MHC Kartar Singh stated that the sample in this case was sent for analysis on 19.7.2008. He also admitted in the cross-examination that on the same day 19.7.2008 he had sent two samples of charas to deposit it in the Laboratory for analysis which, according to him were deposited on 20.7.2008 as against 21.7.2008 reflected in the report. One sample was of this case and another sample was of FIR No. 16/2008 sent through the same constable Jinesh Kumar. He testified that both these samples were bearing the identical seals ‘A and M’. The perusal of the report of the analysis Ext. PB shows that sample in this case was received on 21.7.2008. Though the report makes reference to the FIR of this case but, in my opinion, it has failed to connect the sample which was analyzed in the laboratory pertains to this case. Because neither the report number nor reference number as mentioned in Ist and 2nd columns could be connected with entry of the report and reference number in this case nor these numbers are borne out from the road certificate Ext. PL. Further, against column No. 7 description of the parcel is given as one cloth parcel bearing four seals of ’A’ and three seals of ‘M’ which also corresponds with the sample of another FIR No. 16/2008 of the same Police Station. Further the, weight of the sample also varies by almost three grams in the instant case. On the top of it, there is 15 no certificate that the seal found on the samples were intact and tallied with the sample of seal separately sent or were corresponding to the facsimile found on the NCB-I forms. Therefore, in these circumstances, logical conclusion is that either the sample of the instant case, or that taken on the spot, was not analyzed, or that it was some other sample or even it could be a sample which was tampered with. On the top of it, there is no certificate that the seal found on the samples were intact and tallied with the sample of seal separately sent or were corresponding to the facsimile found on the NCB-I forms. 19. Mr.Anup Chitkara, has submitted that the Statute/Act has prescribed the provisions for search, seizure, recovery and for taking samples and the mode and modalities for putting samples seal while sending the samples for chemical examination to ensure the sanctity of the samples drawn from the recovered contraband goods so that the samples drawn may tally with the chemical examiner's report and further to ensure that the chemical report pertains to that sample which was taken into possession during the search. To ensure that there was no possibility of tampering of the samples from the stage of taking the samples to the stage of getting it tested by the chemical examiner and upto the stage verification, relevant provision of