State Of Himachal Pradesh vs Rakesh Kumar & Anr

Vivek Singh Thakur, J

State has preferred this appeal against judgment dated 21.12.2013 passed by Special Judge-II, Solan, District Solan in Sessions Trial No.12-S/7 of 2010 titled 'State of Himachal Pradesh vs. Rakesh Kumar & Anr.' in case FIR No.03/2009 dated 09.10.2009 registered under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act') in Police Station State CID Bharari, Shimla, H.P., whereby the Trial Court has acquitted the respondents of charge under Section 20 NDPS Act.

According to prosecution case, 3.800 Kilogram Charas was recovered from respondents, when they were intercepted by the police party near Ochhghat Bye-pass, Kumarhatti, on 09.10.2009 at about 11:00 am on a motorcycle bearing registration No.HP-07-7088 being driven by respondent No.2-Balak Ram.

Prosecution case is that on 09.10.2009 at about 10:00 am, Sub Inspector/Additional SHO Minakshi Bhardwaj (PW-15), along with Sub-Inspector Keshav Negi (PW-11), Constable Parkash Chand (PW-3) and HHC Laiq Ram (PW-9), was interrogating accused Rajesh Kumar in case FIR No.2 of 2009 dated 08.10.2009 registered under Section 20 NDPS Act in Police Station CID at CID Unit, Solan. During interrogation, Rajesh Kumar disclosed that on 09.10.2009, two persons, namely Rakesh Kumar and Balak Ram, were also coming to Solan on motorcycle bearing registration No.HP-07-7088 for selling Charas.

The aforesaid information disclosed commission of offence under Section 20 of NDPS Act, and therefore, a Written Report under Section 42(2) of NDPS Act was transmitted by Sub-Inspector Minakshi Bhardwaj (PW-15) to Superintendent of Police (Crime Branch), Shimla, through Constable Parkash Chand (PW-3). Thereafter, at about 10:15 am, Sub-Inspector Minakshi Bhardwaj (PW-15) along with Sub-Inspector Keshav Negi (PW-11) and HHC Laiq Ram (PW-9), in an official vehicle bearing registration No.HP-03-1426 being driven by Constable Sanjeev Kumar, proceeded towards Nauni (Ochhghat) after handing over case file of FIR No.2/2009 to Sub-Inspector Jagdish Chand. The police party reached at Ochhghat, Kumarhatti by-pass, at about 11:00 am and set up a Nakka there.

It is further case of the prosecution that at that time two persons came on foot from Nauni side, namely Vikram Singh (PW-1) and Pulkit Jain (PW-14). They, after being informed about the information received, were associated as witnesses. At about 11:30 am, a motorcycle bearing registration No.HP-07-7088 coming from Nauni side was stopped by Investigating Officer-Sub Inspector Minakshi Bhardwaj (PW-15). The rider of the motorcycle parked it and ran away, however, pillion rider was apprehended by the police party, who disclosed his name as Rakesh Kumar with his address. In presence of witnesses, respondent No.1-Rakesh Kumar, was informed about his legal rights to be searched before a Magistrate or a Gazetted Officer, who vide consent memo (Exhibit PW1/B) consented for his search by the Police Party.

A Pithu Bag, recovered from Rakesh Kumar, was opened, wherefrom 3.800 kg Charas was recovered. Recovered Charas was put in polybag and polypacket and were placed in the very Pithu Bag. Pithu Bag was packed in cloth parcel, which was sealed with four seals of impression 'Y'. NCB Form (Exhibit PW6/E) was filled in triplicate. Facsimile of seal impression 'Y' was also taken separately on piece of cloth (Exhibit PW1/E) after embossing the same on the parcel. The case property along with motorcycle bearing registration No.HP-07-7088 was taken into possession vide memo (Exhibit PW1/D). Memos were signed by witnesses as well as accused.

Rukka (Exhibit PW6/C) was prepared by I.O. (PW-15) and was sent to Police Station CID Bharari, through HHC Liaq Ram (PW-9). Site plan (Exhibit PW15/A) was prepared. Statements of witnesses were recorded. Case property along with one copy of seizure memo, NCB Form and Sample Seal was sent to Police Station CID Bharari, through Constable Parkash Chand (PW-3).

After receiving Rukka in Police Station CID Bharari through HHC Laiq Ram (PW-9), Inspector Lal Singh (PW-6) registered the FIR in Police Station CID Bharari (PW6/B) and made endorsement (Exhibit PW6/A) on Rukka to this respect and case file was sent through HHC Laiq Ram (PW-9) to the spot.

Recovered contraband was sent to Police Station CID Bharari, Shimla, through Constable Parkash Chand (PW-3), who produced the same at the Police Station at 9:30 pm. Inspector Lal Singh (PW-6) resealed the parcel with four seals of impression 'C' and filled relevant column of NCB Form and prepared reseal memo (Exhibit PW6/D). Facsimile of seal impression 'C' was taken on NCB Form (Exhibit PW6/E). Sample seal was separately taken as Exhibit PW6/F.

Recovered contraband was sent to State Forensic Science Laboratory through HC Devender Verma (PW-5) vide RC No.2/9 on 12.10.2009.

After receiving FSL report (Exhibit PX) and completion of investigation, Challan was prepared and presented in the Court by S.I. Rattan Singh (PW-10).

Finding a, prima facie, case against the respondents, Charge under Section 20 of NDPS Act, was framed against the respondents.

To prove its case, the prosecution examined 16 witnesses. After recording statement under Section 313 of Criminal Procedure Code, 1973 ('Cr.P.C.'), respondents have examined Harinder Kanwar (DW-1) and Bharat Ram (DW-2) to substantiate the plea of innocence of the accused.

On appreciation of the evidence on record, Trial Court has acquitted the respondents.

As per Rukka, FIR, NCB Form, Seizure Memo etc. recovered contraband was 3.800 kg of Charas. However, weight of Charas in the State Forensic Science Laboratory, as mentioned in SFSL report, was found to be 3.500 kg. There was difference of 300 grams, which is not a small quantity. Therefore, it is difficult to consider that State FSL report pertains to 3.800 kg Charas, alleged to be recovered from the respondents.

As per Investigating Officer-Sub-Inspector Minakshi Bhardwaj (PW-15), on 09.10.2009 at about 10:00 am, Rajesh accused in FIR No.02/2009 was interrogated in presence of Sub-Inspector Keshav Negi (PW-11), HHC Laiq Ram (PW-9) and Constable Parkash Chand (PW-3) and during that interrogation, Rajesh Kumar disclosed about two persons bringing Charas to Solan. present in CID office, Solan, when the reasons to believe were allegedly given to the witness by Sub-Inspector Minakshi Bhardwaj (PW-15) with further statement that on 09.10.2009, he came from Shimla alone to Solan, as he was telephonically told by Superintendent of Police (Crime Branch), Shimla, on the very same day, i.e. 09.10.2009 at about 7:00 am, to go to Solan and he started from Sanjauli and reached at Solan at 9:00 am by travelling in a bus.

According to HHC Laiq Ram (PW-9), on 09.10.2009, he (Laiq Ram) along with Constable Parkash Chand (PW-3) and Sub-Inspector Keshav Negi (PW-11) came to Solan together in a Bus, as they were asked to come to Solan by Superintendent of Police, Crime Office, and they reached Solan at 7:30 am. According to him at Nauni Nakka, they parked their vehicle, i.e. Maruti Car, on the right side of the road, and it was their official vehicle.

According to Sub-Inspector Keshav Negi (PW-11), he came from Shimla alone in a private bus and reached Solan at about 8:00 am and Constable Parkash Chand (PW-3) was already present there and perhaps HHC Laiq Ram (PW-9) was also present. Apart from CIB officials, no other person was present there.

According to Sub-Inspector Minakshi Bhardwaj (PW-15), HHC Laiq Ram (PW-9) reached at Solan at 7:30 am, thereafter, Constable Parkash Chand (PW-3) came and Sub-Inspector Keshav Negi (PW-11) reached at about 8:00 am.

The difference in the timing, mode of vehicle used for coming from Shimla to Solan and discrepancy with regard to their presence in the CID Unit, Solan, is irreconcilable. According to HHC Laiq Ram (PW-9), all three of them, i.e. Constable Parkash Chand (PW-3), HHC Laiq Ram (PW-9) and Sub-Inspector Keshav Negi (PW-11), came together in a bus. Whereas, according to Constable Parkash Chand (PW-3) and Sub-Inspector Keshav Negi (PW-11), they came alone in bus. According to Constable Parkash Chand (PW-3), he reached in CBI Office at 9:00 am, whereas Sub-Inspector Keshav Negi (PW-11) found him in Solan at 8:00 am. According to HHC Laiq Ram (PW-9), they reached at Solan at 7:30 am.

According to prosecution, after recording reasons to believe under Section 42(2) of NDPS Act, Constable Parkash Chand (PW-3) was sent to Shimla at 10:15 am to deliver the same in the Police Station CID, Shimla. Sub-Inspector Minakshi Bhardwaj (PW-15) has stated that she along with HHC Laiq Ram (PW-9) and Sub-Inspector Keshav Negi (PW-11) left the spot in an official vehicle along with Constable Sanjeev Kumar, with further statement that the vehicle was official vehicle Maruti 800 car, but according to Sub- Inspector Keshav Negi (PW-11), the vehicle used by the police party was official vehicle Gypsy, whereas HHC Laiq Ram (PW-9) stated that it was official vehicle Maruti 800 car. There is considerable difference between Maruti 800 car and Gypsy, and police witnesses are not rustic, but are well-versed with the models of the vehicles, especially with regard to difference between a Maruti 800 car and a Gypsy.

According to Sub-Inspector Minakshi Bhardwaj (PW-15), Rukka was sent at about 2:00 pm through HHC Laiq Ram (PW-9) to Shimla. According to HHC Laiq Ram (PW-9), he left the place at 2:10 pm by taking lift on motorcycle up to Solan, and thereafter Solan to Shimla by bus, whereas according to Sub-Inspector Keshav Negi (PW-11), apart from Constable Parkash Chand (PW-3), no other police official left the spot and they had left the spot at 5:00 pm and Constable Parkash Chand (PW-3) reached at Ochhghat at 4:30 pm.

It is also a material contradiction regarding the departure of HHC Laiq Ram (PW-9) and Constable Parkash Chand (PW-3) from the spot. According to Laiq Ram (PW-9), he left Nauni at about 02:00 pm or 02:10 pm, but according to PW-11 Keshav Negi, except Prakash (PW-3), none else left the spot before 05:00 pm, meaning thereby that HHC Laiq Ram (PW-9) left the spot after 05:00 pm. Such considerable difference with respect to time of departure of Laiq Ram (PW-9) from spot is not an insignificant fact.

Independent witnesses, PW-1 Vikram Singh and PW-14 Pulkit Jain have not supported the prosecution case and were declared hostile on request of learned Public Prosecutor for resiling from their earlier statements recorded by the police under Section 161 Cr.P.C. In detailed cross-examination, nothing material could be elucidated in favour of the prosecution. Both of them have admitted signature on the documents, however, they have categorically denied recovery of any Charas in their presence as claimed by the prosecution. PW-1 Vikram Singh has stated that he had signed the memos in the basement of the building in which Office of CID is functioning. He had also stated that he was well-versed with the police officials, as he had been driver of private vehicle of Superintendent of Police-Prem Thakur. This witness, despite having acquaintance with the police, but not acquaintance with the respondents, has not supported the prosecution case.

PW-14 Pulkit Jain, has also stated that he had put his signature on the already-written documents, on the request of the police with information that they had recovered some material and his signatures were obtained at Kotla Nala in a Dhaba, but not at Ochhghat near Kumarhatti bye-pass.

According to prosecution case, the place where motorcycle was intercepted was a secluded place, but HHC Laiq Ram (PW-9) in his statement has stated that a petrol pump and other shops as well as residential houses, were existing at the spot, whereas Sub-Inspector Keshav Negi (PW-11) has stated that no shop was there, but there were two Khokas on the spot, which were closed at that time, and he has expressed ignorance about existence of 20-25 shops at Ochhghat, along with one bank. He has also expressed ignorance about the path leading to Narag from Ochhghat Chowk.

According to Sub-Inspector Minakshi Bhardwaj (PW-15), there were two shops on the spot, but their shutters were down and there was no petrol pump near the spot at that time. There is difference between shops with shutter and Khokhas/Kiosk. There is also discrepancy with respect to existence of petrol pump near the spot. Petrol pump is not a small shop or Khokha, existence or non-existence of which could not have been noticed by the Police witnesses. According to one official witness, there was a petrol pump in existence, whereas others have said that there was no petrol pump on the spot.

According to Sub-Inspector Minakshi Bhardwaj (PW-15), they went to Ochhghat in the vehicle being driven by Constable Sanjeev Kumar, whereas other witnesses, i.e. HHC Laiq Ram (PW-9) and Sub-Inspector Keshav Negi (PW-11), are silent in this regard. Rather, they have stated that three of them went to the police station and thereafter proceeded to reach Ochhghat. Therefore, on this fact also, there is a major discrepancy.

As per prosecution story, independent witnesses were associated before arrival of the respondents on motorcycle on the spot. Whereas from statement of Sub-Inspector Minakshi Bhardwaj (PW-15), it appears that they had come on the spot when an accused was being searched by the police officials.

The aforesaid material contradictions and discrepancies create doubt about the veracity of the prosecution story. It creates doubt about the receipt of information during investigation of another FIR No.02/2009, as all four official witnesses have given different version regarding presence of police officials at the time of such alleged interrogation on 09.10.2009. There is also cloud over the prosecution story with respect to leaving the spot in Maruti or Gypsy car, laying Naka at Ochhghat and detention of respondent No.1-Rakesh Kumar on the spot in presence of independent witnesses.

There is also considerable difference between the quantum of the contraband, as recovered contraband was 3.800 kilogram, whereas in the FSL, it was found 3.500 kg. It is also apt to record that there is not a considerable time gap between the recovery of contraband and sending the same to the FSL. Therefore, difference of 300 grams of Charas, a significant quantity, creates doubt about veracity of the prosecution story.

Respondents have advantage of being acquitted by the Trial Court, fortifying the presumption of innocence in their favour. Considering above-referred contradictions and discrepancies in evidence on record, learned Deputy Advocate General has also not been able to point out any ground warranting interference in the judgement of acquittal.

The State has miserably failed to prove its case beyond reasonable doubt by leading no cogent, reliable and convincing evidence.

In view of above discussion, this appeal is dismissed.

Bail and surety bonds furnished by and on behalf of respondents are discharged. Record be sent back. Pending miscellaneous application(s), if any, also stands disposed of.