State of Himachal Pradesh vs Om Parkash Dutt

Deepak Gupta, J.—This appeal by the State is directed against the judgment dated 28.9.2002, passed by the learned Sessions Judge, Chamba in Sessions Trial No. 20 of 2002, 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).

The prosecution story, in brief, is that on 10th December, 2001, PW-7 Shri Gyaneshwar Singh, the then Assistant Superintendent of Police, Chamba was present at Koti Chowk alongwith other police officials on patrolling duty. District Chamba had been declared as a disturbed area and the police officials had to look out for terrorists and other suspicious persons. They saw a person coming from Tissa side, who was carrying a gunny bag on his shoulder. On seeing the police officials, this person turned back and tried to move fast towards Tissa. PW-7 suspected that the accused may be a terrorist, possessing some explosive substance. He, therefore, opened the gunny bag. Inside this bag, there was another plastic bag and inside this plastic bag charas had been kept.

Thereafter, the accused alongwith gunny bag and contraband was brought to the rain shelter situated at Koti Chowk. Thereafter, weights were called through LHC PW-2 Kartar Singh. Two independent witnesses PW-1 Chatro Ram and Prithi Raj were associated with the further proceedings. In their presence the contraband was weighed and they were informed that the contraband had been recovered from the accused. On measurement, the contraband was found to weigh 10 Kgs. Two samples of 20 grams each were taken out separately and kept in two match boxes. These two match boxes and the remaining bulk charas were kept in three separate parcels bearing seal impression ''S�. The specimen of the seal was also obtained on Ext.PW-1/A, which was signed by the witnesses. The original seal was handed over to PW-1 Chatro Ram. Thereafter the case property was taken into possession vide seizure memo Ext.PW-1/B. Ruqua Ext.PW-3/A was sent to the police station and on the basis of this FIR Ext.PW-9/A was recorded. Thereafter, the case property alongwith accused was handed over by PW-7 Gyaneshwar Singh to PW-6 Kulwant Singh, who in turn deposited the same with MHC Narinder Kumar. One sample of the charas was sent to the Chemical Analyst for report, who vide his report Ext.PW-7/B opined that the sample was of charas having resign content of 10.23%. On this basis, the accused was charged with having committed an offence punishable u/s 20 of the NDPS Act. The learned trial Court, after trial, acquitted the accused mainly on the ground that there was violation of Section 50 of the NDPS Act.

At the outset, it may be stated that Section 50 of the NDPS Act has no applicability to the facts of the case since the recovery was not made as a result of personal search of the accused but the contraband was recovered from the gunny bag being carried out by the accused. The Apex court in State of Himachal Pradesh vs. Pawan Kumar Latest HLJ 2004 (SC) 1247 has clearly held that in such cases the provisions of Section 50 of the NDPS Act are not attracted.

Keeping in view the aforesaid facts, we have ourselves gone through the evidence in detail. PW-7 Gyaneshwar Singh has supported the prosecution case in toto. According to him he was present at Koti Chowk alongwith PW-6 Inspector Kulwant Singh, PW-2 Kartar Singh, Head Constable Ajit Singh, PW-3 Constable Yoginder Singh and Constable Mohan Lal. His version is that when the accused tried to run away he was apprehended and he i.e., PW-7 suspected that the accused may be carrying some explosive substance. The gunny bag was searched and it contained charas. Thereafter, PW-2 Kartar Singh was sent to get the weights and arrange for independent witnesses. Two independent witnesses were brought. The accused as well as the contraband were taken to the rain shelter. When the independent witnesses came, they were told that the contraband had been recovered from the accused and it was weighed, sealed and taken into possession in the presence of the witnesses. He has also stated that other codal formalities were completed at the spot and thereafter he handed over the case property alongwith the accused to IO PW-6 Kulwant Singh.

PW-6 Kulwant Singh has fully supported the prosecution case. According to him, after the accused was apprehended and the charas was found in the gunny bag, the accused as well as the contraband was taken to the rain shelter and PW-3 was asked to get the weights and arrange for independent witnesses. Thereafter the charas was weighed, samples drawn and sealing done. Thereafter, the investigation was handed over to him by PW-7. PW-6 prepared the site plan Ext.PW-6/A. He communicated the grounds of arrest to the accused vide Ext.PW-1/C. Both these witnesses have been cross-examined at length and they both stated that the accused was not searched in the presence of independent witnesses but only the seizure memo was prepared and the contents of the bag weighed in the presence of the independent witnesses. Both these witnesses have denied the suggestion that no recovery was made from the accused.

PW-2 Kartar Singh has also supported the prosecution version in full. According to him, after the accused was apprehended and the charas found in the gunny bag, the accused as well as the gunny bag were taken to the rain shelter and thereafter PW-7 Gyaneshwar Singh directed him (PW-2) to bring weights and arrange for independent witnesses. He thereafter brought two independent witnesses, namely, PW-1 Chatro Ram and one Prithi Raj. He also got the weights and thereafter the charas was weighed in the presence of the independent witnesses and it was found to weigh 10 Kgs. Two samples were drawn, which were duly sealed and the bulk charas was also sealed. He also states that sample of the sealed impression was obtained on a plain cloth. In cross-examination, this witness states that the rain shelter is adjoining to Koti Chowk and that when the accused was apprehended, he was about 20-25 yards away from this place. He admits that there is one wine shop, Dhaba and Veterinary Hospital near the rain shelter. According to him, witness Prithi Raj was brought from this wine shop where he was working as a salesman. Chatro Ram was standing near the Dabha and was asked to be the other independent witness. He had brought the weighing instruments from the Dabha. He denied the suggestion that no charas was recovered in his presence.

PW-1 is an independent witness. He was working as a Fitter in the IPH Department. According to him, on 10th December, 2001 he was called by some police officials when he was standing near the rain shelter alongwith another witness Prithi Raj. They were taken to the rain shelter where accused Om Parkash was present and one gunny bag had been kept in the rain shelter. The police officials informed the witnesses that they had recovered the charas from the possession of the accused. The charas was weighed and found to weigh 10 Kgs. Two samples were drawn in his presence and thereafter the charas alongwith these samples and the bulk charas was sealed in three separate parcels with seal impression ''S�. The original seal was given to this witness. The witness identified the various parcels which contain the remaining samples and bulk charas. He also identified the gunny bag. The only cross-examination to this witness is that there are a number of shops and houses around near the rain shelter. He admits that the accused was not searched in his presence.

PW-3 Yoginder Singh took the ruqua Ext.PW-3/A to the office of the Superintendent of Police, Chamba. Since the Superintendent of Police, Chamba was on leave, he had handed over the same to Shri N.D. Sharma, Additional Superintendent of Police.

PW-4 Constable Naresh Kumar states that PW-3 Yoginder Singh had brought ruqua Ext.PW-3/A which had thereafter been signed by Shri N.D. Sharma, Additional Superintendent of Police.

PW-5 Vinod Kumar states that on 27.12.2001 MHC Narinder Kumar handed over to him one sample alongwith RC No. 113/2001. He took the sample to the CTL Kandaghat but an objection was raised by the office and thereafter he brought back the same to the Police Station and again handed it over to MHC Narinder Kumar. He states that the sample remained intact during the period, when it was in his custody.

PW-8 Constable Raj Kumar states that on 6th January, 2002 MHC Narinder Kumar handed over to him one sealed parcel alongwith specimen seal and docket vide RC No. 3/2002. He thereafter took the samples and deposited the same with the CTL Kandaghat and the parcel was not tampered while it was in his possession.

MHC Narinder Kumar was not examined since he was unwell and admitted in PGI. In his place PW-9 Constable Rajesh Kumar was examined, who stated that Narinder Kumar was admitted in PGI and was in a critical condition. He produced the original RC No. 113/2001. He also produced the original malkahana register and daily diary register as well as FIR Ext.PW-9/A recorded by Narinder Kumar. He stated that he was present when the case property was deposited in the malkhana and the parcels were resealed by Narinder Kumar by affixing seal ''A''. This is the entire oral evidence.

As far as documentary evidence is concerned, it consists of cloth seal impression Ext.PW-1/A, seizure memo Ext.PW-1/B, memo regarding information of arrest Ext.PW-1/C, site plan Ext. PW-6/A, ruqua Ext.PW-3/A, NCB form and report of the Chemical Examiner Ext.PW-7/B and special report Ext.PW-7/A.

The prosecution in this case also produced the original RC and the copies of the malkhana register Ext.PW-9/D and Ext.PW-9/E, respectively. These clearly indicate how the case property remained in the malkahana, sent to the Laboratory at Kandaghat, came back with an objection and thereafter was again sent to the Laboratory at Kandaghat.

After going through the entire evidence in this case, the version of the official witnesses and the one independent witness examined is identical. They have all supported the prosecution case in full.�

The main argument raised on behalf of the accused is that by the time the independent witnesses were called, the charas had already been recovered and therefore, the recovery is not proved. In this case the recovery was made in Chamba district, which borders Jammu & Kashmir. This district had seen a lot of terrorist activities at the relevant time and therefore, had been declared as a disturbed area. The explanation of the police officials is that they suspected that the person, who was trying to run away, was carrying some explosive substance. They opened the gunny bag. Inside it, there was another plastic bag inside which there was charas. This is clearly a case of chance recovery. They then immediately took the bag and the accused to the rain shelter and the independent witnesses were called. The charas was weighed in the presence of the independent witnesses and found to weigh 10 Kgs.

Though these witnesses have been cross-examined, but no discrepancies have been pointed out. The only discrepancy which has been pointed out is that in the seizure memo Ext.PW-1/B it is written that when accused Om Parkash was searched in the presence of the witnesses then during the search the charas was recovered. PWs 6 and 7 have in no uncertain terms stated that the accused was not searched in the presence of the independent witnesses, but only the charas was weighed in the presence of the accused. Even when PW-7 was confronted with the contents of the seizure memo, he again reiterated that the accused was not searched in the presence of the independent witnesses. This contradiction is not such a serious contradiction as to discredit the entire prosecution story. It may be that while preparing the seizure memo, the police officials prepared the same in a mechanical manner which is familiar to them, but in the challan as well as in the ruqua and the special report which was prepared at the same time, it is clearly stated that the gunny bag was opened first when the witnesses were not present and thereafter the accused alongwith the case property was taken to the rain shelter and the independent witnesses called thereafter. These reports were sent simultaneously, and on the basis of the ruqua the FIR was recorded which contained the same version. Therefore, the mere fact that in the seizure memo it is stated that the charas was recovered on the basis of personal search cannot be said to be such a serious contradiction so as entitle the accused to be acquitted. It is an admitted case that the police officials had no inimical relation with the accused. Why and how would the police foist upon the accused a huge quantity of 10 Kgs of charas, if the same had not been recovered from him?

Keeping in view the consistent statements of the witnesses, we are of the considered view that the prosecution has proved beyond all reasonable doubt that the charas was recovered from the conscious and exclusive possession of the accused. We, therefore, set aside the judgment of learned Sessions Judge and convict the accused of having committed an offence punishable u/s 20 of the NDPS Act. Bail bonds are cancelled and the accused be produced before us for being heard on the quantum of sentence on 27th February, 2012.