State of Himachal Pradesh vs Ram Lal

Deepak Gupta, J.—This appeal by the State is directed against the judgement dated 3.9.2003 passed by the learned Sessions Judge, Shimla, in Sessions trial No.16-S/7 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 case, in brief, is that on 30.1.2002 PW-11 Inspector Sadhu Ram of State CID was on patrolling duty in Shimla town alongwith Sub Inspector Bhagwan Singh, Sub Inspector Mittar Dev, Assistant Sub Inspector Madan Lal and some other police officials. When they were near the Railway Station, Shimla, Inspector Sadhu Ram received secret information to the effect that one person was going towards Boileauganj Bus Stand and this person is in possession of some charas. Sadhu Ram recorded the information and prepared memo Ext.PC and sent the same to the Deputy Superintendent of Police (PW-7). This information was sent through PW-2 constable Sanjeev Kumar.

Thereafter Sadhu Ram alongwith other police officials proceeded towards Boileauganj barrier. At Boileauganj barrier two independent witnesses PW-5 Divesh Kumar and PW-6 Desh Raj were associated with the police party. At about 3.45 p.m one person was noticed by Sadhu Ram coming towards Shimla town. The said person was carrying a bag (Ext.P-4) on his shoulder. The appearance of the said person and his bag tallied with the secret information received and therefore, the person was detained by the police officials. On asking he disclosed his name to be Ram Lal (accused). The accused was informed that it was suspected that he was carrying some contraband substance and therefore he was to be searched. He was given an option whether he wanted to get himself personally searched before a Magistrate or any Gazetted Officer or before the Police Officials. He agreed to be searched before the police officials vide consent memo Ext.PA.

Thereafter, the search was carried out and when the bag was opened and the contents were checked, it was found that inside the bag there were two cloth bags which contained charas. Sadhu Ram asked PW-8 constable Mohinder Kumar to arrange for some weighing scales. Thereafter, constable went to the shop of PW-4 Anil Kumar and brought the weighing scales. On weighment the charas was found to be 10 kilograms and 500 grams. Out of this two samples of 25 grams each were drawn and sealed in two separate parcels. The remaining bulk charas, which was in two cloth bags, was kept in the same bags and repacked in the bag Ext.P-4 and then resealed in the cloth parcel Ext.P-1 and taken into possession vide seizure memo Ext.PE.

After recovery of the charas, Rukka Ext.PA was sent by Inspector Sadhu Ram to Police Station, Boileauganj through constable Manoj Kumar and on the basis of this Rukka, F.I.R. Ext.PB was registered. The case was investigated and other codal formalities were completed at the spot. Entire case property including the samples, the bulk charas were deposited by Inspector Sadhu Ram with PW-10 MHC Joginder Singh at Police Station Boileauganj. Joginder Singh resealed all the sample parcels with his own seal having seal impression "S". One of the sample parcels was sent by Joginder Singh to CTL Kandaghat through lady constable PW-9 Anubha. Thereafter, the examiner vide his report Ext.PL opined that the sample was of charas and on this basis the accused was charged with having committed the office aforesaid.

The accused has been acquitted only on the ground that the prosecution has miserably failed to prove that the contraband was recovered from the exclusive and conscious possession of the accused. While coming to this conclusion the trial Court has noticed the fact that the independent witnesses did not support the prosecution and there are material contradictions in the statements of the official witnesses.

As far as the independent witnesses are concerned, PW-5 Divesh Kumar stated that on 30th January, 2002 he was called to the Boileauganj barrier and asked to sign certain documents. When he reached the charas was already lying near the barrier. He has clearly stated that no charas was seized in his presence. The witness was declared hostile and admitted his signatures on consent memo Ext.PD, recovery memo Ext.PE and memo of arrest Ext.PG.

PW-6 Desh Raj has made a similar statement and has not supported the prosecution. He has also admitted the signatures on the documents but denied that the recovery was made in his presence.

PW-4 Anil Kumar from whose shop the weighing scales were allegedly taken was also turned hostile and did not support the prosecution evidence.

Since the independent witnesses had turned hostile the evidence of the official witnesses had to be scrutinized with great care and caution. Though according to the police officials a large number of police officials were present and in fact there were a number of officials of the rank of Sub Inspector in the police party, for reasons best known to the prosecution only PW-11 the Investigating Officer and PW-3 constable Manoj Kumar have been examined. In so far as the recovery is concerned, there are glaring contradictions in their statements as noticed by the learned trial Court. The crux of the defence case is that Inspector Sadhu Ram PW-11 was not present when the alleged recovery took place. None of the documents which were shown to have been prepared at the spot i.e. Ext.PA to Ext.PJ are in the handwriting of Sadhu Ram. No doubt, it is not necessary that the Investigating Officer should himself prepare the documents and the same can be written by some other police official on his dictation but Sadhu Ram could not even name the official who had written these documents. If indeed Sadhu Ram was present and had given the dictation to a police official junior to him then it is difficult to believe that he would have forgotten his name, that too in such an important case. In cross-examination Sadhu Ram first stated that he had in fact prepared and written some of the documents but when specifically asked as to which of the documents he has prepared he could not even point out one document.

PW-3 constable Manoj Kumar has made a totally contradictory statement. According to him the Rukka Ext. PA was written by Inspector Sadhu Ram in his own handwriting whereas Sadhu Ram has admitted that the same was not written by him. This is a material contradiction which goes to the root of the case and shows that Sadhu Ram was not at all present there. When independent witnesses did not support the prosecution case and there are material contradictions in the statements of the official witnesses the learned trial Court was fully justified in acquitting the accused. We find no reason to interfere in the well reasoned judgement of the learned trial Court. The appeal is accordingly dismissed. The bail bonds are discharged.