State of H.P. vs Sukhvinder Singh

Deepak Gupta, J.—This appeal by the State is directed against the judgement dated 22.12.2003 passed by the learned Additional Sessions Judge, Mandi 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 in brief is that on 22nd February, 2002 PW-11 HC Lal Chand, who at the relevant time was posted as IO, PP Pandoh was on Nakabandi and traffic checking duty near Pandoh Dam along with PW-1 LHC Kishori Lal, LHC, Nand Lal and HC Jagdish Chand. At about 6.40 a.m. a bus belonging to HRTC having registration No. HP-34-3146 came from Kullu side. The bus was stopped and the police officials boarded the bus to check the passengers. It is alleged that a person sitting on seat No. 34 became perplexed on seeing the police party and the bag was lying in between his legs. This aroused the suspicion of the police officials who enquired his name. He stated that his name was Sukhvinder Singh (accused). Thereafter, in the presence of Lekh Ram, Driver and Rajesh Kumar, Conductor of the bus, the tickets were taken from Sukhvinder Singh and the bag was searched. Inside this bag, a towel was found and inside the towel a polythene bag was kept which contained the charas. LHC Kishori Lal was asked to bring weights and scales from the nearby shop. Thereafter the charas was weighed and on weighment it was found to weigh 5 Kgs. Two samples of 25 grams each were drawn and thereafter the two samples and the remaining bulk charas weighing 4 Kgs 9.50 gms was packed in three separate parcels and sealed with seal bearing impression ''A''. Other codal formalities were completed at the spot. Thereafter the case property was deposited in the Malkhana and finally one sample was sent to the CTL Kandaghat for analysis and the Chemical analyst vide his report Ext. PX opined that the sample was of charas. On this basis the accused was charged with having committed the offence aforesaid. After trial, the learned trial Court acquitted the accused. Hence this appeal by the State.

The three main grounds which weighed with the learned trial Court while acquitting the accused were that this was a case of prior information and the mandatory provisions of Section 42 of the Act were not complied with. Further since the search had been conducted after sunset and before the sunrise, the same was illegal since no permission had been taken from the Magistrate in terms of Section 42 of the Act. Lastly, it was held that the prosecution has failed to prove that the contraband was recovered from the conscious possession of the accused.

As far as the first two grounds are concerned, we are not in agreement with the learned trial Court. The law by now is well settled that Section 42 of the Act will not be applicable when the recovery is made from public conveyance where anybody can travel. The explanation to Section 43 of the Act makes it clear that when a search is made inside a public conveyance then Section 43 would be applicable and not Section 42 of the Act. Having held so, the most important question is whether the prosecution has been able to prove beyond reasonable doubt that the alleged contraband was recovered from the conscious possession of the accused.

Lekh Ram, driver of the bus who is one of the independent witnesses, was examined as PW-3. His version is different to that of the police. According to him at about 6.30 am when he reached Pandoh Dam he saw that naka was laid by the police and stopped the vehicle on the signal given by the police. Thereafter the police officials entered the bus and started checking the same. One bag was found lying on seat No. 35 or 36 and the police party asked the other passengers as to who was the owner of the bag. None of the passengers admitted their ownership to the bag. According to this witness, the police officials nevertheless caught hold of the accused who was crying that the bag did not belong to him. His further statement is that the bag was taken away by the police along with the said passenger and thereafter the police officials asked him and the conductor of the bus to sign the paper. According to him he took the vehicle to Chandigarh thereafter. This witness was declared hostile and cross-examined by the prosecution. He, however, stuck to his version. Similar is the statement of Rajesh Kumar conductor of the bus. However, Rajesh Kumar even goes to the extent of saying that the accused who was sitting on seat No. 34 was arrested by the police only because the bag was found on the seat next to his. Further according to Rajesh Kumar all the passengers were made to get down from the bus and the photographs were taken after about hour and half when the accused was again brought back into the bus and made to sit in the bus.

Merely because independent witnesses turn hostile, does not mean that the statements of the official witnesses cannot be relied upon to convict the accused. Official witnesses are also competent witnesses and their testimony can be relied upon to convict the accused. However, the only caveat is that the witnesses should be consistent and should inspire confidence. In case, the statements of the independent witnesses are inconsistent then obviously no reliance can be placed on the same and the benefit will have to be given to the accused. In the present case there are various inconsistencies in the statements of the official witnesses PW-11 H.C. Lal Chand and PW-1 LHC Kishori Lal the Investigating Officer. PW-11 firstly stated that the bag was lying between the legs of the accused. Later on he stated that the bag was lying on the lap of the accused and clearly stated that it had not touched the floor of the bus. However, according to PW-1 the bag was lying on the floor of bus and he admitted the suggestion that the bag was not on the lap of the accused.

Another aspect which casts doubt on the prosecution version is that initially the prosecution case was that the bus was stopped on the middle of the bridge. However, in examination-in-chief PW-11 stated that the bus was stopped at a distance of 15 meters from the Mandi side of the bridge. When confronted with the spot map prepared by this witness, he retracted his statement and stated that the bus was stopped on the middle of the bridge and stated that his statement made in examination-in-chief that the bus was stopped on the end of the Mandi side of the bridge was incorrect. However, PW-1 gives a totally different version. According to him the bus was stopped near the check post on the Mandi side of the bridge meaning that it was almost at the edge of the Mandi side of the bridge. According to the Investigating Officer when PW�1 was sent to get the weights, he got two weights of 2 Kgs each, one weight of 1 Kg and one weight of 50 gms i.e. four weights in all. However, PW-1 gives a totally different version. According to him he had got two weights of /2 Kg, one weight of 50 gms and one weight of 50 gms. According to him he had got five weights in all. PW-6 Gurdeep Singh is the shopkeeper from whose shop the weights were brought. According to him he had handed over scales and weights, one of 2 Kgs, two of one kg, one of /2 Kg and one of 50 gms which means there were six weights. Therefore, all the witnesses are giving different version with regard to the number of the weights and also with regard to actual size of the weights.

Another important aspect of the matter which also makes the story of the prosecution unreliable is that no other passenger was searched. The accused was sitting on seat No. 34 and there were some passengers sitting ahead of him and some behind him. If he was searched there is no reason why he was searched straight way except the allegation that he got perplexed. If he had got perplexed he would not have kept the bag any longer on his lap.

Another aspect is that the witnesses have clearly admitted that when the bus was stopped it was dark. This is also apparent from the fact that in the month of February at about 6.30 am it would be dark. The photographs which have been placed on record including the photographs taken inside the bus clearly indicate that there was quite a lot of light by that time. This clearly indicates that these photographs were manipulated later on as has been stated by the Conductor of the bus. In these circumstances no reliance can be placed on the statement of the officials witnesses. Therefore, we find no merit in this appeal, which is accordingly dismissed. Bail bonds discharged.