The State of H.P. vs Christopher alias Vorreither and Another

R.B. Misra, J.—Heard Mr. Rajinder Dogra, Additional Advocate General, for the appellant-State and Mr. Anup Chitkara, Amicus Curiae, for the accused-respondents.

The present Criminal Miscellaneous Petition (Main) preferred u/s 378(3) Cr.P.C. for granting leave to appeal in reference to an order dated 10.09.2004, passed by learned Sessions Judge, Kullu, District Kullu, in Sessions Trial No. 47-2004, u/s 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985.

Shri Anup Chitkara, Advocate, has been requested to assist this Court as Amicus Curiae and he has kindly agreed to the same. Accordingly, Shri Anup Chitkara has assisted this Court in response to the submissions made on behalf by Shri Rajinder Dogra, Additional Advocate General, for the appellant-State.

In order to adjudicate the present Criminal Miscellaneous Petition (Main), preferred u/s 378(3) Cr.P.C., it is necessary to give factual background of the prosecution case.

On 09.01.2004, ASI Gian Chand (PW-11) alongwith HHC Bir Singh (PW-7), Constable Ajay Kumar and Lady Constable Nitu Sharma, while on patrol duty, received a secret information that one male and one female, foreign nationals residing in the house of Amar Chand (PW-8), were dealing in the business of charas, as such, the said information was reduced into writing as Ex. PW-3/B and the same was sent through HHC Bir Singh to SDPO Manali. Thereafter, Amar Chand (PW-8) house owner, Mohar Singh Up Pradhan (PW-9) and Prem Kumar, mechanic (PW-10), were associated as witnesses. The house was raided and both the accused-respondents were apprised whether they want to be searched before a Magistrate or Gazetted Officer or in presence of the witnesses by the Police Officials and on their agreeing, the accommodation of the accused-respondents was searched. During search, bag Ex. P-4 was found kept in a almirah (cupboard), containing four compressed and sealed packets of charas. The recovered charas was 2.100 kilograms. Two samples of 25 grams each were taken, packed and sealed with four seals of impression ''M''. The bulk charas alongwith bag was also packed and sealed with four seals of impression ''M''. One sample of recovered charas was sent for chemical examination.

According to Mr. Rajinder Dogra, learned Additional Advocate General, for the petitioner-appellant, on receiving information, the premises of PW-8 (Amar Chand) was raided and on search, charas weighing 2.100 kilograms was recovered. In due discharge of procedural formalities, police two samples were separated, sealed with seals and sent the same to Chemical Examiner. Police officials have supported the prosecution case, though PW-8 Amar Chand, PW-9 Mohar Singh and PW-10 Prem Kumar independent witnesses have not supported the prosecution case, even then relying on the officials witnesses, the prosecution case is said to be proved beyond reasonable doubt.

On the other hand, Mr. Anup Chitkara, Amicus Curiae, has invited our attention to the prosecution witnesses and the material on record and at the very out-set submitted that the premises of PW-8 Amar Chand was already in possession of PW-8 himself, as the accused-respondents have already handed over the possession of the same when the search was made on 09.01.2004 at 2 p.m. Prior to it, both the accused-respondents have seized to be the tenants and only their luggage was available in one of the room. However, on search, the alleged recovery was stated to be made from the middle room of the premises and not from the luggage/bags of the accused-respondents. The place from where the recovery of incriminating contraband goods was made was not in exclusive possession of the accused-respondents and two independent witnesses, PW-9 Mohar Singh and PW-10 Prem Kumar, said to have been associated by the prosecution, have not supported the prosecution case. In absence of non-support of PW-9 and PW-10, much reliance on official witnesses cannot be placed.

We have also observed that the prosecution has examined PW-1 Constable Alamgir, PW-2 HHC Tek Chand, PW-7 HC Uttam Chand driver of the police department, PW-11 ASI Gian Chand and other official witnesses, who in due discharge of their official duty have endeavoured to support the prosecution case to the extent the role assigned to them. However, the most material prosecution witness is PW-8 Amar Chand, in whose house the alleged accused-respondents were staying as tenants, in his cross-examination has very categorically stated that the accused-respondents were tenants in his house till December, 2003. The accused-respondents have stored their luggage in one of the room, which is on one side of the rented accommodation. Rest of the rented accommodation had been given to PW-8 Amar Chand and the possession had been delivered to PW-8. In view of such testimony, it is clear that the premises in question was in possession of PW-8 Amar Chand, the owner of the house, however, for reasons best known to the prosecution was not made accused.

Admittedly, constable Ajay Kumar and lady constable Neetu Sharma, who were with PW-11 have not been examined. PW-5 HHC Bir Singh accompanied ASI Gian Chand but he remained with PW-11 till PW-11 received intimation/information u/s 42 of the NDPS Act Ex. PW-3/B and the same was handed over to him with direction to hand over the same to competent Supervisory police officer. PW-5 was not present on the spot at the time of search, seizure and alleged recovery of charas in question. PW-5 and PW-7 have stated that on 09.01.2004 PW-11 received intimation/secret information that one male and other female foreign nationals residing in the house of PW-8 were carrying on business of charas. The said information was reduced into writing, which is Ex. PW-3/B, and sent through PW-5 HHC Bir Singh to Supervisory Police Officer, Manali. PW-8 Amar Chand, PW-9 Mohar Singh and PW-10 Prem Kumar were associated as local independent witnesses in the raiding party and reached in the house of PW-8 at 2 p.m. on 09.01.2004. On search, recovery of contraband goods was said to have been made from the house of PW-8. PW-8, PW-9 and PW-10 ultimately did not support the prosecution case, specifically the search and place of recovery of contraband goods, however, PW-9 and PW-10 have been declared hostile and PW-8 in his cross-examination has stated that the said premises was in his possession. In his cross-examination he has admitted that he had rented out three rooms, one toilet and one kitchen to the accused-respondents and the central/middle room was a big room which was being used as drawing room, having a big wooden almirah.

PW-8 has thrown suspicion on the prosecution case by deposing that some times in between the accused used to leave the rented accommodation and go to visit the different places after locking the rented accommodation. PW-8 has very categorically stated in his cross-examination, in response to the query of the Public Prosecutor, that he had rented out three rooms, one toilet and one kitchen to the accused-respondents in his house and central/middle room was big room which was used as drawing room and in that room a big wooden almirah was placed. However, in view of the prosecution case, the recovery was made from the central/middle room, specifically from the wooden almirah, whereas, luggage of accused-respondents was kept in one side of another room.

PW-9 and PW-10 alleged to have visited the place of search alongwith raiding party, have not indicated the presence of accused persons at that relevant time and has disowned the search, seizure or recovery of charas from the spot in question.

On analysis of the prosecution witness and material on record, there are inconsistencies, contradictions and improbabilities in the prosecution case and keeping in view that PW-8, owner of the house, alongwith PW-9 and PW-10, two independent witnesses, have not supported the prosecution case in its entirety, as such, learned Sessions Judge has rightly arrived at the finding that the prosecution prosecution has failed to prove its case beyond reasonable doubt.

In these circumstances, we do not find any force in the submissions made by Mr. Rajinder Dogra, Additional Advocate General, accordingly, right to appeal is liable to be rejected and is dismissed.

Consequent upon the dismissal of the Cr.MP(M) No. 1282 of 2004, filed u/s 378(3) Cr.P.C., the accused-respondents are entitled for return of their passports.