Vijay Sharma vs State Of Himachal Pradesh

Rakesh Kainthla, J

The present appeal is directed against the judgment and order dated 30.03.2021, vide which the appellant (accused before the learned Trial Court) was convicted of the commission of an offence punishable under Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘NDPS Act’) and sentenced to undergo rigorous imprisonment for 10 years and pay a fine of Rs. 1,00,000/- (One Lakh) and in default of payment of the fine, to further undergo simple imprisonment for one year.

(Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the accused before the learned Trial Court for the commission of an offence punishable under Section 20 of the NDPS Act. It was asserted that on 14.03.2016 Inspector Lakhvir Singh (PW-9), ASI Surender Singh, ASI Nand Lal (PW-3) and Constable Rajesh Kumar (PW-1) were present ahead of Balh bridge (Tehsil Padhar) for Nakabandi. The accused came from Ropa side at about 07:35 p.m. ASI Lakhvir Singh asked the accused to stop but he (the accused) returned and started running. The police apprehended him at a distance of about 10 meters. He had a red carry bag (Ext.P2) in his right hand. On inquiry revealed his name as Vijay Sharma. The police searched the bag and found 36 pieces wrapped and 25 pieces of unwrapped black sticks, which were smelled and burnt. They were found to be Charas. These were weighed with the help of an electric weighing scale and their weight was found to be 1 kg 500 grams. These were put in a carry bag. The carry bag was put in a cloth parcel (Ext.P1) and the parcel was sealed with 6 seal impressions of seal ‘S’. Sample seal impression (Ext.PW-9/A) was taken on a separate piece of cloth. NCB-I form (Ext.PW-7/L)was filled in triplicate and the seal impression was put on the form. The seal after its use was handed over to ASI Nand Lal (PW-3). Inspector Lakhvir Singh (PW-9) seized the cloth parcel, NCB-I form and sample vides seizure Memo (Ext.PW-3/A). He prepared the rukka (Ext.PW-8/A) and handed it over to Constable Rajesh Kumar (PW- 1) with a direction to FAX it to CID,Bharari, Shimla. F.I.R. (Ext.PW-8/C) was registered at Police Station, Bharari. Inspector Lakhvir Singh (PW-9) conducted the investigation. He prepared the spot map (Ext.PW-9/B) and recorded the statements of witnesses as per their version. Inspector Lakhvir Singh arrested the accused, vide memo (Ext.PW-3/B). He produced the case property and case file before SHO Virender Chauhan (PW-8), who re-sealed the parcel with 6 impressions of seal ‘S’. He filled columns No. 9 to 11 of the NCB form in triplicate and put the seal impression ‘N’ on the form. He obtained the sample seal (Ext.PW-8/E) on a separate piece of cloth. He handed over the case property and the documents to HC Umeshwar Singh (PW-7), who made an entry in the Malkhana register (Ext.PW-7/A) and deposited the case property in Malkhana. He handed over the case property and the documents to HC Sohan Lal (PW-4) with a direction to carry them to SFSL Junga, vide RC No.8/2016. HC Sohan Lal (PW-4) deposited all the articles at SFSL Junga, and handed over the receipt to HC Umeshwar Singh (PW-7) on his return. A special report (Ext.PW-2/A) was prepared and handed over to Dy.S.P. Manohar Lal on 15.03.2016. He made an entry on the Special Report (Ext.PW-2/A) and handed it over to his Reader HHC Kuldeep Chand (PW-2). HHC Kuldeep Chand (PW-2) made an entry of Special Report in the register (Ext.PW-2/B) and retained the Special Report on the record. The result of the analysis (Ext.PX) was issued, in which it was shown that the exhibit was an extract of cannabis and a sample of CHARAS, which contained 26.44% w/w resin in it. Statements of remaining witnesses were recorded as per their version and after completion of the investigation, the challan was prepared and presented before the learned trial Court.

The learned Trial Court charged the accused with the commission of an offence punishable under Section 20 of the NDPS Act. The accused pleaded not guilty and claimed to be tried.

The prosecution examined 9 witnesses to prove its case. Constable Rajesh Kumar (PW-1) and ASI Nand Lal (PW-3) are the witnesses to recovery. HHC Kuldeep Chand (PW-2) was posted as a Reader to Dy.S.P., to whom the Special Report was handed over. HC Sohan Lal (PW-4) carried the case property and the documents to SFSL Junga. HC Ranjeet Singh (PW-5) brought the case property and the result of analysis from SFSL Junga. ASI Govind Ram (PW-6) partly conducted the investigation. HC Umeshwar Singh (PW-7) was posted as MHC, with whom the case property was deposited. Virender Chauhan (PW-8) was posted as SHO, who resealed the case property and signed the F.I.R. Inspector Lakhvir Singh (PW-9) effected the recovery and conducted the investigation of the case.

The accused in his statement recorded under Section 313 of Cr.P.C. denied the prosecution case in its entirety. He stated that he was innocent and claimed to be tried.

The learned Trial Court held that the testimonies of official witnesses corroborated each other. There was nothing in their statements to show that they were making false statements. The recovery was effected from the bag and there was no requirement of compliance with the provisions of Sections 50 and 42 of the NDPS Act. The police tried to associate independent witnesses but could not find any, which was natural as the recovery was effected at 07:30 p.m. Mere failure to join the independent witnesses is not fatal. The failure to give the personal search of the accused was not sufficient to discard the prosecution case. The testimony of Manish Kumar (DW-1) was not believable. Hence, the accused was convicted and sentenced as aforesaid.

Being aggrieved and dissatisfied with the judgment and order passed by the learned Trial Court, the accused has filed the present appeal asserting that the learned Trial Court erred in convicting and sentencing the accused. The evidence was not appreciated in proper perspective and there was insufficient evidence to connect the accused with the commission of the crime. No efforts were made to associate the independent witnesses despite their availability. There were major contradictions in the statements of official witnesses, which adversely affected their credibility. Hence, it was prayed that the present appeal be allowed and judgment and order be set aside.

We have heard Mr. Ajay Chandel, learned counsel for the appellant/accused and Ms. Seema Sharma, learned Deputy Advocate General for respondent-State.

Mr Ajay Chandel, learned counsel for the appellant/accused submitted that there were major contradictions in the testimonies of the official witnesses, which made the prosecution case suspect. When police officials do not associate independent witnesses, it becomes necessary to minutely scrutinize their statements. In the present case statement of official witnesses do not inspire confidence. The learned Trial Court erred in relying upon the testimonies of the official witnesses; therefore, he prayed that the judgment and order passed by the learned Trial Court be set aside.

Ms. Seema Sharma, learned Deputy Advocate General for the respondent/State supported the judgment and order passed by the learned Trial Court and submitted that the contradictions are bound to come with time due to failure of memory and they are not sufficient to discard the prosecution case. The learned Trial Court had rightly held that it was not possible to associate independent witnesses, as the incident took place at a secluded place at around 07:35 p.m. when the independent witnesses were not expected to be present. Hence, she prayed that the present appeal be dismissed.

We have given considerable thought to the submissions at the bar and have gone through the records carefully.

Constable Rajesh Kumar (PW-1) stated that he, Inspector Lakhvir Singh (PW-9), ASI Surender Kumar and ASI Nand Lal (PW-3) departed from Police Station CID, Bharari Shimla to verify the secret information regarding the NDPS. This version was corroborated by G.D. entry No. 03, dated 11.03.2016 recorded at 9:10:37 p.m. (Ext.PW-7/A).

ASI Nand Lal (PW-3) stated in his examination-in-chief that he was posted as ASI in Narcotic Cell, Mandi, District Mandi, H.P. He stated in his cross-examination that he did not remember when Inspector Lakhvinder [sic], ASI Surender Singh and Constable Rajesh Kumar (PW-1), met him at Paddal Mandi. His testimony shows that he was posted at Mandi and had met the police officials at Mandi, which is contrary to the testimony of Constable Rajesh Kumar (PW-1) and the entry in the daily diary.

Lakhvir Singh (PW-9) stated in his cross-examination that they had left the Police Station, Bharari Shimla on 11.03.2016 at around 09:00 p.m. and reached Mandi on 12.03.2016. This is contrary to the statement of Constable Rajesh Kumar (PW-1), who stated in his cross-examination that they started from Shimla at 10:37 p.m. and were present at Ghagas from 12:30 p.m. to 3:30 p.m. They stayed at Mandi on 11.03.2016. The time of departure i.e. 10:37 p.m. is an error because had they started at 10:37 pm, they would not have reached Ghaghas at 12:30 p.m. to 3:30 p.m. and would not have stayed at Mandi on 11.03.2016. Therefore, the testimonies of police officials are inconsistent regarding their departure from Shimla and arrival at Mandi. The witnesses have given different version regarding the time of their departure and these differences are not minor because one has deposed about the departure in the morning, while the other has deposed about the departure in the evening. A person can be mistaken regarding the time of departure, but it is difficult to believe that he would be mistaken regarding the fact whether the departure had taken place in the morning or the evening.

Constable Rajesh Kumar (PW-1) stated in his cross-examination that he had stayed in Police Line, Mandi and the rest of the police officials stayed on their own. ASI Nand Lal (PW-3) has not stated anything about his stay because he was posted at Mandi as per him. Inspector Lakhvir Singh (PW-9) stated that he, ASI Surender Singh and Constable Rajesh Kumar stayed with him at Police Line, Mandi, whereas ASI Nand Lal stayed in his room. Therefore, these witnesses have given different version regarding their place of stay at Mandi.

Constable Rajesh Kumar (PW-1) stated that he did not know the names of the places where they had set up Nakkas on the 11th 12th and 13th March 2016. He volunteered to say that Nakka was set up within the jurisdictions of Police Station Sadar, Mandi.

He had heard the names of places like Padhar and Darang but not the names of Bijni, Pali, Urla and Narla. ASI Nand Lal (PW-3), on the other hand, stated that on 12.03.2016 and 13.03.2016 they had visited the places Bijni, Padhar and Pali etc. Inspector Lakhvir Singh (PW-9) stated that no Nakka was laid by the police party on 12.03.2016 and 13.03.2016.

These testimonies show that the witnesses have given different version regarding the places where the Nakka was set up and whether the Nakka was set up or not. If the Nakkas were set up at Bijni, Padhar and Pali, it is difficult to believe that Constable Rajesh Kumar (PW-1) would not have heard about these places. The version that the Nakkas were set up is made doubtful by the testimony of Inspector Lakhvir Singh (PW-9), who categorically stated that the no Nakka was set up on 12.03.2016 and 13.03.2016. According to Inspector Lakhvir Singh, he had reached Mandi on 12.03.2016 and there was no question of setting up Nakka on 11.03.2016.

Constable Rajesh Kumar (PW-1) stated that he had no idea of the distance between Padhar and the spot; however, the spot was located on the main road. Inspector Lakhvir Singh (PW-9) stated that the spot is not situated on the main road leading to Joginder Nagar and he could not tell the name of the place from where the link road leaves the main road. ASI Nand Lal (PW-3) stated that the place of Nakka was not on the main road and Balh Bridge is at a distance of 18 to 20 km from Padhar. Therefore, the witnesses have given different version regarding the location of the spot. The site plan(Ext.PW-9/B) mentions that the spot was located on road ‘A’, which leads from Mandi to Balh. This is contrary to the version of the witnesses that the spot was located on a road leading from Padhar. The fact that the road is shown to be starting from Mandi shows that the road was the main road starting from the District Headquarters and not the link road starting from any other place. Hence, the evidence regarding the place of the incident is not consistent.

Constable Rajesh Kumar (PW-1) denied that one house and four shops were located near the place of the incident. ASI Nand Lal (PW-3) also denied that three-four shops were located near the spot. Inspector Lakhvir Singh (PW-9) stated in his cross-examination that he had shown one house and some closed shops near the spot. He made efforts to associate independent witnesses but was not successful, as the shops and houses were closed. He had also shown one house at place ‘E” and three shops at place ‘F’ in the site plan (Ext. PW-9/B). His statement and site plan show that the statements of Constable Rajesh Kumar (PW-1) and ASI Nand Lal (PW-3) that there were no shops and houses are incorrect. This discrepancy coupled with the road on which the spot is located will make it doubtful whether the police party had visited any such spot shown in the site plan or not.

The specific case of the prosecution is that the accused was found in possession of a red bag. The result of the analysis (Ext. PX) mentions that 36 poly-wrapped and 25 unwrapped sticks were found in a black and red carry bag. The documents prepared by the police do not show any black and red bag but these are quite specific that the bag was red. The seizure memo (Ext.PW-3/A), special report (Ext.PW-2/A), and rukka (Ext.PW-8/A) mention the red carry bag and not the black and red carry bag. This discrepancy has to be read with the record of the learned Trial Court which shows that one white parcel sealed with seal impressions of seal ‘S’, and ‘N’ each, four seal impressions of SFSL, out of which 2 seals of ‘N’ were broken was produced during the examination of Constable Rajesh Kumar (PW-1). The parcel sealed with six seals of ‘H’ and ‘N’ each and four seals of SFSL was produced during the examination of ASI Nand Lal (PW-3). The Courts specifically noticed that the seals were intact. It shows that when the parcel was produced earlier, it had two broken seals ‘N’ and when it was produced during the examination of ASI Nand Lal (PW-3), all the seals were intact. This can only lead to an inference that two seal impressions ‘N’ were put after the examination of Constable Rajesh Kumar (PW-1). The fact that the SFSL noticed a black and red carry bag whereas the carry bag was red as per the documents, can also lead to such an inference. This inference is fatal to the prosecution because it shows that the prosecution can tamper with the case property.

The learned Trial Court held that the contradictions were minor which were bound to come with time. This conclusion is not correct because the contradictions lead to the manner of leaving Police Station Bharari, arrival at Mandi, the place where the accused was apprehended and the integrity of the case property. There cannot said to be minor but intricately connected to the recovery

It was held by this Court in Surender Kumar vs State Cr.A. No. 263 of 2021 decided on 06.05.2024 that the Court has to see whether the statement of the witness is consistent or not. The statements of the witnesses are not only required to be consistent regarding the core of the prosecution case but it has to be consistent regarding the matters not germane to the litigation.

Since in the present case there is no consistency; thus, reliance could not have been placed on the testimonies of the witnesses, especially when independent witnesses were not associated and the prosecution was relying upon the testimonies of the official witnesses alone.

Therefore, the learned Trial Court erred in relying upon the testimonies of official witnesses in convicting the accused; hence, the judgment and order passed by the learned Trial Court are not sustainable and the same deserves to be set aside. The accused is entitled to a benefit of doubt and is acquitted for the commission of an offence punishable under Section 20 of the NDPS Act. The fine amount, if any deposited, be refunded to the accused after the expiry of the period of limitation for filing the appeal in case no appeal is preferred.

The accused is ordered to be released immediately, if not required in any other case. The Registry is directed to prepare the release warrant of the appellant.

In view of the provisions of Section 437-A of the Code of Criminal Procedure the appellant is directed to furnish his personal bond within four weeks in the sum of Rs. 25,000/- with one surety in the like amount to the satisfaction of the learned Registrar (Judicial) of this Court, which shall be effective for six months with stipulation that in the event of Special Leave Petition being filed against this judgment, or on grant of the leave, the appellant on receipt of notice(s) thereof, shall appear before the Hon’ble Supreme Court.

Records be sent back forthwith. Pending applications, if any, also stand disposed of.