State of Himachal Pradesh vs Roshan Lal

R.B. Misra, J.—The present appeal has come up for consideration after leave to appeal has been granted u/s 378(3) Code of Criminal Procedure in reference to the impugned judgment dated 14.12.2001, passed by the learned Sessions Judge, Bilaspur, H.P, in Sessions Trial No. 15 of 2001, acquitting the accused-Respondent for the offence u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ''the NDPS Act'').

The prosecution case, in brief, is that on 10.5.2001, at about 11.45 P.M, the accused, while traveling in an HRTC bus No. HP-42-792 from Manali to Delhi and occupying seat No. 21, was found carrying a plastic hand bag of yellow colour kept on his lap and on search charas was found inside the bag. The charas was taken into possession and the same was weighed and found to be 510 grams. Thereafter, two samples each, weighing 25 grams, were taken from the charas and the same were put in two separate cloth parcels and the remaining charas was also put in a separate cloth parcel and thereafter all the three parcels were sealed with seal "PS". Memo was prepared which was signed by the accused and the witnesses. Rukka was sent to Police Station, Sadar Bilaspur, in that reference FIR was registered. Special report was sent to the Superintendent of Police, Bilaspur and the incriminating material was kept in malkhana. On 12.5.2001, one sample parcel was sent to Chemical Examiner.

In support of its case, the prosecution has examined 7 witnesses. Out of these 7 witnesses, S/Shri Bahadur Singh (PW-3), Nagesh Kumar (PW-4) and Pritam Singh, SI (PW-6) are the eye-witnesses, while the remaining are formal witnesses. Out of these 3 eye-witnesses, S/Shri Bahadur Singh (PW-3) and Nagesh Kumar (PW-4) are the independent witnesses, while Shri Pritam Singh SI is the investigating officer. Apart from this, the prosecution has led in evidence documents, which are Exts. PA to Ext. PH and Ext. PJ to PN. Further during the trial, the prosecution had also produced in the Court bag Ext.P-1, Charas Ext.P-2 and sample of Charas Ext.P-3. The accused-Respondent, through his statement u/s 313 Code of Criminal Procedure , has denied the prosecution case.

PW-1, HC Kuldeep Singh as MHC, has stated that on 11.5.2001, Shri Siri Ram, Inspector-SHO, handed over him 3 sealed parcels sealed with seal "M", which PW-1 kept in the malkhana and on 12.5.2001 sent one sample parcel, sealed with seal ''M'', to Chemical Examiner, Kandaghat, through constable Ram Singh, No. 230, vide RC No. 20/2001. PW-2 constable Ram Singh carried one sample parcel along with sample seal and docket to Chemical Examiner, Kandaghat vide RC No. 20/2001 and after delivery at Kandaghat he obtained receipt, which was handed over to MHC, PW-1. PW-3 Bahadur Singh, driver of bus No. HP-42-792, was driving the said bus from Kullu to Delhi, wherein, Nagesh Kumar PW-4 was conductor. As per PW-3, the bus was checked by the police at Lakhanpur near Bilaspur at about 12 night.

One Police Inspector went inside the bus and the driver (PW-3), conductor (PW-4) and passengers were asked to go outside the bus. Thereafter, the police inspector took signatures of PW-3 on the blank paper and the bus was allowed to go. PW-3, an independent witness, did not support the prosecution case even in the cross examination. As such, he was declared hostile. PW-4 Nagesh Kumar, conductor of the bus, has stated that the bus was checked on the way by the police at 3-4 places and the last checking was done at Lakhanpur near Bilaspur at about 11.30 P.M. and nothing was found after checking inside the bus. PW-4 did not support the prosecution case. PW-5, HC Vijay Kumar, while working as Reader to the Superintendent of Police, Bilaspur, had received special report and placed the same before Addl. Superintendent of Police, Bilaspur. PW-6, SI Pritam Singh, had laid nakka for traffic checking and detecting excise cases. At 11.45 P.M. checked one bus bearing No. HP-42-792, coming from Manali going towards Delhi. Checking was made in the presence of HC Mast Ram, HC Jag pal, constables S/Shri Brij Lal, Ram Singh and PW-3, Bahadur Singh/(driver) and PW-4, Nagesh Kumar/(conductor). On checking, passenger, sitting on seat No. 21, was found carrying one plastic hand bag of yellow colour, from which charas was recovered and weighed inside the bus and the same was found to be 510 grams. Thereafter, two samples, each of 25 grams, were taken from the recovered contraband and were put in two separate cloth parcels and the remaining charas was also put in the cloth parcel and all the parcels were sealed with seal ''PS''. Seizure memo was prepared over which signatures of P Ws 3 and 4 were obtained. Special report was sent to the Superintendent of Police, Bilaspur. PW-6, in his cross examination, has stated that he left police line at 10.00 PM for laying traffic barrier and at that time he was not having any prior information regarding contraband being carried in the bus. 40-50 vehicles were checked on that night and two Head Constables were accompanying him inside the bus and other constables remained outside the bus. Ram Singh constable brought weighing scales and weights and the owner of weighing scales and weights had also come with Ram Singh. PW-6 further stated that there was light in the bus and 50 passengers were sitting in the bus. However, no passenger was associated as none of them had agreed. PW-6 did not feel any necessity to cite two head constables and two constables as witnesses.

PW-7, Siri Ram, Inspector/S.H.O., had received rukka Ext.PL, on the basis of which FIR was recorded and also received three parcels sealed with seal ''PS'' from Pritam Singh

On analysis of ''NCB Form''/Ex.PJ, we notice that the FIR has been mentioned by the same ink in routine manner and facsimile seal has not been put on ''NCB From''. It does SI PW which he re-sealed with seal ''M'' and kept in malkhana and subsequently sent to Chemical Examiner through a constable. not reflect that ''NCB Form'' was prepared on the spot. In the absence of facsimile seal on Ex.PJ, it cannot be said with certainty that the contraband good was the same against which report from the Chemical Examiner has been received. Two independent witnesses PW-3 Bahadur Singh/(driver) and PW-4 Nagesh Kuimar/(conductor), have not supported the prosecution case at all. PW-4 has stated that the bus on its way from Manali to Delhi was checked at 3-4 places and lastly it was checked at Lakhanpur near Bilaspur and driver, conductor and passengers were asked to go outside the bus at the time of checking. P Ws 3 and 4 were asked to put signatures on a blank paper. As per testimony of PW-6, there were 50 passengers in the bus, but surprisingly no passenger was associated as an independent witness and the two independent witnesses, driver and conductor of the bus have not supported the prosecution case. When no independent witness out of those 50 passengers was associated and in view of testimony of PW-3 that all the passengers along with driver and conductor were asked to go outside the bus, in such a condition it is difficult to know as to how the bag was said to be associated with the accused and how the contraband good was recovered from the exclusive and conscious possession of the accused Respondent. As per the testimony of PW-6, charas was weighed inside the bus, which was found to be 510 grams and the person, who brought the weighing scales and weights, was surprisingly not examined. From the statements of police officials also except PW-6, PW-1, PW-2, PW-5 and PW-7 have not indicated anything that the recovered charas was weighed inside the bus itself. Nothing is known that after sealing the samples the seal was handed over to any particular prosecution witness.

8 In the facts and circumstances, the statements of police officials are not inspiring confidence. In the absence of support of any independent witness and for lack of inspiring confidence the statements of the police officials cannot be said to be conclusive to bring home guilt to the accused. In our considered view, the prosecution cannot be said to have proved its case beyond reasonable doubt. Accordingly, the appeal is dismissed being devoid of any merit.

The bail bonds furnished by the accused-Respondent are discharged.