State of Himachal Pradesh vs Ajay Kumar and Others

V.K. Ahuja, J.—This is an appeal filed by the State of Himachal Pradesh u/s 378 of the Cr.P.C. against the judgment of the court of learned Sessions Judge, Sirmour at Nahan, H.P., dated 9.1.1992, vide which the respondents were acquitted of the charge framed against them u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, (hereinafter referred to as ''the NDPS Act'').

Briefly stated, the facts of the case are that on 16.12.1989, SHO Khub Ram was present on patrolling and he received secret information, formed a raiding party consisting of ASI Chander Singh, Constables Virender Singh and Virender Kumar, and also joined independent witnesses Babu Ram and Gurdial Singh. A Van bearing No. PCP 8900 came from the side of Dadahu and it was being driven by respondent Nathi Ram and the other three respondents were found sitting in the Van. On search of the dickey of the said Van, the police recovered charas wrapped in polythene paper, which, on weighment, was found to be 3 kg. 600 grams. A sample of 50 grams was taken according to the procedure. PW-5 Khub Ram, Inspector, prepared a ruka and sent the same to the Police Station, on the basis of which, the case was registered. After registration of the case and after investigation, the challan was filed before the court of the learned Chief Judicial Magistrate, who committed the case to the court of the learned Sessions Judge. The respondents were tried by the learned Sessions Judge under the aforementioned Section leading to their acquittal.

We have heard the learned Counsel for the parties and have gone through the record of the case.

On appraisal of the judgment passed by the learned trial Court, it is clear that the main ground taken by the learned trial Court in not believing the prosecution story was that two independent witnesses, namely, Babu Ram and Gurdial Singh, were not produced during the trial of the case. PW-5 Shri Khub Ram, Inspector, who was the Incharge of the raiding party, has stated that the search of the Van was made and charas weighing 3 kg. 600 grams was recovered according to the procedure, which was taken in possession vide memo Ext.PE, which was also signed by both the independent witnesses. He prepared the ruka Ext.PC and sent the same to the Police Station, prepared the site plan and took into possession the Van and other articles vide memo Ext.PG and Ext.PH. He handed over the case property to ASI Chander Singh. He also sent a special report to the Superintendent of Police on 17.12.1989. The statement of PW-5 Khub Ram has been materially corroborated by PW-2 ASI Chander Singh, a member of the raiding party, in regard to the search of the Van and recovery of the charas from the possession of the respondents.

PW-5 SI Khub Chand had specifically stated that he associated Babu Ram and Gurdial Singh at the time of the search, whose signatures were also taken on the recovery memo Ext.PE. However, both these witnesses were present in the court but they were given up by the learned Public Prosecutor on statement that they have been won over by the accused. The statement made by the Public Prosecutor, in this regard, cannot be relied upon. According to law, the witnesses have to be produced in court, subjected to cross examination by the learned Public Prosecutor and then an inference can be drawn by the court, after they have been examined, as to whether they have been won over by the accused or as to whether their statements can be relied upon by the court. This practice of making a statement and not examining the witness cannot be said to be proper. As both the independent witnesses have been given up by the learned Public Prosecutor, the statements of both the aforesaid official witnesses do not stand corroborated from the statements of independent witnesses, who were present and of independent corroboration, the statements of both the official witnesses also become doubtful and cannot be relied upon, particularly, when the witnesses, who were associated at the time of recovery, were not produced by the prosecution.

The learned trial Court has also pointed out one infirmity wherein the statement PW-3 Constable Virender Singh was also not relied upon, in which he has stated that he kept the parcel with him for the night and deposited the same on the next date in the office of the Chemical Examination, Kandaghat. He also stated that so long as the parcel remained in his custody, these were not tampered with. He did not deposit the said samples at the Police Station nor made any entry in the Rojnamcha that these remained with him and this has also weighed with the learned trial Court in disbelieving the prosecution story. A perusal of the report Ext.PQ shows that the sample was received sealed by the Chemical Examiner and the same was deposited on 2.5.1990. Once the seal was intact on the sample, it cannot be said that since the samples were kept for one night by the Constable with him, therefore, it was not sufficient to hold that the sample was tampered with.

Another factor which had weighed with the leaned trial Court was that no inquiry was conducted as to whom the articles found in the Van were belonging. Once these were recovered from the possession of all the respondents, who were sitting in the Van, all of them are liable and as such it cannot be said that any other inquiry was required to be made.

From the above discussion, it follows that the learned trial Court had disbelieved the prosecution story due to non-examination of two independent prosecution witnesses. Therefore, the final findings recorded by the learned trial Court holding that the prosecution has failed to prove their case cannot be termed as perverse calling for an interference by this Court.

In view of the above discussion, we accordingly hold that there is no merit in the appeal filed by the appellant which is dismissed. Bail bonds furnished by the respondents shall stand discharged.