State Of Himachal Pradesh vs Desh Raj

Vivek Singh Thakur, J

1.The State of Himachal Pradesh has preferred this appeal against a judgment dated 18.03.2015, passed by Special Judge Mandi, District Mandi in Session trial No.17/2010 titled as State of H.P. Vs Desh Raj in case FIR No. 277/2009, dated 02.12. 2009, registered in Police Station Jogindernagar, District Mandi (Ex. PW-11/B) under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act), whereby respondent accused has been acquitted of the charge under Section 20 of NDPS Act.

The prosecution case is that a police party led by PW-10 SI Dharm Singh consisting Head Constable Chander Shekhar (PW-11) Home Guard Suresh Kumar (PW-4), Home Guard Subhash Chand, and Home Guard Rawat Singh left the police station at 2:30 PM on 2.12.2009 in official vehicle HP-33-6973 being driven by HHC Kuldeep Singh (PW-6) for patrolling in the jurisdiction of Police Station Jogindernagar after recording their departure in GD Entry No.26 (A) daily station diary Ex.PW-5/A.

It is further case of the prosecution that aforesaid police party set-up a nakka at about 04:00 PM on National Highway 20 at a place half Km from Galu for checking vehicles and pedestrians, and while they were doing so at about 6 PM, a bus of Jogindra transport, enroute from Mandi to Jogindernagar, was stopped on the signal of PW-3 HHC Malik Chand on the side of the road. PW-10 SI Dharam Singh entered the bus from front door whereas PW-11 HC Chander Shekhar entered the bus from the rear door and they started checking the luggage of passengers of the bus and when they reached at seat No.19, a person was found sitting alongwith white coloured one bag with black and carrot colour flowers thereon. On checking, a poly bag containing stick shape black coloured substance was found in the bag. On smelling, it was identified as charas. On inquiry, the said person disclosed his name and identity as respondent. PW-6 HHC Kuldeep Singh was sent for bringing weighing scale, who, from PW-7 Surender Kumar, a nearby shopekeeper, brought weighing scale with weights of 1 kg, 500 grms, 200 grms, 100 grms and 50 grms weight measures. PW-8 Sanjiv Kumar driver of the bus and Raj Kumar (not examined) conductor of the bus were associated in search and seizure process as witnesses and in their presence recovered charas was homogeneously mixed and on weighing, it was found 400 grms. It was again put in the poly bag and the same was put in the same bag wherefrom it was recovered and bag was taken in possession by putting it in a cloth parcel sealed with the three seals of seal 'X' and sample seal was taken on a cloth and Seal impression was also taken on NCB Form (Ex. PW-10/A) and thereafter the seal was handed over to PW-8 Sanjiv Kumar. The seizure memo Ex. PW-8/A was signed by witnesses as well as respondent-Desh Raj.

On finding commission of offence under Section 20 of NDPS Act, PW-11 HC Chander Shekhar prepared rukka Ex. PW-4/C and sent the same to SHO Police Station Jogindernagar through HHG PW-4 Suresh Kumar. On receiving rukka in Police Station, FIR No.277/2009 was registered and after making endorsement on the rukka regarding registration of FIR number, case file was sent to the spot through PW-4 Suresh Kumar.

PW-11 HC Chander Shekhar prepared the spot map (Ex.PW-11/A), recorded the statement of the witnesses and after arrest of respondent vide arrest memo (Ex. PW-4/A), the arrest was communicated to Balak Ram Sharma, brother of the respondent, as desired by the respondent.

On reaching in the Police Station, recovered contraband along with documents was produced before PW-10 SI Dharam Singh Thakur who resealed the contraband with seal 'I' Specimen of seal was taken on piece of cloth as well as NCB Form (Ex. PW-10/A), remaining columns of NCB Form (Ex. PW-10/A) were filled by PW-10 SI Dharam Singh and thereafter he prepared the resealing memo (Ex. PW-1/C) and handed over the case property to PW-1 MHC Mangat Ram the then MHC. Thereafter PW-10 Dharm Singh recorded GD Entry 42(A) (Ex.PW-5/B) in this regard.

Special report (EX.PW-2/A), prepared by Investigating Officer PW-11 Chander Shekhar, was sent to SDPO Sarkaghat through constable PW-2 Bansi Lal by recording GD Entry No.19(A) dated 04.12.2009 at 10:30 AM (EX.PW-5/C). PW-1 HC Mangat ram (MHC) sent the recovered contraband to FSL Junga for chemical analysis through constable PW-3 Malik Chand No.300 vide RC No.198 of 2009 (Ex.Pw-1/A), who after depositing the case property in State FSL, handed over the receipt thereof to PW-1. The abstract of malkhana register of Ex. PW-1/B is with regard to deposit of case property in the malkhana and sending the same to the FSL. After receiving chemical analysis report (EX.PW-11/F) from State FSL, the recovered contraband was confirmed as charas. Thereafter, challan was prepared and presented in the Court.

On finding sufficient prima facie material against the respondent, charge under Section 20 of NDPS Act was framed against him and not for pleading guilty, respondent was subjected to trial.

Prosecution has examined 11 witnesses to substantiate its case whereas, after recoding evidence under Section 313 Cr.P.C. no evidence was led by the respondent, in defence.

After assessing and evaluating the material placed on record in evidence, Trial Court has acquitted respondent.

PW-11 HC Chander Shekhar is an Investigating Officer whereas PW-10 Dharam Singh, PW-3 Malik Chand, PW-4 Suresh Kumar and PW-6 Kuldeep Singh are police officials, who left the Police Station along with Dharam Singh and laid nakka at Galu. PW-3 Malik Chand as per prosecution story has also been examined as a spot witness who stopped the bus at the spot.

PW-1 Mangat Ram is MHC who has been examined to prove deposit of case property and sending thereof to FSL Junga. PW-2 Constable Bansi Ram sent to SDPO Sarkaghat to submit special report. PW-5 Parmod Kumar has been examined to prove entering of daily diary reports No.26(A), 42(A) dated 02.12.2009 and 19(A) dated 04.12.2009 as Ex.PW-5/A, Ex.PW-5/B and Ex.PW-5/C. PW-7 Surender Kumar, a karayana shopekeeper running a shop at place Galu, has been examined to prove that PW-6 Kuldeep Singh had arranged weighing scale and weights from him.

PW-9 HC Chint Ram has been examined to prove receipt of special report Ex. PW-2/A by Anil Dutt, SDPO, Sarkaghat, who after making endorsement on the special report had handed over the same to this witness who was posted as Reader to SDPO at that time. Apart from PW-3 Malik Chand PW-4 Suresh Kumar, PW-6 Kuldeep Singh, PW-10 Dharam Singh and PW-11 Chander Shekhar independent witnesses, PW-4 Suresh Kumar and PW-8 Sanjiv Kumar and Raj Kumar were also present on spot.

Though PW-8 Sanjiv Kumar, in his examination-in-chief appears to be corroborating the story of the prosecution but it is also a fact that in his examination-in-chief he had refused to identify the accused as a person who was apprehended by the police party in the bus along with contraband. In his examination-in-chief he has also stated that bag was found beneath the seat No.19 of the bus. He was declared hostile for request made by Public Prosecutor for resiling from his previous statement. In cross examination he has stated that it was correct that accused, present in Court, was the same person from whom contraband was recovered and who had disclosed his name as Desh Raj on inquiry. However, in cross-examination on behalf of the accused he has stated that no search was conducted by the Police inside the bus in his presence and the luggage of the passenger was lying on the shelf of the bus and two boys were apprehended by the police on the spot and there was one bag and as no search was conducted in his presence he was not able to tell from where the bag was recovered by the police.

It is undoubtedly settled principle that entire evidence of hostile witness has not to be brushed aside only on the ground that the witness has been declared hostile and his deposition corroborating the prosecution story or the defence can be taken into consideration for conviction or acquittal of an accused. However, in the present case initial corroboration of the prosecution case in examination-in-chief is of no help to the prosecution as at one place he has refused to recognize the accused but in cross-examination he has identified him as a respondent but in cross-examination by the defence counsel a parallel story has been disclosed. Thus, the statement of this witnesses is of no help to the prosecution rather it may help to the respondent in the given circumstances of the present case.

Perusal of GD Entry Pw-5/A depicts that PW-10 Dharam Singh left the Police Station along with PW-11 Chander Shekhar, Subhash Chand, PW-4 Suresh Kumar, Rawat Singh in official vehicle driven by PW-6 Kuldeep Singh. This report does not have name of PW-3 Constable Malik Chand as a person accompanying the police party whereas prosecution case is that bus was stopped by PW-3 Malik Chand. When he was not a member of police party at the time of laying nakka on the spot then wherefrom he appeared on the spot and stopped the bus. In case, GD Entry PW-5/A has to be considered to be genuine then PW-3 Malik Chand was not on the spot. If he was along with the Police Party and GD Entry PW-5/A is not reliable. It is a irreconcilable discrepancy. PW-3 Malik Chand is completely silent about his presence on the nakka. He has not uttered even a single word about going with the police party, signaling to stop the bus much less about the sequence of events taken place on the spot at the time of investigation. He has only deposed about taking the recovered contraband along with documents to FSL Junga and after depositing the same, submission of receipt thereof to PW-1 Mangat Ram.

Similarly, PW-10 Dharam Singh was leading the police party as per prosecution case. It was he who entered in the bus from the front door. But when he deposed in the Court, he is also silent about departure of police party in his leadership vide GD Entry Ex. PW-5/A. He has also not uttered even a single word about laying nakka, entering in the bus, recovery of the bag from seat No.19 and other events taken place on the spot. He has only deposed about resealing of the contraband, which according to him, has deposited by PW-11 Chander Shekhar in the Police Station. When he was on the spot and had recovered the bag from the respondent then how and in what circumstances and at what time he came back to the police station is a mystery. Though in his cross-examination he has admitted that the police party had left the Police Station in his supervision at about 2:35 PM but in examination-in-chief he has not stated so. In any case his departure from the Police Station, presence on the spot and again presence in the Police Station to receive the contraband for resealing remains doubtful.

According to PW-4 Suresh Kumar bag was recovered by Dharam Singh beneath the seat No.19 occupied by the accused whereas PW-11 Chander Shekhar has deposed that it was he who recovered the bag kept between the legs by the accused. It is irreconcilable contradiction.

According to PW-11 Chander Shekhar bag was kept by the accused between his leg on the seat, whereas according to PW-4 Suresh Kumar it was under the Seat No.19 and according to PW-8 Sanjiv Kumar, the bag was beneath the seat No.19.

PW-10 Dharam Singh is completely silent in this regard despite that he was a member of the leading party and had entered in the bus from the front door for searching the luggage of the passengers.

There is no evidence on record at what time PW-10 Dharam Singh was left the spot and reached the Police Station and when he was on the spot and contraband was recovered by him or in his presence then how case property along with accused was produced in Police Station for resealing the contraband by him.

In aforesaid material on record, the presence of PW-10 Dharam Singh as well as PW-3 Malik Chand is under cloud and they are star witnesses of the prosecution but the aforesaid discrepancies and contradictions cast the serious doubt about the veracity of the prosecution case.

According to PW-4 Suresh Kumar case property was taken in possession in a parcel of cloth by sealing it with seal impression 'C', whereas, according to prosecution case, the case property sealed with three impression of seal 'X'.

PW-4 Suresh Kumar has stated that within two minutes after entering the bus, PW-10 SI Dharam Singh came out with bag in his hand and two boys accompanying him.

According to PW-6 Kuldeep Singh has also deposed that the moment PW-10 Dharam Singh boarded the bus, he came out with the bag in his hands and two boys. PW-8 Sanjiv Kumar has also stated the same thing that police official had come out from the bus along with bag and two boys. PW-11 Investigating Officer has also stated that it was correct that two boys were apprehended from the bus by him and SI Dharam Singh, but he has also stated that second boy who was apprehended by him was perhaps seating on seat No.23-24, but he has not explained what happened to the second boy and why he was apprehended. In cross-examination, he has reiterated that two boys were brought out from the bus along with a bag. He has also admitted that HHC Malik Chand was not with them when they left the Police Station.

The entire evidence on record casts serious doubt about the genesis of the prosecution case. It is not a case where non-official witnesses have failed to establish consistent story and stand of the prosecution on record, but here the police officials including the Investigating Officer who have admitted that two boys were brought from the bus along with a bag but again they are silent. This fact is in contrary to the prosecution case put forth in the challan. Regarding departure members of the police party, stopping of the bus, manner of recovery of bag, there are irreconcilable discrepancy which creates doubt.

Respondent has a benefit of being acquitted by the Trial Court fortifying presumption of his innocence and learned Additional Advocate General has not been able to point out any reliable, cogent and convincing evidence on record to rebut the presumption of innocence by establishing the prosecution case beyond reasonable doubt so as to warranting interference in judgment of acquittal in this appeal.

In view of above discussion, we are of the considered opinion that there is no merit in appeal accordingly appeal is dismissed. All pending miscellaneous application, if any, also stand disposed of accordingly.

Record of learned Trial Court be sent back forthwith and bail bonds furnished by respondent stand discharged.