State of H.P. vs Azad

Sanjay Karol, J.—For an offence, which is alleged to have been committed on 12.1.1998, accused was put to trial. In terms of judgment dated 15.3.1999 passed by learned Sessions Judge, Chamba, in Criminal Case No. 18 of 1998 titled as State of H.P. v. Azad, the accused stands acquitted of the charged offence.

It is the case of the prosecution that on 12.1.1998 at about 5.30 p.m. Sh. Jeet Singh (PW-8), SHO Police Station, Kihar was present along with ASI Bhagwan Dass, Head Constables Gulab Singh, Madan Lal and Constables Om Parkash and Krishan Chand at Dosadka, near Dhargala, Chamba, H.P. when the accused came from Diur side. Seeing the police he got perplexed and tried to run away but on suspicion was apprehended. The accused who was carrying a bag in his hand on inquiry informed his name to be Azad. PW-8 summoned two independent witnesses S/Shri Krishan Chand and Porkhi Ram (PW-1) and in their presence expressed his intention of searching the accused. The accused was informed that he also had a right to be searched before a Gazetted Officer or a Magistrate. The accused gave his consent to be searched by PW-8 which was reduced into writing in terms of memo Ext. PA. In the presence of the independent witnesses the accused and the bag which he was carrying was searched by PW-8. From the bag one polythene bag was recovered which on opening was found to contain Charas. Upon weighment the stuff was found to be 1 kg. 300 gms. Out of the same, one sample of 20 gms. was taken. The sample and the charas were put into two separate parcels which were sealed with seal �B� and taken into possession vide seizure memo Ext. PB. Sample of the seal was retained vide memo Ext. PC. Rukka (Ext. PG) was sent to the Police Station, Kihar on the basis of which FIR dated 12.1.1998 (Ext. PF) was registered against the accused u/s 20 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the NDPS Act). The sealed sample was kept under safe custody and later sent to the Chemical Examiner, Kandaghat through Constable Jatinder Kumar (PW-5). The report of the Chemical Examiner (Ext. PM) was obtained. With the completion of the investigation challan was presented in the Court for trial.

The accused was charged for having committed an offence punishable u/s 20 of the NDPS Act to which he did not plead guilty and claimed trial. In order to prove its case the prosecution examined 8 witnesses and the statement of the accused u/s 313 Cr.PC was also recorded. The defence taken was that of denial.

The Court below acquitted the accused of the charged offence for the reason that independent witness (PW-1) did not support the prosecution and the version of the police officials remained uncorroborated.

We have minutely examined the statements of the witnesses. We feel that the reasons for acquittal are not well founded in law.

It is a settled position of law that even in the absence of any corroboration, the accused can be held guilty on the basis of the statements of the police witnesses, if however, they inspire confidence. Of course, the statements of the police officials need to be examined with circumspection considering the serious consequences of the charged offence.

Independent witness Sh. Porkhi Ram (PW-1), undoubtedly did not support the prosecution. He was cross examined by the Public Prosecutor. According to him the accused was not searched in his presence and he was told by the police that they have recovered charas from the accused and they are to draw the proceedings and asked him to sign the papers in relation thereto. But, however, he admits it to be correct that police had informed the accused about the ground of arrest. He also admits that he had seen cash in the hand of Thanedar. An amount of Rs. 125/- was recovered from the person of the accused. This witness further admits that he was neither under the influence nor under any pressure of police. He admits to have signed the papers Ext. PA, Ext. PB and Ext. PC voluntarily, though according to him these documents were not read over to him before the same were signed by him.

The other independent witness Sh. Krishan Chand was not examined as he was won over by the accused.

Now, as per the version of PW-8 he alongwith Constable Krishan Chand (PW-2) and other police officials was on patrol duty on 12.1.1998. At about 5.30 p.m. one person came from the Diur side and on seeing the police party, he tried to flee from the spot. On suspicion, he was apprehended and disclosed his name to be Azad son of Gulam Rasool, the accused in the case. The accused was carrying a bag in his hand. He was suspected of carrying Charas in the bag and, therefore, two independent witnesses, namely, Shri Krishan Chand and Porkhi Ram were called from the nearby shop. In writing, the accused was informed of his right of being searched either by the police or the gazetted officer or the Executive Magistrate. He volunteered to be searched by the police and accordingly consent memo Ext. PA was prepared. Personal search of the accused was carried out. From the bag one polythene bag was recovered. On opening the said polythene bag Charas was found. On weighment the same was found to be 1 kg. 300 grams. Out of the same one sample of 20 gms was taken and both the parcels were sealed with Seal �B� and taken into possession vide seizure memo Ext. PB. The same were also signed by the accused. The seal after use was handed over to Shri Krishan Chand. Seal sample was taken on the piece of cloth, which is Ext. PC. Vide memo Ext. PC the accused was informed about the ground of arrest and the quantum of sentence for which he could be punished (there are two memos Ext. PC on record). From the personal search of the accused currency notes of Rs. 125/- were recovered and memo Ext. PD was prepared with respect thereto. The accused was informed of his arrest and memo Ext. PE was prepared to this effect. Rukka Ext. PG was prepared by him and sent through Constable Krishan Chand for registration of FIR to the Police Station, Kihar. Thereafter, he completed necessary investigation and recorded the statements of the witnesses. Portion A to A of such statement (Ext. P-2) of PW-1 was correctly recorded by him. He also obtained the report of Chemical Examiner. After the completion of investigation, he prepared the challan.

Now this witness has been cross-examined extensively. There is nothing in his cross-examination which could impeach his credibility. The suggestion put to him that no recovery was effected from the accused or that no consent memo was even prepared or consent obtained stands specifically denied by him. No doubt he has not placed on record Rapat showing that he was on patrol duty but nonetheless he clarifies that he had recorded this fact in his daily diary register. This witness has no reason to depose falsely. He was the concerned S.H.O. of police Station Kihar and had apprehended the accused on suspicion.

Now this version of PW-8 stands corroborated by Constable Kishan Chand (PW-2), who has also deposed that not only the accused was informed of his right of being searched to which the accused had given his consent but also upon search contraband was recovered from the accused. This witness stands cross-examined. Even from his testimony there is nothing which would make him to be an unreliable witness. He has categorically deposed that at a distance of about 20-30 feet from the spot there was shop of Kishan Chand. This fact is duly supported by site plan (Ext. P-5). It is not the case of the defence that this document was falsely prepared. He categorically states that Kishan Chand and Porkhi Ram, independent witnesses were called from the said shop before the search was conducted.

The only contradiction in the statement of the police witnesses as pointed out by the learned Counsel for the accused is that according to PW-2 in the bag carried by the accused, Charas in the form of BATTIES (sticks) was found to be in two polythene bags, whereas according to PW-8 Charas was found in one polythene bag. Now this contradiction in our considered view is not material. The fact of the matter is that atleast there was one polythene bag from which Charas was recovered. It is not the case of the accused that samples taken at the spot were not from the stuff found in the same polythene bag which was recovered by PW-8 at the spot. The contradiction does not go to the root of the matter rendering the prosecution case to be false. The discrepancy in the number of polythene bag could be due to either slip of tongue or fading away of the memory as the statement of PW-2 was recorded after a period of almost 11 months from the date of occurrence of incident. Further version of PW-8 is also corroborated by the documentary evidence on record. Seizure memo. (Ext. PB) also records recovery of Charas from only one polythene bag.

In our considered view, the testimony of both these witnesses is absolutely unimpeachable and can be relied upon for the purpose of deciding the guilt of the accused. They are reliable witnesses and have no reason to depose falsely.

It stands proved that Rukka (Ext. PB) was taken by PW-2 to Police Station, where FIR (Ext. PF) was promptly recorded by Shri Tilak Singh (PW-6) on 12.1.1998 itself. The FIR was registered at the same day at 12.10 p.m. itself. The Superintendent of Police was also duly informed of the case, which fact evidently stood proved by Constable Shri Jagat Singh (PW-3), Lal Chand (PW-4) and Onkar Nath (PW-7).

According to PW-8 the sealed sample was kept in safe custody in the Malkhana. The same was handed over by C. Tilak Singh (PW-6) to Constable Jitender Kumar (PW-5) for being taken for chemical examination to the Chemical Laboratory at Kandaghat. PW-5 has categorically deposed that he deposited the sealed samples in the Laboratory on 16.1.1998. The same was carried vide road certificate No. 8/98 dated 13.1.1998. In cross-examination (PW-6) deposed that sealed sample was sealed with Seal �B� and larger parcel was having 5 seals and smaller parcel was having three seals. That the sealed samples sent to the Chemical Examiner, Kandaghat was having three seals is evident from the statement of PW-8 and also Ext. PC, which is a cloth on which three samples of seal �B� were imprinted. As per report of Chemical Examiner (Ext. PM), there were three seals bearing the seal impression �B� on the sample examined. On examination of the recovered sealed stuff, contraband contained resin to the extent of 38.8%. Thus, in our considered view, the prosecution has also been able to prove beyond reasonable doubt, link evidence. Importantly, there is no effective cross-examination with respect to link evidence by the defence.

We are conscious of the fact that the Court below has acquitted the accused and a valuable right has accrued in his favour. [Mohammed Ankoos and Ors. v. Public Prosecutor, High Court of Md. Ankoos and Others Vs. The Public Prosecutor, High Court of A.P., We may, however, also note that the acquittal is on the ground that independent witness had not supported the prosecution rendering the statements of police officials to be uncorroborated and not sufficient to prove the prosecution case.

In our considered view, there is clear, cogent and convincing material on record to prove the guilt of the accused beyond reasonable doubt. The acquittal has been on incorrect appreciation of law and material on record. The trial Court�s conclusion, in our considered view, is palpably wrong and based on erroneous proposition of law, which has resulted into grave miscarriage of justice. The trial Court�s decision is manifestly unjust and unreasonable. There are compelling reasons for us to disagree with the view taken by the Court.

The learned Counsel for the accused has invited our attention to the following decisions:

Kishan Chand and Anr. v. State of H.P., Latest HLJ 2009 (HP) 925, Ramesh Chand @ Nikka v. State of H.P., Latest HLJ 2007 (HP) 681 and Gurbax Singh Vs. State of Haryana,

The ratio of law laid down in the said cases in our considered view does not apply for the reason that facts are entirely different.

In Kishan Chand (supra), there was no link evidence to prove that the sealed sample taken from the contraband was neither tampered with nor deposited safely with the Chemical Examiner. There was nothing on record to suggest the entries made in the Malkhana register or road certificate with regard to sealed contraband. This is not the case in hand. In the instant case, statements of PW-8, PW-6 and PW-5 are evidently clear on this point.

In Ramesh Chand (supra), the Court found the statements of police officials to be contradictory and not convincing rendering the prosecution version to be doubtful. Such are not the facts here.

The ratio of law laid down in Gurbax Singh (supra), also does not help the accused. In that case, the Court found that the provisions of Section 52, 55 and 57 of N.D.P.S. Act, were not adhered to by the Investigating officer. Such are not the facts here either. PW-8 was S.H.O. of the concerned Police station, hence there was no requirement of resealing the sample in the Police Station.

The quantity of charas recovered from the accused was 1 kg. 300 gms. However, as per the report of Chemical Examiner the resin content has been found to be 38.8%. As such the quantity of charas works out to 504 gms.

For all the aforesaid reasons, the appeal is allowed and the accused is held guilty of having committed an offence punishable u/s 20(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

Now the case be listed on 4th August, 2010 for hearing the accused on the quantum of sentence, on which date the accused is directed to be present in the Court.