Rohtash vs State Of Himachal Pradesh

Tarlok Singh Chauhan, J

The appellant has been convicted and sentenced by the learned Court below and aggrieved thereby has filed the instant appeal.

The case of the prosecution, in a brief, was that on 08.04.2015, Dy. S.P. Sahil Arora, Probationer/SHO, Police Station, Kandaghat, along with ASI Jaswant Singh, HHC Mohan Dutt, Constable Satish Kumar, HHG Roshan Lal, HHG Manohar Lal and HHG Mahender Singh, proceeded in a government vehicle towards Chail Chowk in connection with ‘Nakabandi’ duty. Then, at about 9.30 p.m., a bus bearing registration No. HR55U- 0754 of Haryana Roadways enroute Shimla to Gurgaon was intercepted. A person was sitting on seat Nos. 35-36 all-alone and has kept a ‘pithoo bag’ (black-grey in colour) on seat No. 36 and when this bag was opened, then two brown colour carry bags were found and inside it, a blue colour carry bag containing black colour substance in the form of sticks was recovered and after smell and taste and on the basis of experience, it was found cannabis. The person who was sitting on seat No. 35 disclosed his name as Rohtash and claimed the ownership of this bag to be his own. He was having his left arm amputated from the wrist.

It was further case of the prosecution that a digital weighing scale was brought from the shop of Amba Prashad and Sons, Kandaghat by Constable Satish Kumar and after weighment, the substance was found to be 1 kg. 530 grams and without packet, the weight of the cannabis was found to be 1.470 kgs. After weighment, the cannabis was put in the same packet, sealed in a ‘pullinda’ with five seal impressions of seal ‘P’. Sample of seal was drawn on a piece of cloth and NCB forms in triplicate were filled and impression of seal was also embossed on it. Seal after its use was handed over to the driver Haneef. In the seizure memo, witnesses Dharam Veer, Haneef, Pankaj and accused also put their signatures and a copy of seizure memo was given to the accused free of cost. Thereafter, ‘pullinda’ was put in the same ‘pithoo bag’. Ruqa along with NCB forms and case property was sent through constable Satish Kumar to the police station.

It was also the case of the prosecution that ruqa was received in the police station by ASI Jiya Lal (PW-7) on 08.04.2015 through Constable Satish. The ruqa was duly endorsed vide endorsement Ext. PW-7/B and on the basis of the ruqa, FIR Ext. PW7-A came to be registered in the police station. On 09.04.2015, a special report Ext. PW-11/F was sent through Constable Bhanu Singh to Dy. S.P. Amit Sharma, who endorsed special report vide endorsement Ext. PW-8/A. Cannabis was taken into possession vide memo Ext. PW-1/B in the presence of PW-1 Haneef, PW-2 Pankaj and Dharam Veer. Sample of seal was drawn on a piece of cloth Ext. PW-1/A. From the bag of the accused, shirt, trouser and voter I Card bearing No. RSY0232181 of the accused were also taken into possession vide memo Ext. PW-1/C in the presence of Haneef and Dharam Veer. Constable Satish Kumar handed over the case property to ASI Jiya Lal, who handed over the same to MHC of the police station to be deposited in the ‘Malkhana’. PW-10 MHC Bhagat Ram entered the case property at Sr. No. 312 in a ‘Malkhana’ register No. 19 and copy of ‘Malkhana’ register is Ext. PW-10/A. On 09.05.2015, Dy. S.P. Sahil Arora deposited a ‘pullinda’, with the MHC of the police station, allegedly containing cannabis, a trouser and shirt, who in turn, entered the same at Sr. No. 328 of the ‘Malkhana’ register and copy of the ‘Malkhana register is Ext. PW-10/D.

It was also the case of the prosecution that on 10.04.2015, MHC sent ‘pullinda’ containing cannabis along with NCB forms with sample of seal to FSL, Junga through Constable Satish Kumar vide RC No. 4/15-16 and the copy of the RC is Ext. PW10/E. He also put his signatures on the NCB forms Ext. PW-10/F under red circle ‘A’. On 20.04.2015, he received the case property along with the result Ext. PW-10/G from FSL, Junga through HHC Phool Chand and he entered the case property on the same number. He recorded rapat No. 21-A Ext. PW-10/B and also issued a certificate Ext. PW-10/A. ‘Jama-talashi’ of the accused person was also conducted and from his possession currency notes of Rs.1,000/-, a mobile phone, black colour thread, one carland, four bus tickets bearing No. K-14 528679, 528680, 528681 and E-14 284446 were recovered and the same were taken into possession vide memo Ext. PW-3/A in the presence of HHC Hem Raj and Constable Satish Kumar. The vehicle bearing No. HR-55U-0754 was given on supurdari to driver Haneef vide memo Ext. PW-1/D. PW-5 Rakesh Kumar handed over a copy of duty roster Ext. PW-5/A of driver and conductor of the bus to the police. Spot map Ext. PW-11/D was prepared and memo of arrest Ext. PW-11/E was prepared and information of arrest of accused was given to his wife. Photographs Ext. P-16 to Ext. P-21 were also taken. Chemical analyzer on the basis of analysis of the sample vide report Ext. PW-10/G opined that the substance examined was an extract of cannabis and the quantity of resin found therein was 18.96% w/w. The statement of the witnesses were recorded as per their version and after completion of the investigation, challan was prepared and presented in the Court of Learned Special Judge-I, Solan.

After taking cognizance, the learned Court below summoned the accused. On consideration, charge under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, (For short ND&PS, Act) was framed against the accused person to which he pleaded not guilty and claimed trial.

The prosecution in order to prove its case examined as many as 11 witnesses. Thereafter, the accused was examined under Section 313 Cr.P.C. The defence of the accused was simpliciter denial that he has been falsely implicated in the case. However, the accused examined three witnesses in defence.

The learned Special Judge, after recording the statements of the witnesses and evaluating the same, has convicted and sentenced the appellant to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1,00,000/- for the commission of an offence punishable under Section 20 of the Act and in default of payment of fine, he was further directed to undergo simple imprisonment for one year.

We have heard the learned counsel for the parties and have gone through the material placed on record.

It was vehemently argued by Shri Manoj Pathak, learned counsel for the appellant that the learned Court below has wrongly convicted the appellant by assuming that this is a case of chance recovery or a spot recovery, whereas, it is a case of prior secret information and there is nothing on record to show that the provisions of Section 42 as well as Section 50 of the ND&PS Act were complied with.

On the other hand, Shri I.N. Mehta, learned Senior Additional Advocate General would argue that the learned Special Judge has rightly convicted the appellant as he was found in conscious possession of illegal contraband and since it was a case of chance recovery, therefore, the aforesaid provisions as relied upon by the appellant were not required to be complied with.

It is more than settled that in case there is prior information, then the mandatory provisions of Section 50 of the Act have to be strictly adhered to and non-adherence thereof vitiates the conviction. Section 50 of the Act mandates the empowered officer to inform the person to be searched of his right to demand that the search be conducted in the presence of a Gazetted Officer or a Magistrate. Merely because, the accused does not make a request to the Officer of his own that the search should be conducted in presence of such Officer, it cannot be held that there is no need to inform him of his right. The issue has been authoritatively decided by the Hon’ble Supreme Court of India in State of Punjab vs. Baldev Singh (1999) 6 SCC 172 wherein a Constitution Bench of the Hon’ble Supreme Court after considering the entire law on the subject culled out the following conclusions:

“57.On the basis of the reasoning and discussion above, the following conclusions arise :

(1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under Sub-section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing;

(2) That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused;

(3) That a search made, by an empowered officer, on prior information, without informing the person of his right that, if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act;

(4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards 50 have by Section 50 at the trial, would render the trial unfair.

(5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50, and particularly the safeguards provided therein were duly complied with, it would not be permissible to cut-short a criminal trial;

(6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but, hold that failure to inform the concerned person of his right as emanating from Sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law;

(7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search;

(8) A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act.

(9) That the judgment in Pooran Mal's case cannot be understood to have laid down that an illicit article seized during a search of a person, on prior information, conducted in violation of the provisions of Section 50 of the Act, can by itself be used as evidence of unlawful possession of the illicit article on the person from whom the contraband has been seized during the illegal search; (10) That the judgment in Ali Mustaffa's case correctly interprets and distinguishes the judgment in Pooran Mal's case and the broad observations made in Pirthi Chand's case and Jasbir Singh's case are not in tune with the correct exposition of law as laid down in Pooran Mal's case.”

It is not in dispute that the case as laid down by the prosecution before the learned Special Judge was of a chance recovery. It was the prosecution case that the entire proceedings had been videographed by the Dy. S.P. Sahil Arora (PW-11), but the C.D. was initially not placed along with charge-sheet constraining the prosecution to file an application under Section 91 read with Section 311 Cr.P.C. for placing on record the C.D. of the videography of the proceedings. This application was allowed vide order dated 05.07.2016 and Dy.S.P. Sahil Arora was again summoned for 26.07.2016 when his statement was again recorded.

Now that the C.D. has become a substantive piece of evidence, the statements of the witnesses, especially those of the spot are required to be analyzed vis-a-vis the contents of the C.D. Noticeably, the C.D. available on record had erased, but the parties had no objection in case the copy of the C.D. which had been handed over to accused at the time of filing of the application is taken on record and played. Now, when the C.D. was played in front of the parties, it was noticed that the electronic weighing scale was already available with the police party and the same was clearly visible in the very first scene of the V.C.D. even before the bag of the appellant was searched. Whereas, it was the specific case of the prosecution that it was a chance recovery. If it was a case of chance recovery, then why would the electronic scale be inside the vehicle with the police party before conducting the search, especially, when it was the specific case of the prosecution that it was after the recovery of the alleged contraband that the electronic scale was brought from the shop and after its weighment, it was found to be 1.470 kg. This was so stated by PW-1 Hanif, who was the driver of the bus in question. To similar effect is the statement of PW-3 Constable Satish Kumar No.210, who states that it is after the recovery of the contraband that he was sent to bring the electronic scale from the shop of Amba Parsad.

The version put forth by PW-1 and PW-3 is reiterated by Dy.S.P. Sahil Arora, who appeared as PW-11 and stated as under:

“….On the basis of experience the substance was found cannabis. I asked C.Satish to bring a electronic scale from the market. He brought the electronic scale from the market then the cannabis inside the bus along with plastic and micron bag were weighed and after weighment it was found 1.530 K.G. The cannabis was also weighed without plastic and micron bags and it was found 1.470 K.G….”

Learned counsel for the appellant would argue that the findings of conviction recorded by the learned Special Judge are not sustainable in the eyes of law as it has failed to take into consideration that it was at the instance of the prosecution that the C.D. evincing the entire episode was brought on record after filing an application to this effect. Thereafter, Dy. S.P. Sahil Arora (PW-11) was re-examined and his statement reads thus:

“PW-11 Statement of Sh. Sahil Arora, Dy. S.P., Nalagarh, Distt. Solan,H.P.

On oath

26.7.2016.

Stated that I remained posted as a probationer SHO in P.S. Kandaghat w.e.f. March, 2015 till May 2015. I prepared the CD of the proceeding at the spot and CD is Ext. P-22 and certificate is Ext. PW11/H.

XXXXXXX Sh. R.K. Garg, Ld. Counsel for the accused XXXX

I did not cover the entire passengers of the bus in my CD, however, I have covered the relevant portion of the bus in my CD. It is correct that I got prepared this CD by calling the independent witnesses in the bus by making undue influence. It is incorrect that Pankaj Kumar was not present in the bus and he has been later on called and covered in the CD. Self stated he was presented in the bus. It is incorrect that conductor was not examined in this case due to the reason Pankaj Kumar was not in the bus. It is incorrect that bag Ext. P-15 and luggage were not in the bus and it was later on planted. It is incorrect that cannabis was recovered from the accused person.”

The learned counsel for the appellant while drawing strength from the C.D. would then argue that this was a case of prior information and not of a chance recovery or spot recovery. Therefore, the provisions under Sections 42 and 50 of the Act were scrupulously required to be followed and in absence thereof, the appellant was entitled to be acquitted.

We have given our thoughtful consideration to the said contention and have viewed the C.D. and find that the recovery in the instant case has not been made on the search of the person but from the bag that had been kept in the adjoining seat by the appellant and this otherwise was the prosecution case.

Section 50 of the Act reads as under:

“50. Conditions under which search of persons shall be conducted-(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).

(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female.

1[(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973.

(6) After a search is conducted under sub -section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.]”

A Constitution Bench of the Hon’ble Supreme Court in Baldev Singh’s case (supra) exhaustively considered the provisions of ND&PS Act and as regards Section 50, it was held as under:

“12.On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted.”

The Hon’ble three Judge Bench of the Hon’ble Supreme Court of India in State of Himachal Pradesh vs. Pawan Kumar (2005) 4 SCC 350 have categorically laid down that search of bag, brief case or any such article or container, which is carried by a person, is not search of person. The provisions of Section 50 of the Act would not apply in case search and seizure are not made from the person of the accused. In the instant case as the search and seizure have not been made from the person of the appellant, but from the bag, the provisions of Section 50 of the Act shall have no application.

As regards applicability of Section 42, the Second proviso of Section 42 of the Act authorizes the Officer to proceed to the spot and enter into the building for search and seizure of the articles if he has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender.

Now, the moot question in the instant case is whether the compliance of provisions of Section 42 is at all necessary when the raid was conducted by the Gazetted Officer himself i.e. Dy. S.P. Sahil Arora.

The issue in question came up for consideration before the Hon’ble Supreme Court in Union of India vs. Satrohan (2008) 8 SCC 313 and the Hon’ble Supreme Court in para-13 referred to its earlier decision in M. Prabhulal vs. Directorate of Revenue Intelligence (2003) 8 SCC 449 and observed as under:

“13. In M. Prabhulal v. The Assistant Director, Directorate of Revenue Intelligence (JT 2003 (2) Supp SC 459) it was noted as follows: (SCC pp. 453-54 &456, paras 8-9 & 14)

"8. Now, we come to the last and rather more serious objections raised on behalf of the appellants regarding the non -compliance with Section 42 of the NDPS Act vitiating the conviction which looks quite formidable but only on the first impression and not on its deeper examination. The contention of Mr R.K. Jain is that the view of the High Court that when a Gazetted Officer himself conducts a search it is not necessary to comply with Section 42(2) of the Act, is clearly erroneous. Section 42(2) provides that where an officer takes down any information in writing under sub -section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior. This was the statutory provision at the relevant time. By the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001 which came into force on 2-10 -2001, Section 42(2) was amended whereunder the information taken down in writing under sub-section (1) or grounds of belief recorded under the proviso thereto are required to be sent within seventy-two hours to officers' immediate official superior. The contention is that the officer who searched and seized the contraband did so on information received by him as per Ext. PW 1 but the said information was not forwarded to his superior officer as contemplated in Section 42(2) of the NDPS Act, thus vitiating the entire prosecution. Further argues the counsel that the respondent after grant of bail to the appellants by the High Court taking into consideration the non-compliance with Section 42(2) has tried to fill in the lacuna with a view to show the compliance of this mandatory provision.

The officer who conducted the arrest, search and seizure was an empowered Gazetted Officer of the Department. This fact is not in dispute. According to Mr Vasdev, learned Senior Counsel for the respondent, Section 42(2) is not applicable when an empowered Gazetted Officer conducts the arrest, search and seizure. The counsel submits that there was no obligation on the officer to comply with the requirement of Section 42(2) of the NDPS Act. It was also contended, in the alternative, that Section 42 (2) of the NDPS Act was complied with.

Section 41(1) which empowers a Magistrate to issue warrant for arrest of any person whom he has reason to believe to have committed any offence punishable under the NDPS Act or for search, has not much relevance for the purpose of considering the contention. Under Section 41(2) only a Gazetted Officer can be empowered by the Central Government or the State Government. Such empowered officer can either himself make an arrest or conduct a search or authorize an officer subordinate to him to do so but that subordinate officer has to be superior in rank to a peon, a sepoy or a constable. Sub-section (3) of Section 41 vests all the powers of an officer acting under Section 42 on three types of officers (i) to whom a warrant under sub-section (1) is addressed, (ii) the officer who authorized the arrest or search under sub-section (2) of Section 41, and (iii) the officer who is so authorized under sub-section (2) of Section 41. Therefore, an empowered Gazetted Officer has also all the powers of Section 42 including the power of seizure. Section 42 provides for procedure and power of entry, search, seizure and arrest without warrant or authorization. An empowered officer has the power of entry into and search of any building, conveyance or place, break open any door, remove obstruction, seize contraband, detain, search and arrest any person between sunrise and sunset in terms provided in sub-section (1) of Section 42. In case of an emergent situation, these powers can also be exercised even between sunset and sunrise without obtaining a search warrant or authorization, in terms provided in the proviso to sub-section (1) of Section 42. Sub-section (2) of Section 42 is a mandatory provision. In terms of this provision a copy of information taken down in writing under sub-section (1) or ground recorded for the belief under the proviso thereto, is required to be sent by the officer to his immediate superior official. It is clear from Section 41(2) that the Central Government or State Government, as the case may be, can only empower an officer of a gazetted rank who can either himself act or authorize his subordinate on the terms stated in the section. Under sub-section (1) of Section 42, however, there is no restriction on the Central Government or the State Government to empower only a Gazetted Officer. But on an officer empowered under sub-section (1) of Section 42, there are additional checks and balances as provided in the proviso and also provided in sub-section (2) of Section 42 . It is clear from the language of sub-section (2) of Section 42 that it applies to an officer contemplated by sub-section (1) thereof and not to a Gazetted Officer contemplated by sub- section (2) of Section 41, when such a Gazetted Officer himself makes an arrest or conducts search and seizure. It would be useful to also notice Section 43 which relates to power of seizure and arrest in a public place. Any officer of any of the departments mentioned in Section 42 is empowered to seize contraband etc. and detain and search a person in any public place or in transit on existence of ingredient stated in Section 43. It can, thus, be seen that Sections 42 and 43 do not require an officer to be a Gazetted Officer whereas Section 41(2) requires an officer to be so. A Gazetted Officer has been differently dealt with and more trust has been reposed in him can also be seen from Section 50 of the NDPS Act which gives a right to a person about to be searched to ask for being searched in the presence of a Gazetted Officer. The High Court is, thus, right in coming to the conclusion that since the Gazetted Officer himself conducted the search, arrested the accused and seized the contraband, he was acting under Section 41 and, therefore, it was not necessary to comply with Section 42. The decisions in State of Punjab v. Balbir Singh(1994) 3 SCC 299 Abdul Rashid Ibrahim Mansuri v. State of Gujarat (2000) 2 SCC 513 and Beckodan Abdul Rahiman v. State of Kerala (2002) 4 SCC 229 on the aspects under consideration are neither relevant nor applicable."

After referring to the above decision in M. Prabhulal’s case (supra), the Hon’ble Supreme Court in Satrohan’s case (supra) held that Section 41(2) deals with two situations. One is relatable to gazetted officer while in the other case the gazetted officer may authorise his subordinate to do the relevant act or may do it himself. Section 41(3) refers to the power under Section 42 which refers to subordinates and, thus, it is made clear that when the gazetted officer himself makes arrest, search and seizure, he acts under Section 41 and, therefore, it is not necessary to comply with Section 42 of the Act.

Even otherwise, failure to comply with the provisions of Section 50 of the Act would (i) cause prejudice to the suspect/accused; (ii)render the recovery of the illicit article suspect; and (iii) vitiate the conviction, if the same is recorded only on the basis of the possession of such illicit article, as was held by a Constitution Bench of the Hon’ble Supreme Court in VijaySinh Chandubha Jadeja vs. State of Gujarat (2011) 1 SCC 609.

Similar reiteration of law can be found in Yasihey Yobin and another vs. Department of Customs, Shillong (2014) 13 SCC 344.

Judged in light of the aforesaid exposition of law, we may now proceed to analyze the relevant statements of the witnesses.

In order to prove its case, the prosecution has examined the driver of the bus Hanif as PW-1, who in his statement has stated that on dated 08.04.2015, he along with conductor Dharmveer was deputed in a vehicle No. HR-55U-550754 en-route Shimla to Gurgaon and proceeded from Shimla at about 8.40 P.M. At about 9.30P.M., they reached at place Kandaghat, there police intercepted their vehicle and two-three police officials entered in the bus from the front door and one police official entered from the rear door. Police officials started to search the luggage(s) of the passengers. Appellant present in the court was sitting on seat No. 35 and he had kept a ‘pithoo bag’ near his foot and when this bag was searched then inside it there was one cloth bag and inside it there were two plastic bags containing black substance and it was disclosed by the police that it was charas. Police made him, conductor and a passenger as witnesses, Police weighed the cannabis with electronic scale brought from the shop and after weighment it was found about 1.400 K.G. Police sealed the contraband in the same manner in a pullinda excluding the big bag. Pullinda was sealed with seal impression P. There were about 2-3 seals but exactly he could not state how many seals were put on the pullinda. Photographs were taken by the police at the spot. Seal was handed over to him after its use. Inside the bag of the accused person there were his apparel. He did not know about the voter card. Sample of the seal was taken on a piece of cloth Ext. PW-1/A and it was signed by him, conductor and accused. The parcel and bag were taken into possession vide memo Ext. PW-1/B which bore his signatures under red circle 'A', conductor and accused also signed this memo. Apparel and voter card were also taken into possession vide memo Ext. PW-1/C and it bears his signature under red circle 'A'. conductor and accused also put their signature on it. Bus was handed over in his custody vide memo Ext. PW-I/D. Photographs Marks A- 1 to A- 6 were the same which were taken at the spot.

This witness was declared hostile as he had resiled from his previous statement. When cross-examined by the learned Public Prosecutor, then he admitted that portions A to A and B to B of his statement Mark-H were correct. Police filled NCB form at the spot. Police also embossed seal 'P' on the seizure memo Ext PW-I/B and NCB forms. Further, he admitted that Charas was recovered from the bag of the accused person. Signatures of the conductor Dharamveer were on the tickets Ext. P-10 to P-13.

When cross-examined by learned Defence counsel, PW-1 admitted that he could not recollect the police officials who boarded the bus from front door as well as from rear door. Police also checked those bags which were kept on the racks and which were under the seat. Pankaj was sitting adjacent to accused person and it is a three seater bench. He admitted that at the time of the issuance of the ticket, seat number was also mentioned in the ticket at the bus stand. Voter I card was not shown to him. Appellant was searched inside the bus, but he did not know that any document was prepared. Further, he admitted that bag did not belong to appellant.

PW-2 Pankaj Kumar in his statement stated that on 08.04.2015 he boarded Haryana Roadway bus HR 55U-0754 from Shimla to Chandigarh. He was sitting on seat No. 30. At about 9.30 P.M., police intercepted the bus at Kandaghat Chowk. Police entered in the bus from both doors and started to check the luggage(s) of the passengers and directed the passengers to keep their luggage(s) with them. Appellant was sitting on seat No. 35 behind his seat. The bag was with the appellant which he handed over to the police and it was kept on the seat. Inside the bag polythene packet came out and inside it there was a black colour substance. Police told them that it was charas. He along with driver, and conductor was associated in the process of search. Two-three other persons were also present there. Cannabis was weighed and after weighment it was about 1.500 KG. Police sealed the cannabis in the same manner with seal having seal impression ‘P’. But he did not remember how many impressions of seal ‘P’ were embossed on the ‘pullinda’. Seal after its use was handed over to the driver of the bus. Sample of the seal ‘I’ was drawn on a piece of cloth Ext. PW-I/A. His signature on ‘pullinda’ Ext. P-1, memo Ext. PW-1/B, sample of seal Ext. PW-1/A appear under red circle B. Voter card Ext. P-14 was also taken into possession from the bag of the accused person vide memo Ext. PW-I/C along with the apparel. Police photographed the spot vide mark A-1 to A-6. Tickets Ext. P-10 to P-13 were also taken into possession.

This witness was also declared hostile by learned Public Prosecutor for the State on the ground that he had not stated exact quantity of the Cannabis and number of the seal.

In his cross-examination, he admitted that on weighing the cannabis with bags and polythene packet, the weight was 1.530 K.G. and the weight of the cannabis without bag was 1.470 KG. He admitted that ‘pullinda’ Ext. P-I was sealed with five seal impressions of seal ‘P’.

When cross-examined by learned Defence counsel, PW-2 stated that he was sitting on bench containing two seats. He did not recollect the number of the adjacent seat. Sealing process was completed in the police post. There were many bags on the racks of the bus. Some bags were randomly checked and in those bags some ‘pithoo bags’ were there. Cannabis was weighed many times in the bus. Polythene packet containing the Cannabis was inside the micron bag. He had seen the accused person first time on that date and even today. He could recognize him in the court as his palm was missing.

No doubt, both the independent witnesses PW-1 Hanif and PW-2 Pankaj Kumar have turned hostile, however, in substance, they have proved the case of the prosecution and to that extent their testimonies can be relied upon. For, it is settled legal proposition that evidence of a prosecution witness cannot be rejected in toto merely because of the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that its version is found to be dependable on a careful scrutiny thereof. (Vide: Bhagwan Singh vs. The State of Haryana (1976) 1 SCC 389, Rabindra Kumar Dey vs. State of Orissa (1976) 4 SCC 233, Syad Akbar vs. State of Karnataka (1980) 1 SCC 30 and Khujji @ Surendra Tiwari vs. State of Madhya Pradesh (1991) 3 SCC 627). In State of U.P. vs. Ramesh Prasad Misra and another (1996) 10 SCC 360, the Hon’ble Supreme Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but is required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. Thus, the law can be summarized to the effect that the evidence of a hostile witness cannot be discarded as a whole and relevant parts thereof which are admissible in law can be used by the prosecution or the defence.

Once again adverting to the testimonies of PW-1 and PW-2, it would be noticed that they on material points have fully corroborated and supported the prosecution case, more especially, with regard to seizure, in furtherance of seizure memo Ext. PW-1/B, which was recovered from the appellant in their presence and the same was witnessed by them along with Dharam Veer.

However, learned counsel for the appellant would argue that there are material contradictions and inconsistencies in the prosecution evidence, more especially, that of the so-called independent witnesses. He would argue that it has not come in the statement of PW-2 that there was any micron bag inside the big bag. However, it would be noticed that this witness in his cross-examination has clearly clarified that polythene packet containing cannabis was inside the micron bag and moreover this witness, as already stated above, has duly supported the seizure of the contraband and memo prepared in support thereof Ext. PW-1/B and also taking of the sample of the seal Ext. PW-1/A and ‘pullinda’ Ext. P-1. However, learned counsel for the appellant would argue that this witness was not in a position to state that how may seal impressions were marked on the ‘pullinda’. Again, it needs to be clarified that when cross-examined by the Public Prosecutor, the witness clarified that ‘pullinda’ Ext. P-1 was sealed with five seal impressions of seal ‘P’ and in his further cross examination has stated that cannabis with bags and polythene packet in totality weighed 1.530 K.G. and without plastic packet, it weighed 1.470 K.G.

We may at this stage observe that apart from the independent witnesses, the prosecution has examined the spot witnesses PW-3 Satish Kumar and PW-11, the Investigating Officer, Dy.S.P. Sahil Arora, who in their depositions have fully supported the case of the prosecution.

As regards PW-3 Constable Satish Kumar, he stated that on 08.04.2015, he along with Dy. S.P. Sahil Arora, ASI Jaswant Singh, HHC Mohan Dutt, HHG Mahinder, HHG Roshan Lal and HHG Manohar at about 9.35 P.M. were present at Chail Chowk in connection with patrolling and excise duty. A bus bearing No. HR55U-0754 came from Shimla side enroute Shimla to Gurgaon. The bus was intercepted and the police team thereafter began to check the passengers and their respective luggage(s). When they reached near seat No. 35, the appellant became perplexed. His left arm was amputated. He had kept a bag to his right side and was putting his right hand on this bag. When he was asked about the ownership of the bag, he replied in the affirmative and disclosed his name as Rohtash. His bag was checked on the direction of the Dy.S.P. and was found to be containing two carry bags blue and brown in colour and inside the blue bag, there was another micron brown colour bag in which plastic packet was found to be containing black colour substance in the form of sticks. On the basis of experience, sticks were found cannabis. He was then sent to bring an electronic scale from the shop of Amba Parsad and when he came back, cannabis was weighed with the help of electronic scale with carry bag and the weight was found to be 1.530 grams and when charas was separately weighed without the carry bag, it was found to be 1.470 grams and the cannabis was sealed in the same manner in the same bag in a ‘pullinda’ with five seal impressions of seal ‘P’. Sample of the seal was taken on separate piece of cloth Ext. PW-1/A. Contraband was taken into possession vide memo Ext. PW-1/B. NCB forms in triplicate were filled at the spot and photographs of the spot were taken by the I.O. and the spot was also videographed. Thereafter, this witness was sent with ruqa mark S to the police station and he in turn handed over it to ASI Jiya Lal where the MHC registered FIR and also handed over the case file to him. He further deposed that he handed over the case file to the I.O. on the spot. He further stated that on 10.04.2015, MHC handed over him the case property vide RC No. 4/15-16 to be deposited in FSL, Junga. He deposited these articles in F.S.L. Junga on the same date and on return handed over the receipt to the MHC. He proved on record the parcel along with micron bag brown bag and the polythene as also cannabis. He was cross-examined at length, but nothing material could be elicited from him. He in his cross examination stated that seizure memo was written by the I.O. and he along with HHC Hem Raj signed the seizure memo. He stated that he did not remember whether seizure memo was written inside the bus or outside the bus. He further stated that he did not remember whether the statement of the appellant was recorded by the I.O. vide which the appellant had claimed the ownership of the bag. He admitted that there were no weights as it was an electronic scale.

To similar effect is the statement of PW-11 Dy. S.P. Sahil Arora, who in addition to supporting and giving similar statement to that of PW-3 Constable Satish Kumar, has stated that seal after its use was handed over to driver Hanif and the proceedings of the spot were also videographed vide Exts. P -16 to P-21. He recorded the statements of the witnesses and the statement of Hanif was Ext. PW-11/B and that of Pankaj was Ext. PW-11/C. He also proved the spot map Ext. PW-11/D. Thereafter he arrested the appellant and ‘jamatalashi’ was also conducted vide memo Ext. PW-3/A and an information of arrest was given to his relative vide Ext. PW11/E. Tickets Exts. P-10 to P-13 were recovered from the possession of the appellant. Special report Ext. PW-11/F was sent to S.O. Amrit Sharma through constable Bhanu. He also identified the signatures over the said document. The bus was given on supurdari to its driver vide memo Ext. PW-1/D. Thereafter parcel Ext. P-1 was produced and permission to open the same was granted. On opening the parcel, the same was found containing two brown bags, another brown bag Ext. P-3, blue micron bag Ext.P-4 and polythene packet Ext. P-5 along with cannabis Ext. P-6. Another parcel Ext. P-7 was produced, trouser Ext. P-8, shirt Ext. P-9, ‘pithoo bag Ext. P-15 and voter I.D. card Ext. P-14 were found to be contained in the said parcel.

Even though, this witness was cross-examined at length, but nothing material could be elicited from him. He stated that entire bus was videographed general and specially seat No. 35 and 36. Passengers were also videographed. There were about 40-50 passengers in the bus. He was not sure how many seats were there in the bus. He stated that he had deputed constable Satish Kumar to bring the weighing machine. He denied the suggestion that the passengers were taken to the police station. He denied that the appellant was not holding a bag with him. He also denied the suggestion that the appellant was not seated on seat No.

He stated that the investigation kit was with the police team and it was brought in the bus by his official. He stated that weighing machine was videographed towards right hand side seat of three seater bench. Some passengers from this bench dis-boarded the bus, therefore, it was vacant. The memo Ext. PW-1/D was signed by supurdar and another witness. Memo Ext. PW-11/E was also signed by the appellant and witness ASI Jaswant Singh. He denied that he conducted entire investigation in the police station and, therefore, had not obtained the signatures of the independent witnesses on these memos. He admitted that he had not written the names of those passengers seated in the bus in the photographs Exts. P-16 to P-21. He denied the suggestion that he did not mention the description of the bag in the statements of Pankaj Kumar and Mohan Dutt. He denied that he weighed the pithoo bag. He admitted that he had not obtained the signatures of the appellant on the ‘pithoo bag’. He admitted that the statements of the witnesses under Section 161 Cr.P.C. were not videographed, but stated that the statements of the witnesses were recorded by his team and he could not state their names. He denied the suggestion regarding non-recovery of cannabis from the possession of the appellant or that false case had been registered against the appellant. He denied the suggestion that the weighing machine having capacity to weight 50 K.G. or above is with the liver. He further denied the suggestion that there was no digital machine at Kandaghat having capacity to weigh upto 50 K.G. Lastly, he denied that a false case had been planted upon the appellant.

It would be noticed that PW-3 and PW-11 have in one voice supported the case of the prosecution and there are no inconsistencies or contradictions in their statements. Not only this, PW-1 and PW-2, who otherwise have been declared hostile, have also supported the case of the prosecution, as has already been discussed above.

Learned counsel for the appellant would then argue that the clothes of the appellant were deposited a month after the incident on 09.05.2015 which in itself strengthens the plea of the appellant that he was falsely implicated. We, however, find no merit in such contention as the clothes, even if, for the simple reason have not been deposited, the same would not cause much loss to the appellant rather than creating a dent in the prosecution case. The clothes in question were totally uncalled for and were not required to be taken into possession as these were not part of the “case property”.

A faint attempt is then made by learned counsel for the appellant that the learned Special Judge has not appreciated the testimonies of the witnesses that were examined in defence.

However, we find no merit in such contention for the simple reason that the testimonies of all these witnesses have been duly considered by the learned Special Judge as is evident from para- 34 of the judgment. However, we would consider and evaluate the statements of these witnesses independently.

DW-1 is Om Parkash, Inspector, Legal Metrology (Weights and Measures Department), Govt. of H.P., who stated that he had brought the summoned records, but, did not personally know either Amba Parsad or Kuldeep Kumar. He deposed that he had inspected and verified the weighing machine of M/s Kuldeep Rai on 22.06.2016 and it was a electronic weighing machine having capacity of 60 K.G., Class-II. However, he stated that the department had been verifying this machine since 2009. He further stated that there may be more than one machines in one shop, but then clarified that he had not seen the shop. He feigned ignorance regarding the opening and closing time of the shop and stated about length of the machine to be 2 ½ feet and its width to be 3 feet and its average weight to be 15 K.G. The witness was not cross-examined by the prosecution.

DW-2 Ramphal is a resident of village Sandil, Tehsil Alewa, District Jind, Haryana. He stated that he was working as a temporary employee in the Post Office, but did not know appellant Rohtash. He stated that on 08.04.2015, he along with Mahaveer were coming from Shimla to Chandigarh in a government bus having capacity of 40 passengers and was sitting 4-5 seats behind the driver. He further stated that the police intercepted the bus at place Kandaghat and allowed the appellant to come out from the bus.

Thereafter, the police took the appellant and bus proceeded to Chandigarh. He also stated that the bus was full of passengers, but no inquiries were made from such passengers. In the cross-examination conducted by the Public Prosecutor he stated that he could not produce the tickets in the Court nor could tell the number of the bus in which he was travelling. Neither this witness could state in which seat he was sitting nor he could tell the seat number in which appellant was sitting. He could not state from where the appellant had boarded the bus. He further stated that the bus was intercepted at Kandaghat, but could not state whether it is a village or town. He was not in a position to state who was sitting beside the appellant, but claimed to have stayed there for about 20-25 minutes. He further denied the suggestion that the appellant had asked him to depose in his favour, volunteered that he had received a message from the counsel of the appellant.

Adverting to the testimony of DW-3 Mahaveer, he has deposed that he is an agriculturist by profession. On 08.04.2015, he had been travelling along with Ramphal from Shimla to Chandigarh in the bus. According to him, the bus proceeded from Shimla at about 8.30 P.M. and was intercepted by the police at place Kandaghat at about 9.30 P.M. Police searched the passengers and their luggages but nothing objectionable was recovered. Thereafter, the police allowed the appellant to get down from the bus. The appellant was not holding any luggage. The bus then proceeded to Chandigarh and there were 32-35 passengers travelling in the bus. He claimed that the appellant was sitting behind the driver seat and he was sitting two seats behind the appellant. He claimed to have paid Rs.160/- as fare from Shimla to Chandigarh and further claimed that the police had not recorded the address of the driver and the conductor. On being cross-examined by the Public Prosecutor, the witness admitted that he belonged to District Jind and the appellant belonged to the same place. However, he claimed that he did not know the appellant. He was not in a position to tell the number of the bus in which he came to Shimla nor could tell the number in which he proceeded from Shimla to Chandigarh. He was not in a position to state from where the appellant boarded the bus and was further not in a position to state the number of the seat in which he was travelling nor he could tell the number of the seat in which appellant was travelling. He could not produce any ticket of that bus. He admitted that he had come to Solan on 01.05.2017 and met the appellant and had conversation with him. He further stated that the appellant had stated that his name had been cited as a defence witness.

Now, in case the statements of the defence witnesses are analyzed, then it can conveniently be held that the statement of DW-1 Om Parkash is of no relevance and as regards DW-2 and DW-3, they have been set up by the defence stooges and as such their testimonies carry no weight, rather the same casts serious doubts as to whether these two witnesses were travelling in the bus. These witnesses have failed to produce the tickets and further could not state about the registration number of the bus and there are material contradictions in the statements of these witnesses regarding the seat on which the appellant had been sitting and the seats on which they had been sitting.

According to DW-2, he was sitting 4-5 seats behind the driver and the appellant was sitting in front of him. Whereas, according to DW-3, the appellant was sitting behind the driver seat and he was sitting two seats behind the appellant. The version otherwise put forth by both these witnesses stands discredited from the contents of the C.D. wherein the appellant is seen to be sitting somewhere in the middle of the bus but is seen nowhere close to the driver, but he is seen to be seated at seat No. 35, whereas, seat No. 36 is not occupied by anyone and rather the bag of the appellant has been kept on the said seat.

In view of the aforesaid discussion, we find no merit in this appeal and the same is accordingly dismissed, so also the pending application, if any.