State of Himachal Pradesh vs Surinder Kumar

Deepak Gupta, J.—This appeal by the State is directed against the judgement dated 18.11.2003 passed by the learned Additional Sessions Judge, Una in Sessions case No. 57 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-6 Constable Ranjit Singh, who was in plain clothes, was trying to collect information about the persons dealing with contrabands and narcotics in the area of Pirnigah temple on 13.09.2001. PW-6 Ranjit Singh received secret information that the accused is indulging in the sale of charas from his Khokha where he used to sell confectionery and cold drinks. Thereafter PW-6 decided to inform his superior officials and when he was on his way to Una he met the patrolling party headed by PW-9 ASI Akshay Kumar and PW-7 LHC Vipan Kumar. He informed Akshay Kumar about the information which he had received who in turn recorded the information as a statement u/s 154 Cr.P.C. and sent it through PW-7 to the Police Station Una where on this basis F.I.R Ext.PW-5/C was registered by PW-5 Inspector Dharam Chand.

PW-9 associated two independent witnesses PW-8 Sham Singh and Vashisht Kumar (not examined) with the party. The case of the prosecution is that the personal search of the accused was conducted after complying with the provisions of Section 50 of the NDPS Act and 25 gms charas was found in the pocket of the shirt of the accused and out of this charas two samples of 5 grams each were drawn and thereafter two samples and the remaining 15 grams charas were packed in three separate parcels and sealed with seal impression ''M''. These parcels were taken into possession vide memo Ext.PW-6/B.

Further the case of the prosecution is that the accused made a statement Ext.PW-8/D u/s 27 of the Evidence Act in the presence of the independent witnesses PW-8 Sham Singh and Vashisht Kumar disclosing that he could get recovered more charas which he had concealed inside his Khokha. Thereafter, the accused went inside his Khokha and got recovered charas weighing 900 grams in a polythene bag from a tin box. This charas was weighed and two samples of 10 grams each were drawn and the two samples and the remaining charas were packed in three separate parcels and sealed with seal bearing impression ''M'' and these were taken into possession vide memo Ext.PW-6/C. The sample seal impression Ext.PW-9/B was handed over to PW-8 Sham Singh.

The case of the prosecution is that after completing the codal formalities on the spot PW-9 S.I. Akshay Kumar alongwith the accused went to the Police Station where he had handed over the case property and the accused to PW-5 Insp. Dharam Chand who resealed the case property with his own seal bearing impression ''A'' and deposited the same with PW-2 MHC Ved Prakash. Thereafter two samples were sent to the CTL Kandaghat for analysis through PW-3 Constable Sansar Chand and it was reported that both the samples contained charas. On this basis the accused was charged with having committed the aforesaid offence. The accused pleaded not guilty and claimed trial. The learned trial Court after trial acquitted the accused. Hence, this appeal by the State.

The main ground which weighed with the learned trial Court was that the independent witnesses had not at all supported the prosecution case. The law is very well settled that even if independent witnesses turn hostile the statements of the official witnesses cannot be brushed aside. They are as good witnesses as other witnesses and merely because they happened to be police officials do not mean that they are to be straightway brushed aside. At the same time there is an important caveat i.e. that the statements of the official witnesses must be consistent and there should not be any discrepancies in their statements. In case there are discrepancies in the statements of the witnesses these cannot be relied upon and the benefit will have to be given to the accused.

As far as the present case is concerned PW-8 Sham Singh independent witness did not support the prosecution story at all and turned hostile. He was cross-examined at length but stuck to his version that he was made to sign blank papers in the police station. He denied that any search took place in his presence or that he had signed the memos at the spot. According to him he had been called to the police station later on and made to sign them.

The other independent witness Vashisht was not even examined in Court and was given up as having been won over. No doubt, it is the prerogative of the Public Prosecutor to decide which witness is to be examined and which witness is not to be examined but if one of the independent witnesses has turned hostile and the other independent witness is given up as having been over won over, it obviously means that the prosecution accepts that the other witnesses would not support the prosecution case. The purpose of getting the witness declared hostile is that the Public Prosecutor during cross-examination can elicit certain facts from him which could discredit that portion of the statement which is hostile to the prosecution case. If the prosecution does not choose to examine the second independent witness it obviously implies that he has not supported the prosecution case at all. Be that as it may, the fact remains that the independent witnesses have not supported the prosecution story.

Coming to the police witnesses, surprisingly though Constable Upnesh Kumar and LHC Vipan Kumar have been examined as PW-1 and PW-7 but they have not stated a word about the search part of the operation. According to PW-1 he carried the secret information to the police station and according to PW-7 he carried the Ruqua to the police station. In a case where information has been sent, after recording a statement u/s 154 Cr.P.C., to the police station for recording the F.I.R we see no reason why another Ruqua had to be sent to the police station. The purpose of sending a Ruqua is only that the police station is informed and an F.I.R is lodged. The F.I.R had been already lodged on the statement recorded u/s 154 Cr.P.C. When independent witnesses turned hostile it is the duty of the prosecution to examine as many as the police officials who can support the version of the prosecution.

In the present case there is no major contradiction in the testimony of PW-9 S.I. Akshay Kumar and PW-6 Constable Ranjit Singh but there is a definite improvement in the case put up by them. According to PW-2 the case property was deposited by PW-9 Akshay Kumar. However when he was confronted with the Malkhana Register it is apparent that though the name of Akshay Kumar was written earlier later the name of Dharam Chand was also added. Dharam Chand PW-5 also states that he had affixed the impression of seal on the NCB form but the NCB form bears no such seal impression. This casts a doubt and the link evidence in this case is missing and it cannot be said with certainty that what was deposited with the Malkhana was the same stuff which was seized at the spot. In view of the above discussion, we are of the view that the learned trial Court was justified in taking a view which favoured the accused and it cannot be said that the judgement of the learned trial Court is perverse and calling for interference in appeal. We, therefore, find no merit in the appeal, which is accordingly dismissed. Bail bonds are ordered to be discharged.