State of Himachal Pradesh vs Kailash Chand

Deepak Gupta, J.—This appeal by the State is directed against the judgement dated 31.08.2004 passed by the learned Sessions Judge, Chamba Division, Chamba, in Sessions Case No. 14 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 11.12.2003 at about 4.30 p.m the accused was found in exclusive and conscious possession of 1.250 kgs. of charas and therefore, had committed an offence punishable u/s 20 of the Act. After trial the accused was acquitted mainly on the ground that no reliance can be placed on the official witnesses since the independent witnesses had turned hostile. Furthermore, according to the learned trial Court there are material inconsistencies in the statements of the official witnesses hence the accused could not be convicted on the basis of their testimony.

We have heard learned counsel for the parties. PW-11 S.I. Vijay Singh was head of the patrolling party. According to him on 11.12.2003 he alongwith PW-12 ASI Amar Singh, PW-8 HHC. Budhi Singh, PW-4 Mazid Mohammad, Constable Karam Singh and Constable Hem Raj had gone on patrolling duty in an official vehicle. At about 3.00 p.m they laid a nakka near Bonkhri-mour. At about 4.30 p.m one person was spotted coming on the path from village Bharudi. On seeing the police party the said person tried to hide himself. This aroused the suspicion of PW-11 since terrorist activities were also going on in the area at that time. The said person was apprehended. Thereafter, on noticing the police party PW-5 Sadhu Ram and PW-6 Ramesh Kumar also reached the spot. On inquiry the person disclosed his name to be Kailash Chand (accused). The accused was carrying a bag of blue colour on his shoulder. When the bag was searched one polythene bag was found inside and inside this polythene bag there was charas. PW-11 sent PW-4 Mazid Mohammad to arrange for the weighing scales. After PW-4 returned with the scales the charas was weighed in the presence of the witnesses and found to weigh 1.250 kgs. Two samples of 25 grams each were separated, which were individually packed and sealed with two seals having impression ''T''. The remaining bulk charas was packed and sealed alongwith envelope and the bag in which it was carried and on this parcel five seals of impression "T" were put. The property was taken into possession vide seizure memo Ext.PW-5/A, which was signed by the independent witnesses also. Their signatures were also obtained on the other parcels of charas. According to this witness he filled in the NCB form Ext.PW-10/C on the spot and thereafter sent rukka Ext.PW-2/A to the Police Station Dalhousie through PW-2 constable Hem Raj for registration of the case. PW-11 further states that he prepared the inventory list Ext.PW-5/C and thereafter handed over the investigation to ASI Amar Singh alongwith case property and documents. In Court one sealed parcel was produced having five seals of "T", three seals of "H" and one seal of "P". The observation of the Court is that the parcel Ext.P-1 is actually having 5 seals of impression "T", 3 seals of impression "H" and 2 seals of impression "P" i.e. total number of 10 seals whereas the witness stated that the parcel was having nine seals. In cross-examination this witness stated that he affixed the seal impression of seal "T" on the NCB form Ext.PW-10/C. He, however, admitted that he had not deposited the case property and NCB form with the MHC Police Station Dalhousie.

PW-12 has given a similar version and stated that he resealed the case property by putting two seals having impression "H" on the bigger parcel and one seal having impression "H" on the sample parcels of charas. He thereafter prepared the re-seal memo Ext.PW-1/A and handed over the same after use to PW-1 HC Karam Singh. He also prepared the site plan and recorded the statements of the witnesses. Other codal formalities were completed at the spot. According to PW-12 he deposited the case property with PW-10 MHC Ramesh Chand, Police Station Dalhousie. In cross-examination he stated that when the accused was apprehended PW-5 and PW-6 followed the police party. According to him PW-5 and PW-6 were not summoned to assist the police. This witness further stated that he had not filled up the NCB form. Except for putting his signatures on it, he did not write anything thereupon.

PW-8 Budhi Singh also gave a similar version. However, according to him the accused on seeing the police officials tried to run away but was chased and apprehended. According to this witness after the bag was checked and charas was found in it PW-11 gave him the rukka Ext.PW-7/A which he handed over to the Superintendent of Police, Chamba. According to PW-7 he received the rukka Ext.PW-7/A and then the Superintendent of Police, Chamba affixed his signature on the same at about 7.45 p.m on 11.12.2003.

PW-4 Mazid Mohammad, who is alleged to be a member of the partrolling party, only states that one person coming on the village path was apprehended and on search of the bag charas was found. Thereafter, he was deputed by PW-11 to arrange for weights and scales. He then went to the shop of Sadhu Ram PW-5 and obtained the weights and on weighment the charas was found to be 1.250 kgs. In cross-examination he stated that he was not sure whether PW-5 and PW-6 were present when the charas was recovered from the accused.

As far as the independent witnesses are concerned, they have not at all supported the prosecution version. According to PW-5 the police obtained his signatures on the documents at his shop at Bonkhri-mour but no recovery was made in his presence. He was declared hostile by the Public Prosecutor. He denied that any charas was recovered in his presence. He also denied that PW-4 had taken weights and scales from his shop. According to him the police obtained his signatures on the documents forcibly.

PW-6 Ramesh Kumar runs a dry-cleaning shop at Dalhousie and according to him he had not gone to Bonkhri-mour but was waiting for a bus at Banikhet when some police officials called him and took him to the police post at Banikhet where he was made to sign some documents. This witness was also declared hostile but he stuck to his version. His explanation is that the police only obtained his signatures on certain papers.

According to PW-10 HC Ramesh Chand on 11/12.12.2003 PW-11 Vijay Singh had deposited the case property with him. Thereafter he also resealed the case property. The case property already had 5 seals of impression "T", 3 seals of "H" on the bigger parcel and thereafter he resealed the same with two seals of impression "P". On the smaller parcels he put the one seal impression of "P". He, however, goes on to state that the case property was first deposited with him by S.I.Vijay Singh and thereafter it was resealed by ASI Amar Singh with seal "H" and thereafter he had resealed it with seal "P". In the next breath he says that ASI Amar Singh had not resealed the case property in his presence. According to him he proceeded on leave on 13.12.2003 and then handed over the entire case property and other property lying in the Malkhana to PW-9. PW-9 states that the case property was handed over to PW-10 in his presence by ASI Amar Singh thereafter the case property was resealed by the MHC with seal "P". He further states that he sent one sample alongwith NCB form and other documents to FSL Junga through constable Pritam Chand PW-3.

The version of PW-3 Pritam Chand is that on 15.12.2003 PW-9 handed over one sealed parcel with six seals impression of seal "T", one seal of "H" and one of "P" alongwith documents which he deposited on 16.12.2003 at the CTL Kandaghat.

We have discussed the evidence in detail, since we are not at all in agreement with the learned trial Court with regard to discrepancies in the seals. As far as the point decided by the learned trial Court that the sample was found to weigh only 19.5838 whereas according to the prosecution the sample was of 25 grams is concerned, all we need to say is that the police used ordinary weighing scales whereas in the laboratory a scientific scale is used. This is no discrepancy at all in our view.

The other point which weighed with the learned Sessions Judge was that column No. 5 in the NCB form is blank. This by itself is not a sufficient ground to acquit the accused especially when the entries made against the other column reflects what was to be written against column No. 5. We are also of the view that the learned Sessions Judge has erred in making a mountain out of a molehill in respect of the number of seals. We find no discrepancy in the number of seals if the statements are read as a whole.

However, there are other discrepancies. The first is that according to PW-10 the case property was deposited with him by PW-11 SI Vijay Singh. He has specifically stated so on two occasions. The version of PW-11 and PW-12 is that the case property was deposited by PW-12 ASI Amar Singh and not by PW-10 Ramesh Chand. This is a material contradiction in the prosecution story.

Another contradiction in the prosecution story is that PW-10 Ramesh Chand stated that when Vijay Singh deposited the parcels with him the bigger parcel had 5 seals of impression "T" and three seals of impression "H", on which he put his two seals of "P". On the smaller parcels he put one seal of impression "P". Thereafter he goes on to say that after the case property was deposited with him by Vijay Singh then it was resealed by ASI Amar Singh. This is contrary to the version of Amar Singh according to whom he had affixed the seal "H" at the spot itself prior to handing over the same to MHC. Ramesh Chand in fact later goes on to say that Amar Singh had not resealed the case property in his presence. If it was not resealed in his presence how could he know who had put which seals earlier.

Another contradiction in the statement of this witness is that according to him he had affixed impression "P" of his seal on the NCB form but the NCB form does not contain any such seal impression. Furthermore, according to PW-3 Pritam Chand he was handed over one sample sealed parcel with six seals of "T", one of "H" and one of "P" whereas according to all the prosecution witnesses the sample parcels only had two seals of impression "T" and not six as claimed by this witness.

Another contradiction in the prosecution story is that according to the prosecution PW-5 and PW-6 were at the spot and had just followed the police party when the accused was apprehended. However, according to PW-4 after the accused had been apprehended he was asked by Vijay Singh to make arrangements for weights and scales and then he went to the shop of PW-5 to get the scales. If PW-5 was already on the spot what was the need to send PW-4 to get the scales and PW-5 himself could have got the scales. Furthermore PW-4 has clearly stated that he could not identify whether PW-5 and PW-6 were at the spot when the accused was apprehended. In view of the above discussion, we are of the considered view that due to the various discrepancies in the statements of the prosecution witnesses it would not be safe to rely upon their testimony to convict the accused. We, therefore, for reasons which are wholly different from those of the learned trial Court, find no merit in the appeal, which is accordingly dismissed. The bail bonds are discharged.