State of Himachal Pradesh vs Luder Chand

Justice Sanjay Karol, Judge

For an offence, which is alleged to have been committed on 23rd July, 2005, accused were put to trial. In terms of judgment dated 17th May, 2007, passed by Special Judge (Fast Track), Kullu, in Sessions Trial No. 4/2005, titled as State of H.P. versus Luder Chand and another, accused stand acquitted of the charged offence. ASI Shri Rinchen Gyaltsen (PW-7) was posted at Police Station, Kullu. On 23rd July, 2005, he alongwith HC Shri Harbans Kumar (PW-1) and Constable Shri Deepak Kumar (PW-2) was on patrol duty, in connection with detection of crime. The patrolling party travelled in the vehicle being driven by HHC Shri Pitamber Lal (not examined). Same day at about 7.30 p.m., they stopped the vehicle on the road near a place known as Raskat. They set up a Naka and saw two persons coming from Barshani side, who were carrying polythene envelopes in their right hands. Seeing the police party, these persons flustered and tried to flee away, but on suspicion, PW-7 overpowered them. On questioning they disclosed their names to be Luder Chand and Chander Singh, the present accused. When PW-7 enquired as to what the envelopes were containing, which they were carrying in their hands, accused replied that it was Charas. Since place was secluded and no residential houses/locality was nearby, PW-7 associated PW-1 and PW2 as the witnesses of recovery, arrest and spot proceedings. Envelope carried by accused Luder Chand was opened from which Charas, in the shape of sticks, balls and chocolate, was recovered, which upon weighment was found to be of 3 kgs. The same was taken into possession vide recovery Memo (Ex. PA). Two samples of 25 grams each were separated and sealed in a separate parcel. Four seals of impression ''H'' were affixed on the same and the remaining charas was kept in a separate envelope, which was sealed with four seal impressions of the same mark. In this regard, NCB Form (Ex. PO), in triplicate, was filled in on the spot. Envelope being carried by accused Chander Singh was also searched, from which Charas in the shape of sticks, balls and chocolate, was recovered, which was taken into possession vide recovery Memo (Ex.PB), which upon weighment was found to be of 2 kgs. Two samples of 25 grams each were separated and sealed in a separate parcel. Four seals of impression ''H'' were affixed on the same and the remaining Charas was kept in a separate envelope, which was also sealed with four seal impressions of the same mark. In this regard, NCB Form (Ex. PP), in triplicate, was filled in on the spot. Accused were arrested on the spot. Rukka (Ex. PR) was handed over to Constable Shri Deepak Kumar (PW-2), who took the same to Police Station, Kullu, where FIR No. 372 of 2005, dated 24th July, 2005 (Ex. PN), u/s 20 & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, was registered by SHO Shri Badri Singh. PW-2 took the file back to the spot, where PW-7 filled up Column No. 1 of the NCB Forms. PW-7 also sent intimation to superior officer, which was received by Shri Kashmi Ram (PW-5), Reader to the Superintendent of Police concerned. PW-7, after completion of investigation on the spot, deposited the sealed samples and the bulk charas parcels alongwith the documents with MHC Shri Jia Lal (PW-3) at Police Station, Kullu, who in turn forwarded the sealed samples for analysis to the Forensic Science Laboratory at Kandaghat through Constable Shri Sunder Singh (PW-4). Reports (Ex. PT & PU) of the Expert were collected by the police, which confirmed that the contraband substance was in fact Charas. With the completion of investigation, challan was presented in the Court for trial.

Accused were charged for having committed offence, punishable u/s 20 read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, to which they did not plead guilty and claimed trial.

In order to prove its case, prosecution examined as many as seven witnesses and statements of the accused, u/s 313 of the Code of Criminal Procedure were also recorded, in which both of them took up the following common defence:

I was standing at Rashkat bus stop. I was waiting for the arrival of the bus. Many passengers were there. They had kept their belongings at bus-stop. Police party came there. Many persons fled away from the scene. On the checking of the belongings lying at bus-stop, two packets were found. Said packets were disowned by the persons present on the spot. I had also disowned said packets. Police had failed to apprehend the real culprits. Merely on suspicion, I have been falsely implicated in this case.

The Court below, after appreciating the material on record, acquitted the accused of the charged offence. Hence, the present appeal.

We have heard Shri R.K. Sharma, learned Senior Additional Advocate General, assisted by Shri J. S. Guleria, learned Assistant Advocate General, on behalf of the State as also Shri M.S. Guleria, Advocate, on behalf of the accused. We have also minutely examined the testimonies of the witnesses and other documentary evidence placed on record by the prosecution. Having minutely examined the record, we are of the considered view that no case for interference is made out at all. We find that the judgment rendered by the trial Court is well reasoned and is based on complete and proper appreciation of evidence (documentary and ocular) placed on record. There is neither any illegality/infirmity nor any perversity in the same.

In the instant case, we find that prosecution has not associated any of the independent witnesses during investigation or trial. Significantly, we also find that the driver of the vehicle, in which the police party had left the Police Station at 11.30 a.m. on 23rd July, 2005 to lay the Nakas same day at different places, has also not been examined in Court.

The alleged incident took place in the month of July at 7.30 p.m., when days are long. Now, police has not disclosed how far Barshani (habitation) was from the place where they had laid down the Naka. According to PW-7, Naka was laid at the place, which was at a distance of 1-11/2 km from village Raskat. This witness admits that village Uch is situated between Raskat and Barshani. He feigns ignorance about the fact that about 10 or 15 families reside in village Raksat. He states that there are 3-4 shops located at village Raksat. He is not even aware of the existence of Raksat nullah in the area. He admits that village Raksat is not even shown in the site plan prepared by him. It is the case of this witness that when accused were apprehended and questioned they disclosed that they were carrying Charas with them. Now, if this were so then why is it that he did not take the accused to Raskat, Barshani, Uch or for that matter straightway to the nearest Police Post/Police Station or the concerned Magistrate for conducting the search and seizure operations. After all, by this time he was aware that accused were carrying contraband substance with them.

Non-association of independent persons during the course of investigation, to our mind, has rendered the prosecution version to be slightly doubtful. Though we may mention here, with caution, that this aspect would not render prosecution case to be fatal. After all, testimonies of police officials cannot be discredited only on the ground of non-association of independent witnesses. But here facts are different. Close scrutiny of testimonies of police officials would only reveal that there are several/material and major contradictions therein, which have rendered the prosecution case to be extremely doubtful if not false. These contradictions are not minor but they are glaring and cannot be overlooked, when viewed in totality. Also there are unexplained circumstances.

To begin with, we find that there is nothing on record to show that the police party actually left the police Station on a patrol duty, for and detection of any crime.

According to PW-7, the patrolling party left the Police Station at 11.30 a.m. and laid Naka at seven/eight places. But on the other hand, PW-1 states that Naka was laid down only at three places, i.e. Bhuntar, Jari and Manikaran. Significantly, version of both these witnesses stands further contradicted by PW-2, according to whom no Naka was laid down at all. Further, PW-7 states that Naka was laid towards Barshani side between Raskat and Barshani, whereas according to PW-1 Naka was laid towards Manikaran side, which is 100 metres from village Raskat towards Manikaran. Manikaran is a big station having large population. Then why were the accused not taken there? Not only that, PW-7 states that accused were noticed after 10-15 minutes when they laid the Naka in question, whereas according to PW-4, accused were spotted after a time gap of about half an hour. Now, these contradictions are glaring and not minor. They shatter the genesis and foundation of the prosecution case. Significantly, none of the members of the patrolling party has disclosed as to how many vehicles and persons were checked throughout the day and as to whether they carried out any investigation in relation to detection of crime for which they had left the Police Station as is so stated by PW-7 in his testimony.

It is also to be noticed that PW-7 in his testimony has deposed that it was he who apprehended and nabbed the accused persons, whereas according to PW-1 accused Luder Chand was apprehended by him and accused Chander Singh was apprehended by Shri Deepak Kumar (PW-2). This also renders the version of PW-7 about his being present on the spot to be doubtful.

It is not the case of prosecution that the police party had prior information with regard to some movement of contraband substance, i.e. Charas, in the area. It is also not the specific case of the police party that they had left the Police Station to conduct checking of certain crime involving Charas/narcotic substance. Now, if this were so then, in our considered view, police has failed to explain the circumstances in which they were allegedly carrying the weights and scale with them. Here examination of the driver who carried the police party in the vehicle becomes necessary and relevant. After all, kit must have been kept by him in the vehicle. It is the case of PW-7 that Charas was weighed on the spot with the weights and scale which they were carrying with themselves but then we find that even with regard to weighment of Charas, there is contradiction in the version of the spot witnesses. Whereas PW-1 states that Charas recovered from accused Luder Chand was weighed in five lots but on the other hand, PW-2 has deposed that it was weighed in three lots. Also police officials admit that before carrying out the search of the accused persons they did not give their personal search to them.

According to PW-2, parcels (samples and the bulk), seized by the police were marked with distinctive letter ''A'', but we find that in the NCB Forms there is no such reference with regard to the same. It be only noticed that NCB Forms do not contain any distinction marked ''A'' or ''B'' as is so stated by the police witnesses. Thus, the link evidence is also weak.

We find that in Court police has deposed that recovery of Charas was effected at 7.30 p.m., whereas in the recovery Memo (Ex. PA), the timing is shown as 7.45 p.m. and in the NCB Forms the time of recovery is shown as "8.30 pm Near Raskat". Now, this totally renders the prosecution case to be extremely doubtful with regard not only the place but also the timing of the recovery of the contraband substance.

As noticed herein earlier, the incident in question took place in the month of July when days are long and it is unbelievable that at about 7.30 p.m. police party would not have noticed any vehicle or person crossing by. Judicial notice can be taken of the fact that in this part of the State, there are various apple orchards when harvesting of apple crop is on and there is lot of vehicular and foot movement on the road. Also, shops are open till late in the night and people do not go to bed early. Under these circumstances, the police party ought to have associated independent witnesses, while carrying out the search and seizure operations in question.

We find that the contradiction in the evidence led by the prosecution on the point of search and seizure operations is glaring. Non-association/non-examination of independent witnesses has further rendered the testimonies of the police officials to be extremely doubtful. Police officials may not have told lies in Court but then they have certainly not come out with the truth and the whole truth. After all, huge quantity of Charas was involved and police officials and more particularly, ASI Shri Rinchen Gyaltsen (PW-7) ought to have been more diligent and careful in discharge of his duties and the accused cannot be convicted on the ground of suspicion alone.

Thus, we are of the considered view that prosecution has failed to prove its case, beyond reasonable doubt, by leading clear, cogent, convincing and reliable piece of evidence so as to prove the charged offences.

For all the aforesaid reasons, we find no reason to interfere with the well reasoned judgment passed by the trial Court. The Court has fully appreciated the evidence placed on record by the parties. The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Md. Ankoos and Others Vs. The Public Prosecutor, High Court of A.P., and State of Rajasthan Vs. Shera Ram @ Vishnu Dutta, , it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged.