State of H.P. vs Raveen Kumar

Deepak Gupta, J.—This appeal by the State is directed against the judgment dated 10.7.1995 passed by the learned Sessions Judge, Chamba Division, Chamba in Sessions Case No. 5 of 1995 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 case briefly stated is that on 1.11.1994 at about 3.30 p.m. the accused who was driving Maruti van No. HIX-4107 was stopped by a police patrolling party headed by PW-5 S.I. Kishan Chand, near Chowk Bazar at Surangani. Witnesses were called for and on checking 1 kg. 230 grams of charas was recovered. 10 grams of charas was drawn as a sample. After completion of the other formalities the sample charas was sent to the Chemical Examiner who vide his report Ext.PM opined that the sample was of charas. The accused was challaned but has been acquitted by the learned trial Court. Hence the present appeal.

The main grounds which weighed with the learned trial Court for acquitting the accused were that the one independent witness examined had turned hostile; that there were contradictions in the statements of the official witnesses and that the case was not of chance recovery as made out by the police but was a case of prior information. On these grounds and on the ground that the provisions of Section 57 of the NDPS Act had been violated the accused was acquitted.

We have heard Shri Vivek Thakur, learned Additional Advocate general and Shri Ramakant Sharma, learned Counsel for the Respondent.

It is contended on behalf of the State that the learned trial Court totally misappreciated the evidence and made out a case which was not set up by the defence. It is argued that a conjoint reading of the evidence proves beyond reasonable doubt that it was the accused who was found carrying the contraband substance. It is further urged that it was nobody''s case before the trial Court that this was a case of prior information and the judgment of the trial Court in this regard is totally illegal. The contradictions, if any, are very minor and do not in any way affect the merits of the case. On the other hand Shri Ramakant Sharma, learned Counsel for the Respondent has supported the judgment of the learned trial Court.

To appreciate the rival contention of the parties, it would be relevant to refer to statement of the witnesses. PW-5 Kishan Chand was posted as Station House Officer, Police Station Kihar, at the relevant time. According to him on 1.11.1994 he was present at Surgani Chowk. He alongwith a police party which comprised of certain head constables, constables and PW-2 ASI Babu Ram had come to Surgani Chowk for traffic checking duty and also to check for arms and explosives since the area is closed to the border of Jammu and Kashmir. A Maruti van bearing No. HIK-4107 came from Manjeer side. It was got stopped. The accused was driving the vehicle and it was found that the van was loaded with ghee, a bag of maize, 20 bottles of honey and some other agricultural articles. PW-5 saw a polythene bag under the driver''s seat and he became suspicious that it might contain some illicit contraband. Thereafter, two local witnesses PW-1 Nam Singh and Kishori Lal, who are shopkeepers in the local market, were associated with the search. In the presence of these witnesses the accused was informed in writing vide Ext.PA that the bag which is kept under his seat is to be searched and he was given an option of being searched before a Gazetted Officer or a Magistrate. The accused in his own hand wrote that he is willing to be searched by the police party itself. Thereafter the polythene bag was searched and charas in the form of "dhoop batti" was found. The same was rolled into a ball to make it homogeneous. Scales and weights were called from a neighbouring shop through constable Budhi Singh. On weighment the charas was found to weigh 1 kg. and 230 grams. A sample of 10 grams was drawn and sealed separately with seal ''K''. Sample seal impression was obtained on a piece of cloth and the seal was handed over to PW-1 Nam Singh. Thereafter seizure memo Ext.PA was prepared and signed by the independent witnesses. A copy of the memo was supplied to the accused and he acknowledged receipt thereof by appending his signatures upon the seizure memo. The accused was informed about the grounds of arrest vide memo Ext.PC. After arrest, Rukka Ext.PG, was sent to the police station for registration of F.I.R. The van was also searched and the other material found in the van was taken into possession vide memo Ext.PB. After preparing the site plan and completing other formalities on the spot the statements of the witnesses including statement Ext.PL of Nam Singh was recorded by this witness. Thereafter, the witness took the case property alongwith other articles and the van and deposited the same with the MHC who made the entry of the same in the Malkhana Register and the property was kept in the safe custody of Malkhana. This witness stated that he did not send the special report immediately because the Superintendent of Police visited the Police Station itself the next day and he presented the file for the inspection of the S.P. who appended his initials on the file on 2.11.1994. The sample was sent to the Chemical Examiner Kandaghat and report Ext.PM was received which showed that the sample was of charas.

This witness was cross-examined in detail. The tenor of the cross-examination was that this witness and the patrolling party were not present at Surangani at the relevant time. Suggestions were put to this witness that Surangani is not on the border which he admitted but added that it was only 40 kilometers from the border. According to this witness, he did not know the accused earlier. He stated that he did not open the polythene bag, which was tied with the knot till the witnesses arrived at the spot. He stated that the entire proceedings were carried out on the spot. Nothing material has been culled out in his cross-examination.

PW-1 is the independent witness. He stated that he was called by the police where Maruti van No. 4107 was parked. Both he and Kishori Lal were joined as witnesses. According to him a number of other persons were also present. In the presence of these witnesses accused Raveen Kumar was informed by the police that his vehicle was to be searched and his consent was sought. However, he stated that at that time no document was prepared and some articles were already lying outside the van. The witness was declared hostile and cross-examined in detail by the prosecution. He admitted that he had studied upto class-8 and signs many papers in connection with his business. He categorically stated that whenever he signs any document he verifies the contents of the document before signing the same. He admitted that he had put his signatures on memo Ext.PW-1/A after verifying its contents. According to him the polythene bag was not found under the driver seat of the van. The witness came up with an explanation that when the search started some customer had approached him and he went to his shop and remained there for 10 to 15 minutes. He further stated that the charas was weighed in the Varandah of his shop and it was in a white cloth and not in a polythene bag. He admitted that a sample was drawn. According to this witness while the search was going on he continued to do his business of selling goods. He further stated that the bulk charas as well as sample was sealed with seal impression ''K'' and the seal was then handed over to him. He first stated that his statement was not recorded by the police but then contradicted himself by stating that he had stated to the police that he had joined the police party on 1.11.1994 and a van was searched from which a polythene bag containing 1 kg. and 230 grams of charas was recovered and from which a sample of 10 grams was drawn. He went on to volunteer that when the search started he was present at the spot and in the meantime he was called to his shop by a customer. He stated that he witnessed the proceedings from his shop. In reply to a Court question he stated that his shop is 40 to 50 feet from the scene of occurrence. He admitted his signatures on Ext.PW-1/B and admitted that all the other materials such as cash amounting to Rs. 15,259/ -, ghee, honey, etc. were taken into possession in his presence. He had also admitted his signatures on the arrest memo Ext.PC. He stated that he was not under any police pressure and was aware when he signed these documents that he was being cited as a witness. In cross-examination he stated that the seal which was handed over to him was in his house. Again he stated that the documents were prepared in his shop. He also stated that he had not seen the charas inside the parcel.

PW-2 ASI Babu Ram has fully supported the prosecution version and his statement is similar to that of PW-5. This witness stated that van was searched after the witnesses had arrived. A suggestion had been put to this witness that a sports meet had taken place in the year 1994 and the Superintendent of Police, Chamba, had directed each Police Station in District Chamba to contribute Rs. 50,000/ - to meet the expenses of the sports meet. He denied the suggestion.

PW-3 HC Subhash Kumar is the MHC and according to him PW-1 S.I. Krishan Chand deposited with him two sealed parcels sealed with seal ''K'' on 1.11.1994. The smaller parcel was alleged to contain 10 grams of charas and had two seals of seal ''K'' and the larger parcel contained 1 kg 220 grams of charas and was sealed with six seals of seal ''K''. Other property seized was also deposited with him. According to this witness on 6.11.1994 he handed over the smaller parcel to constable Kishan Chand No. 422 for being taken to the Chemical Examiner, Kandaghat vide R/C No. 72/94. He further stated that the constable after depositing the sample came back with the receipt on the Road Certificate. This witness categorically stated that alongwith the sample, sample impression of the seal was also sent and these parcels remained intact during the period they remained in his custody. He produced the parcel of bulk charas Ext.P-1 in Court.

In cross-examination he stated that the Road certificate was in the record of the Police Station and had not been attached with the challan. No suggestion was put to the witness that the sample seal impression was not sent alongwith the parcel. This witness also stated that on 1.11.1994 when Rukka was brought to him by constable Budhi Singh he recorded the F.I.R. Ext.PH and then sent the case file to the spot to the SHO.

PW-4 constable Kishan Chand stated that on 6.11.1994 PW-3 MHC Subhash Kumar handed over to him a sealed parcel allegedly containing 10 grams of charas sealed with seal ''K'' vide Road Certificate 72/94 and he took the same to the Chemical Examiner, Kandaghat and he deposited the same on 8.11.1994 and deposited the receipt on the RC with the MHC. He stated that the parcel remained intact during the period it was in his custody. The only cross-examination to which this witness has been subjected is with regard to the identity of the person to whom he handed over the parcel in the office of the Chemical Examiner, Kandaghat. This witness was not cross-examined on any other aspect. This is the entire evidence on record.

With due respect to the learned Sessions Judge, we are constrained to observe that the reasoning given by the learned Sessions Judge while acquitting the accused is totally fallacious. Nam Singh PW-1 did not turn totally hostile. That is why we have dealt with the entire prosecution evidence in detail above. Nam Singh, PW-1 admitted that the accused was present with the van and that the van was searched. The only dispute is that according to him after search operation started he was called by his customers and then went to his shop and observed the proceedings from the shop. Further according to him the documents were prepared in the Varandah outside of his shop and the charas was also weighed there. This witness did not deny that search was conducted. He also does not deny the fact that his signatures are there on all the memos. He admitted that he was not under any police pressure and had signed the memos after reading the same. Therefore, if the entire statement of this witness is read, it supports the prosecution more than the accused. However, since there are contradictions we can even discard the statement of this witness.

The law is very well settled that even if the independent witness turns hostile the Court is not bound to acquit the accused. All that has to be done is that the statements of the official witnesses have to be scrutinized with greater care and caution. In case the statement of the official witnesses inspire confidence the same can be relied upon to convict the accused. Official witnesses are as good witnesses as any other witnesses.

Reliance has been placed by Shri Ramakant Sharma, learned Counsel for the accused on the judgments of Apex Court in Jagdish v. State of M.P. (2003) 9 SCC 159 , State of U.P. and Another Vs. Jaggo alias Jagdish and Others, Vijay Kumar v. State of Himachal Pradesh, Latest HLJ 2009(HP) 976. In our opinion none of these judgments are applicable to the facts of this case.

This Court in Ian Roylance Stillman v. State of H.P. 2002(2) Shim.L.C. 16, held as follows:

It is now well settled that when a witness who has been called by the prosecution is permitted to be cross-examined on behalf of the prosecution, such a witness loses credibility and cannot be relied upon by the defence. We find support for the view we have taken from the various authorities of the Apex court. In Jagir Singh v. The State Delhi Administration AIR 175 SC 1400, the Apex Court observed:

It is now well settled that when a witness who has been called by the prosecution is permitted to be cross-examined on behalf of the prosecution, the result of that course being adopted is to discredit this witness altogether and not merely to get rid of a part of his testimony.

(Emphasis supplied)

As held by the Apex Court in Nathusingh Vs. The State of Madhya Pradesh, the evidence of the police officials cannot be rejected simply because they were members of the raiding party. Their testimony cannot be rejected just they happened to be police officials unless hostility is attributable to them. Similar view was expressed by the Apex court in State of Kerala Vs. M.M. Mathew and Another, wherein it was held that the preposition that the evidence of the Officers constituting the Inspecting Party is the evidence of the interested witnesses was incorrect. According to the Apex court such contention runs counter to the well recognized principle that prima facie public servants must be presumed to act honestly and conscientiously and their evidence must be examined like the evidence of any other witness and cannot be discarded only on the ground that they being public servants are interested in the success of the case. This view still holds the field.

The other principle which we must remember is that when a witness turns hostile his evidence cannot be rejected on that ground alone. Once a prosecution witness is declared hostile it shows that the prosecution does not wish to rely upon the evidence of such a witness. Reference in this behalf may be made to the decision of the Apex Court in Keshoram Bora Vs. State of Assam, Similar view was taken by the Apex Court in Parveen Vs. State of Haryana,

We, therefore, have to examine the statements of the two official witnesses PW-2 and PW-5 and if there are no major contradiction in the same there is no ground why the same cannot be relied upon. As already pointed out above there are no major contradiction in the statement of these two witnesses.

The only inconsistency pointed out in the statements of PW-2 and PW-5 is that according to the Investigating Officer the vehicle had already been searched and then the independent witnesses were called whereas according to PW-2 the independent witnesses had already been called. This contradiction if at all it can be called a contradiction is highly trivial in nature because both PW-2 and PW-5 have unequivocally stated that the polythene bag was removed from under the seat after both the witnesses arrived. The contradiction, if any, is with regard to the other material in the van i.e. the Ghee, honey, gunny bag, etc. In fact if the statements are read in their proper prospective there is no contradiction. PW-5 clearly stated that after he started searching the van, it is only when he found a polythene bag kept under the driver''s seat that he became suspicious and then the independent witnesses were called. PW-2 also stated that the vehicle was containing certain goods and therefore, the SHO asked the accused whether he would like be searched. PW-2 also stated that the search was conducted after the witnesses arrived. Probably, he was referring to the search of the bag. Even if the contradiction is there it is not so material as to totally discard the prosecution version.

The main ground which has weighed with the learned trial Court is that the case is not of chance recovery but of prior information. While holding so, the learned trial Court has referred to the statement of PW-5 SHO Kishan Chand, wherein during cross-examination he sated as follows:

I did not know accused earlier. It is correct that accused hails from District Kangra. It is correct that accused was a forest lessee within the are of P.S. Kihar, as it was so stated by him to me. I did not follow the accused earlier in connection with excise contraband articles, as I was not knowing him.

According to the learned Sessions Judge this statement is contradicted by the averments made in the reply to the bail application wherein it was alleged as follows:

This Raveen Kumar is owner of the firm. He has taken timber contract valuing about rupees four lacs at Dhargala within the jurisdiction of Police Station Kihar. He roams in the area in the vehicle in the guise of a contractor and usually deals in contraband articles. Earlier also on 27.10.1994 reliable secret information was received that he was carrying charas 7 kgs. in the same vehicle. He was chased. Information about it was also sent to Police Station, Dalhousie and Police Posts Tunnuhatti and Surangani, but he could not be nabbed on account of late receipt of information and was able to smuggle the Charas via Jot. He has been nabbed now. He was under observation for a long time.

With due respect to the learned Sessions Judge he could not have relied upon the averments made in report filed in response to the bail application. When PW-5 appeared in Court he was not confronted with the same nor cross-examined with regard to what had been stated in reply to the bail application. It is well established that if any witness is to be confronted with any document the said document must be shown to the witness. The witness must have an opportunity of explaining in what circumstances the earlier statement was made by him.

There is nothing on record to show that on the date of occurrence the police had prior information that the accused was coming in the van. In fact, no such suggestion was put to this witness. The learned Sessions Judge has relied upon certain averments made in the report opposing the bail wherein it was stated that the police was suspecting this person of being involved in business of charas for the last many days. The information referred to in the report relates to 27.10.1994. There is nothing whatsoever to show that on 1.11.1994 there was any prior information. In fact this was not the defence of the accused. The learned trial Court totally misdirected itself in holding that this is a case of prior information.

It may be pointed out that defence of the accused as set out in answer to question No. 11 of his statement u/s 313 Code of Criminal Procedure is that he was falsely implicated by PW-5. The accused stated that the witness had asked him to donate Rs. 10,000/ - for meeting the expenses of the sports meet which he refused and therefore, he was threatened. Surprisingly, though in cross-examination a suggestion in this regard has been made to PW-2 that the SP had demanded funds from each police station when PW-5 was examined in Court no such suggestion was put to him. It is true that the prosecution must stand on its own feet but the defence of the accused can only be taken into consideration if it is plausible and can be believed. The defence set out is totally unbelievable. The offence took place much prior to the amendment of the NDPS Act, 1991. At that time even if only 10 grams of charas was found the punishment was equally severe. If the police had to plant charas there was no reason for it to plant more than 1 kg of charas because the gravity of offence at that time was the same whether the charas recovered was 10 grams or 1 kg.

In view of the above discussion, we are of the considered view that the judgment of the learned trial Court is perverse and is therefore, liable to be set-aside.

The accused is found guilty of having committed an offence punishable u/s 20 of the NDPS Act. We now have to hear the accused on the issue of quantum of sentence. For this purpose the appeal be listed on 18th May, 2010.