Prem Singh vs State of Himachal Pradesh

Tarlok Singh Chauhan, J.

1.The appellant has been convicted and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- and in

default of payment of fine to further undergo rigorous imprisonment for a period of two years for having committed an offence punishable under

Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short NDPS Act) by the learned Special Judge (Forests), Shimla on

7.4.2017 in Sessions Trial RBT No. 9-S/7 of 2016 and aggrieved thereby has filed the present appeal.

2.The prosecution case, in brief, is that in the evening of 30.4.2016, a police party headed by ASI Sunil Kumar of Police Station, Theog was on routine

patrol duty in the official vehicle bearing registration No. HP-07A-0729 towards Gajedi, Chhaila, Jais etc. The vehicle was driven by C. Rajesh Kumar

and other members of the police party were HHC Muni Lal and C. Surjit Singh. Rapat No. 27, dated 30.4.2016, Ex.PW2-A, in this regard was

entered in the Police Station. While the police party was moving on the kuchha link road leading to Tikkari-Sainj below Gajedi bye-pass then at about

7.10 p.m., one person, who was holding a carry bag in his right hand, was seen coming from the lower side towards the upper side. Seeing the police

party, the said person got perplexed turned back and started walking. This aroused the suspicion of the police officials. ASI Sunil Kumar got the

official vehicle stopped and after alighted therefrom, he alongwith HHC Muni Lal and C. Surjit Singh followed the appellant and caught hold of him at

some distance. He was then asked as to why he turned back after seeing the police party. On inquiry, the pedestrian, who by now was in panic,

disclosed his name as Prem Singh. Since the place was lonely and secluded, no local person was available for being associated as a witness.

Therefore, ASI Sunil Kumar then checked the yellow coloured carry bag, which the appellant was carrying. The search was conducted in the

presence of his associates, upon which, black coloured substance in the shape of balls and wicks was found to be contained in the said yellow bag.

After smelling the same and on the basis of experience, ASI Sunil Kumar concluded that the substance recovered was ‘charas’. Electronic

weighing scale was then taken out from his investigation kit and when the substance was weighed, it was turned to be 2.770 Kgs Charas, Ex.P-3, and

the same was put in the same carry bag, Ex.P-2 and its parcel Ex.P-1 was prepared and sealed by affixing eight seals of seal impression ‘A’.

Impression of the seal used was taken on a piece of cloth including Ex.PW-1/A and NCB forms were filled in at the spot in triplicate. Impression of

seal ‘A’ was also taken on the NCB forms. The seal after its use was handed over by ASI Sunil Kumar to HHC Muni Lal. The case property

Ext.P-1 to P-3 was taken into possession by the police vide memo Ex.PW-1/B. A copy of the seizure memo was supplied to the appellant free of

cost. ASI Sunil Kumar then scribed the rukka Ex. PW-1/C and sent it to SHO, Police Station, Theog, through C. Surjit Singh for registration of FIR.

Accordingly, FIR No. 68/2016, Ex.PW-7/A, was lodged in the Police Station. Endorsement Ex.PW-7/B to this effect was made on the rukka.

Thereafter, photographs were clicked at the spot and site plan prepared. The statements of the witnesses under Section 161 Cr.P.C. came to be

recorded. The appellant was informed about the ground of arrest and intimation to this effect was given to his wife on her mobile No.89881-04078.

Parcel, Ex.P-1 alongwith appellant and relevant documents were produced by ASI Sunil Kumar before Inspector Gauri Dutt, the then SHO, Police

Station, Theog. The parcel was re-sealed by the SHO by affixing four seals of seal impression ‘D’ and its impression was also taken on a piece

of cloth Ex.PW-10/A and the NCB forms. Necessary columns of the NCB forms were also filled by the SHO. Special report relating to the case

under Section 57 of the Act was sent to Dy.S.P./SDPO, Theog. The case property thereafter was sent for analysis to the State Forensic Science

Laboratory, Junga (Shimla). After obtaining the report, copies of the Malkhana Register etc. were collected and on completion of investigation, challan

was presented before the Court on 16.7.2016 and copies thereof was supplied to the appellant.

Finding a prima-facie case against the appellant, he was charged for the commission of an offence punishable under Section 20 of the NDPS Act,

to which he pleaded not guilty and claimed trial.

To bring home the guilt of the appellant, the prosecution examined ten witnesses and when on conclusion of the prosecution evidence, the statement

of the appellant thereafter came to be recorded under Section 313 Cr.P.C. where his plea was that of total denial.

The appellant thereafter examined two witnesses in support of his defence and closed his evidence. The learned Special Judge after recording the

evidence and evaluating the same, convicted the appellant as aforesaid.

Aggrieved by the order of conviction, the appellant has filed the instant appeal on the following grounds:

(i) The prosecution has failed to connect the contraband with the re-sealing certificate Ex.PW-10/B;

(ii) Photographs Ex.PW-1/D to Ex.PW-1/J are contrary to the case of the prosecution;

(iii) Efforts to create false evidence by claiming that an attempt to associate independent witnesses was made ;

(iv) Log book Ex.PW-9/E falsifies the case of the prosecution;

(v) Colour of the bag as alleged to be recovered does not tally with the one as described by the Forensic Science Laboratory in its report; and

(vi) Prosecutioncasefullofmajor contradictions, embellishments and improvements. We have heard learned counsel for the parties and have gone

through the records of the case.

 7. Before adverting to the submissions made by the learned counsel for the appellant, it would be necessary to first refer to testimonies of the

witnesses examined by the either side. Here it would be necessary to mention that out of the four police officials, who comprised the police party, only

C. Surjit Singh and ASI Sunil Kumar were examined by the prosecution as PW-1 and PW-9, whereas HHC Muni Lal and C. Rajesh Kumar (driver)

were given up by the learned Public Prosecutor to avoid the repetition.

C. Surjit Singh appeared as PW-1 and deposed that he alongwith HHC Muni Lal and ASI Sunil Kumar had gone on routine patrolling in the area in

the official vehicle being driven by C. Rajesh Kumar. They had gone towards Jaish, Gajedi, Chaila etc. At about 7.10 p.m. when they were present at

Gajedi bye-pass near the link road leading towards Tikkari, Sainj, one person was seen coming on foot by them from the opposite direction. That

person was carrying a bag in his right hand and on seeing the police vehicle, he returned back and tried to run away. They stopped the vehicle and he

alongwith HHC Muni Lal followed that person and caught hold of him at a distance of about 20 meters. Since the pedestrian became perplexed, they

checked the bag which he was carrying on the basis of suspicion. The bag was checked by ASI Sunil Kumar and black coloured substance in the

shape of balls and sticks were found in the bag. On the basis of experience and after smelling the black substance, ASI Sunil Kumar found that the

same to be Charas. C. Rajesh Kumar (driver) was sent by ASI Sunil Kumar to call the independent witnesses, but none was available. The name and

address of the person, who was nabbed, were inquired by ASI Sunil Kumar and he disclosed his name as Prem Singh. ASI Sunil Kumar then took out

the electronic weighing scale from his investigation kit. The charas was weighed and turned out to be 2.770 kgs. The Charas was put in the same

carry bag. Its parcel was prepared and sealed by affixing eight seals of seal impression ‘A’. The impression of the seal used was taken on

three parcels of cloth including Ex.PW-1/A. Impression of the seal used was also taken on the NCB forms. Seal after use was handed over by ASI

Sunil Kumar to HHC Muni Lal. Seizure memo Ex.PW-1/B was prepared at the spot. Exts. PW-1/A and Ext.PW-1/B were signed by me and HHC

Muni Lal as witnesses. These documents were also signed by the appellant. Rukka Ex.PW-1/C was written by ASI Sunil Kumar and handed over to

this witness. He carried the rukka to Police Station where he delivered to MHC. After registering the FIR, the MHC handed over the case file to the

witness for being delivered to the Investigating Officer at the spot. On his way to the spot, ASI Sunil Kumar met him alongwith other police officials at

Premghat where he delivered the case file to ASI Sunil Kumar. Photographs Ext.PW-1/D to Ext.PW-1/J were clicked at the spot. A parcel Ex.P-1

which was signed by the witness and HHC Muni Lal and the appellant, carry bag Ex.P-2 was claimed to be the same bag from where the charas

Ex.P-3 had been recovered.

In cross-examination, the witness stated that on the relevant date, he was carrying mobile phone No. 98174-83164 with him. The police party left

the Police Station at 6.20 p.m. and thereafter firstly they went to Chaila and then proceeded towards Gajedi bye-pass. Upto Gajedi bye-pass the police

party did not check any vehicle nor inquired from any person. From Premghat, the witness accompanied ASI Sunil Kumar etc. in the official vehicle to

the Police Station where they reached after 9.30 p.m. His statement was thereafter recorded by ASI Sunil Kumar with his own hand in the Police

Station. The time when he left with the rukka was 7.10 and admitted that in the month of April, by about 7.00 - 7.15 p.m. the sun sets and it is dark

around 7.30 p.m. He categorically stated that before searching the person of the appellant, no option under Section 50 of the NDPS Act was given to

him. He further stated that driver C. Rajesh Kumar had gone towards Tikkriâ€"Sainj road in search of the independent witnesses and admitted that

the police party had not travelled via Tikkri â€" Sainj road on that day and claimed that C. Rajesh Kumar had gone on foot to call the independent

witnesses. He further stated that C. Rajesh Kumar returned to the spot after about 15 minutes and it is only thereafter the proceedings of the case

were started by ASI Sunil Kumar. He took about one â€" one and a half hours to prepare the seizure memo, parcel and sample seals. When the

proceedings were being conducted at the spot, it was dark. He however, admitted that as per the photographs Ex.PW-1/D to Ex.PW-1/J, it was day

time. However, he clarified that it was getting dark at around 7.30 p.m. He admitted that as per photograph Ex.PW-1/D, when the carry bag was

being put in the cloth parcel, it was day time. He volunteered to state that it was getting dark. The cloth was stitched at the spot to prepare the parcel

by ASI Sunil Kumar. He further stated that at the time when he left the spot with rukka, the official vehicle was there at the spot which was situated

approximately one kilometer away from main Chaila-Theog road. Further stated that the distance between Police Station, Theog and the place where

the appellant was apprehended is 6 Km. He had walked with rukka upto the main road and thereafter took lift in the truck to reach the Police Station,

Theog. On reaching the Police Station, he informed the MHC and a rapat was entered regarding his arrival in the Police Station where he remained

for about 25 minutes. He denied the suggestion that three persons namely Adi Ram, Bittu and the appellant were brought by SIU team on that date

and further denied the suggestion that Adi Ram and Bittu were left by the SIU and thereafter the case was planted on the appellant. He further

denied that during day time, the police party had taken the appellant to an isolated place, clicked the photographs and framed him.

PW-9 ASI Sunil Kumar is the Investigating Officer of the case, who has deposed on the similar lines as PW-1 till the time he met PW-1 at

Premghat, therefore being repetitive we need not to make a detailed reference thereto. After meeting PW-1 at Premghat, the witness states that on

reaching the Police Station, he had handed over the case file to Inspector/SHO Gauri Dutt Sharma. The appellant was also produced by him before

the SHO, who was then interrogated by the SHO, who directed him to carry out further investigation in the matter. The appellant was then arrested

and informed about the ground of arrest and information in this regard was given to his family members. The personal search of the appellant was

taken and memo Ex.PW-9/C was prepared. The appellant was lodged in the lock up in the Police Station and on 1.5.2016 he recorded the statement

of C. Rajesh Kumar under Section 161 Cr.P.C. The articles recovered from the appellant on his personal search were deposited with the Incharge

Malkhana in the Police Station. On 2.5.2016, special report Ex.PW-3/A relating to the case was handed over by him to Dy.S.P., Theog, who called his

Reader HC Het Ram and handed over the special report to him. He recorded the statement of HC Het Ram on 2.5.2016. Chemical report Ex.PW-

9/D was received in the Police Station. The copy of log-book of the official vehicle was taken from its driver vide Ex.PW-9/E. During the

investigation of the case, CIPA certificate Ex.PW-7/E, re-sealing certificate, seal impression of seal ‘D’, copies of rapats, copy of Malkhana

register and copy of registration certificate were also taken into possession by him. The statements of other witnesses were recorded under Section

161 Cr.P.C. and on completion of investigation the file was handed over by him to the SHO for preparing the challan. Earlier to that parcel Ex.P-1

was prepared at the spot and same was signed by him, appellant and another witnesses. Yellow carry bag Ex.P-2 having charas Ex.P-3 was claimed

to be the same that had been recovered from the appellant.

In cross-examination, the witness admitted that he had not recorded in the statement of any witness that the accused had tried to run away. He

admitted that no efforts were made by the appellant to throw the bag which he was carrying. He also admitted that he did not mention in the rukka

Ex.PW-1/C and special report Ex.PW- 3/A that driver C. Rajesh Kumar had been sent to call the independent witnesses. Further stated that C.

Rajesh Kumar had gone on foot towards the upper side in search of the independent witnesses and returned to the spot alone after about 15 minutes.

No proceedings till the time C. Rajesh Kumar did not return, were conducted on the spot. The police party returned to the Police Station at about 9.35

p.m. and after reaching there the witness claims to have remained there. He further claimed that on 30.4.2016 he had not taken copy of Malkhana

register into possession nor recorded the statement of SHO regarding re-sealing of the parcel and claimed that he had not seen HHC/Incharge

Malkhana or the MHC in the Police Station on the said date. He denied the suggestion that the police party returned to the Police Station at 11.35 p.m.

He admitted that as per log-book Ex.PW-9/E, he returned to the Police Station on 30.4.2016 at 11.35 p.m. However, thereafter he of his own stated

that he might have gone somewhere else after 9.35 p.m. for patrolling, but could not name the said place. He denied the suggestion that on 30.4.2016

the sun set time was 6.58 p.m. He further stated that it had not come in the statements of the witnesses that the proceedings of the case were

conducted with the help of search light and the light of the vehicle since it was dark. However, he volunteered to state that initially the proceedings of

the case were conducted in the day light, however, when it became dark, the proceedings of the case were conducted with the help of the search light

and head lamps of the vehicle. He further stated that it had correctly recorded in the statements of C. Surjit Singh, HHC Muni Lal and C. Rajesh

Kumar that when it became dark, the proceedings were conducted by him with the help of search light and head lights of the vehicle. However, he

admitted that photographs Ext. PW-1/D to Ex.PW-1/J were taken in day light. He admitted that no option under Section 50 of the Act was given to

the appellant either before the personal search or the search of the bag. He further stated that in the seizure memo Ex.PW-1/B he had mentioned that

the search was conducted in a legal manner, where he disclosed to the appellant that no independent witness could be found because of which he

himself was conducting the search of his bag. He admitted that on that day he had been carrying mobile phone No. 94181-76230 with him. He claimed

to be remained at the spot for about two hours and during that period, no local person or vehicle had passed from there. He further stated that village

was located at a distance of about 4-5 kilometers from the spot and C. Rajesh Kumar had been sent by him with the hope that some independent

witnesses might be found. C. Rajesh Kumar went towards the upper side and admitted that there was a Jungle on the upper side. He admitted that

spot was located at a distance of about 1 -1.5 kms. from main Chaila-Theog road, which is a National Highway and is a busy road. He denied the

suggestion that on the relevant date the appellant, Adi Ram and Bittu were apprehended by SIU team from Neripul and handed over to the police

party. He further denied that for some consideration the police party had left Adi Ram and Bittu and involved the appellant in the false case. He

admitted that he had not taken into possession the copies of rapats showing the movement of the police officials to FSL and his movement to the

SDPO office. He admitted that the appellant is illiterate and could only sign in Hindi and further denied the suggestion that none of the documents had

been read over and explained to him.

Now adverting to the other witnesses examined by the prosecution, it would be noticed that Lady Constable Anita appeared as PW-2 and deposed

that rapat No.27, dated 30.4.2016 Ex.PW-2/A that was entered by her. In cross-examination the witness denied the suggestion that wrong rapat had

been entered in the Police Station to create evidence against the appellant.

HC Het Ram, who at the relevant time was posted as Reader to SDPO/Dy.S.P., Theog, appeared as PW-3 and testified that on 2.5.2016 ASI

Sunil Kumar, PW-9, had come to the office and handed over the special report relating to the case to Sh. Rattan Singh Negi, Dy.S.P., who after going

through the special report handed it over to this witness for making the entries in the relevant register. Accordingly the entry was made by him at

serial No. 18 of the receipt register which he produced, in original, before the Court. Special report was exhibited as Ex.PW-3/A whereas the copy of

the receipt register is Ex.PW-3/B. According to the witness, both these documents are correct as per the original and contained the signatures of

Dy.S.P. Rattan Singh Negi, which he identified as that we had worked together. In cross-examination the witness denied that no special report was

received in the office and he further denied the suggestion that wrong entries were made in the record subsequently to show the compliance of

Section 57 of the Act.

C. Sunil Kumar, who at the relevant time was posted in Police Station, Theog, appeared as PW-4 and proved rapats No. 37 and 38, Ex.PW-4/A

and Ex.PW-4/B that were entered by him on 30.4.2016. In cross-examination, the witness denied the suggestion that wrong rapats were entered in

the police station to create evidence against the appellant.

Tilak Raj, Photographer, appeared as PW-5 and stated that ASI Sunil Kumar had visited his shop on 2.5.2016 alongwith his official digital camera

where from the memory card containing six photographs were copied by him and thereafter the photographs were sent for developing to Shimla.

After developing the photographs, the same were handed over by him to ASI Sunil Kumar and these photographs were Ex.PW-1/D to Ex.PW-1/J. In

cross-examination, the witness deposed that the bill was issued by him but the same had not been shown in the Court. He denied that he had been

introduced as a witness simply in order to implicate the appellant in this false case.

Inspector Gauri Dutt Sharma, appeared as PW-10 and stated that on 30.4.2016 C. Surjit Singh had brought rukka Ex.PW-1/C to the Police Station

on the basis of which FIR Ex.PW-7/A was lodged and thereafter endorsement Ex.PW-7/B was made on the rukka. Both these documents containing

his signatures. He further stated that the investigation of the case was handed over to ASI Sunil Kumar. On the same day at 9.35 p.m., PW-9 ASI

Sunil Kumar and his team, appellant alongwith the case property appeared before him. The parcel was re-sealed by him by affixing four seals of seal

impression ‘D’ and the same was already sealed with seal impression ‘A’ which were intact. NCB forms, in triplicate, were also

produced before him by ASI Sunil Kumar and thereafter columns No.9 to 11 thereof were filled in by him and the same was thereafter signed by him.

The impression of seal ‘D’ was taken on the NCB forms and on a separate piece of cloth Ex.PW-10/A. After resealing the parcel, the case

property was deposited by him with MHC Mohar Singh, Incharge Malkhana and resealing certificate Ex.PW-10/B was issued by him. He further

deposed that parcel Ex.P-1 was the same which had been resealed by him. On completion of investigation, he prepared the challan and forwarded it

to the Court.

In cross-examination, the witness stated that he had not brought the seal ‘D’ to the Court and volunteered to state that he had been

transferred. He denied the suggestion that neither the appellant nor the case property had been produced before him by PW-9 ASI Sunil Kumar.

HHC Mohar Singh was at the relevant time posted as Malkhana Incharge, appeared as PW-6 and stated that on 30.4.2016 SHO/Inspector Gauri

Dutt Sharma, deposited a parcel sealed with eight seals of seal impression ‘A’ and four seals of seal impression ‘D’. NCB forms in

triplicate, specimen impressions of seals ‘A’ and ‘D’ and seizure memo were also deposited with him in the Malkhana. Entries in this

respect were made by him in the relevant register, the copy whereof was Ex.PW-6/A is being correct as per the original. On 2.5.2016 the case

property was handed over by him to MHC Man Dev for being sent to FSL, Junga for chemical analysis. On 12.5.2016 the case property alongwith the

report of the laboratory was received by him from HHC Kanshi Ram and entries to this effect were made in the Malkhana register. He further stated

that as long as the case property remained with him, the same remained intact.

In cross-examination, he stated that the copy of Malkhana Register was taken from him by ASI Sunil Kumar on 6.5.2016. He however denied that

the copy of Malkhana register was supplied after 12.5.2016. Further clarified that the entry at serial No. 719/83/16 pertained to the articles recovered

from the appellant on his personal search as per entry, mobile having SIM No. 89881-04174 was recovered from the appellant. He denied the

suggestion that the case property was never deposited with him or that the same had been tampered with.

HHC Man Dev appeared as PW-7 and stated that on 30.4.2016 C. Surjit Singh had brought rukka Ex.PW-1/C to the Police Station, on the basis

of which FIR Ex.PW-7/A came to be registered and endorsement Ex.PW-7/B to this effect was made on the rukka. FIR and the endorsement

contained the signatures of Inspector/SHO Gauri Dutt Sharma. After registering the FIR, the case file was given to C.Surjit Singh for being delivered

to the Investigating Officer. Subsequently on 2.5.2016 the case property was taken by him from HHC Mohar Singh, Incharge Malkhana. One parcel

sealed with eight seals of seal impression ‘A’ and four seals of seal impression ‘D’, NCB form, copy of seizure memo, sample seals,

copy of FIR and docket were sent by him to FSL, Junga for chemical analysis through C. Surjit Singh vide RC No.21/2016. After depositing the case

property in the laboratory, C. Surjit Singh returned to the Police Station handed over the Registration Certificate to him. Column No. 12 of the NCB

form Ex.PW-7/C was filled in by him on 2.5.2016 and contained his signature. He further deposed that during this period the case property remained

with him, the same remained intact and was not tampered with. He produced the copy of RC register Ex.PW-7/D and stated that the same was

correct as per the original. CCTNS certificate under Section 65-B of the Indian Evidence Act Ex.PW-7/E was issued by him and further deposed that

the computer system was working properly in the Police Station.

In cross-examination, the witness deposed that on 30.4.2016 ASI Sunil Kumar had returned to the Police Station during night, his statement was

recorded by the I.O. on 6.5.2016. However, no rapat was entered separately regarding the arrival of C. Surjit Singh came to the Police Station

alongwith rukka on 30.4.2016. He volunteered to state that this entry is mentioned in the FIR. He denied the suggestion that the paper formalities were

completed later on to frame the appellant and the case property was not sent by him to laboratory through PW-1 C. Surjit Singh.

HHC Kanshi Ram appeared as PW-8 and deposed that on 12.5.2016 he was deputed by MHC Police Station, Theog to go to FSL, Junga and

bring back the case property alongwith the report of the laboratory. He visited the laboratory on the same day and a parcel sealed with three seals of

FSL and report of the laboratory was entrusted to him by the concerned official of the FSL. He thereafter deposited the same with HHC Mohar

Singh, Incharge Malkhana. He further deposed that as long as the case property remained with him, the same remained intact. In cross-examination,

the witness denied that the case property was not deposited by him with HHC Mohar Singh. This in entirety is the evidence led by the prosecution.

Now, adverting to the evidence led by the appellant in defence. It would be noticed that Hanumant Rai, Assistant Director of Telecom Security,

BSNL, CTO, appeared as DW-1 and stated that he had brought the requisitioned record of telephone No.94181-76230 which was in the name of Sunil

Kumar PW-9. Telephone No. 89881-04174 is in the name of Prem Singh and telephone No. 94599-62757 is in the name of Hira Singh and information

in this regard is Ex.DW-1/A. Record relating to the call details was protected by a password which was known to him only. The call details of the

above mobile numbers were Ex.DW-1/B to Ex.DW-1/D and were computer generated and correct as per the record. Coding of the towers showing

the area from where the mobile phones were used, are mentioned in the call details and the decoded names of the towers are mentioned in Ex.DW-

1/E. In cross-examination, the witness admitted that if a tower is not working, the mobile phone catches the signal of another tower.

DW-2 Sanjay Kumar, Nodal Officer, Reliance Communication Ltd., I.T. Park, Manimajra (Chandigarh), produced the call details that were

password protected. He claimed that the password was known to him only and my superior at the National level. He stated that he had brought the

summoned record of telephone No.98174-83164 which was in the name of PW-1 Surjit Singh. Ex.DW-2/A was the copy of CAF (Construction

application form), Ex.DW-2/B was the copy of call details alongwith tower location, Ex.DW-2/C was the certificate issued by him under Section 65-B

of the Indian Evidence Act and bore his signatures. He further stated that the call details in Ex.DW-2/B were correct as per the record. In cross-

examination, even this witness claimed that if a particular tower is not functional, the mobile phone automatically catches the signal of other tower.

This in entirety is the evidence led by the appellant.

At this stage, it would be relevant to point out that the sole basis for convicting the appellant is contained in the reasoning as accorded in para-36 of

the judgment, which reads thus: “36. As per the prosecution story, parcel (Ext. P-1) was prepared at the spot by ASI Sunil Kumar (PW-9) and

sealed by affixing eight seals of seal impression ‘A’. Impression of seal ‘A’ was taken on a piece of cloth Ext.PW-1/A and the NCB

forms including Ext.PW-7/C. Sealed parcel, accused and relevant documents were produced by PW-9 on his return to the Police Station before

Inspector Gauri Dutt Sharma (PW -10), the then SHO, Police Station, Theog. The parcel was re-sealed by the SHO by affixing four seals of seal

impression ‘D’. Impression of seal ‘D’ was also taken on a piece of cloth (Ext.PW-10/A) and the NCB forms including Ext.PW-7/C.

Columns No. 9 to 11 of the NCB forms were filled in by the SHO, who issued the re-sealing certificate and deposited the case property with HHC

Mohar Singh (PW-6), Incharge Malkhana. In the resealing certificate Ext.PW-10/B issued by the SHO (PW-10), it has been mentioned that a parcel

bearing six seals of seal impression ‘P’ alleged to be containing 95 grams of charas, sample seal ‘P’ and NCB forms in triplicate were

produced before the SHO by HHC Om Prakash. The parcel was resealed by affixing three seals of seal impression ‘T’. While taking me

through Ext.PW-10/B, the learned counsel for the accused canvassed that the provisions of Section 55 of the Act were violated by the police in this

case which is fatal to the case of the prosecution. To my thinking, this argument of the learned counsel is devoid of any force since the provisions of

Section 55 of the Act are directory in nature. Certificate Ext.PW-10/B relates to FIR No. 16/16, dated 10.02.2016 registered in Police Station, Theog

under Section 20 of the Act. In the present case, the number of the FIR is 68/16, dated 30.04.2016. Photocopy of the resealing certificate issued by

the SHO (PW-10) in the instant case is there on record. It corroborates the prosecution version regarding resealing etc. Moreover, there is ample oral

and documentary evidence on the file to prove that the case property remained safe and was never tampered with at any point of time.â€​

We only need to remind that it is well settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof,

since a higher degree of assurance is required to convict the accused. (See: Mousam Singha Roy and others vs. State of W.B. (2003) 12 SCC 377.)

That apart we notice that the learned Special Judge, who happens to be a senior Judicial Officer has analyzed the statements or reproduced the

relevant part thereof, has in fact, reproduced in entirety his statement alongwith his cross-examination in verbatim and thereafter not even bothered to

discuss the same. This was not at all expected from the learned Special Judge, as observed above, who is factually senior in the higher judiciary. Now

we will discuss the point-wise submissions made by the appellant.

(i) The prosecution has failed to connect the contraband with the re-sealing certificate Ex.PW-10/B.

It is vehemently argued by Mr. Ajay Kochhar, learned counsel for the appellant that the link evidence in the present case is missing and there is

sufficient evidence on record to indicate that the case property in fact had been tampered with and the paper work was done only to show the

compliance of various provisions of the Act. He would contend that as per the admitted case of the prosecution, the case property being 2.77

kilograms was sealed with seal impression ‘A’ and resealed with seal impression ‘D’, whereas the resealing certificate Ex.PW-10/B,

placed on record was contrary to the case of the prosecution and thus in fact falsified the case of the prosecution. From the record, we find that PW-

10 Inspector Gauri Dutt Sharma, claims to have resealed the case property and the certificate placed on record shows only 95 grams and that too,

found sealed with seal impression ‘P’ and resealed with seal impression ‘T’ and the document Ext.PW-10/B in fact relates to FIR

No.16/16

However, learned Additional Advocate General would claim that PW-4 Sunil Kumar has duly proved on record rapat Ex.PW-4/B dated 30.4.2016

wherein it has been categorically recorded that “ASI Sunil Kumar, PW-9 had submitted a parcel having eight seals of impression ‘A’

containing one bag of yellow colour mark PADENIA containing 2.770 Kg charas in the shape of sticks and balls alongwith NCB forms in triplicate for

resealing before him. On inspection, the seal impression ‘A’ were found to be correct and the other details were also found to be correct and

this parcel was then re-sealed with seal impression ‘D’ and impression thereof was also taken separately on a piece of cloth. Thereafter

columns 9 to 11 of NCB -1 form, in triplicate was filled up and thereafter seal impression ‘D’ was put on the same and after resealing the

parcel alongwith bearing seals ‘A’ and ‘D’ and NCB-1 form in triplicate were handed over to HHC Mohar Singh No. 1497, Malkhana

Incharge.â€​

At this stage, it would be noticed that the production of aforesaid rapats Ex.PW-4/A and Ex.PW-4/B had been objected to and rightly so because

the resealing in this case was claimed to have been done by PW-10 Inspector/SHO Gauri Dutt Sharma, as aforesaid and not PW-4.

That apart, we noticed that after the conclusion of the arguments by the learned Special Judge, the prosecution had moved an application under

Section 311 Cr.P.C. read with Section 165 of the Indian Evidence Act whereby it had sought permission to re-examine the SHO, Police Station,

Theog as a witness and produce the resealing certificate issued by him in this case, but the said application was dismissed by learned Special Judge

vide its order dated 7.4.2017 and the said order admittedly has attained finality as it was never challenged by the prosecution. Therefore, in the given

circumstances, we have no hesitation to conclude that the prosecution has not been able to connect the contraband with the resealing certificate

Ex.PW-10/B and has attained finality. (ii) Photographs Ex.PW-1/D to Ex.PW-1/J are contrary to the case of the prosecution.

It is the specific case of the prosecution that at 7.10 p.m. when the police party was present while patrolling at Gazari Tikkri Sainj link road, one

person was seen coming on foot from the opposite direction carrying a bag in his right hand and on seeing the police vehicle the appellant turned back

and started walking towards the opposite direction. This had raised suspicion in the mind of the police officials and thereafter the person was

apprehended at some distance. Driver C. Rajesh Kumar was sent by ASI Sunil Kumar to look for the independent witnesses who after 15 minutes

returned and claimed that no witness was available. It is only thereafter that the proceedings were conducted with the help of search light and the light

of the vehicle as stated by PW-1 and PW-9. However, when the photographs Ex.PW-1/D to Ex.PW-1/J were put to these witnesses, they admitted

that these have been taken during day time. PW-1 in his cross-examination specifically states “it is correct that as per photographs Ex.PW-1/D to

Ex.PW-1/J, it was day timeâ€. Likewise, PW -1 ASI Sunil Kumar, in his cross-examination states “it is correct that photographs Ex.PW-1/D to

Ex.PW-1/J are of day light.â€​

Incidentally, the arguments in this case were heard at the time i.e. 4.5.2018 which coincides with the time and date of the incident i.e. 30.4.2016

and we have no hesitation to conclude that the sun sets in the month of April would be around 7.00 â€" 7.15 p.m. Anyway, not being emphasized by

the personal knowledge, we would rather concentrate on the material that has come on record. PW-1 in his statement admitted that in April the sun

sets at around 7.00 â€" 7.15 p.m. and it is dark around 7.30 p.m. and the appellant was apprehended at 7.15 p.m. PW-1 further admits that C. Rajesh

Kumar had gone to call the independent witnesses and had returned to the spot after 15 minutes and therefore, it is but obviously when the

proceedings were being conducted on the spot, it was pitch dark. Since the so called eye witnesses PW-1 and PW-9 admit the photographs to be

those of day light, obviously then, the story being put-forth by the prosecution cannot be accepted at its face value. (iii) Efforts to create false evidence

by claiming that an attempt to associate independent witnesses was made.

As per the case of the prosecution attempts to associate independent witnesses was made, but in vain. As per the specific case of the prosecution,

it was C. Rajesh Kumar, who had been sent to look for the independent witnesses, but then the said C. Rajesh Kumar has not even been examined by

the prosecution which thus creates a serious doubt in the prosecution story. This looses importance because the other independent witnesses i.e. PW-

1 and PW-9 have given different versions regarding the directions in which C. Rajesh Kumar had gone to search for independent witnesses. PW-1

would claim that C. Rajesh Kumar had gone towards Tikri Sainj Road in search of the independent witnesses, whereas PW-9 ASI Sunil Kumar would

claim that C. Rajesh Kumar had gone on foot towards the upper side in search of the independent witnesses.

Apart from that, now in case the rukka Ex.PW-1/C and special report Ex.PW-3/A is perused, then it would be noticed that there is no mention

made therein regarding C. Rajesh Kumar having been sent to look for the independent witnesses and this fact has been clearly acknowledged and

admitted by PW-9 ASI Sunil Kumar in cross-examination when he states “it is correct that I did not mention in the rukka Ex.PW-1/C and the

special report Ex.PW-3/A that C. Rajesh Kumar was sent by me to call the independent witnesses.â€. (iv) Log book Ex.PW-9/E falsifies the case of

the prosecution.

The specific case of the prosecution is that the police party returned to the Police Station at 9.35 p.m. as would be evident from the testimonies of

PW-1 and PW-9. In fact, PW-9 claims to have remained in the Police Station after having reached there. However, when confronted with log book

Ex.PW-9/E wherein the return of the police party to the Police Station is shown to be 11.35 p.m. on 30.4.2016, he would try to explain that he might

have gone somewhere else after 9.35 p.m. for patrolling, but could not tell the place. He further stated that the statement of driver C. Rajesh Kumar

had been recorded by him under Section 161 Cr.P.C. wherein it had not been mentioned that he had gone somewhere after returning the Police

Station after 9.35 p.m.

Now, in case the statement of PW-1 is adverted to, he has categorically stated that his statement under Section 161 Cr.P.C. had been recorded in

the Police Station by ASI Sunil Kumar. That apart, in absence of any reference in any contemporaneous record regarding further patrolling of the

police party after 9.35 p.m. on the given date, it would be noticed that the statement of PW-1 under Section 161 Cr.P.C. clearly belies the version

putforth by PW-9 in the witness box. (v) Colour of the bag as alleged to be recovered does not tally with the one as described by the Forensic Science

Laboratory in its report.

Even though PW- 1 and PW-9 are both silent about the colour of the bag, but then as per the seizure memo and the entry made in the Malkhana

Register Ex.PW-6/A, the colour of the bag has been shown as yellow, but the bag containing contraband when sent for analysis to FSL, is found to be

blue, white and yellow coloured carry bag. No explanation whatsoever has been placed by the prosecution on record to indicate how the yellow colour

bag that was so recorded in the documents mentioned above, suddenly reported to be blue, white and yellow. Therefore, in the given circumstances

even if it assumed that some substance was recovered from the appellant, the same cannot be connected with the report of the FSL to conclude that

the same was Charas.

We see no reason to differ with the aforesaid view, therefore, in the given circumstances, even if it is assumed that something was recovered

from the possession of the appellant, the same cannot be connected with the report of the FSL to conclude that the same was charas, as alleged. (vi)

Prosecution case full of major contradictions, embellishments and improvements.

It is vehemently argued by learned counsel for the appellant that the contradictions appearing in the case which are fatal to the case of the

prosecution, according to him, the following contradictions are major in nature: “a. Basic case of the prosecution is that the person on noticing the

police vehicle turned back in started walking towards the opposite direction whereas both PW-1 and PW-9 in their examination in chief had stated that

the said person turned back and tried to run away. PW-9, when confronted on page 20 with the basic case of the prosecution he admits that it was not

therein in the statement of any witnesses the accused tried to run away. His deposition on page 20, 2nd line of the cross-examination is “I did not

record the statement of any witness that the accused tried to run awayâ€​.

b. PW-1 in his deposition has stated at page 5, 14th line from the top “when the accused turned back we suspected that he is carrying the

contraband.†To the contrary was deposed by PW-9, on page 21, 5th line from the top “when the accused turned back after seeing the police

vehicle I did not suspect that he is carrying the contraband. Even I did not suspect that the accused is carrying the contraband when I sent C. Rajesh

Kumar in search of the independent witnesses.â€​

c. PW-1, in his statement has stated “driver c. Rajesh had gone towards Tikkri Sainj Road in search of independent witnesses.†To the contrary

was stated by PW-9, on page 20 and 22 in the following words “ C. Rajesh Kumar went on foot towards the upper side in search of the

independent witnesses†and “C. Rajesh Kumar was sent by me with the hope that some independent witnesses might be found. C. Rajesh went

towards the upper side, jungle is there on the upper side.â€​

d. Regarding the manner of apprehension, PW-1 states at page 3 “I and HHC Munni Lal followed the said person and caught hold of him at a

distance of about 20 meters.â€​ T

e. Regarding the cross-examination on option under Section 50 of the Act after having suspicion that the appellant may be carried contraband, PW-1

on page 5 has stated on the 17th line from the top “I do not remember as to whether any option under Section 50 of the Act was given to the

accused or not before the search of the bagâ€​. Whereas, PW-9 has stated that no option was given under Section 50 of the Act.

f. Regarding the manner in which the rukka was taken by PW-1, from the spot. PW-1 has stated that he went from the spot on foot whereas, PW-9

shows total ignorance by stating that he did not know as to how PW-1 went with the rukka from the spot, which is highly improbable.â€​

It is more than settled that some improvements, contradictions and omissions are bound to occur in every case and until and unless the same is

very serious, vital and significant so as to disbelieve and discard the substratum and go to the root of the case, the same probably would have no

bearing on the case of the prosecution. However, minor contradictions, consistencies, embellishments and improvements on trivial matters without

affecting the core of the prosecution case, should not be made a ground to reject the evidence in its entirety. Even though the contradictions, as sought

to be pointed out by the appellant, cannot in isolation be considered to be of such magnitude that may actually affect the trial. However, when the

cumulative effect and circumstances of the case as have been noticed above are taken into consideration, we have no hesitation to conclude that the

prosecution has miserably failed to prove its case.

In view of the aforesaid detailed discussion, we find merit in this appeal and the same is accordingly allowed. The judgment of conviction and

order of sentence dated 7.4.2017 under Section 20 of the NDPS Act are set-aside. The appellant is acquitted of the charges framed against him. The

fine amount, if any, already deposited by the appellant is ordered to be refunded to him. Since the appellant is in Jail, he be released forthwith, if not

required in any other case. Registry is directed to prepare the release warrant and send it to the Superintendent of the Jail concerned in conformity

with this judgment.

However, we have no hesitation to conclude that it was solely on account of the faulty and shoddy investigation conducted by the prosecution that

this Court is left with no other option, but to acquit the appellant. However, having regard to the seriousness of the offence, the matter cannot be set at

rest here.

The Hon’ble Supreme Court in State of Gujarat vs. Kishanbhai and others, (2014) 5 SCC 108 has categorically held that on the culmination of

a criminal case in acquittal, the investigating/prosecuting official(s) concerned responsible for such acquittal must necessarily be identified. A finding

needs to be recorded in each case, whether the lapse was innocent or blameworthy. Each erring officer must suffer the consequences of his lapse. It

is apt to reproduce the relevant observations in the aforesaid case, which reads thus:-“21. On the culmination of a criminal case in acquittal, the

concerned investigating/prosecuting official(s) responsible for such acquittal must necessarily be identified. A finding needs to be recorded in each

case, whether the lapse was innocent or blameworthy. Each erring officer must suffer the consequences of his lapse, by appropriate departmental

action, whenever called for. Taking into consideration the seriousness of the matter, the concerned official may be withdrawn from investigative

responsibilities, permanently or temporarily, depending purely on his culpability. We also feel compelled to require the adoption of some indispensable

measures, which may reduce the malady suffered by parties on both sides of criminal litigation. Accordingly we direct, the Home Department of

every State Government, to formulate a procedure for taking action against all erring investigating/prosecuting officials/officers. All such erring

officials/officers identified, as responsible for failure of a prosecution case, on account of sheer negligence or because of culpable lapses, must suffer

departmental action. The above mechanism formulated would infuse seriousness in the performance of investigating and prosecuting duties, and would

ensure that investigation and prosecution are purposeful and decisive. The instant direction shall also be given effect to within 6 months.â€​

PW-1 C. Surjit Singh and PW-9 ASI Sunil Kumar happened to be part of the police party. The alleged recovery in this case is stated to be 2.770

Kg of Charas, yet the callous and casual manner in which the investigation and thereafter evidence led by the prosecution leaves much to desire. That

apart, why the remaining two so called eye witnesses i.e. C. Rajesh Kumar and HHC Muni Lal were not examined, that too, only on the ground of

repetition, does not augur well, particularly in light of the other evidence that has been led by the prosecution. This Court has no hesitation to conclude

that the investigation is based on fabricated documents. We observe so because PW-1 and PW-9, in their statements, have categorically admitted that

the photographs Ex.PW-1/D to Ex.PW-1/J are those which having been taken in broad day light, whereas the specific case of the prosecution is that

the investigation was commenced at about 7.30 p.m. when it was pitch dark.

We further have no hesitation to conclude that the acquittal in this case is a consequence of shoddy investigation and slovenly assimilation of

evidence and, therefore, the entire gamut of the case requires to be thoroughly probed and enquired into by the Home Department of the State, which

shall not only take appropriate departmental action against PW-1 C. Surjit Singh and PW-9 ASI Sunil Kumar, but shall also conduct a thorough inquiry

as to why in the teeth of the evidence that had been recorded, the other two spot witnesses i.e. C. Rajesh Kumar and HHC Muni Lal having been

given up and further why an appropriate application for examining these witnesses was not filed at any later stage.

However before parting, it needs to be observed that this Court has repeatedly come across the case files of the subordinate Courts, which are

neither indexed nor paged. Even in this case, a perusal of the index on the exhibit part would show that the index has been shown as Page ‘A’

while all other exhibits have been shown from pages 2 to 39 without specifying separately the page of the concerned exhibit. This to say the least is

not in accordance with the Rules and Orders. The matter pertaining to the preparation of judicial record in the subordinate Courts is dealt in Chapter

16, Volume IV of Rules and Orders of Punjab and Haryana High Court as applicable to the State of H.P. Part A(II) deals with the index of papers

and provides that each Civil and Criminal record should have pre-fixed to it an index of its contents and such index should be in prescribed form. The

prescribed form has been given as Form No. 242 in Volume 6. Sub Rule 2 provides that each paper admitted should be entered in the index on the day

on which it is so admitted by the official incharge. It further provides that entry in column number 4 must be in sufficient detail to allow the paper

described being readily identified, for example, the entry regarding a power of attorney should specify by whom the power of attorney is granted and

whom it empowers, the entry regarding a deposition sheet should note the name of deponent etc. Part B of Chapter 16 provides in the transmission of

judicial record. Sub Rule (2) provides that on receipt of record, the proper official of the receiving office should check the list and in case of any

deficiency should bring it to the notice of the head of the office. Sub Rule 6 (g) provides that every page and not sheet should be numbered. However,

it does not mention about the colour of the ink in which numbering is to be made.

It is thus clear that any official preparing the index is under an obligation to fill the index in proper form and it is not sufficient compliance that only

Exhibit numbers are marked without any detail regarding the documents in the index.

Accordingly, we direct the Registrar General to issue instructions to all the subordinate Courts, directing them to ensure that before the records are

sent to the appellate Court, the same are properly indexed and paged in accordance with the Rules as mentioned above and it will not be sufficient

compliance that only Exhibit numbers are marked without giving any detail regarding the documents in the index.