State of Himachal Pradesh vs Roop Lal

Dharam Chand Chaudhary, J.—The respondent, hereinafter referred to as ''the accused'' though has undergone trial u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ''NDPS Act'') with the allegations that during his personal search conducted by PW-7, Head Constable Naresh Chand, the then Investigating Officer, Police Station, Manali in the presence of PW-6, Constable Raman Kumar and Constable Uttam Chand in Dhungri (Manali) forest, contraband, allegedly charas weighing 200 gms. was recovered from him, however, has been acquitted by learned Special Judge, Fast Track Court, Kullu vide judgment dated 28.3.2009 under challenge in the present appeal.

The State (Prosecution) aggrieved by the acquittal of the accused, has challenged the legality and validity of the impugned judgment on the grounds, inter alia, that the evidence available on record has not been appreciated in its right perspective and rather in a slip shod and perfunctory manner and, as such, the findings recorded by learned trial court are manifestly unreasonable and unsustainable. The evidence, as has come on record by way of the testimony of prosecution witnesses has allegedly been discarded for untenable reasons and the trial court based its findings on hypothesis, surmises and conjectures. Learned trial court is stated to have erred in arriving at a conclusion that the evidence as has come on record by way of the testimony of PW-6, Raman Kumar and PW-7, HC Naresh Chand is contradictory. In a nut shell, it has been emphasized that the prosecution has been able to prove its case against the accused beyond all reasonable doubt and, as such, the impugned judgment whereby he has been acquitted is neither legally nor factually sustainable.

On analyzing the rival submissions and the evidence available on record, the case as set out by the police against the accused in the report filed u/s 173 of the Code of Criminal Procedure and the documents annexed thereto, in a nut shell, is that on 24.9.2006 at about 5.00 p.m. when a policy party headed by PW-4, Sanjay Sharma, the then Inspector/Station House Officer, Police Station, Manali was patrolling in Dhungri Forest area, PW-4 directed PW-7, Head Constable Naresh Chand alongwith Constable Raman Kumar, Constable Uttam Chand and Constable Suresh to do patrolling in Dhungri forest. While patrolling in the forest, the police party allegedly noticed the accused having hidden himself behind deodar tree on seeking the police party. On suspicion, he was overpowered and his antecedents verified. He allegedly was given option qua his search either before a Magistrate or a Gazetted Officer. He, however, opted for being searched by the police itself. The independent witnesses could not be located. Therefore, PW-7 conducted the personal search of the accused in the presence of PW-6, Constable Raman Kumar and Constable Uttam Chand. The accused was found having concealed one polythene envelope underneath arm pit inside the sweater worn by him. On opening the polythene envelope it was found containing charas in the shape of rounds (chapattis) and sticks. The same was found to be wrapped in polythene papers. When weighed, the recovered charas was found to be 200 gms. After resorting to search and seizure, rukka Ex. PU was prepared and forwarded to Police Station, Manali through Constable Raman Kumar. When PW-4, the Station House Officer arrived at the spot, the case property was produced before him. He re-sealed the same with seal ''H''. The accused was apprised about the offence he committed and the provision of sentence under the Act for the commission of the said offence. He was taken into custody. Special report was prepared and forwarded to the supervisory officer, i.e. Deputy Superintendent of Police, Manali. On an application filed u/s 52-A of NDPS Act before the Judicial Magistrate 1st Class, Manali, representative sample of the recovered contraband was taken and on getting the same analyzed, the same was found to be that of charas.

The present is a case where the independent witnesses have not been associated at the pretext of not available though efforts allegedly were made to trace out the independent witnesses by deputing PW-6, Raman Kumar. The entire prosecution case, therefore, rests upon the testimony of the official witnesses, i.e. Constable Raman Kumar (PW-6) and Head Constable Naresh Chand (PW-7).

It is well settled at this stage that police witnesses are as much as good as an independent person, however, the evidence as has come on record by way of their testimony, needs close scrutiny with all care and circumspection. It is held so by the Apex Court in Girja Prasad (Dead) by LRs. Vs. State of Madhya Pradesh, which reads as follows:-

"In our judgment, the above proposition does not lay down correct law on the point. It is well-settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a Court of Law may not base conviction solely on the evidence of complainant or a Police Official but it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a Police Official as any other person. No infirmity attaches to the testimony of Police Officials merely because they belong to Police Force. There is no rule of law which lays down that no conviction can be recorded on the testimony of Police Officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the Court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence."

Now if coming to the testimony of PWs-6 and 7, learned trial court has not committed any illegality or irregularity while discarding the same being contradictory on material aspects of the prosecution case. Significantly, as per the testimony of PW-7, Naresh Chand, the recovered charas was in the shape of rounds (chapattis), whereas, as per that of PW-6 Constable Raman Kumar, the same was in the shape of sticks. In the rukka Ex. PU, the contraband allegedly charas recovered from the accused was in the shape of rounds (chapattis) and sticks. It is thus seen that there are three different versions qua the shape of the contraband recovered from the accused. The perusal of rukka further reveals that the recovered charas in the shape of rounds (chapattis) was wrapped in a polythene paper, whereas, that in the shape of sticks was without any wrapper. PWs-6 and 7, however, have not stated so while in the witness box. They do not tell us that the recovered charas in the shape of rounds (chapattis) was wrapped with polythene papers. Neither of them has stated that the recovered charas was in the shape of rounds (chapattis) and sticks. PWs-6 and 7 are police witnesses, therefore, in view of such contradictions qua the material aspects in their respective statements, it is not safe to place reliance thereon.

The other glaring discrepancy in the prosecution case is qua re-sealing of parcels containing recovered contraband by PW-4, the Station House Officer. According to PW-7 Naresh Chand, PW-4 had come to the spot and when he produced the parcels containing case property before the said witness, he re-sealed the same with seal ''H''. PW-6 Raman Kumar has, however, denied the presence of PW-4 on the spot as according to him the said witness had not met him there. Meaning thereby that the prosecution story qua re-sealing of the case property by PW-4, the Station House Officer inspires no confidence and it appears that the investigation has not been conducted in a fair manner. When the place where the accused was intercepted, as per the version of PW-6, is at a distance of 1 1/2-2 Kms. from village Dhungri and shops as well as hotels are located near Dhungri Temple, the story that no one could be traced out for being associated as independent witness also appears to be false, fabricated and concocted, particularly, when the search and seizure had taken place during broad day light, i.e. 5.00 p.m.

Interestingly enough, the parcels containing case property when produced before the Judicial Magistrate were found to be sealed with 8 seals. It is not known that 8 seals were on each parcel or both parcels.

If coming to the rukka Ex. PU, PW-7 affixed 3 impressions of seal ''T'' on each parcel. The extract of Malkhana Register Ex. PE reveals that each parcel was found to be re-sealed with 3-3 seals of seal ''H''. Therefore, 8 seals could have not been either on both parcels or on one parcel. Meaning thereby that it is the parcels containing the charas allegedly recovered from the accused alone were produced before the Magistrate, is highly doubtful. Therefore, in the absence of cogent and reliable evidence, it is the representative samples drawn from the bulk recovered from the accused in the presence of the Magistrate alone is got analysed not at all proved beyond all reasonable doubt. Therefore, it cannot be said that the report of Forensic Science Laboratory Ex. PH is in respect of the sample drawn in this case.

In view of reappraisal of the given facts and circumstances and also the evidence available on record, in our considered opinion learned trial court has not committed any illegality or irregularity in acquitting the accused of the charge framed against him. Therefore, this appeal being without any force is hereby dismissed. Bail bond furnished by the accused shall stand cancelled and the surety discharged. Pending applications, if any, shall also stand disposed of.