Sanjeev Kumar @APPELLANT@Hash State of Himachal Pradesh

Chander Bhusan Barowalia, J.

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

dated 30.05.2017, passed by learned Special Judge, Kullu, District Kullu, H.P., in Sessions Trial No.42 of 2010, whereby the accused was convicted

for the commission of the offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to

as “NDPS Actâ€​).

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

On 9.2.2010, Sub Inspector, Tej Ram (PW-7) alongwith HC Baldev (PW-6) and other police officials had gone for patrolling and excise raid duty.

Around 5:00 PM, police party reached at Matarna, a car bearing registration No.HR-99DLP-9565 reached there, the said car was signalled to stop.

The driver stopped the vehicle and tried to run. His name and address was inquired, who disclosed his name, as Sanjeev Kumar-accused. The activity

of the accused raised suspicion that accused might be carrying some contraband. Constable Khub Ram was deputed to bring independent witnesses.

He came after some time and reported that no independent witness was found available. Investigating Officer apprised the accused about his legal

right to be searched either before a Magistrate or Gazetted Officer. On this, accused opted to be searched by the police present at the spot. Memo

Ex.PW6/A, was prepared, but nothing incriminating was found in his possession.

The vehicle driven by accused was searched, and it was found that a red colour polythene bag, Ex.P2, was found tied under the bonnet of the vehicle

near engine. On checking, the said bag, one marron colour bag of cloth, Ex.P3 kept. On further checking, one polythene envelope containing black

colour substance in the shape of sticks/pancake was found, which on burning and smelling was found to be charas, Ex.P5 and it was found to be 1kg.

700 grams of charas. The recovered charas was repacked in the same manner and sealed in a cloth parcel with 12 seals of seal impression ‘T’.

NCB I form in triplicate was filled. Samples of seal ‘T’ were drawn on cloth pieces and seal after its use was handed over to LHC Baldev

Singh (PW-6). Thereafter, the case property was taken into possession, vide memo Ex.PW6/D.

Investigating Officer, prepared rukka Ex.PW7/A, which was sent to Police Station, Kullu, for registration of case, on the basis of which, FIR

Ex.PW4/A was registered and site plan Ex.PW7/B was prepared. On completion of the proceedings at the spot, accused alongwith case property,

was brought to Police Station, Kullu and then, accused and case property were produced before ASI Hem Raj, (PW-4), who resealed the parcel

Ex.P1 with three seals of ‘A’ filled relevant coloumns of NCB I form. Thereafter, the case property was deposited with MHC alongwith NCB

I form, sample seal and other relevant documents, who entered the same in Register No.19 of Malkhana, Ex.PW2/A. Investigating Officer, prepared

special report, Ex.PW1/A. After filling column No.12 of NCB I form, HC Ram Krishan (PW-2), sent parcel Ex.P1 alongwith NCB form, samples

seal ‘A’ and ‘T’ as well as other relevant documents to FSL, Junga, through Constable Krishan Chand (PW-3), vide RC Ex.PW2/B, who

deposited the same in FSL, Junga. The report of FSL Ex.PA was received and as per analysis, contents of exhibit were opined extract of cannabis

and sample of charas. After completion of investigation, challan was presented in the Court.

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

the Code of Criminal Procedure, wherein he pleaded not guilty. The accused did not lead any evidence in his defence.

The learned Trial Court, vide impugned judgment dated 30.5.2017, convicted the accused for the commission of the offence punishable under

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

payment of fine, accused was further ordered to undergo rigorous imprisonment for a period of one year.

Mr. Ramesh Sharma, learned counsel for the accused/appellant has argued that there are material contradictions in the prosecution story and

improvements in the statement of witnesses. He has argued that PW-3, Constable Krishan Chand, while appearing in the witness box has deposed

that there were seals on the contraband, but in his statement, under Section 161 of the Code of Criminal Procedure, he has not stated so. He has

further argued that as per Investigating Officer, PW-4, Baldev Singh, brought rukka to him and he registered the FIR, but while appearing in the

witness box has stated that he handed over the rukka to PW-2, HC Ram Kishan. He has further argued that as per PW-6, LHC Baldev Singh, there

were on patrolling and excise raid, but no daily diary to that effect was placed on record. He has argued that as per PW-6, LHC Baldev Singh, one

Khub Ram has not to bring independent witness, but said Khub Ram, was not examined by the prosecution to prove that what has happened and why

the independent witnesses were not brought, when the place is near Kullu and many independent witness were available, it is a wide road and traffic

frequently passes through the road. He has further argued that in these circumstances, non production of the seal in the Court creates a serious doubt

with respect to the recovery and link evidence is also missing. He has argued that there is no evidence from where the scale and weights were

brought by the police.

Conversely, Mr. J.S. Guleria, learned Deputy Advocate General has argued that the prosecution has proved the guilt of the accused beyond the

shadow of reasonable doubt. He has argued that at the place and time, when the accused was apprehended, no independent witness was available.

He has argued that the testimony of prosecution witnesses inspiring confidence, and the recovery was to the extent of 1kg. & 700 grams charas. It

cannot be said that police falsely implicated the accused. He has further argued that the prosecution has proved the guilt of the accused beyond the

shadow of reasonable doubt and thus, well reasoned judgment of learned Trial Court is not required to be interfered with.

In rebuttal, the learned counsel for the accused has argued that for severe punishment, strict proof is required. He has argued that personal liberty

of the accused cannot be taken away on the basis of suspicious circumstances and evidence which is not trustworthy. He has argued that the

prosecution witnesses are always interested witnesses and their statement may be looked into very cautiously.

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

PW-1, HC Nirat Singh, has deposed that he was posted as Reader to Additional Superintendent of Police, Kullu, at the relevant time and received

special report in FIR No.49 of 2010 and after making his endorsement, he entered the same at Sr. No.11, Ex.PW1/A.

PW-2, HC Ram Kishan, has deposed that on 9.2.2010, ASI/Station House Officer, Police Station, Kullu, Hem Raj, deposited with him a sealed

parcel sealed with 12 seals of impression ‘T’ and resealed with three impressions of seal ‘A’ alongwith sample seals ‘T’ and

‘A’, alongwith NCB form in triplicate and copy of seizure memo and vehicle bearing No.HR-99DLP-9565 alongwith its keys and he after

making endorsement in the relevant register. Thereafter, he given the case property i.e. one sealed parcel stated to be containing 1 kg. 700 grams

charas sealed with 12 seals of ‘T’ resealed with three seals of ‘A’ alongwith sample seals ‘T’ and ‘A’, NCB forms in

triplicate, photocopy of FIR and seizure memo to Constable Krishan Chand No.311, with a direction to deposit the same in FSL, Junga, vide RC

No.40/2010, after filling column No.12 of NCB form. The case property was deposited in FSL, Junga by Constable Krishan Chand and on return he

handed over receipt to him. In his cross-examination, he has denied the suggestion that he has fabricated the record.

PW-3, Krishan Chand, has deposed that after receipt of the case property from MHC, Police Station, Kullu, he had deposited the same alongwith

NCB forms in triplicate, copy of FIR, specimen impressions of seal ‘T’ and ‘A’, vide RC No.40/2010, at FSL, Junga, on 11.2.2010 and

handed over the receipt to MHC, Police Station, Kullu. In his cross- examination, he has admitted in his statement, under Section 161 of the Code of

Criminal Procedure that he has not mentioned with respect to the case property given to him sealed with 12 seals of ‘T’ and resealed with three

seals of ‘A’.

PW-4, Hem Raj, while appearing in the witness box has deposed that he remained posted as ASI in Police Station, Kullu, during the relevant time

i.e. from 2009 to March, 2010. As per him, on 9.2.2010, he was Incharge, Station House Officer, Police Station, Kullu and at about 7:35 PM, rukka

Mark-A, was produced before him by Constable Baldev Singh, on the basis of which, he got recorded formal FIR, which bears his signature and after

making endorsement on the rukka, he prepared the case file and handed over the same to Constable Baldev Singh, for giving it back to Investigating

Officer on the spot. He has further deposed that on the same day, at about 9:30 PM, SI Tej Singh, deposited with him the case property Ex.P1, sealed

with 12 seals of ‘T’ alongwith NCB forms in triplicate, sample seal of ‘T’ and copy of seizure memo, thereafter, he resealed the same

with seal ‘A’ and filling the relevant column of NCB forms in triplicate and obtained specimen impression of seal ‘A’, Ex.PW4/C and

thereafter, deposited the case property with MHC, Police Station, Kullu. In his cross-examination, he has denied that a false case is made out against

the accused. He has also denied that no rukka was given to him. PW-5, Inspector Mahesh Kumar, has only prepared challan for presenting the same

in the Court.

PW-6, LHC Baldev Singh, has deposed that he was posted as General Duty Constable in Police Station, Kullu and accompanied SI Tej Ram, SI

Raj Kumar, HC Gopal Singh, Constable Khub Ram and HG Inder on patrolling and on excise raid, when they were present at place Matarna, at about

5:00 PM, on the left bank of river beas, one Maruti 800 car came from Manali side, on being signalled by Sub Inspector car stopped. The driver of the

vehicle after stopping the car tried to run away from the vehicle, but he was caught. The car was white in colour bearing registration No.HR99DLP-

9565, on enquiry, accused disclosed his name and address. The accused was apprised about his legal right to be searched either in the presence of

Gazetted Officer or Magistrate and memo, to this effect was prepared, which is, Ex.PW6/A. As per PW-6, LHC Baldev Singh, accused has shown

his willingness to be searched by the police. As per him, Constable Khub Ram, was sent for joining independent witness, but no independent witness

could be traced out, as there was no residential or commercial area and it was secluded place. As per this witness, SI Tej Ram (PW-7) has given his

personal search in the presence of LHC Baldev Singh (PW-6) and in the presence of other witnesses, vide memo, Ex.PW6/B. Station House Officer,

had taken the personal search of accused, vide memo Ex.PW6/C, however, nothing incriminating was recovered. Thereafter, the vehicle of the

accused was searched and one red colour polythene bag was found tied under the bonnet near the engine.

On checking the same, it was found containing another maroon coloured bag which was also containing one polythene envelope in which black

substance in the shape of sticks, pancake was recovered. On smelling and checking and weighing the substance, it was found 1 Kg. 700 grams

charas. The recovered charas was again put in the same packing and was sealed with seal ‘T’ by affixing 12 seals and was taken into

possession, vide memo Ex.PW6/D. In his cross - examination, he has not given any statement with regard to burning of charas, which was recorded in

his statement, under Section 161 of the Code of Criminal Procedure. He has stated that they were having camera and search light. He has stated that

no barricade was put on the road by the police. He has admitted that it was National Highway from Manali to Kiratpur. He has stated that they had

checked three vehicles on that day. He has further stated that Constable Khub Ram went towards Bhunter side to bring the witnesses and returned

after ten minutes. He has stated that accused tried to run away towards river side and he was nabbed by Constable Khub Ram and HHC Inder Singh

at a distance of ten meters. He has stated that Ex.PW6/A was prepared in five minutes. It took 3-4 minutes to catch the accused for his personal

search. He has stated that Ex.P2 is not of red colour, but it is purple in colour. He has stated that he has not brought the seal in the Court. He has

stated that he reached the Police Station within 15 minutes in a private vehicle and handed over the rukka to MHC and went back to the spot in a

three wheeler. He has stated that he does not remember how many columns of NCB I form was filled by Sub Inspector Tej Ram, on the spot.

PW-7, Tej Ram, has deposed that he was posted as Additional Station House Officer, Police Station, Kullu, from September, 2009 to April, 2011.

On 9.2.2010, he alongwith LHC Baldev Singh, SI Raj Kumar, HC Gopal Singh, Constable Khub Ram and HG Inder Singh was on patrolling and on

excise raid, on the left bank of river beas. In the meantime, one Maruti 800 Car came from Manali side, on being signaled to stop the vehicle, the

driver of the vehicle after stopping the same, tried to run away from the vehicle and he was nabbed by the police. The registration number of the

vehicle HR99-DLP-9565, on enquiry, accused disclosed his name and address and he was apprised about his legal right to be searched in the

presence of Gazetted Officer or Magistrate, vide memo Ex.PW6/A. The accused has shown his willingness to be searched by the police. Constable

Khub Ram, was sent for joining independent witness, but no independent witness was found, as there were no residential or commercial area and it

was secluded place. He gave his personal search in the presence of witnesses and memo Ex.PW6/B was prepared to that extent. The personal

search of the accused was taken vide memo Ex.PW6/C, but nothing incriminating was recovered. Thereafter, the vehicle of the accused was

searched and one red colour polythene bag which was tied under the bonnet near the engine found. On checking, the polythene bag, which was

containing another maroon coloured bag of cloth, which was also containing one polythene envelope in which black substance in the shape of sticks,

pancake like substance was recovered.

On smelling and checking, the substance was found charas, on weighing, the charas was found 1Kg. 700 grams. The recovered charas was again put

in the same packing and was sealed with seal ‘T’ by affixing 12 seals and was taken into possession vide memo Ex.PW6/D. The sample seal

was also prepared and seal after its use was handed over to LHC Baldev Singh (PW-6). As per this witness, he filled the relevant column of NBC I

form in triplicate. The vehicle alongwith its documents was taken into possession, vide memo Ex.PW6/D, which was signed by LHC Baldev Singh

(PW-6) and Raj Kumar, as attesting witnesses. He prepared rukka Mark-A and sent the same through LHC Baldev Singh (PW-6) to Police Station.

He handed over the same to MHC, who registered the FIR Ex.PW4/A and after registration of the FIR, LHC Baldev Singh (PW-6), had taken the

file to the spot. Thereafter, this witness prepared spot map Ex.PW7/B and arrested the accused vide memo Ex.PW7/C. He prepared special report

Ex.PW1/A and sent the same to Deputy Superintendent of Police. In his cross-examination, he has stated that there were five police officials present

on the spot at Ram Shila. They went to the spot on foot from Ram Shila and reached within half an hour from Police Station. They checked 4-5

vehicles and documents at Ram Shila and reached at Matarna i.e. place of recovery at about 4:45 PM. After apprehending the accused, they have not

checked any vehicle. He has admitted that it was National Highway from Manali to Kiratpur, the road is quite wide at Matarna and the bank of road

is quite wide.

He has stated that the accused was stopped from 10 meter away, where the police was standing. He has not mentioned in the spot map, where the

vehicle was checked. He has stated that Constable Khub Ram went towards Bhunter side to bring the witnesses, but no independent witness was

found. He has stated that they tried to stop 2-3 vehicle and asked them to become independent witness, but no body was ready to become witness.

Further, he has stated that he has not given any notice to them to become the witness. Thereafter, he has stated that other police officials have not

given their personal search to the accused. He has stated that it took 15-20 minutes to check the vehicle from inner side and the bag was kept near

the engine. He has stated that Ex.P2 is of not red colour, but it was purple in colour. He has stated that the charas was weighed with balance and

weights measure which was in his kit. The parcel was stitched by him and memo were prepared by him on the spot. He has stated that he does not

remember from whom he had got recorded rukka and seizure memo. He has stated that he had burnt the recovered substance and smelled the same

for checking. He has stated that he has not informed his Senior Officer before checking the vehicle. He has stated that the vehicle was with

temporary number. He has denied the suggestion that owner of the vehicle was related to him. He has denied the suggestion that accused was falsely

implicated, as he wants to save his nephew Naresh Kumar, who was owner of the vehicle.

We after going through the above evidence, come to the conclusion that independent witnesses were not joined by the police and it has come on

record that independent witnesses were available, as it was National Highway and number of vehicles were passing, the place was near the locality

and Kullu town is just near by and in these circumstances for recording conviction of the appellant-accused, statement of the official witnesses should

be confidence inspiring. However, in the present case, sequence of events, creates doubt and suspicion in the prosecution story with regard to

recovery, as PW-4, Hem Raj, stated that he recorded the FIR and PW-6 and LHC Baldev Singh brought rukka to him, but PW-6, LHC Baldev Singh,

while appearing in the witness box has stated that he handed over the rukka to MHC and he recorded the FIR.

Second, suspicious circumstance is that though the witness has stated that they were on patrolling and excise raid, but there is no daily diary report

with respect to that is on record. Third, suspicious circumstance is that Khub Ram, who was sent to bring the independent witnesses was not

examined by the prosecution and thus it remains inexplicable that why he could not bring the independent witness.

Moreover, though, as per Investigating Officer, PW-7, Tej Ram, small quantity of charas was burnt to ascertain the contradictions narcotics,

whether it is charas or not, but PW-6, LHC Baldev Singh, who was present alongwith PW-7, Tej Ram, has not stated so, in the Court. Though, it is

not of much consequence that the witness deposed that the colour of the bag differently than it was found in the Court. In these circumstances, these

minor discrepancies supports suspicious circumstance. There is one more minor discrepancy that the seal was not produced in the Court, as Khub

Ram with whom the seal was there entrusted while appearing in the witness box has not stated anything, why he has not brought the seal in the Court.

Thus, the above mentioned discrepancies, in the absence of independent witnesses renders the prosecution case suspicious making the statement of

official witnesses unreliable and leading to the conclusion that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt.

The net result of the above discussion is that the prosecution has failed to prove the guilt of the accused beyond the shadow of reasonable doubt

and the findings of guilt, as recorded by the learned Trial Court, needs to be set aside. Accordingly, the appeal is allowed and the judgment of the

learned Trial Court is set aside. The accused is acquitted and ordered to be released forthwith. Fine amount, if already deposited, be refunded to the

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

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

with this judgment forthwith.

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