State of Himachal Pradesh vs Subhash Singla

Deepak Gupta, J.—This appeal by the State is directed against the judgment dated 2.1.2002 passed by the learned Sessions Judge, Bilaspur, in Sessions trial No. 16/3 of 2001 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 PW-7 ASI Rajinder Singh had laid a Naka at Kainchimour near Swarghat. At that time he was accompanied by ASI Gautam Chand, HC Vinod Kumar, HC Raghubir Singh, HC Karam Chand, Constable Dev Raj and Constable Sher Singh. At about 2.45 p.m on 5.7.2001 a bus bearing registration No. CH-0IG-8152 belonging to Chandigarh Roadways was stopped. This bus was going from Manali to Chandigarh. PW-7 ASI Rajinder Singh alongwith PW-2 Vinod Kumar entered the bus and checked the luggage of the passengers. According to the prosecution the accused was sitting on seat No. 29 with his luggage. He had kept one Pithu (rucksack) between his legs. Behind this Pithu there was another polythene bag. Inside the polythene bag there was another polythene packet which was wrapped in a piece of cloth. When the cloth and the inside plastic cover were opened the contraband was found which on smelling appeared to be charas. Thereafter, the accused, who was alleged to be the owner of the aforesaid bag alongwith the witnesses, was taken to the police check post. On weighment the entire charas was found to be 1 Kg. and 700 grams. From the charas so recovered, two samples of 25 grams each were drawn and thereafter these samples and remaining charas were sealed in three separate cloth parcels bearing seal impression �A�. Seizure memo Ext.PB was prepared and the Pithu was taken into possession vide seizure memo Ext.PH. After completing other codal formalities the case property was brought to the police station and the same was handed over to PW-8 Shri Chamel Singh, SHO, who in turn resealed the said parcels with seal bearing impression �R� and he handed over the same to PW-4, MHC Surinder Paul. Thereafter, one of the samples was sent to the CTL Kandaghat and on chemical analysis vide report Ext.PP the sample was opined to be that of Charas having resin content of 28.6%. On the basis of the aforesaid material the accused was charged with having committed an offence punishable u/s 20 of the Act.

The accused does not deny that he was traveling in the bus. However, according to him the Pithu and the polythene bag did not belong to him but belonged to two Sikh gentlemen who were sitting on the last seat of the bus. Therefore, in a sense the accused does not deny the recovery of the rucksack and the plastic bag. The only question is whether the same were recovered from his exclusive and conscious possession or not.

PW-7 ASI Rajinder Singh has supported the prosecution version. Similarly, PW-2 Head Constable Vinod Kumar, who is the other police official who entered the bus, has also supported the prosecution version. However, two independent witnesses who have been examined by the prosecution have not at all supported the prosecution version.

PW-1 Gian Singh was the conductor of the bus. According to him when the bus was being checked he and the driver had come out of the bus and they were not inside the bus. According to him there was only one door in the bus and the police had brought out one person i.e. the accused who was carrying a bag in his hand which was made of plastic. A suggestion was put to this witness that the accused was carrying one Pithu (rucksack) which he had kept on his legs and one polythene bag which he had kept on the side of his seat. The witness stated that he had not seen these articles with the accused. He, however, admits that the charas was recovered from the plastic bag in his presence but according to him the bag was checked in the police hut at Kainchimour and not inside the bus. He was declared hostile and cross-examined at length by the prosecution but has stuck to his original version that he was not present inside the bus when the checking was done. In cross-examination by the accused he stated that the accused was crying at that time and saying that the plastic bag Ext.P-1 does not belong to him.

PW-3 Shri Tej Singh the other independent witness was a passenger in the bus. When examined by the prosecution he admitted that the police had carried out the checking in the bus and had checked the luggage of all the passengers. According to him he was occupying a seat in front of the last bench at the rear of the bus. After his luggage was checked the police checked the luggage of one passenger sitting behind him. There were two Sikh gentlemen sleeping in the last bench and the police had taken out the charas which was kept in a polythene bag from below their seats. At this stage the witness was declared hostile. A suggestion was put to him that he has made a false statement in Court to help the accused but he stuck to his version. The driver of the bus was not examined and given up on the ground that he had been won over by the accused.

It would be pertinent to mention that the prosecution case is that the accused was carrying two bags i.e. a Pithu (rucksack) and a plastic bag. Inside the plastic bag there was another plastic bag wrapped in a piece of cloth. Neither the rucksack nor this piece of cloth have been taken into possession or exhibited in Court.

Keeping in view the aforesaid factors the learned trial Court came to the conclusion that the prosecution had failed to prove beyond reasonable doubt that the contraband was recovered from the exclusive and conscious possession of the accused. This is a view which is possible to be taken on the facts and circumstances of the case. It cannot be said that this view taken by the trial Court is perverse calling for interference in an appeal against acquittal. Therefore, we find no merit in the appeal, which is accordingly dismissed. The bail bonds are discharged.