State of H.P. vs Dharam Singh alias Dharmu

Deepak Gupta, J.—This appeal by the State is directed against the judgement dated 3.1.2004 passed by the learned Sessions Judge, Chamba in Sessions Case No. 10 of 2003 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 as depicted in the version of PW-9 Roshan Lal is that on 10th November, 2002 he along with PW-10 ASI Narup Singh, HC Rajesh Kumar, Constables Rajesh Kumar No. 172 (PW-4), PW-5 Subhash Chand and Kamleshwar Singh (since dead) was on patrolling duty at bus stand Sahoo at about 6.00 am. According to this witness, PW-1 Surrinder and PW-2 Maharaj Singh were also present at bus stand as they were going on a morning walk and had met him and were talking with him. In the meantime one person came from the bank road side who had kept concealed a plastic bag under his arm pit. On seeing the police, this person got perplexed and tried to run away. This aroused suspicion of the police officials who apprehended him at the spot. On enquiry, this person disclosed his name to be Dharam Chand alias Dharmu, s/o Sukh Dev (the accused). On checking of the plastic bag, it was found to contain some hard substance. Therefore, PW-9 suspected that it may be charas. The accused was informed that the police officials wanted to search him and gave him an option of being searched either by the police official or by the nearest Magistrate or a Gazetted Officer vide memo Ext. PA. The accused consented to be searched by the police officials and thereafter on search being conducted, 2 Kgs of contraband charas was recovered from the bag. Two samples of 20 gms each were drawn and thereafter two samples and the remaining bulk charas were sealed in three separate parcels and sealed with seal bearing seal impression ''T''. The entire case property was taken into possession vide Memo Ext. PC. Other codal formalities were completed at the spot and thereafter PW-9 handed over the case property to PW-10 ASI Narup Singh, who arrested the accused and after his arrest deposited the case property with PW-7 Kalyan Singh who resealed it with seal bearing seal impression ''J''. PW.7 was working as MHC at that time and deposited the case property in the Malkhana. He thereafter handed over one sample to PW-8 alongwith specimen seal, NCB forms etc. and PW-8 took the sample and deposited the same with the CTL Kandaghat. On Chemical analysis, the Analyst vide report Ext.PW-9/B opined that the sample was of charas and on this basis the accused was charged with having committed the offence aforesaid. The learned trial court acquitted the accused and hence the present appeal.

In this case the prosecution has miserably failed to prove that the contraband was recovered from the conscious possession of the accused. The independent witnesses PW-1 and PW-2 turned hostile and did not support the prosecution case. According to PW-1, he was called to the police station and told that the accused had been caught and has to be enlarged on bail and therefore, the witness is required to sign certain documents. This witness was declared hostile and cross-examined at length but he has stuck to his version that nothing was recovered in his presence. Similar is the statement of PW-2. However, his version is that he signed 3-4 papers on the asking of the police.

PW-3 Jagdish Chand is the person who is running a shop and from whom the weights and measures were arranged for weighing the charas. He has also not supported the prosecution case and according to him he had not given any weights and scales to police officials. Surprisingly, despite the fact that these independent witnesses were examined first and they all turned hostile when PW-4 Rajesh Kumar, PW-5 Subhash Chand and PW-10 Narup Singh who were allegedly present at the spot and in whose presence the recovery allegedly took place were examined, they only spoke about other aspects but did not utter a word with regard to the recovery of charas or the search and seizure operation being carried out in their presence. Thus the only evidence left is of PW-9 Investigating Officer. When the independent witnesses turn hostile then the prosecution must examine the official witnesses and they must speak about the manner in which the alleged search and seizure operation took place. If they fail to do so then an adverse inference will have to be drawn against the prosecution. No conviction can be made on the solitary statement of the Investigating Officer. Therefore, we find no merit in this appeal, which is accordingly dismissed. Bail bonds are discharged.