Gulshan alias Ajit Sadana vs State of H.P.

Dev Darshan Sud, J.—The appellant challenges his conviction for offences u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ''NDPS Act'') to undergo rigorous imprisonment for two years and a fine of Rs. 20,000/- and in default of payment of fine to further undergo imprisonment for four months. The prosecution case in brief is that on 15.11.2009, the accused was intercepted while he was sitting in bus No. DL-IP-7544 belonging to Rana Motors and driven by PW-9 Vikram Singh. He was occupying seat No. 43 and found to be in possession of one brown coloured bag with words "DIESEL" written on it. On checking this bag it was found to contain ''charas''. After complying with the provisions of the Act, seizing and dispatching of the sample for analysis for forensic examination, accused was convicted for the offences as charged on the ground that he was found to be in conscious possession of the contraband. The learned trial Court did not find any defect either in the investigation or contradictions in the evidence of the witnesses and convicted the accused.

What has been urged before me is that the prosecution case as stated on the record by the witnesses, is that bus bearing No. DL-1P-7544 owned by Rana Motors was checked when the accused was found occupying seat No. 43. On this aspect learned counsel for the appellant submitted that this fact is contrary to the evidence produced by the prosecution. PW-8 Suresh Kumar was the owner of the travel agency which issued tickets has stated that ticket bearing No. 5872, Ex. PW-8/A, was issued by his agency and was for bus No. DL-1P-7558 (and not for DL-1P-7544). According to the prosecution, this ticket Ex. PW-8/A was seized from the accused when he was traveling in the bus (DL-1P-7544). To strengthen his submission further, learned counsel submits that PW-9 Vikram, who was the driver of the bus, has denied that he was driving bus No. DL-1P-7544. Infact, he was driving bus No. DL-1P-7558. He also denies the fact that the accused was sitting on seat No. 43. Learned counsel then refers to the evidence of PW-7 Manoj Kumar, brother of the accused, who states that the accused had been arrested on 14.11.2009, whereas the case of the prosecution is that the accused was arrested on 15.11.2009. According to learned counsel for the appellant, this uncertain state of evidence on the record, namely, (a) number of the bus, which according to the learned counsel was not intercepted on that day, (b) the ticket Ex. PW-8/A alongwith other evidence on the record that is of PW-8 Suresh Kumar, owner of the bus and PW-9 Vikram, who was the driver of the bus and was declared hostile, is categoric that bus No. DL-1P-7544 was never driven on the fateful day. Even, in case the evidence of the driver PW-9 Vikram is excluded, from what PW-8 Suresh Kumar states is categoric when he says that ticket Ex. PW-8/A was for bus No. DL-1P-7558 in which eventuality there is no question of the accused being arrested from the other bus. He then submits that the prosecution case itself is that the accused was arrested a day prior to the incident in which event the case against the accused further becomes improbable.

Learned counsel then submits that these are not facts in isolation, but the evidence of PW-3 HHC Amar Singh completely destroys the case of the prosecution. This witness states that he was handed over the contraband with 8 impressions of seal ''A'' and four impressions of seal ''H'', NCB I Form in triplicate and samples of seal ''A'' and ''H'' on 7.11.2009 with the directions to carry these to FSL, Junga vide RC No. 116/09. He says that he deposited those articles with the laboratory at Junga and the case property remained intact till it remained in his custody. In cross-examination he states that the property was handed over to him at about 4.30 P.M. He boarded the night bus and reached Shimla about 4.00 A.M. on the next day (meaning 18.11.2009) and he deposited the articles at 10.30 A.M. Ex. PW-5/A which is the FSL report indicates that the sample was received in the laboratory on 19.11.2009. Learned counsel submits that there is no explanation whosoever as to why the sample was not deposited on 18.11.2009 when admittedly, according to the prosecution evidence, the sample was carried to the laboratory for that date. There is no explanation furnished by the prosecution as to what happened to that sample for one day so-much-so the witness has not even cared to state as to where he had kept it and what he was doing for one full day before the sample was deposited. Learned Additional Advocate General submits that lapse in the prosecution case cannot be taken advantage by the defence as the seizure as also the identity of the accused, dispatch of the sample by the police and receipt thereof has been proved on the record. I am unable to accept this submission for the reasons that right from the very inception the case of the prosecution has not been established. Bus ticket and identity of bus have not been established, the ticket has not been linked with the bus from which the accused was purportedly arrested, there is no explanation as to when the sample was handed over to PW-3 on 17.11.2009 vide RC No. 161/09 Ex. PW-4/B, according to this witness he had reached the laboratory by the next day, and why the sample was not deposited on that day. When all these three factors are combined together, I find that the case of the prosecution cannot stand, as it does create a very serious doubt in the mind of Court as to why and in what circumstances the number of the bus has not been proved and the safe custody of the sample not established on the record. This appeal is accordingly accepted. The judgment of the learned trial Court is quashed and set aside. The fine, if deposited, to be refunded to the appellant. Bail bonds are discharged.