State of Himachal Pradesh vs Kapil Dev and Others

Justice V.K. Ahuja, J.—This is an appeal filed by State of Himachal Pradesh u/s 378 of the Cr.P.C. against the judgment of the court of learned Addl. Sessions Judge (II), Kangra at Dharamshala, H.P., dated 8.8.2003, 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 Act''. Briefly stated, the facts of the case are that on 1.11.2001, Jagdish Chand, SHO, Police Station Indora alongwith other Constables was present in the area of Chonch Khad, where he put a naka. At about 6.30 p.m., a Maruti Van came from Indora side and on seeing the police party, the driver tried to turn the van, which was stopped by the police on suspicion. Four persons fled away from the vehicle and two of them were apprehended while escaping. The driver of the van was also apprehended. On checking of the Van, a bag was found inside the van in which there was a polythene envelope containing charas. The charas was weighed which was found to be 3kg. in weight. Two samples of 50 grams each were taken according to the procedure and the case was registered. On completion of the investigation, the challan was filed before the learned trial Court, who tried the respondents under the Section mentioned above leading to their acquittal.

We have heard Mr. Rajesh Mandhotra, learned Deputy Advocate General for the appellant and Mr. N.K. Thakur, learned Senior Advocate for the respondents, and have gone through the record of the case.

The submission made by the learned Deputy Advocate General for the appellant-State was that there was sufficient evidence to prove the guilt of the respondents and, therefore, the findings to the contrary of the learned trial Court are liable to be reversed.

On appraisal of the evidence led by the prosecution, it is clear that the Incharge of the raiding party was PW-13 SHO Jagdish Chand, who apprehended the accused persons and effected the recoveries. Apart from him, the prosecution has also examined three other witnesses, who were police officials and were members of the police party. PW-4 Raj Kumar, Constable, has stated that he was also accompanying the SHO and the vehicle was stopped. He stated that Parveen was the driver and the persons who were apprehended from the bushes were probably Kapil Dev and Jagdev Singh. He stated that he recognizes the three persons present today in the court who were caught alongwith others. He pointed towards three of the accused persons, but did not state as to who was Parveen Kumar or Kapil Dev and Jagdev Singh and as to who was the driver. He stated that he had not seen the charas, though he admits that he was present at the time of recovery. He was declared as hostile since he had partly resiled from the statement. He denies that he had seen the bag when it was taken out of the Van. He clearly stated that no person from the village was joined in the proceedings.

PW-5 Constable Raj Kumar is the other member of the police party who also stated similarly. However, he is specific that PW-4 Constable Ambo Khan and another Constable caught Kapil Dev and Jagdev Singh, while the driver''s name was Parveen. He did not state that Parveen Kumar kept standing there while the two other persons were apprehended who had escaped and two others could not be apprehended who were neither named nor there is a reference of their having run away from the spot. He thereafter stated that the other two accused could not be caught. He stated that Constable Parkash Chand was sent to bring the weighing scales and independent witnesses, but he has not stated that any independent witness was associated at that time. He did not identify the accused persons by pin pointing to them as to who was the driver and who were the persons apprehended at that time.

PW-6 Constable Parkash Chand, another member of the raiding party, has stated that they apprehended the driver on the spot and four persons run away after alighting from the Van. He stated that two persons were nabbed by him and other Constables, while two could not be nabbed. He did not identify the driver, who was apprehended at the spot or the two other accused persons, who were apprehended by him and other Constables.

PW-13 Jagdish Chand, the SHO and Incharge of the raiding party, has stated that the driver and two persons, who had fled away, were apprehended, and all these persons disclosed their names as Kapil Dev, Parveen and Jagdev and they told him that Munna and Satish had fled away from the spot. He has never identified the driver Parveen or who were the persons apprehended at the spot, namely, Kapil Dev and Jagdev Singh. Similarly, other witnesses have also not clearly stated about the identity of the accused persons. Therefore, the identity of the accused persons was not established at all. There is nothing in his statement to show as to what evidence was collected against Satish and Munna, who were subsequently arrayed as accused. Therefore, the identity of the three persons apprehended at the spot and two others, who were arrayed subsequently, was not established to hold that they were found in exclusive and conscious possession of the charas recovered at the spot. There is nothing in the statement of the Investigating Officer that he took steps to associate independent witnesses, who were available at the spot or gave any explanation as to why independent witnesses were not associated. Thus, there was non-compliance of mandatory provisions of Section 100(4) Cr.P.C. and in case he had given some explanation, it could have been considered by the Court as to whether it was sufficient or not to prove that the compliance of Section 100(4) Cr.P.C. could not be made in the facts and circumstances of the case.

A perusal of the statement of PW-4 Constable Ambo Khan, who was again called, shows that he is not a reliable witness since at one stage he stated that he took the samples to CTL Kandaghat and at another stage he stated that he took the samples to CFL Junga. He had neither brought the RC nor the register was produced and his statement that he deposited the parcels at CTL, Kandaghat, therefore cannot be relied upon. He also stated that no other paper was given to him for depositing in the office of the expert, meaning thereby that the NCB form was not sent alongwith the parcels and there is no reference to the specimen seals which were also sent separately to the office of the expert.

The above discussion leads to the inference that the final findings recorded by the learned trial Court holding that the guilt of the respondents was not established cannot be said to be 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 preferred by the appellant, which stands dismissed.