State of H.P. vs Ashraf Khan

Deepak Gupta, J.—This appeal by the State is directed against the judgment dated 11.5.1999 delivered by the learned Sessions Judge, Chamba, in Sessions Case No. 6 of 1998 whereby he acquitted the accused of having committed an offence punishable u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (herein referred to as the Act).

The prosecution story, in brief, is that on 11.11.1997 PW-9 Jeet Singh, who was at that time posted as SHO Police Station, Kihar, was on patrolling duty alongwith six police officials, namely, Gulab Singh, Ashok Kumar, Jagat Ram, Om Prakash, Sham Lal and Kishan Chand. They had laid a Naka near village Mand Panihar on the road. At about 8.30 a.m they saw a person coming from the upper side of the road. He was carrying a gunny bag on his shoulder. The said person was stopped on the basis of suspicion. Three local witnesses, Taj Deen, Subhan and Piar Chand, were associated as independent witnesses. The accused was informed that he was suspected of carrying some contraband and therefore, an option was given to him of being searched by the police party or a Gazetted Officer or by a Magistrate. The accused after disclosing his name agreed to be searched by the police party. On the search of the gunny bag maize cobs were found. When these maize cobs were removed a rexine bag was recovered and on opening of this bag three polythene bags containing charas were recovered. Scales and weights were arranged through independent witness Taj Deen and on weighment charas was found to be six kilograms. Two samples of 20 grams each were drawn out of this charas and both these sample parcels and the bulk charas were sealed with seal ''X''. The other case property including the gunny bag was also sealed. Rukka Ext.PH was prepared and sent through constable Ashok Kumar to the police station for registration of the case. The accused was intimated about the grounds of arrest vide memo Ext.PE and he was then arrested. The Investigating Officer also prepared a rough sketch map Ext.PK on the spot. Special report Ext.PJ was sent to the Superintendent of Police, Chamba. One of the samples was sent to the Chemical Examiner, who vide his report Ext.PL opined that the sample was of charas and thereafter challan was filed in Court. Accused was charged with having committed the offence aforesaid. He pleaded not guilty and claimed trial. After trial he has been acquitted. Hence this appeal by the State.

One of the main grounds which weighed with the learned trial Court while acquitting the accused was that Section 50 of the Act had not been complied with. In fact, Section 50 is not applicable to the facts of the case since the offending substance was recovered not on personal search of the accused but on the search of the gunny bag being carried by him and therefore, as per the law laid down by the Apex Court in State of Himachal Pradesh v. Pawan Kumar Latest HLJ 2004 (2) (SC) 1247 Section 50 would not be applicable.

The other ground which weighed with the learned trial Court was that the independent witnesses have not supported the prosecution version. Out of the three independent witnesses, only two witnesses PW-1 Taj Deen and PW-2 Piar Chand were examined. The other independent witness Subhan was given up as having been won over. According to these witnesses they were never present at the spot and they were taken from a tea stall to the police station where they were asked to affix their signatures on papers and sealed parcels.

The law is very clear that merely because the independent witnesses do not support the prosecution, by itself is not a ground to acquit the accused. Once the witnesses turn hostile and tendered for cross-examination they cannot be relied upon by any party. An official police witness is as good a witness as any other witness. Therefore, the evidence of the official witness has to be considered. However, when the independent witness turn hostile the testimony of the official witnesses has to be scrutinized with great care and caution and any contradiction in their statements assumes larger proportion than in a normal case. It is only if the statements of the official witnesses are consistent and corroborated by other evidence then conviction can be recorded.

In the present case though seven police officials were present at the spot, only two were examined. One is PW-9 the Investigating Officer. He stated that he deputed constable Ashok Kumar to call the local witnesses. In cross-examination he stated that he does not know from where these witnesses came from but were brought by PW-8 Ashok Kumar. He also stated that these witnessed came to the spot within 10-15 minutes. He further stated that PW-1 Taj Deen brought the weights and scales from his house which was near to the spot. A suggestion was put to this witness that village Mand Panihar is at a distance of five kilometers. He denied such suggestion but volunteered that the distance of the village Mand Panihar from the place where the accused was searched and arrested was about two kilometers.

PW-8 Ashok Kumar stated that he summoned the three independent witnesses. He also stated that the weights and scales were brought by Taj Deen. None of the memos or other documents prepared at the spot bear the signatures of PW-8 Ashok Kumar. Ashok Kumar stated that the witnesses were called from a shop near the road in village Mand Panihar. According to him the shop was at a distance of 50 yards from the spot. The statement of this witness is totally contradictory to the statement of the Investigating Officer, according to whom the village is two kilometers from the spot. Ashok Kumar on questioning could not state who was the owner of the shop. His explanation is that the witnesses were sitting on the parapet and he just called them. He could not even state whether the shop in question was a tea shop or a shop selling house hold articles (Karyana shop). He also could not state whether Taj Deen is a shop keeper or not. He stated that he does not know from where Taj Deen brought the scales. A police official, who is asked to procure the independent witnesses, is not expected to just ask anybody sitting on the side of the road to accompany him. u/s 100 of the Cr.P.C. an independent witness is one who belongs to the locality and has some standing in the area in question. If the version of Ashok Kumar is to be believed he just called the persons sitting on the parapet of the road. Why did he not made an attempt to associate the owner of the shop, who would be more respectable person of the area? His failure to identify the nature of the shop, the owner of the shop, all indicate that he may not have been present at the spot and therefore, the testimony of the independent witnesses that they were called not to the spot but to the police station cannot be totally ruled out.

Another aspect of the matter is that according to PW-8 and PW-9 the independent witnesses were brought from village Mand Panihar. A perusal of the sketch map Ext.PK prepared at the spot by PW-9 shows that village Mand Panihar was at a fairly large distance from the spot (G) shown in the site map where the accused was allegedly apprehended, searched and arrested. The site map shows that just next to this spot is village Scrana and there a number of houses in this village. Another house of one Azaan Majeed is on the upper side of the road. If there were houses and a village just near to the place where the accused was apprehended what was the need to send Ashok Kumar to village Mand Panihar to get the witnesses.

There is nothing on record to show that PW-1 Taj Deen was a shop keeper. No such suggestion has been put to him by the Public Prosecutor after he was declared hostile. In fact, no suggestion has been put to him that he brought the weights and scales. Therefore, the question as to who brought the weights and scales remained unanswered and unexplained.

In view of the above discussion, we find no merit in the appeal, which is accordingly dismissed. The bail bonds furnished by the accused are ordered to be discharged.