State Of H.P. vs Veer Chand

Vivek Singh Thakur, J

State of Himachal Pradesh has preferred this appeal against judgment dated 20.3.2015 passed by Special Judge (II), Mandi, District Mandi, H.P. in Sessions Trial No. 5 of 2014, titled as State of Himachal Pradesh Vs. Veer Chand, in case FIR No. 23 of 2014, dated 12.1.2014, registered in Police Station Balh, District Mandi, H.P. under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act'), whereby respondent has been acquitted after facing trial for having found in possession of 4 Kilograms 500 grams charas during checking of the bus in which he was traveling.

As per Rukka Ex. PW-10/A, it is case of the prosecution that on 12.1.2024, PW-10 HC Chint Ram, PW-3 HC Dharminder, PW-4 Constable Krishan Chand, HHC Ram Lal, No. 142, Lady Head Constable Rekha No. 414 at about 3:05 P.M. were present in a Naka at Nagchala and were checking vehicles. At that time a private bus bearing No. HP-65-2077 en-routed from Mandi to Bilaspur came there, which, on signal of the Police Party, was stopped on left side of the road. PW-10 HC Chint Ram boarded the bus from front door and asked the passenger to get their luggage checked and thereafter PW-2 Rajesh Kumar and PW-1 Sanjeev Kumar, who were driver and conductor of the bus, respectively, were called and checking of luggage of passenger was started. On seat No. 23 a person was sitting alone on three seater bench who tried to hide a black colored bag behind his waist, whereupon on suspicion, after associating PW-1 Sanjeev Kumar and PW-2 Rajesh Kumar as witnesses, identification and address of that person was inquired, who disclosed his name Veer Chand with his complete address as respondent. Thereafter bag hide by him was checked, wherein five packets wrapped in a khaki cello tape were found. On opening these packets, round shaped black coloured substance was recovered. On smelling and on the basis of experience, it was identified as charas. It was weighed on electronic scale available in the investigating kit and was found 4 kilograms 500 grams. Recovered contraband was again wrapped in the same khaki cello tape after putting in five packets and was put in the same bag again and thereafter it was seized in a parcel of cloth by affixing seal 'S' at eleven places vide seizure memo Ex. PW-1/A. Sample seal was taken on separate cloth. Relevant column of NCB Form Ex. PW-9/C was filled in triplicate and seal was handed over to witness Dharminder (PW-3) and sealed cloth parcel, sample seal Ex. PW-9/D and memo was signed as witnesses by PW-1 Sanjeev Kumar, PW-2 Rajesh Kumar and PW-3 H.C. Dharminder and it was also signed by respondent. Copy of memo was supplied to respondent Veer Chand free of cost.

On findings commission of offence under Section 20 of the NDPS Act, rukka Ex. PW-10/A was prepared by PW-10 HC Chint Ram at 5:00 P.M. and was sent to Police Station situated at a distance of 6 Kilometers, through PW-4 Krishan Chand.

After receiving rukka in the Police Station, PW-9 SHO Madan Dhiman registered FIR Ex. PW-9/A and thereafter he made endorsement Ex. PW-9/B on rukka regarding registration of FIR and handed over the case file to PW-4 Constable Krishan Chand, who handed over it to PW-10 HC Chint Ram.

PW-10 recorded statements of witnesses and prepared spot map Ex. PW-10/B and on completion of investigation returned to Police Station and reached thereat about 9:15 P.M.

The Investigating Officer PW-10 H.C. Chint Ram produced case property alongwith documents before PW-9 SHO Madan Dhiman for resealing the parcel.

PW-9 SHO Madan Dhiman re-sealed the parcel with seal impression 'T" at three places and completed column Nos. 9 to 11 of NCB and embossed sample seal thereon and also took sample seal on separate piece of cloth Ex. PW-9/D and prepared the re-sealing memo Ex. PW-9/E. Thereafter he handed over the case property alongwith documents to MHC PW-7 HHC Raj Kumar and obtained his signatures on re-sealing memo regarding receipt of case property.

PW-7 HHC Raj Kumar was Malkhana Incharge at the relevant point of time. After receiving the case property alongwith the documents, he made an entry in Malkhana register at Sr. No. 670, dated 12.1.2014, extract whereof was produced in evidence as Ex. PW-7/A.

On 13.1.2014 PW-7 Rajesh Kumar sent the case property to FSL Junga through PW-8 HHC Raj Kumar vide RC No. 9 of 2014, Ex. PW-7/B. After depositing the same in FSL Junga, handed over the receipt to PW-7 HHC Raj Kumar.

PW-10 H.C. Chint Ram prepared Special Report Ex. PW-5/A on 13.1.2014 at 3:00 PM and produced the same before Additional Superintendent of Police Mandi at 3.05 PM, who in turn, after perusal, handed over the same to his Reader PW-5 HC Yoginder Singh, who entered the same in Special Report Register at Sr. No. 11, extract whereof has been produced in evidence as Ex. PW-5/B.

It is further case of the prosecution that PW-11 HC. Rajesh Kumar has partially conducted the investigation by recording statements of some witnesses, due to transfer of PW-10 HC Chint Ram from Mandi to State CID, Shimla. PW-11 had completed the investigation by recording statements of some witnesses.

PW-9 Inspector Madan Dhiman, on completion of investigation and receipt of FSL report Ex. PS-1, prepared the challan and presented the same in the Court.

After framing of charge against the respondent under Section 20 (ii) (c) of NDPS Act for pleading not guilty, respondent was subjected to trial.

Prosecution had examined all eleven witnesses cited in the list of witnesses. Thereafter statement of respondent was recorded under Section 313 Cr.P.C., however, no evidence was led in defence by respondent.

After taking into consideration entire evidence on record, the Trial Court has acquitted the respondent vide impugned judgment.

PW-1 Sanjeev Kumar and PW-2 Rajesh Kumar are independent witnesses who were conductor and driver respectively, of the bus, wherein respondent was allegedly found traveling alongwith 4.5 KGs charas. Though theses witnesses have admitted recovery of a bag from the bus, but they have not supported the prosecution case that the bag was found in possession of person sitting alone on seat No. 23 on the three seater bench of the bus. Both of them have made similar statement that the bus was stopped and checked by the Police party near Nagchala, but with parallel story that during checking one bag recovered from shelf of the bus was checked by the Police. None among the passengers had claimed that bag, whereupon Police party had taken 4-5 passengers from their bus to Police Station. Both of them had also accompanied the Police Party to the Police Station, where their signatures were obtained on papers. Both of them have stated that they don't know the person present in the Court. Thereafter they were declared hostile by the Trial Court on request made by Public Prosecutor for resiling from their earlier statement recorded by the Police.

In cross-examination by learned Public Prosecutor, both of them PW-1 and PW-2, have categorically stated that their statements were not recorded by the Police and they have denied the claim that in their statements recorded by the Police, they had witnessed recovery of charas from the bag found in possession of person sitting on seat No. 23 traveling in their bus. They have admitted their signatures at all places including the arrest memo Ex. PW-1/B, but they have re-iterated that 5-6 persons were taken by the Police to Police Station after recovery of bag from the shelf of the bus, which was claimed by none of the passengers and their signatures were obtained on different papers and thereafter they were relieved from the Police Station. In cross-examination on behalf of respondent-accused, both of them have stated that all seats were occupied by the passengers.

It is settled law that in case independent witnesses turned hostile, then it is no ground for disbelieving the statements of Police witnesses and in such eventuality also, an accused can be convicted on the basis of statements of consistent, convincing and reliable evidence of official witnesses for proving the prosecution case beyond reasonable doubt. The prosecution case does not fail merely on the ground that no other witnesses except official witnesses have supported the prosecution case. However, in such eventuality evidence of official witnesses has to be scrutinized carefully, particularly when independent witnesses have not simply denied the prosecution story or resiled from their earlier statement, but have also narrated a parallel story, different than the prosecution story, giving reasons to assess and evaluate the evidence of official witnesses with more care and caution.

According to prosecution case there were five Police Officials on the spot, out of them three, i.e. PW-3 HC Dharminder, PW-4 Constable Krishan Chand and PW-10 Investigating Officer Chint Ram have been cited as witnesses and have been examined, whereas remaining two witnesses i.e. HHC Ram Lal and Lady Head Constable Rekha were neither cited as witnesses nor examined in the Court.

According to rukka Ex. PW-10/A, it is PW-10 Investigating Officer Chint Ram, who went into the bus from the front door and checked the luggage of passengers and associated PW-1 Sanjeev Kumar and PW-2 Rajesh Kumar, as witnesses for search of the bag of the respondent. In deposition in the Court he has stated that he alongwith Police party went inside the bus from the front door, with further statement that no official was asked to guard rear window/door of the bus. According to him 14-15 passengers were in the bus. Though PW-3 HC Dharminder and PW-4 Constable Krishan Chand have also stated that all the Police officials boarded the bus from front window/door, however with admission that generally Police party used to check buses by entering from both the doors, so that any passengers may not succeed in fleeing from the bus.

PW-3 has stated that he went inside the bus for checking and there were only 10-15 passengers in the bus, but with further statement that he has no idea but the passengers were less in numbers.

PW-4 Constable Krishan Chand has stated that he also went inside the bus with investigating Officer, with further statement that Investigating Officer did not record that he had also went inside the bus for checking. According to him 14-15 passengers were in the bus. The statement of Investigating Officer PW-10 Chint Ram is contrary to his first version of the facts mentioned in the rukka Ex. PW-10/A. It also appears to be illogical that entire Police party went inside the bus from the front door for checking, which indicates that there is something wrong. Investigating Officer has not recorded about entering all other Police officials in the bus, but in the Court has stated that all Police officials went inside the bus.

According to PW-3 HC Dharminder, personal search of the accused was not conducted by the Investigating Officer. Only bag was checked. PW-4 Constable Krishan Chand has stated that personal search of accused was conducted by the Investigating Officer after his arrest with further statement that Police Party had not given their personal search to accused, prior to checking of his bag. In the Court, statement of PW-10 Chint Ram is entirely different, who has categorically stated that he had not recorded grounds of belief and he had not taken personal search of the accused, but he has stated that he had given notice under Section 50 of the NDPS Act to the accused, with admission that it was not on the case file. He has further stated that accused had given his willingness to give his personal search to Police and first of all Police party had given their search to the accused and memo in this regard was prepared. He has again admitted that no such memo is also on record in the case file. He has categorically stated that he had prepared the memo of personal search after arrest of the accused and he had prepared memo of articles recovered from the accused, but it has not been placed on the file.

According to PW-3 H.C. Dharminder, rukka was handed over to PW-4 Constable Krishan Chand at 7-7:30 PM, whereas according to PW-4 Constable Krishan Chand, rukka was handed over to him at 5:30 P.M. According to PW-10 Chint Ram, as also mentioned in the rukka, the rukka was prepared and handed over at 5:00 P.M.

It is noticeable that PW-10 HC Chint Ram had handed over the seal after seizure to PW-3 HC Dharminder, but not to any of the independent witnesses i.e. PW-1 Sanjeev Kumar and PW-2 Rajesh Kumar. In his cross-examination PW-10 had explained that he had handed over the seal to PW-3 HC Dharminder for the reasons that other witnesses had expressed their difficulty to produce the same in the Court.

PW-10 Investigating Officer, Chint Ram, has stated that he did not hand over the seal to independent witnesses, as they had expressed difficulty to produce the same in the Court and, therefore, he handed over the seal to Police official PW-3 Constable Dharminder. It is apt to record that PW-3 Dharminder also did not produce any seal in the Court. Non production of seal in the Court may not be sole ground to disbelieve the prosecution story and it may not to fatal for prosecution in absence of any prejudice caused to the accused established on record. However, in present case there is a situation where Investigating Officer PW-10 Chint Ram did not hand over the seal to independent witnesses, who were driver and conductor of the bus for difficulty expressed by them in producing the same in the Court and thus it was handed over to Police official, but the said Police official also failed to produce the seal in the Court without any plausible reason and thus non production of seal in present case, coupled with the above referred irreconcilable discrepancies in the statements of official witnesses become significant to be considered for assessing the veracity of prosecution story.

It has also come in the statements of independent witnesses that after arrival at Police Station they were permitted to left the Police Station after putting their signatures on certain documents (blank). The suggestion put to the Investigating Officer that seal was not handed over to driver and conductor, as they had left the spot at early time without waiting for completion of proceedings, appears to be plausible and it is also fact that accused has been shown to be arrested at 8:30 P.M., but in the memo PW-1 Sanjeev Kumar and PW-2 Rajesh Kumar have been cited as witnesses and their signatures have been taken thereon, whereas PW-1 Sanjeev Kumar and PW-2 Rajesh Kumar had left the place much earlier. It is also coming in the statement of independent witnesses that they were taken to the Police Station alongwith bag and 4-5 passengers, when no body claimed the ownership of the bag and after that they were permitted to go on duty. The statement of PW-3 HC Dharminder, expressing his inability to tell the number of passengers of the bus casts doubt about his presence on the spot. The discrepancy with respect to entry of the Police party in the bus is also glaring and is in categoric diversion to the statement of PW-10 Investigating Officer Chint Ram in comparison of other Police officials present on the spot, is also significant to doubt the genesis of the prosecution story.

It is settled law that when there is a doubt, the benefit is to be extended to the accused. Respondent is having benefit of acquittal by the Trial Court, fortifying presumption of innocence in his favour and learned Additional Advocate Geneal has failed to point out any material warranting interference of this Court in the judgment of acquittal. In fact prosecution has failed to prove its case beyond reasonable doubt by leading cogent, reliable and convincing evidence.

In view of above discussion, we find no merit in the appeal and accordingly the same is dismissed, alongwith pending application(s), if any.