Jai Singh @APPELLANT@Hash State of Himachal Pradesh

Chander Bhusan Barowalia, J.

The present appeal is maintained by the appellant/accused/convict (hereinafter referred to as “the accusedâ€), laying challenge to judgment

dated 18.12.2017, passed by learned Special Judge, Chamba, District Chamba, H.P., in Sessions Trial No. 30 of 2016, whereby the accused was

convicted and sentenced for the commission of the offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985

(hereinafter referred to as “NDPS Actâ€​).

The key facts necessary for adjudication of this appeal can tersely be summarized as under:

On 23.06.2016 a police party comprised of SI Kamlesh Kumar, ASI Budhi Singh, HC Madan Lal, Constable Jarm Singh and SPO Rakesh Kumar,

was on law and order and heading in their vehicle having registration No. HP-22B-0109, towards the Mindal Temple. The vehicle was being driven by

HHC Subash Kumar. When the police party, at about 9.30 A.M., reached near Mindal bridge, they noticed a person coming from Mindal side, who

was carrying Khaki bag on his right shoulder. On seeing the police party he got baffled and started running backwards. He threw the bag towards

river Chander-Bhaga. This raised a suspicion, so the said person was apprehended and inquired. The bag thrown by the accused was also thrown

away by the said person was brought back. SI Kamlesh Kumar sent ASI Budhi Singh and SPO Rakesh Kumar to associate independent witnesses,

but as the place was secluded no one could be associated. Therefore, SI Kamlesh Kumar, associated HC Madan Lal and SPO Rakesh Kumar as

witnesses. The bag was checked and it was found containing a green cloth bag and inside the same a red polythene was found containing charas. The

contraband, on weighment, was found to be 1.590 Kgs., the contraband was re-packed in the same manner and was sealed with five seals of having

impression ‘PP’, and khaki bag was separately packed in another parcel and it was also sealed with five seals having impression ‘PP’.

Subsequently, SI Kamlesh Kumar filled in NCB form in triplicate and specimen seal in connection was retained on a piece of cloth. The parcels was

taken into possession. The proceedings were photographed and video-graphed by Constable Jaram Singh. Ruqa was prepared by SI Kamlesh Kumar

and through Constable Jaram Singh, it was sent to police Station Killar (Pangi), which formed basis for registration of FIR against the said person

apprehended with the charas (accused). A carbon copy of the ruqa was also sent to Deputy Superintendent of Police, Chamba, Constable Jaram

Singh, for information. Site plan was prepared and the statements of the witnesses were recorded. Accused was arrested and his personal search was

also conducted. Special report was prepared and sent to Deputy Superintendent of Police Chamba through Constable Jaram Singh, thereafter, the

case property was deposited with MHC Darshan Singh, in the malkhana. On 24.6.2016, parcels containing the contraband was sent through Constable

Jaram Singh, for certifying inventory and for obtaining a certificate from the Court of Learned Chief Judicial Magistrate, Chamba. On 25.06.2016,

MHC Dharsan Singh sent the bulk parcel containing charas alongwith NCB form, in triplicate sample seal and docket, vide RC No. 42/2016 to SFSL,

Junga through HHC Shingi Ram. HHC Shingi Ram deposited the same and handed over the receipt to MHC. On 29.08.2016, the case property and

report of SFSL, Junga, were brought back by HHC Tilak Raj and deposited with MHC. As per the chemical analyses report the sample was charas.

SI Kamlesh Kumar, and ASI Bir Singh, through an application, produce the parcel which contained charas before the learned Chief Judicial

Magistrate, Chamba, for pre-trial disposal. Two samples of 25 grms., each were separately drawn and sealed rest of the bulk was put in a parcel and

was sealed with sealed having impression ‘CJM, Chamba’. In this regard a certificate was also issued. Entire proceedings were photographed

by ASI Bir Singh. Subsequently sample parcels were deposited with MHC, Police Station, Pangi and the bulk parcel was deposited with HHC Rajesh

Kumar, who made an entry in this regard at Serial No. 15-C of 2016. After completion of investigation, challan was presented in the Court.

The prosecution, in order to prove its case, examined as many as ten witnesses. Statement of the accused was recorded under Section 313 Cr.P.C.,

wherein he pleaded not guilty. In defence the accused examined three witnesses.

The learned Trial Court, vide impugned judgment dated 18.12.2017, convicted the accused for the commission of the offence punishable under

Section 20 of the NDPS Act, and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay fine of rupees one lac and in

default of payment of fine the accused was further ordered to undergo simple imprisonment for a period of two years, hence the present appeal is

preferred by the accused.

Mr. Dheeraj K. Vashisht, learned counsel for the accused/appellant has argued that the prosecution has failed to prove the guilt of the accused

beyond the shadow of reasonable doubt. He has further argued that in the instant case the recovery is suspicious and there is no independent witness

to support the same. He argued that nothing has come on record, to prove where the seal was kept and why the same was not produced to the Court.

The presence of the accused on the spot is also suspicious and the story of the prosecution is highly improbable. He has argued that the learned Trial

Court only on the basis of surmises and conjectures convicted the accused. He has argued that the learned Trial Court has also failed to appreciate

the fact and law to their true perspective. He has submitted that keeping in view overall aspects of the case, the appeal be allowed and findings

recorded by the learned Trial Court be set aside. Conversely, Ms. Ritta Goswami, learned Additional Advocate General as argued that prosecution

has proved the guilt of the accused beyond the shadow of reasonable doubt.

She has argued that as the place where the accused was apprehended was secluded, so no independent witness could be associated by the Police.

The Investigating Officer had no other option, but to proceed with conducting a search of the bag without associating the independent witness. She

has further argued that the statements of the official witnesses inspire confidence and otherwise also there is sufficient material to hold the accused

guilty. So, the judgment passed by the learned trial Court judgment whereby the accused was convicted and sentence is as per law. She has further

argued that the judgment of the learned trial Court is the result of proper appreciation of facts and law, so the same needs no interference. The appeal

is without merit and the same be dismissed.

In rebuttal, the learned counsel for the accused has argued that on a day of recovery of contraband from the accused there was a fair at the place

of recovery. Many persons were passing through the passage where the accused was apprehended, so, the non-availability of independent witnesses

is highly improbable. He has argued that after re-appreciating the evidence, the accused be acquitted by setting aside the judgment of the learned Trial

Court, as the prosecution has failed to prove the guilt of the accused.

In order to appreciate the rival contentions of the parties we have gone through the record carefully.

As per the prosecution case on 23.06.2016, at about 09:30 p.m., near Mindal bridge, a police team nabbed the accused and his bag was searched,

which contained 1.590 kgs of charas. No doubt, the recovery was chance recovery and as per the prosecution, the place was secluded, so no

independent witness could be associated, though police personnel endeavored hard to associate and find independent witnesses.

The learned counsel for the accused has mainly tried to convince this Court that the police deliberately, despite the availability of independent

witnesses, chosen not to associate them and even the depositions of official prosecution witnesses, if meticulously examined, clearly show that there

are discrepancies in their testimonies with regard to the fact that independent witnesses were available near by the places where the accused was

nabbed. Certainly, in umpteen cases the Hon’ble Supreme Court, as also this High Court has held that if the versions of the official prosecution

witnesses inspire confidence then conviction can be based relying upon their deposition. Non-joining of independent witnesses can not be said to be

fatal to the prosecution case, especially when the material come on record lucidly show that police endeavored to associate and join independent

witnesses. In the instant case also, the main thrust of the prosecution is that despite effort made by the police personnel, no independent witness could

be associated. Indeed, it weighed in the mind of the learned trial Court that police personnel made sufficient effort to join and associate independent

witnesses, but we need to delve into the available material and see whether the testimonies of official prosecution witnesses are in tune to each other

to this facet of the case.

A harmonious reading of judgment of the learned Trial Court clearly shows that the learned Trial Court did not see any discrepancy and infirmity

in the testimonies of the official prosecution witnesses qua non-joining of the independent witness. If non-joining of independent witnesses was

compulsion of the police personnel, then depositions of the official prosecution witnesses need analysis, so as to arrive on a conclusion qua the guilt or

innocence of the accused. Thus, primarily this Court has to see whether the police personnel made concrete efforts to associate independent

witnesses before searching the bag of the accused or not. Further this Court has to examine whether the police deliberately chosen not to associate

independent witnesses, despite availability, and deliberate non-association of independent witnesses can be fatal to the prosecution case or not?

Admittedly, if the versions of the official prosecution witnesses is marred by contradictions and discrepancies, then it would, in turn, reflect that

independent witnesses were available and the police deliberately did not chose to associate them, then the very pillar of the prosecution case crumbles,

as the recovery of contraband from the exclusive and conscious possession of the accused will become highly doubtful. Therefore, this Court at the

very outset, deems it fit to scan the material only to the extent whether the police team due to compulsion could not associate independent witnesses

or they deliberately obviated this step just to falsely rope in the accused.

In order to arrive on some conclusive conclusion qua the non-association of independent witnesses by the police, only relevant excerpts of the

testimonies of the official prosecution witnesses are being examined, which relate to this aspect. PW-1, HC Madan Lal, in his cross- examination,

deposed that from the spot, Cheri is at a distance of 200 meters. Thereafter, he voluntarily stated that it is about one kilometer away and there is

PWD rest house, where chowkidar is available. He has also admitted that during the month of June, temporary dhabas (restaurants) come up at

Cheri. As per the version of this witness, at Cheri there is a cement store of Irrigation and Public Health Department, where Chowkidar remains

available always. This witness has stated that on 23.06.2016 (the day when the accused is alleged to have been nabbed) a fair got over. He admitted

that even after the fair, people used to go to Mindhal temple to pay obeisance. As per the version of this witness they were on law and order duty and

going towards Mindhal.

PW-2, ASI Budhi Singh, in his cross-examination, denied that from the spot, village Barnew is at a distance of 300-400 meters. He has also denied

that from the spot, village Mindhal is at a distance of 300-400 meters. As per this witness, population of village Mindhal is 400-500 people. He has

further stated that one has to pass through the spot to reach villages Barnew, Mindhal and Kulal. He deposed that during the month of June, a fair

takes place at village Mindhal and people use to visit the temple and attend the fair. He has also deposed that at Cheri there is PWD rest house and a

Government Cement Store, where Chowkidars remain available. He denied that at Cheri there are 4 to 5 dhabhas. PW-3, Constable Jaram Singh, in

his cross-examination, denied that from the spot, village Barnew is at a distance of 200 meters. He has also denied that from the spot, village Mindhal

is at distance of 300-400 meters. This witness has gone a step further and denied that from the spot one has to pass the villages Mindhal, Kulal and

Barnew. This witness unequivocally denied that people passed through the spot. He admitted that in the month of June, a fair takes place at village

Mindhal. He has deposed that the fair is held from 12th to 14th June. Â This witness is also admitted that at Cheri, there is a rest house of HPPWD,

and chowkidar remains present there always. He feigned ignorance that there is a cement store at Cheri, where chowkidar remains present. He has

denied that at Cheri there are 4 to 5 dhabhas.

Another key witness in the instance case is SI Kamlesh Kumar (Investigating Officer), who stepped into the witness box as PW-10. His

deposition is to be seen in juxtaposition to the deposition of PWs-1 to 3. He has deposed that on 23.6.2016, around 9.30 A.M., he being member of the

police party was present near Mindhal bridge. They saw the accused coming from the opposite side, who was carrying a bag on his right shoulder.

The accused, on seeing the police got baffled and started running backward. He has further deposed that the accused while running, threw his bag

towards river Chander-Bhaga. The accused was apprehended by him, Constable Jaram Singh and HC Madan Lal. The accused divulged his name as

Jai Singh. ASI Budhi Singh and SPO Rakesh Kumar searched the bag of the accused and got the same recovered from the river bed. This witness

has categorically stated that he sent SPO Rakesh Kumar and ASI Budhi Singh in search of public witnesses, but being secluded place, no one was

available, so, he associated SP Madal Lal and SPO Rakesh Kumar as witnesses. Thereafter, this witness deposed qua recovery of the charas from

the exclusive and conscious possession of the accused. The deposition made by this witness in his cross-examination, is in-dispensable. He has

deposed that the Police team directly went to the spot around 9.30 A.M. and in between nothing was done. He has deposed that from the spot the

Police Station is about 22 kms. He has denied that from the spot village Barnew is at a distance of 300-400 meters. He admitted that there is a temple

in village Mindhal. As per the version of this witness, a road to village Mindhal, Kulal and Barnew, passes through the spot. He has deposed that few

vehicles passed through the spot. He has admitted that during the month of June, a fair takes place at Mindhal. He voluntarily stated that fair takes

place on 9th and 10th June. He has admitted that even after the fair people keep on visiting the temple. He has also admitted that at Cheri, there is a

rest house and store of IPH Department. He denied that they did not make any effort to associate independent witnesses.

After exhaustively examining the depositions of the relevant official prosecution witnesses relating to non-association of the independent witnesses,

it seems that their versions are not in calibration to the fact that police personnel made adequate necessary endeavour to join and associate

independent witnesses. No doubt, it is well settled in catena of judgment that non-joining of independent witnesses is not fatal to the prosecution case,

but the versions of official prosecution witnesses must necessarily inspire confidence, so as to reach on a certain conclusion qua the guilt of the

accused. However, in the instant case non-joining of independent witnesses is itself a strong fact which cannot be lightly over-looked, especially in the

wake of divergent testimonies of the prosecution witnesses.

Indeed, recovery was effected in broad day light at about 9.30 A.M. in the morning on a vehicular road. The testimonies of key official witnesses

have variance especially in the wake of other ancillary circumstances the accused was spotted and nabbed on a vehicular road which leads to villages

Mindhal, Kulal and Barnew. Cumulatively, it emerges that in the month of June a fair takes place in village Mindhal and as per the version of PW -1,

made in his cross-examination, fair was over on 23.6.2016, the accused was also nabbed on 23.06.2016, if it was so, many people could have been

passing through Mindhal bridge road on that day due to fair. It is not the case of the prosecution that recovery was effected during odd hours of night

when the road was less frequented by. Recovery was effected at 9.30 A.M., so, there is subtle possibility of non-availability of independent witnesses.

It seems highly improbable and imaginary that independent witnesses could not be associated by the police as the place was secluded. Prosecution

witnesses have admitted that there is a temple at village Mindhal and people go to that temple through Mindhal bridge road. There is HPPWD Rest

House and IPH store in nearby village Cheri, where Chowkidars remain available all the time. The police could have associated independent

witnesses from the passing by vehicles, as it was day time. All the above circumstances compels this Court to conclude that the police deliberately did

not associate the independent witnesses despite availability. This creates a major doubt in the prosecution story and makes it imaginary. This Court is

left with an unanswered question; why the police deliberately did not make concrete effort to associate independent witnesses and, in fact, obviated to

join independent witnesses? The testimonies of key prosecution witnesses fail on this count, so there is nothing to proceed further to scrutinize the

versions of the witnesses, as the prosecution case could not pass through first hurdle. Certainly, on this score only, the prosecution has failed to prove

its case, as the recovery part becomes highly doubtful. In the case in hand there is ample material which shows that police deliberately did not join

independent witnesses, though they were available, so the entire prosecution story becomes doubtful.

At the same point of time there are material contradictions with respect to the recovery of contraband and the place of recovery and one of the

witnesses could not state whether the I.O. has given option to the accused to be searched by the police or by the gazetted officer. It means that he

was not present on the spot when the accused was apprehended. Further the other police witnesses have differently stated with respect to recovery,

so the recovery becomes highly doubtful.

As per the statements of PWs 1 and 2 fair ended on 23rd June, 2016, and the recovery was effected on the same day. So it cannot be expected

that the day fair was over there cannot be people passing through the road where the accused was allegedly apprehended. In these circumstances, it

is amply clear that the independent witnesses were available, but they were not associated by the police. PW-2, ASI Budhi Singh, while appearing in

the witness-box deposed that seal was handed over to him, but this witness neither produced the same in the Court, nor he has explained any reason

for its non-production.

After noticing the evidence, it is clear that the independent witnesses were available on the spot, as a fair was over on the same day and it cannot

be expected that all persons, including the shopkeepers, have immediately gone from the place within hours. At the same point of time, it has come on

record that at Cheri there is Rest House, cement store and shops, which are at nearby place and the independent witnesses were available there. It

has also come on record that the accused was allegedly apprehended on a road from where the people go to the temple, so the independent witnesses

were available, but the police did not associated them. The story of bringing the independent witnesses is suspicious, as the I.O. has deposed that he

sent ASI Bhudi Singh and SPO Rakesh to bring independent witnesses, but these witnesses have not stated so.

PW-1 has deposed that seal after its use was handed over to him, but he has assigned no reason why he could not produce the same in the Court.

PWs 1 and 2 have stated nothing qua option given to the accused for his search. Meaning thereby he was not present on the spot. The driver of the

official police vehicle, HHC Singhi Ram, was not examined by the prosecution for the reasons which remain unexplained. In a nut shell, the statements

of the official prosecution witnesses do not inspire confidence, so it is unsafe to hold that the prosecution has proved the guilt of the accused

conclusively and beyond the shadow of reasonable doubt.

In view of what has been discussed hereinabove, it is more than safe to hold that the prosecution has failed to prove the guilt of the accused

beyond the shadow of reasonable doubt and the findings of guilt, as recorded by the learned Trial Court, needs to be interfered with. Accordingly, the

appeal is allowed and the judgment of the learned Trial Court is set aside. The accused is acquitted and ordered to be released forthwith. Fine amount,

if already deposited, be refunded to the accused. Since the accused is in jail, he be released forthwith, if not required in any other case.

The Registry is directed to prepare the release warrant of the accused and send the same to the Superintendent of Jail concerned in conformity

with this judgment forthwith.

In view of the above, the appeal, so also pending application(s), if any, stand(s) disposed of.