State of H.P. vs Varinder Kumar

Deepak Gupta, J.—This appeal by the State is directed against the judgment dated 26.2.1996 passed by the learned Sessions Judge, Una in Sessions Trial No. 23 of 1995 whereby the accused has been acquitted of having committed an offence punishable u/s 20 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act).

Briefly stated, the prosecution story is that on 28.3.1995, PW-10 Sub Inspector Prem Singh who was working in the CID Branch at Shimla had gone to Hamirpur and Una for some official work in vehicle No. HIS-0654. The other persons who had gone with him were PW-8 Dy. S.P. Jaipal Singh, PW-7 HC Surinder Kumar, PW-3 HC Sri Ram and PW-4 Constable Sanjay Kumar. On 31.3.1995 PW-8 Dy. S.P. Jai Pal Singh went to the CID Unit Una. Thereafter, PW-10 SI Prem Singh along with PW-7 Surinder Kumar, PW-3 HC Sri Ram driver of the vehicle and PW-4 Constable Sanjay Kumar went in the vehicle on the Hoshiarpur road. At about 2.45 p.m. on 31.3.1995 they stopped their vehicle on the bridge across the Swan river at Jhalera. Here PW-10 S.I. Prem Singh received secret information that one person will soon be going towards Hoshiarpur side on his scooter along with a large quantity of charas. PW-10 reduced this information into writing and sent it to PW-8 Dy. S.P. Jai Pal Singh at the CID Unit Una. The writing Ext.PJ was sent to PW-8 through the driver of the vehicle PW-3 HC Sri Ram. He also recorded a memo Ext.PW-10/A for registration of the case. This memo was sent through Constable Sanjay Kumar, PW-4, to the Police Station, Una for registration of the case.

PW-10 remained on the spot at Swan bridge along with HC Surinder Kumar PW-7. At about 3.05 p.m. two persons came on a scooter from Hoshiarpur side. They were going towards Una. He stopped these two persons and informed them that he required two witnesses for official work. These two witnesses were Naresh Kumar, PW-5, and Jiwan Kumar who was not examined. In the meantime, Dy. S.P. Jai Pal Singh, ASI Rattan Singh, PW-1 and another constable reached the spot. ASI Rattan Singh was sent to bring the weighing scales and weights. At 3.30 another scooter came there which was going from Una to Hoshiarpur side. The scooter was stopped. One small gunny bag was lying in the front portion of the scooter near the left foot board and another bigger gunny bag was tied to the back seat of the scooter. The scooterist was asked to disclose his name. He informed that he is Varinder Kumar s/o Dharampal R/o Jakhera (accused).

Thereafter, the accused was given an option of being searched before a Gazetted Officer or a Magistrate. The accused consented to be searched by Dy. S.P. Jaipal Singh who was a Gazetted Officer. A writing in this behalf was executed which is Ext.PF. Thereafter, Dy. S.P. gave his personal search to PW-10 vide memo Ext.PB. Then Inspector Pritam Singh, PW-6, gave his search vide memo Ext.PC. PW-10 gave his search to Dy. S.P. Jaipal Singh vide Memo Ext.PD. Personal search of both the independent witnesses Naresh and Jiwan Kumar was conducted vide Memo Exts. PE and PM. Then the two gunny bags were unloaded from the scooter. The smaller gunny bag was found to contain charas weighing 15 k.g. and 100 gms. The second gunny bag was also opened. This also contained charas which on being weighed was found to be 35 k.g. and 200 gms. From both the gunny bags two samples each, of 25 gms. were drawn i.e. four samples in all. All the four samples and the two gunny bags were sealed separately with seal ''S''. Seal impression was taken on a piece of cloth which is Ext.PK. Seal was handed over to PW Naresh Kumar. The charas was seized vide memo Ext.PA.

Thereafter, the accused was informed about the grounds of arrest vide memo Ext.PW-10/B. Personal search of the accused was also conducted vide memo Ext.PW-10/C. Site plan Ext.PW-10/D was prepared by the Investigating Officer. Other codal formalities were also completed and the scooter was also taken into possession. Thereafter, special report was sent through Dy. S.P. Jaipal Singh to the Superintendent of Police, State CID, Shimla. The case property was handed over to MHC, Police Station, Una and after some time MHC Jasbir Singh produced the case property before the SHO Pritam Singh who resealed the two packets of bulk charas and the samples of charas with his own seal ''P''. Case property was then deposited in the Police Station, Una vide Rapat Ext.PW-10/H. Thereafter, SHO, Police Station, Una gave two packets of specimen samples along with specimen seal to PW-10 Prem Singh along with specimen seal impression Ext.PH. PW-10 handed over these two samples of charas along with sample seal to constable Sanjay to take them to Chemical Examiner, CTL, Kandaghat. The Chemical Examiner vide his report Ext.PO opined that the samples were of charas.

On the basis of this material the accused was challaned for having committed an offence punishable u/s 20 of the Act.

The learned trial Court acquitted the accused on the following grounds:

i) That no effort had been made to associate respectable persons of the area as witnesses and therefore the provisions of Section 100(4) CPC had been violated;

ii) That there was non-compliance of the provisions of Section 50 of the Act;

iii) That Sections 52 and 57 of the NDPS Act though not mandatory had not been complied with in letter and spirit; and

iv) That the link evidence was missing.

We have heard Sh. Vivek Singh Thakur, learned Additional Advocate General for the Appellant and Mr. Ajay Sharma, learned Counsel for the accused.

The undisputed facts which emerge are that secret information was received by PW-10 at about 2.45 p.m. when he was on the bridge over the river Swan. He immediately sent information to his immediate superior Dy. S.P. Jaipal Singh and also sent a ruqua to the Police Station, Una. At about 3 p.m., two persons who were coming on a scooter were intercepted and required to be witnesses. The learned trial Court has held that these two witnesses could not be said to be responsible persons of the locality in terms of Section 100(4) of the CPC which reads as follows:

Persons in charge of closed place to allow search.

(1) xxx

(2) xxx

(3) xxx

(4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.

(5) xxx

(6) xxx

(7) xxx

(8) xxx

Each case has to be decided on its own facts. Her we are dealing with a case where prior information was received on the highway. If the police officials had tried to go to Una or to the nearby villages to arrange for witnesses the accused may have crossed in the meantime. The Investigating Officer in his judgment decided to stop some persons travelling on the road and associate them as independent witnesses.

PW-5 Naresh Kumar has clearly stated that he and Jiwan Kumar were coming on a scooter when they were stopped by the police party. He turned hostile and according to him the police personnel took them to the Rest House where their signatures were taken on some papers. According to this witness nothing was recovered from any person in his presence. The witness was declared hostile and we fail to understand what prejudice has been caused to the accused by associating this witness. This witness denied having made any statement to the police. He however admitted his signatures on Memos Exts. PA, PB, PC, PD, PE and PF. According to him, he signed the documents in the Rest House and not at the spot. According to this witness he did not request the police officials to read the contents of documents but just signed the same. He stated that he stayed in the Rest House for two to three minutes, signed the papers and left. In cross examination he admitted that he was neither pressurized by the police nor forced to sign the papers. He admitted that prior to this incident he had never signed papers without going through the contents of the same. Therefore, there is no reason why this witness should have signed the various documents at the Rest House. These documents relate to the search of the police officials, the accused and the witness himself. They also relate to the seizure of the contraband. It is more than obvious that this witness has been won over by the defence.

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 witness loses credibility and cannot be relied upon by the defence. We find support for the view we have taken from a catena of authorities of the Apex Court. In Jagir Singh Vs. The State (Delhi), 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 that witness altogether and not merely to get rid of a part of his testimony.

The law by now is well settled that even if the independent witnesses turn hostile the prosecution can rely upon the statements of the official witnesses. The statements of the official witnesses cannot be rejected simply because they were members of the raiding party. Merely because these witnesses happened to be police officials, their testimony cannot be discarded unless it is shown that these police officials had some hostility or animosity towards the accused. Reference be made to the judgment of the Apex Court in Nathusingh Vs. The State of Madhya Pradesh, wherein it was observed, thus:

Concurrent findings of fact conclude the case against the Petitioner so far as his possession of unlicensed cartridges on the date and the time and place given in the charge are concerned. The fact that the two witnesses called from amongst the members of the public, namely, Raghunathsingh (P.W.1) and Gambhirsingh Tomar (P.W.2), had turned hostile was considered by the High court and the courts below. They had held that the two prosecution witnesses who had turned hostile could not be relied upon. Their evidence could not destroy the prosecution case or make it doubtful. The prosecution case is fully supported by Mahadevsingh (P.W.5), and Umashankar (P.W.6), who are police officers. The mere fact that they are police officers was not enough to discard their evidence. No reason was shown for their hostility to the Appellant.

(Emphasis supplied)

Similarly in State of Kerala Vs. M.M. Mathew and Another, a contention was raised that the evidence of the officers constituting the inspecting party should be rejected since these witnesses are interesting witnesses. The Apex Court rejected this contention and held as follows:

It is true that courts of law have to judge the evidence before them by applying the well recognized test of basic human probabilities and that some of the observations made by the Sessions Judge especially one to the effect that ''the evidence of officers constituting the inspecting party is highly interested because they want that the accused are convicted'' cannot be accepted as it runs counter to the well recognized principle that prima facie public servants must be presumed to act honestly and conscientiously and their evidence has to be assessed on its intrinsic worth and cannot be discarded merely on the ground that being public servants they are interested in the success of their case.

Similar view was taken by the Apex Court in Sama Alana Abdulla Vs. State of Gujarat, Betal Singh Vs. State of M.P., and Akmal Ahmad Vs. State of Delhi,

In case the independent witnesses do not support the prosecution and are declared hostile the testimony has to be discarded and cannot be used by the defence in its favour. In case independent witnesses turn hostile, like in the present case, it may be a good reason to scrutinize the statements of the official witnesses with greater care and caution. In case their statements are consistent and there are no material contradictions, there is no reason why conviction cannot be based on the statements of these official witnesses. We proceed to examine the evidence in this view of the law.

As far as PW-10 Prem Singh is concerned, he virtually repeated what we have set-out in the facts of the case above. He has however clarified that he had handed over the special report to Head Constable Surinder Kumar in the late hours on 31.3.1995 and Surinder Kumar took the said report on 1.4.1995 since no conveyance was available at that time. According to him the original of the report was in the office of the Superintendent of Police (Crimes), Shimla. He also stated that he handed over the sample to Sanjay Kumar on 31.3.1995 but Sanjay Kumar took the samples from Shimla on 3.4.1995. He admitted that he sent Sanjay Kumar to Kandaghat through the office of S.P. (Crimes), Shimla.

PW-1 ASI Rattan Singh came to the spot from Una. He was asked by PW-10 to bring the weights and scales. He stated that he brought the weights and scales from the shop of Lala Balram of village Jhalera. When he returned to Jhalera bridge the police had already intercepted the accused and two bags were unloaded from the scooter and on opening these two bags charas was found. The charas was weighed and the total charas in the two bags was found to weigh 50 k.g. 300 gms. Two samples from each bag were taken and these four samples and two bags were then sealed separately. In cross examination this witness stated that two private persons were already present when he was sent to bring the scales and PW-8, Dy. S.P. Jaipal Singh and SHO Pritam Singh were also present. He denied the suggestion that the toll tax barrier was barely 150 meters from the spot. According to him village Jhalera is at a distance of 2 kms from the bridge.

PW-3 Siri Ram was the driver of the vehicle. According to him, PW-8 gave him a ruqua, which he took to the CID Unit at Una and he handed the same to Dy. S.P. Jaipal Singh. Thereafter, he was asked by the Dy. S.P. to call the SHO Una and then all of them went to the spot.

PW-4 Sanjay Kumar stated that when they were near village Jhalera, S.I. Prem Singh received some secret information which he reduced in writing and handed over to PW-4. Then Sanjay Kumar PW-4 took this ruqua to Police Station, Sadar, Una where a case was registered and he returned to the spot. He also stated that SI Prem Singh PW-10 had handed over two sealed parcels on 1.4.1995 for chemical examination. He states that he reached Kandaghat late in the evening and the samples could not be deposited. 2.4.1995 was a holiday and therefore he deposited the samples on 3.4.1995.

PW-6 Inspector Pritam Singh stated that at the relevant time he was posted as SHO, Police Station, Una. A ruqua written by SI Prem Singh was received through Constable Sanjay Kumar for registration of the case. On the basis of this ruqua he recorded the FIR Ext.PG.S.I. Prem Singh had also made a request for assistance by the local police. Therefore, he along with other police official went to the spot. He stated that when he reached the spot near Jhalera Swan Bridge SI Prem Singh, Dy. S.P. Jaipal Singh and others officials were already present there. A scooter NO. HPG-3851 driver by the accused came from Una side. There were two gunny bags on the scooter, one kept on the front foot board and the other on the back seat of the scooter. The accused was driving the scooter. Thereafter, search was conducted and on search 15 k.g. 100 gms of charas was recovered from the smaller gunny bag carried in front and 35 kg 200 gms. of charas was recovered from the larger gunny back tied to the rear seat of the scooter. Two samples of 25 grams each were drawn from each bag i.e. four samples in all. Both the bulk parcels as well as the four samples were sealed with seal ''S'' by the Dy. S.P. and seal was handed over to PW Naresh Kumar. Then recovery memo Ext.PA was prepared which was signed by both the witnesses. The accused was also arrested. In the Police Station Jaswinder Singh produced the case property consisting of two bags of charas along with four samples specimen duly sealed with seal impression ''S''. This witness then resealed these parcels with his own seal bearing seal ''P'' and thereafter he handed over two samples of charas and sample specimen seal to SI Prem Singh on 31.3.1995 itself.

Dy. S.P. Jaipal Singh was examined as PW-8, He has supported the prosecution version in toto. He also stated that on 3.4.1995 Constable Sanjay Kumar had come to his office when he handed over a docket to Sanjay Kumar to take the samples to Kandaghat.

PW-9 Smt. Brij Bala is Reader to the S.P. (Crime), Shimla who stated that on 1.4.1995 Head Constable Surinder Kumar handed over a special report to her at about 10 a.m. The said report was seen by the S.P. (Crime) and after perusal he returned the same to her. She produced the original report and true copy of the same is Ext.PW-9/A. This is the entire oral evidence.

The documentary evidence consists of search memos Exts. PB, PC, PD, PE and PM which relate to the search of the police officials and the witnesses, Ext.PF the consent memo, Ext. PA the seizure memo of the charas. All these documents bear the signatures of Naresh Kumar and Jiwan Kumar. According to these documents the police officials first gave their search in the presence of the witnesses to the accused. The witnesses also gave their search to the accused and thereafter the gunny bags on the scooter were searched which led to the recovery of 50 k.g. and 300 gms. of charas out of which 15 k.g. and 100 gms. of charas was found in the smaller bag and 35 kg. and 200 gms. of charas from the bigger bag. The FIR is Ext.PG and copy of the FIR was sent to the CJM, Una and received by him on 31.3.1995 itself ruling out interpolation of the FIR after the said stage. The specimen seal impressions are Exts. PH and PK. The report under Sections 41 and 42 of the Act is Ext.PJ and was received by the Dy. S.P. Jaipal Singh at 3.10 p.m. on 31.3.1995 camp at Una. Ruqua is Ext.PW-10/A. The seals were handed over to Naresh Kumar witness vide Memo Ext.PL.

Two samples were sent to the Chemical Examiner bearing seals S and P and it was found that both the samples were found containing charas. The resin content in one sample was found to be 35.45% and in the second 35.50%.

We now take up the points which have weighed with the learned trial Court. As far as the second point that there is non-compliance of the provisions of Section 50 of the Act is concerned, it may be mentioned that Section 50 has no applicability to the facts and circumstances of the present case since the recovery of the contraband substance has been made from the bags being carried on the scooter and not from the personal search of the accused. Therefore, Section 50 of the Act is not at all applicable to the facts of the present case.

As far as violation of Section 100(4) CPC is concerned, we are of the considered view that in the facts of this case it cannot be said that there is violation of Section 100(4) CPC We are dealing here with a case where the police was waiting on a bridge having information that a person may cross at any time carrying a huge amount of charas. The Investigating Officer had already sent one official to the Police Station and one official to inform a superior officer about the receipt of the secret information. He had only one other official with him. If that official had been sent to collect witnesses from the locality the Investigating Officer would have been left alone. The Investigating Officer thought it prudent to stop some other persons crossing on a scooter and associate them as witnesses. They are the independent witnesses and there is nothing to show that they are not respectable persons. They however do not belong to the locality. On this ground alone it cannot be said that there is violation of Section 100(4).

As far as Sections 52 and 57 of the Act are concerned these are only directory in nature and not mandatory. In fact, on going through the entire evidence we find that there has been substantial compliance of these two provisions also. The accused was informed about the grounds of his arrest vide notice Ext.PW-10/B. This has been proved by PW-10 Investigating Officer. Merely because PW-8 and PW-6 did not state that the accused was informed of the ground of arrest is not sufficient to hold that Section 52 was not complied with.

As far as Section 57 of the Act is concerned, special report was sent by PW-10 SI Prem Singh through PW-8 Dy. S.P. Jaipal Singh. According to PW-7 Surinder Kumar he gave the report on 2nd April, 1995 to LHC Brij Bala whereas Brij Bal states that it was handed over to her on 1.4.1995. This is only a minor contradiction. Purpose of Sections 52 and 57 is to ensure that there is no interpolation at a later stage. As noted above, the CJM Una received the copy of the FIR on the same date. The report was also sent on the same date. Mere fact that it is a photo copy and not the original will not make this violation of Section 57 such a serious violation so as to entitle the accused to be acquitted.

The learned trial Court has held and rightly so that the defence has unable to substantiate its plea that the police was inimical to the accused. The fact is that according to the police more than 50 k.g. of contraband was recovered. So much charas could not have been planted by the police. If the police had to just settle scores it was not necessary to plant such a large quantity of charas.

Admittedly, two gunny bags containing charas were recovered from the scooter. Two samples were sent to the Chemical Examiner. However, there is nothing on record to show as to which bag the sample related to. Both the samples can be of one bag or may be of two separate bags. The benefit of this has to go to the accused and therefore we may presume that both the samples relate to the smaller bag containing 15 kg. and 100 gms. of charas. Since in the report of the Chemical Examiner the resin content has been found to be 35.45% in respect of one sample and 35.50% in respect of second sample. Here also we may give benefit to the accused but then also the quantity of charas works out to 5 k.g. and 353 gms. which is a commercial quantity.

In view of the above discussion, the appeal is allowed and the accused is held guilty of having committed an offence punishable u/s 20(ii)(C) of the Act.

Now the case be listed on 18th June, 2010 for hearing the accused on the quantum of sentence.