State of Himachal Pradesh vs Ram Raj

Justice Deepak Gupta, J.—This appeal by the State is directed against the judgment, dated 9.1.2004, delivered by the learned Sessions Judge, Chamba, H.P. in Sessions Trial No. 43 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 Act). The prosecution story in brief is that on 1.4.2002 PW-9, Inspector Kulwant Singh alongwith PW-8 ASI Narup Singh, PW-4, Constable Rajesh Kumar and some other police officials were present at Baloo Bridge near Chamba. They saw one person standing near the bus stop who appeared to be a stranger and got perplexed on seeing the police. Thereafter, on suspicion, PW9 questioned him about his identity and about what he was doing there. He did not give a satisfactory reply. The said person was carrying a box, which purported to be a box of fruits, in his hand. PW-9 opened the box and noticed that inside the box there was some hard substance in a polythene bag kept between the grapes. On opening this polythene bag, charas was found. Two independent witnesses Dinesh Kumar and Pawan Kumar who were already present on the spot were associated and in their presence charas was weighed and found to weigh 1kg.500 grams. Two samples of 25 grams each were drawn. The said samples and the remaining bulk charas was sealed in these separate parcels and sealed with seal impression T. The seal was handed over to one of the independent witnesses Dheeraj kumar (PW1). Recovery memo, EX. PA, was prepared and codal formalities completed at the spot. Thereafter, the investigation was handed over to ASI Narup Singh. According to PW-9, he filled the NCB form EX. PE two days later in the police station. One of the sample was sent to CTL Kandaghat and it was opined that sample was of charas. On this basis, the accused was challaned for having committed the offence punishable u/s 20 of the Act.

After trial, the accused was acquitted mainly on the ground that there was total non compliance of Section 50 of the Act. Hence this appeal by the State.

As far as section 50 of the Act is concerned, the same is not at all attracted to the facts of the present case since the recovery was not made pursuant to the personal search of the accused but alleged contraband was recovered from the search of the box being carried by the accused. The Apex Court in State of Himachal Pradesh Vs. Pawan Kumar Latest HLJ 2004 (SC) 1247 clearly laid down that in such eventuality the provisions of Section 50 of the Act are not attracted.

The learned trial Court has not discussed the other material facts and therefore, we have gone through the entire evidence. PW-9, the Inspector has given the same version as narrated above and PW-8 ASI Narup Singh has also given a similar version. One other police witness, PW4 Constable Rajesh Kumar has also supported the prosecution case. However, the so called independent witnesses PW1 Dinesh Kumar and PW2 Pawan Kumar, had turned hostile and not supported the prosecution case at all. They were both declared hostile and cross examined by the prosecution but they have stuck to the version that in their presence nothing was recovered. They have stated that by the time they were called, the entire process was complete and only the signatures were obtained by the police on certain documents. According to PW-1, he is a driver. He has signed the recovery memos at the asking of the police officials. Similar is the statement of PW2 Pawan Kumar, who is a vegetable-seller having a shop near Baloo Bridge. When in a case like the present one the independent witnesses turns hostile, it does not automatically mean that the accused has to be acquitted. By now, the law is very well settled, that the official witnesses are also equally good witnesses and in case the statements of the official witnesses inspire confidence and are consistent with each other then reliance can be placed on the statements of the official witnesses also.

In the present case we find that there are some major contradictions in the statements of the official witnesses. According to PW9, PW1 Dinesh Kumar and PW2 Pawan Kumar were already present at the spot, whereas according to PW4 Rajesh Kumar, Constable Manohar Lal called the witnesses from their respective shops. This statement on the face of it is incorrect since one of the witness is a driver by profession and has stated that he was sitting on the driver seat of his vehicle when he was called by the police. Here, it would be pertinent to mention that PW1 Dinesh Kumar is not a resident of Baloo Bridge and cannot be said to be a respectable resident of the area in question. All the prosecution witnesses have admitted that there were a number of shops near Baloo Bridge and there is no explanation why the residents of that area, or persons having shops there were not associated as independent witness. Another major discrepancy in the prosecution case is that according to PW8 and PW9 the accused was not asked whether he wanted to be searched before a gazetted officer or a Magistrate but according to PW4 such option was given to the accused. As held by us above, such an option was not required to be given. However, there are contradictions in the statements of witnesses as to the manner in which the proceedings were carried out on the spot. This casts a doubt on the prosecution story. The names of PW4 and PW8 are not on any of the documents prepared at the spot. The prosecution has failed to prove on record the departure report and entry in the daily diary to show who had gone to Baloo Bridge. Therefore, a doubt is cast as to whether these two witnesses were actually present on the spot or not.

Another reason to doubt the prosecution version is that according to PW9 Inspector Kulwant Singh, NCB forms were not filled-in at the spot. This by itself may not be something which is fatal to the prosecution but if this be the case then the person filling the NCB forms at the later stage should clearly mention the date on which he had filled it. The NCB form EX-PE does not contain any such date showing as to when it was filled-in. This shows that the documents could have been prepared later on. In such an eventuality, the police officials should also give an explanation as to why they filled the NCB form after 2-3 days. Keeping into consideration all these facts, we are of the view that the accused has to be acquitted. The appeal is accordingly dismissed though on totally different grounds. Bail bonds discharged.