State of Himachal Pradesh vs Jaswant Singh

Deepak Gupta, J.—This appeal by the State is directed against the judgment dated 22.03.2003, passed by the learned Sessions Judge, Chamba, in Sessions Case No. 27 of 2002, whereby he acquitted the accused of having committed an offence punishable u/s 20 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act).

Briefly stated, the facts of the case are that on 23rd January, 2001, PW-9, ASI Kushal Chand, was on traffic checking duty at Tunuhatti barrier alongwith Constable Lokinder Singh, HHC Naresh Kumar and Constable Ravinder Kumar. At about 10.45 a.m., a tempo bearing No. HP-28-0237 came from Banikhet side. The same was going towards Pathankot. The tempo was stopped and PW-9 and other police officials opened the doors of the cabin of the tempo. It is alleged Jaswant Singh (accused) was driving the truck and he alone was travelling in the tempo. Further, according to the prosecution, the accused on seeing the police, tried to hide a bag and kept it behind the driver''s seat. PW-9 then touched the bag and found that it contained some solid substance and on smelling, he felt that it was the smell of charas. Thereafter, the bag was removed from the cabin of the tempo. The accused was made to get down from the tempo and was taken to Police Post Tunuhatti. He was made to sit there alongwith the bag. Then, PW-9 informed SHO Jitender Kumar at Police Station Dalhousie that some charas has been recovered. He also sent Rukka, Ex. PW-8/A through Constable Rajesh Kumar. In the meantime, PW-10, Jitender Kumar, who at the relevant time was working as Sub Inspector-cum-Additional SHO P.S. Dalhousie, arrived at the spot at about 12.00 noon. He joined two local witnesses, PW-1, Om Prakash and PW-2, Subhash Chand and in their presence searched the bag. On opening the bag, a shawl containing charas was recovered, which on weighment was found to be 2 kg 500 gms. Two samples of 25 grams each were drawn and the bulk charas and these two samples were sealed in three separate parcels with seal ''A''. Recovery memo, Ex. PA, was prepared on the spot and NCB Form, Ex. PW-8/D, was also filled in on the spot. Thereafter, PW-10 deposited the case property with PW-8, MHC Ashok Kumar. Other codal formalities were completed and, thereafter, one of the sample was sent to CTL Kandaghat and as per the report of the Chemical Examiner, which is on the same sheet, Ex. PW-8/D, the sample was found to be that of charas having resin content of 29.66%. On this basis, the accused was challaned for having committed an offence u/s 20 of the NDPS Act. After trial, the learned trial Court acquitted the accused mainly on the ground that the prosecution has failed to prove that the contraband was recovered from the conscious possession of the accused. Hence, the present appeal by the State.

The defence of the accused was that two persons had taken lift from him in the tempo at Nainikhad. When the tempo was stopped at Tunuhatti and the accused was talking to the police officials, these two persons fled away from the truck.

The independent witnesses have not at all supported the prosecution case. As far as PW-1 is concerned, according to him, by the time he was called, the contraband had already been seized and only weighed in his presence. Though, he has been cross-examined at length by the learned Public Prosecutor, he has denied that in his presence, the accused was made to sit in the police post alongwith the bag. However, he has admitted that when the bag was opened, charas was found in bag, which weighed 2 kg 500 gms and was taken in possession in his presence. In his cross-examination by the learned counsel for the accused, he has admitted that he was working as a cook at the check post at Tunuhatti and that PW-9, ASI Kushal Chand, had cited him as a witness in other five or six NDPS cases. He has also admitted that no person was apprehended in his presence.

As far as PW-2, the other independent witness, is concerned, he has also not at all supported the prosecution case. According to him, when the police opened the door of the tempo to check the same, two persons, who were sitting in the cabin, alighted from the tempo and ran away leaving their bag behind in the tempo. This witness has also been cross-examined at length, but he has stuck to his story that two other persons were sitting in the tempo and that on seeing the police, they ran away.

It is no doubt true that if the independent witnesses turn hostile, the statements of the official witnesses can also be looked into to see whether their testimonies should be believed or not. They are also as good witnesses as independent witnesses and mere because they are official witnesses is not sufficient ground to discard their testimonies.

Having said so, in cases where the independent witness turn hostile, it becomes incumbent upon the prosecution to examine most, if not all, the officials witnesses. In this case, other than the Investigating Officers, PWs 9 and 10, none of the other official witnesses have been examined.

As far as PW-10 is concerned, he arrived at the spot only at 12.00 noon and does not know who was travelling in the tempo. Therefore, we are left only with the statement of PW-9 on the one side and two independent witnesses on the other. The prosecution, for the reasons best known to it, did not deem it fit to examine the other three police officials present at the spot, namely Constable Lokinder Singh, HHC Naresh Kumar and Constable Ravinder Kumar. Non-examination of witnesses can only lead to an adverse inference against the prosecution. Hence, the learned trial Court was justified in not believing the story of the prosecution. We, therefore, find no merit in the appeal, which is accordingly dismissed. Bail bonds discharged.