State of Himachal Pradesh vs Hari Singh and Dola Ram

Deepak Gupta, J.—This appeal by the State is directed against the judgement dated 8.6.2004 passed by the learned Sessions Judge, Kullu in Sessions trial No. 1 of 2004 whereby he acquitted the accused of having committed an offence punishable u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act). Briefly stated the prosecution story is that on 12.10.2003 PW-7 S.I Roop Singh alongwith PW-5 Constable Narender Singh, PW-6 H.C. Hari Singh, ASI Bhagat Ram and Constable Uttam Singh had proceeded from Manali to Rumsu via Naggar. At Rumsu bifurcation which is about two kilometers from the Roerich Art Gallery they had laid a Nakka. At about 6.15 a.m they saw two persons coming from Rumsu side. Both the persons were carrying rucksack on their back and were talking to each other. On seeing the police party they got perplexed and turned back. This aroused the suspicion of the police officials who then apprehended the said persons. On inquiry these persons disclosed their names to be Hari Singh and Dola Ram (the accused). Thereafter option was given to both the accused that their bags were to be searched and that they had a legal right to be searched before a Gazetted Officer or a Magistrate or by the Police Officials. The accused consented to be searched by the Police Officials. On search of the bag being carried by Hari Singh accused charas was recovered, which on weighment was found to be 1.700 kilograms. Nothing incriminating was recovered from the rucksack being carried by Dola Ram accused. Two samples of 25 grams each were drawn and thereafter the samples and the remaining bulk charas were packed in three separate parcels and sealed with seal having impression ''H''. Other codal formalities were completed at the spot. The accused were arrested and thereafter the case property was deposited by PW-7 S.I.Roop Singh with PW-8 Insp. Jagdish Chand who resealed the case property with seal ''T'' and thereafter handed over the case property to MHC Khem Chand. One of the samples was sent to the chemical analyst, who vide his report Ext. PA opined that the sample was of charas and on this basis the accused were charged with having committed the offence aforesaid. After trial the learned trial Court acquitted the accused. Hence, this appeal by the State.

There are no independent witnesses in this case and the story set up by the Investing Officer PW-7 Roop Singh is that since it was early morning and there were no houses nearby, no villagers could be associated. This story itself is not free from doubt because it has come in evidence that Rumsu village is near to the place where the occurrence took place. Therefore, at least some efforts should have been made to associate independent witnesses. In this case according to the Investigating Officer no effort was also made. Even otherwise we find that there are glaring contradictions in the statement of PW-7 and the other official witnesses. In fact, PW-5 Constable Narender Singh was declared hostile by the prosecution itself.

According to PW-7 they had proceeded to the spot from Manali in a private vehicle whereas PW-5 stated that they had gone in a government vehicle. PW-6 states that they went to Rumsu on a private vehicle. Thus there are two different versions with regard to the ownership of the vehicle.

According to PW-7 there was no independent witness on the spot. However, PW-5 stated that the vehicle and its driver remained with the police party throughout. If the driver had remained with the police party then there was no reason why he should not have been associated with the search and seizure operation. In fact PW-6 states that Rumsu is a big village and there were houses by the side of the scene of occurrence. He also states that the I.O. did not send any one to call independent witness. PW-5 and PW-6 have stated that there were houses by the scene of the occurrence and therefore their statements were totally contradictory to the statement of the Investigating Officer that the place of occurrence was isolated and therefore, no local witnesses were available.

PW-7 in his cross-examination stated that prior to spotting of the accused neither any vehicle nor any passerby was seen or checked by the police officials. Even this fact is contradicted by other police officials. According to PW-5 they had checked many persons prior to spotting of the accused.

As far as respondent No.2 is concerned there is virtually no evidence against him except the suspicion of the police officials since he was accompanying respondent No.1. Mere fact that they were accompanying each other would not mean that respondent No.2 knew what was being carried by respondent No.1 in his bag.

In view of the glaring contradictions in the statements of the official witnesses itself it is not prudent to rely upon the same. Therefore, the prosecution has failed to prove that the contraband was recovered from the conscious possession of the accused. We, therefore, find no merit in the appeal, which is accordingly dismissed. Bail bonds are ordered to be discharged.