State of H.P. vs Narain Singh

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 19.5.2000, passed by the learned Sessions Judge. Sirmaur, District at Nahan, in Sessions Trial No. 12-ST/7, 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. 475/99.

The Prosecution case is that on 25.11.1999, ASI Dave Ram alongwith his police staff and two independent witnesses Khursheed Ahmad and Surinder Kumar were present at bus stand, Paonta Sahib, at about 4.30 p.m. in connection with patrol duty, where they apprehended Narain Singh accused/Respondent and on his search, contraband goods from a bag carried by him on his shoulder was recovered. Out of the recovered contraband, two samples of 25 grams each were separated and sealed with seal ''R'' and taken into possession vide recovery memo Ex.PA in presence of the witnesses. After completion of the investigation the accused was charged for the aforesaid offence.

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

PW-1 Surinder Kumar and PW-2 Khursheed Ahmed were associated as independent witnesses by ASI Dave Ram while making search of the accused-Respondent. However, both the witnesses have denied the presence of the accused on the spot and have also denied that anything was recovered from the accused/Respondent. PW-1 Surinder Kumar further has denied that the seal after use was handed over to him. As such both the independent witnesses have not supported the prosecution case and were declared hostile. PW-3 HC Ramesh Kumar to whom the case property was deposited by the SHO on 25.11.1999 after resealing it. PW-4 constable Sarup Singh took the sample for analysis to Chemical Examiner, Kandaghat. PW-5 constable Suresh Kumar had brought the special report to S.P. Office, Nahan on 26.11.1999. PW-6 HC Tej Ram had received the special report Ex.PD in the S.P. office on 26.11.1999 and presented it before the S.P. Nahan.

PW-11 Inspector Virender Thakur posted as Inspector/SHO, Police Station Paonta Sahib at the relevant time has stated that on 25.11.1999, ASI Dave Ram had produced two samples of charas weighing 25 grams each and the parcel of charas weighing 250 grams, was duly sealed with seal ''R'' which however was resealed with seal ''A'' and the same was deposited with MHC. In cross-examination he has stated that form Ex.PE was filled in at his instance and signed by him in the Police Station.

PW-8 ASI Dave Ram, Investigating Officer has stated on 25.11.1999 alongwith his staff he was present at bus stand, Paonta Sahib, at about 4.30 p.m. and PW-1 Surinder Kumar and PW-2 Khursheed Ahmed were also associated in the raiding party and on search of accused recovery was made in their presence. In the cross-examination PW-8 Dave Ram has stated that the seal after use was given to PW-1 Surinder Kumar but PW-1 Surinder Kumar denied seal having been handed over to him. PW-11 Inspector Virender Thakur has stated that form Ex.PE was filled in by ASI Dave Ram at Police Station and it was signed by him at the Police Station.

It may also be noticed that form Ex.PE also contains impression of seal ''R'' which was allegedly used at the spot was handed over on the spot to PW-1 Surinder Kumar after its use. PW-11 Inspector Virender Thakur has stated that form Ex.PE was filled in by Dave Ram. It could not be understood how the seal impression ''R'' has come on form Ex.PE when the said seal ''R'' was allegedly handed over to PW-1 Surinder Kumar at the spot. Such aspect rather makes the defence case probable and prosecution case doubtful in the sence that nothing was done at the spot and the accused was apprehended by the police on suspicion from the bus from where police team recovered a bag lying near the seat of the accused and he was brought to Police Station, Paonta Sahib where procedural formalities were completed and signature of the accused was obtained there, even PW-1 Surinder Kumar and PW-2 Khursheed Ahmed were called at Police Station. Before making the search of the accused, the Investigating Officer has not offered the accused, whether he would like to be searched before a Magistrate or a Gazetted Police Officer.

On scrutiny of the prosecution witnesses and the materials on record, we notice that Surinder Kumar PW-1 and Khursheed Ahmed PW-2, both independent witnesses though associated with the raiding party, however have not supported the prosecution case. The testimonies of PW-8 and PW-11 are also not inspiring confidence, so far, handing over the seal to PW-1 Surinder Kumar and making the procedural formalities on the spot or in the police station. In the facts and circumstances, learned Sessions Judge has rightly arrived at the finding that the prosecution has failed to prove its case beyond reasonable doubt. 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.