State of H.P. vs Ankur Sood

Deepak Gupta, J.—This appeal by the State is directed against the judgment dated 3.9.2005, passed by the learned Additional Sessions Judge-I, Kangra at Dharmshala in Sessions Case No. 30-P/2004, 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 ''Act''). The prosecution story in brief is that on 31.5.2004 PW-10 ASI Gurbachan Singh was heading one police party which comprised of PW-1 ASI Ashok Kumar, PW-3 Constable Prakash Singh, HHC Parveen Kumar and HHC Hari Ram. There was another police party headed by PW-2 ASP Asif Jalal. Both the parties were formed patrol to check illicit transportation and mining of sand and grit from the Khud. Out of these two police parties, one headed by PW-2 Asif Jalal had gone towards Sarauv Kalia Van Vihar side and the other party headed by PW-10 crossed the bridge on the Neugal Khud and was going towards Kandi. When the second party had just gone about two curves of the bridge a person was noticed coming from Kandi side. He was carrying a rexine bag on his shoulder. On seeing the police the said person tried to run away but the police officials caught hold of him. On enquiry the said person disclosed his name to be Ankur Sood. When the rexine bag was opened a polythene bag was found inside on which the words ''J.K. White Cement'' were printed. On opening this polythene bag, charas was found which on weighment was found to weigh 1 Kg 850 gms. Out of this chars, two samples of 25 grams each were drawn. Thereafter the two samples and the remaining bulk charas were packed in three separate parcels and sealed with seal impression ''T''. The NCB form in triplicate was prepared at the spot and a sample seal impression ''T'' was also affixed on the NCB form. The entire case property was taken into possession vide memo Ext. PW-1/A. Ruqua Ext. PW-3/A was prepared at the spot and sent to Police Station, Palampur through Constable Parkash Chand and on this basis FIR Ext. PW-4/A was registered. Thereafter PW-10 prepared the site plan and completed other codal formalities. In the meantime PW-2 Asif Jalal who at that time was posted as SHO, Police Station, Palampur reached the spot and then PW-10 handed over the accused and case property to PW-2 who sealed the case property with seal impression ''X'' and also affixed the seal impression on the NCB form at the spot.

PW-2 Asif Jalal deposited the case property with PW-7, MHC, Police Station, Palampur who deposited the same in the Malkhana. PW-7 handed over one of the samples to PW-6 HHC Hari Ram on 1.6.2004 to be taken to the Chemical Analyst at the CTL, Kandaghat. PW-6 took the sample to the CTL Kandaghat and the Chemical Analyst vide his report Ext. PX opined that the sample is of charas. On this basis, the accused was charged with having committed the offence aforesaid. The accused pleaded innocence and claimed trial on the ground that he had been falsely implicated in the case. His defence was that the police officials were inimical to him because they used to come very often to the shop of his uncle situated at the Bus Stand, Palampur where he was also a partner. These police officials used to drink liquor in his shop and not pay the amount due to the accused and his uncle and when the accused objected to it, they got angry. It is further his case that on 31.5.2004 at Bus Stand, Palampur there was an unclaimed bag lying on the rack of a bus and when the conductor of the bus raised an alarm that a bag was lying unclaimed, the police Head Constable who was on patrolling duty came there and checked the bag. Some passengers who had alighted from the bus were taking tea outside the shop of the accused. The police official asked those passengers to come to the police station since he wanted to enquire as to whom the bag belongs to. The accused allegedly asked the Head Constable that he may be first permitted to get the money from passengers upon which the Head Constable got offended. The accused states that he called the police officials ''Mufat Khora'' and thereupon an altercation took place between him and the police official and he has been falsely implicated. This stand of the defence has been consistent and put to all the police witnesses. The defence also led evidence in support of this stand. The learned trial Court acquitted the accused mainly on the following grounds: (1) that there was no compliance of Section 50 of the Act; (2) that independent witnesses were not associated which made the recovery doubtful. He also held that the link evidence was missing inasmuch as the seals which had been used by PW-10 and PW-2 and handed over to PW-1 Ashok Kumar were not produced in Court

As far as Section 50 of the Act is concerned, we are of the considered view that in view of the judgment of the Apex Court in State of Himachal Pradesh Vs. Pawan Kumar, , the same is not attracted to the present case since the recovery is alleged to be made from the bag and not on account of personal search of the accused. However, as far as the non-association of independent witnesses are concerned, it would be pertinent to refer to Section 100(4) of Cr.P.C. which reads as follows:

Persons in charge of closed place to allow search.

(1)...

(2)...

(3)...

(4) Before making a search under this Chapter the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.

In the present case, admittedly near the bridge there was a dhaba and a large number of labourers were working. From the site plan Ext. PW-10/A, it is apparent that if one comes from Palampur (Bandla side) and crosses the bridge then as soon as the bridge ends the road divides into two, one goes towards Sarauv Kalia Van Vihar and the other goes towards the Kandi road. In this map point ''A'' has been shown to be point where the accused was apprehended. However, there is no distance shown in the map. When asked to explain why no independent witnesses were associated, the explanation of PW-10 was that he did not know whether there was any labourer residing near the bridge or not. He also could not say whether there was dhaba near the bridge. He also could not say whether there was tea stall near the bridge. He, however, admitted that Sarauv Kalia Park is situated next to the bridge. He could not say whether there is staff of 10 to 15 persons employed in the Park and that many persons go to the park for the evening walk. The incident is of the month of May and the accused was allegedly caught at about 6.30 pm. At this time there would be bright day light and many persons would be walking in the park.

There is another infirmity in the statement of the prosecution witnesses. In examination-in-chief, PW-10 and PW-1 have stated that after crossing the bridge at about 6.00 pm when the party had reached two curves ahead on the Kandi road they saw a person coming from the other side. When confronted in cross-examination as to why no independent witnesses from near the bridge were associated, the explanation given is that they had already covered about 1/2 to 2 Kms on the Kandi road. According to PW-1 and PW-10 they were on foot and had walked 15 to 20 minutes before they saw the accused. Since there was no person present no independent witness could be called. This statement does not appear to be correct because, as discussed above, in the examination-in-chief it was stated by the police officials that they had just gone two curves ahead from the bridge. If a distance of 1/2 to 2 Kms had been covered this would have been stated by the police officials in their examination-in-chief and they would not have given a vague statement that they had covered only 2 curves, which would be a very short distance because the roads in this area are not straight roads.

Another factor which casts doubt on the prosecution is that admittedly PW-10 was carrying a mobile phone and according to him he had informed ASP Asif Jalal about the accused being caught on his mobile phone. His version is that he gave a call to ASP Asif Jalal after 9.00 pm and thereafter he handed over the case property and NCB form to ASP Asif Jalal at about 9.30 pm. This also does not appear to be true. Admittedly, both the parties were together on the bridge and thereafter one party went towards Sarauv Kalia Van Vihar side and the other went to Kandi side. If a person was apprehended at about 6.15 pm with charas why would PW-10 have not informed his immediate superior on telephone itself immediately after the occurrence? Why would he wait till 9.00 pm to ring up PW-2 Asif Jalal?

As far as PW-2 Asif Jalal is concerned, he surprisingly states that both the parties had met at the bridge. His party was in a vehicle whereas the other party was on foot. He along with the party remained on the bridge but he could not say which side the other party went. This is also not believable. Though in examination-in-chief he states that at 9.00 pm he was called on the spot but in cross-examination he states that at 8.30 pm he had received a communication that one person had been arrested with the contraband. His version is that he received no telephone from the IO about the recovery of contraband before 8.30 pm. He has also shown his ignorance about the tea stall, dhaba or labourer huts near the bridge.

PW-3 has admitted that there are many curves on the road from the bridge towards Kandi. He also admitted that Surav Kalia Park is 20 feet from Negual bridge. In view of his statement also, it cannot be believed that the recovery was made at a distance of 1.5 to 2 Kms from the bridge. If they had gone to just two curves ahead, the recovery must have been made much earlier and then there is no explanation why independent witnesses were not associated especially since it was broad day light and it would not have been difficult to get witnesses either from Kandi village or from near the Negual bridge. In fact PW-10 could have used his mobile phone to get independent witnesses from Palampur or from the locality and at least should have informed PW-2 Asif Jalal about the occurrence which had taken place. There is virtually no explanation why for almost 21/2 hours nothing was done.

As far as ruqua Ext. PW-3/A is concerned, it was obviously prepared after the entire process has been completed. In the ruqua there is no mention of PW-2 having reached the spot, therefore, it means that this ruqua was sent prior to his reaching the spot. Even as per the FIR, the information in the police station was received at 8.45 pm. By this time the NCB form Ext. PW-1/B had already been filled in as is mentioned in the ruqua. The NCB form Ext. PW-1/B, however, contains an entry against column No. 3 which totally shatters the case of the prosecution. Column No. 3 reads as follows :-

Date time and place of the seizure: - 31-5-04 at 9.15 pm. Kandi road near Neaugal Bridge.

This means that that the NCB form was prepared after 9.15 pm and by this time PW-2 Asif Jalal has already reached the spot. According to PW-10 and PW-2, Asif Jalal (PW-2) had affixed the impression of seal ''X'' on the NCB form at the spot itself. Admittedly, Asif jalal had reached the spot at about 9.00 pm. Therefore, why there was no mention in the ruqua about this fact when the ruqua was dispatched after the NCB forms was prepared.

Another flaw in the prosecution case is that the endorsement at the bottom of Ruqua Ext. PW-3/A shows that it was prepared at 8.10 pm but as discussed above the NCB form indicates that the recovery was made at 9.15 pm. The case of the prosecution is that in fact the recovery was made at about 6.00 pm. This clearly indicates that the investigation has not been fair and some documents have been manufactured by the police officials.

We have already dealt with in detail the stand raised by the accused. It is not only the statement of the accused u/s 313 Cr.P.C. where this defence has been raised but we find that right from PW-1 to PW-10 to all the concerned witnesses this suggestion has been put that the police officials were not on cordial terms with the accused and that the charas was lying in a bag which was unclaimed in the bus in the bus stand.

The defence also examined three witnesses. We need not dwell long on the statement of DW-1 who was the contractor making the Diwan Chand Kuhal near Negual Bridge except to state that according to him till about 8.00 pm there were a lot of workers available on the bridge. Furthermore there are many employees in the Sarauv Kalia Park who reside inside the park and that many people come to the park for evening stroll.

DW-2 collects Bus Adda fee on behalf of the contractor. He has supported the version of the accused and has stated that many times there were heated arguments between the accused and the police officials. He has also stated that the police officials used to consume liquor in the shop of the accused and would not pay him for the items consumed by them.

DW-3 Kishori Lal is the driver of bus No. HP-39- 7021. According to him after he had parked the bus at about 8.30 pm the conductor of another bus raised a hue and cry that some passenger has left a bag in the rack of the bus and no one was coming to claim the bag. DW-3 told the conductor not to touch the bag since it might contain some explosive. Thereafter the police Head Constable was called who found charas in the bag. Some passengers of the bus were taking tea on the benches outside the shop of the accused. When the Head Constable asked the passengers to accompany him to the police station for enquiry the accused repeatedly told the Head Constable that let the passengers first pay for the tea. On this an argument took place and the accused stated that the police people do not pay for any item which they take and now he is not even allowing the passengers to pay money for the tea. Thereafter the Head Constable caught hold of the accused and took him to the police station.

The defence does not have to prove its case but only has to show that it is a plausible case. In the present case, as pointed out above, the police officials did not associate independent witnesses though they were available; the IO PW-10 did not contact the SHO, Asif Jalal who was also in the vicinity on patrolling duty for more than 21/2 hours despite the fact that they both carrying mobile phones; the entry in the NCB form that the seizure was made at 9.15 pm totally demolishes the case of the prosecution that the seizure was made at 6.15 pm near Kandi village. Even the seal with which the samples were sealed has not been produced in Court though the person to whom the seal was handed was PW-1 who is an ASI. He is not an ordinary citizen and it would be expected that he would have kept the seal safely. In view of the above discussion, we are of the considered view that the learned trial Court rightly acquitted the accused. Therefore, we find no merit in this appeal, which is accordingly dismissed. Bail Bonds discharged.