State of H.P. vs Joginder Parshad

R.B. Misra, J.—The present criminal appeal has come up for consideration after leave to appeal u/s 378(3) of the Code of Criminal Procedure has been granted in reference to the impugned judgment dated 4.10.1999, passed by the learned Special Judge, Kullu, in Sessions Trial No. 41/98, acquitting the alleged accused for the offence under Sections 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short Act) in reference to FIR No. 74/98.

The Prosecution case is that on 19.8.1998 at about 3.15 PM, the SHO had received secret information that two persons were coming in HRTC bus with charas. The raiding party was constituted and independent witnesses Dayal Singh and Jhabe Ram were also associated. At about 3.30 PM two persons came out of the bus at Bus Stand Banjar. One person was empty handed and the other person was having polythene bag in his hand. Both the persons were taken to the rain shelter and on obtaining their consent search was made and four packets of charas wrapped in polythene weighing 1 Kilogram were recovered from the possession of Joginder Parshad accused. Out of the recovered charas two samples of 25 grams each were taken and sealed with seal impression ''T''. The seal was given to Dayal Singh witness at the spot and ''NCB'' form was filled in and the SHO also disclosed the grounds of arrest to the accused and thereafter sent ruka for registration of the case. Statements of witnesses were recorded at the spot. On receipt of chemical report and completion of investigation, the challan was presented against the accused.

In order to prove its case, prosecution examined as many as eleven witnesses, whereas, accused-respondent, through his statement u/s 313 Code of Criminal Procedure denied the prosecution case.

PW-1 constable Bhag Chand had taken one sealed sample to CTL Kandaghat, PW-2 constable Raj Kumar had made entry in rapat rojnamcha at the instance of SHO Jagdish Chand, PW-3 ASI Khyali Ram had transmitted the wireless message to S.P. Kullu on 19.8.1998 at 3.30 PM, PW-4 ASI Rup Singh had received wireless message at Kullu. PW-5 ASI Mahesh Kumar posted as Reader to S.P. Kullu, on receiving the special report by D.S.P. Kullu had entered in his register. PW-6 ASI Narayan Singh had kept the case property in the malkhana, thereafter one sample was sent by him to CTL Kandaghat. PW-7 ASI Parma Nand had received ruka Ex.PE and recorded the FIR Ex.PF. PW-8 Jhabe Ram was associated in the investigation by the SHO while making search and recovery; however, this witness has not supported the prosecution and was declared hostile. Similarly, PW-9 Dayal Singh associated by the police in the investigation as independent witness, was also declared hostile. PW-8 and PW-9 associated by the police as independent witnesses in search and recovery have not supported the prosecution case. PW-10 constable Divia Ram was also present with SHO at Bus Stand, Banjar has indicated that when two persons came from the bus, one was empty handed and other was having polythene bag in his hand. The SHO took both persons to the rain shelter and after obtaining their consent search was made. PW-11 Inspector Jagdish Chand on receiving telephone information on 19.8.1998 at 3.15 p.m. and after constituting a raiding party had associated Dayal Singh and Jhabe Ram as independent witnesses in whose presence search was made and four parcels containing charas wrapped in polythene was recovered from the possession of the accused.

On scrutiny of the prosecution witnesses and the materials on record, we find that police has registered two FIRs and involved two persons in the case. In both the cases, the accused were taken in a rain shelter and search was made by the SHO and charas was said to have been recovered from their possession. The SHO had sent two secret informations recorded at 3.15 PM in the rapat rojnamcha and also sent the special reports in both the cases. It is very surprising how the two secret informations were entered in rapat rojnamcha and in that respect how, SHO had sent two ruka for the registration of the case one through constable Divia Ram in this case and other through constable Dina Nath. The prosecution, however, could not explain for lodging of two FIRs in respect of same incident.

In present case, the recovery has become doubtful as two independent witnesses namely Dayal Singh and Jhabe Ram associated by the police in the raiding party while making search and recovery of charas from the accused have not supported the prosecution and they were declared hostile. In the present case FIR No. 74/98 dated 19.8.1998 was registered at Police Station, Banjar, District Kullu, similarly another FIR No. 73/98 dated 19.8.1998 was also registered at Police Station, Banjar, District Kullu for recovery of charas. The prosecution has not been able to explain the reasons for registration of two FIRs for the same offence on the same date. In the facts and circumstances, the learned Sessions Judge has rightly arrived at the finding that the prosecution has failed to prove its case beyond reasonable doubt against the accused. In our considered view, the prosecution has failed to bring home the guilt against the accused/respondent. In these circumstances, criminal appeal being devoid of merit is dismissed.