State of Himachal Pradesh vs Manoj Kumar and Shashi Kumar

Deepak Gupta, J.—This appeal by the State is directed against the judgement dated 1.11.2002 passed by the learned Additional Sessions Judge, Solan in Sessions trial No. 26-S/7 of 2001 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 case is that on 4.5.2001 PW-12 Brij Mohan Sharma, Additional SHO Police Station Parwanoo had laid a Naka at Sector 6, Parwanoo. PW-6 Constable Madan Lal and PW-4 Lachhman Kumar were with him. At about 11.50 a.m a bus belonging to Punjab Roadways Transport Corporation bearing registration No. PB-11N-3818 came from Shimla side and the same was stopped. PW-12 Brij Mohan alongwith PW-6 Madan Lal entered the bus from the front door of the bus whereas PW-4 Lachhman Kumar entered the bus from the rear door. The accused Manoj Kumar was found sitting on seat No. 19 and had a sweater spread across his knees. PW-12 Brij Mohan checked the sweater and inside the sweater found a polythene bag hidden in the arm of the sweater. Inside the polythene bag there was charas. Thereafter PW-6 Madan Lal was asked to bring a balance (Taraju) and the weights. On weighment the charas was found to weigh 850 grams. Two samples of 25 grams each were drawn and taken for analysis. Thereafter, these two samples and the remaining bulk charas were sealed in three separate parcels with seal having seal impression ''P''. The case property was taken into possession vide seizure memo Ext.PW-1/A.

The prosecution story further is that respondent No. 2 Shashi Kumar was sitting on the adjoining seat No. 18 and on inquiry it transpired that it was Shashi Kumar who had purchased the bus tickets both for himself and Manoj Kumar at Shimla. This fact was also disclosed by the conductor. The tickets of both the persons were recovered from Shashi Kumar and taken into possession vide memo Ext.PW-2/A. PW-12 Brij Mohan thereafter deputed PW-6 Madan Lal to go to the Police Station to register the case and he detained the accused persons. He later handed over the accused alongwith the case file to PW-7 HC Het Ram vide memo Ext.PW1/C. Thereafter, PW-10 Pramod Shukla, SHO P.S. Parwanoo handed over a sample to PW-6 Madan Lal to be taken to the CTL Kandaghat. The chemical analyst vide his report Ext.PW-10/D opined that the sample was of charas and on this basis the accused were challaned for having committed an offence punishable u/s 20 of the NDPS Act.

As far as respondent No. 2 Shashi Kumar is concerned, there is no evidence worth the name against him. The only allegation is that he had purchased the tickets for Manoj Kumar also. Even if this fact is accepted to be correct this does not mean that Shashi Kumar knew that Manoj Kumar was carrying some contraband with him. No doubt PW-12 has tried to improve the case by stating that during investigation it was found that both the accused had together purchased the charas from one Shyam Singh at Theog but other than his bald statement and the unreliable testimony of PW-9 there is no evidence worth the name in this regard.

As far as accused Manoj Kumar is concerned, admittedly no option u/s 50 was given to him. This is a case which is in the grey area because the contraband was recovered form a personal item of clothing and was hidden inside the item of clothing i.e. the sweater, which was not worn by the accused but was spread by the accused on his knees at that time. Prima facie, we would be of the opinion that Section 50 would be applicable. Since there is no compliance the entire search and seizure operation would be illegal.

However, assuming for the sake of argument that Section 50 need not be complied with in this case then also we find that the prosecution has failed to prove that the contraband was recovered from the conscious possession of the accused and even the link evidence is also missing. The search took place in a bus. The independent witnesses are the driver and conductor. PW-1 Joginder Singh was the driver of the bus. PW-2 Trilochan Singh was the conductor of the bus. Though they both stated that the bus had been stopped according to them in their presence two persons were made to get down from the bus and further according to them no search was carried out in their presence nor any contraband was recovered in their presence. They in fact go on to state that they cannot even identify the persons who were de-boarded from the bus. They have been cross-examined at length but have stuck to their version. The law is very well settled that when independent witnesses turn hostile, the Court can rely upon the official witnesses if they are consistent. In the present case the testimony of the official witnesses is full of contradictions.

According to PW-12 Brij Mohan after the bus was stopped and the charas was found, Constable Madan Lal was sent to get the weighing scales and weights to weigh the contraband. He further states that after Madan Lal came back with the scales the charas was weighed. PW-4 Lachhman Kumar, who was the Home-guard attached with the patrolling party, gives a totally different version. According to him the charas was weighed in Sector-1 in the bazaar and at that time in the market itself two samples of 25 grams each were taken. Despite this witness having stated something which is contrary to the prosecution case he was not got declared hostile and his statement was accepted by the prosecution. Therefore, there is an inherent contradiction as to where the contraband was weighed.

The matter does not end here. According to PW-6 he went to the shop of PW-5 Hari Ram to get the apparatus for weighing the charas. Whereas PW-12 is specific that a weighing balance (Taraju) was arranged to weigh the charas, according to PW-6 he got a weighing machine from the shop of PW-5. There is a difference between a Taraju and a weighing machine. Most importantly, PW-5 Hari Ram states that he runs a Karyana shop which is situate at Sector-2 Parwanoo and is about two kilometers from the Eicher School where the bus was stopped. He has also admitted that many shops are there between the Eicher School and his shop. The prosecution has miserably failed to give any explanation as to why Madan Lal had to travel two kilometers to get the weighing scales or machine when these could have been arranged close-by.

Another contradiction in the prosecution version is that according to PW-6 and PW-12 the entire proceedings were carried out at the spot and the charas was weighed at the spot and kept there. According to PW-4, who was a member of the Police party, after the accused were apprehended PW-12 and PW-6 alighted from the bus alongwith the accused. PW-12 directed PW-4 to remain in the bus to keep a watch on the passengers. Thereafter according to this witness Constable Madan Lal PW-6 took the contraband to Sector-1 for weighing and Sector-1 is at a distance of 4 to 5 kilometers from Eicher School. All these factors clearly indicate that the prosecution case is that the accused were apprehended, thereafter scales were arranged and the charas weighed at the spot does not appear to be correct and a false story appears to have been cooked up. This casts a serious doubt on the prosecution version and when the independent witnesses have not supported the official witnesses and there are contradictions in the statements of the official witnesses it would be highly imprudent to rely upon the same.

Even the link evidence in this case is totally missing. According to PW-12 Brij Mohan he packed two samples and remaining bulk charas in three separate parcels and sealed them with seal having seal impression ''P'' and the specimen of the seal was taken on a piece of cloth Ext.PW-12/A. Even to the naked eye the seal impression on Ext.PW-12/A is of seal ''P''. PW-12 is totally silent as to what he did with the case property and to whom he handed over the case property. Even PW-6 is silent as to what he did with the case property immediately after the same had been sealed. PW-7 Het Ram has stated that the case property was handed over to him by PW-10 and he thereafter deposited the case property with SHO Police Station Parwanoo. PW-10 Parmod Shukla states that at about 3.00 p.m HC Het Ram handed over the case property to him which was sealed with seal impression ''P'' and thereafter he sent one part of the sample through Constable Madan Lal to the CTL Kandaghat. However, according to PW-6 Madan Lal on 4.5.2001 it was PW-7 Het Ram who handed over the sample to him. Therefore, it is not clear whether the sample was lying with Het Ram or with Parmod Shukla.

There is another contradiction in the prosecution case. Whereas according to PW-12 and PW-10 the case property was sealed bearing seal impression ''P'' according to PW-6 Madan Lal the impression on the seal was of ''T''. According to PW-6 when he took the sample from Parwanoo to Kandaghat the laboratory had already been closed and therefore he deposited the sample with PW-11 Phupinder Sharma, who at the relevant time was MHC in Police Station Kandaghat. His version is that the sample which was deposited in the Malkhana bore seal impression ''K'' and he has also produced the report in this regard. There is no explanation how the seal impression turned from ''P'' to ''T'' to ''K''. In the NCB form the description of the sample is that it is sealed with impression bearing ''P'' and ''T''. Now there is no explanation who affixed the seal ''T''. Furthermore in the report of the Chemical Examiner there is no mention of the seal impression which was actually found. As such the link evidence is missing and it cannot be said that the sample which was analyzed was a sample of the contraband which was actually sealed at the spot. In view of the above discussion we find no merit in the appeal, which is accordingly dismissed. The accused who are in judicial custody are directed to be released forthwith.