State Of H.P. vs Khem Singh

Vivek Singh Thakur, Judge

State of Himachal Pradesh has preferred the present appeal against judgment dated 4.6.2014 passed by the learned Special Judge, High Court of H.P.^{Kullu, District Kullu, H.P., in Sessions Trial No. 21 of 2013 (272 of 2013),} titled as State of Himachal Pradesh vs. Khem Singh, arising out of FIR No. 16 dated 26.1.2013, registered in Police Station Bhuntar, District Kullu, H.P. under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the "NDPS Act"), whereby the respondent-accused has been acquitted of the charge framed against him.

We have heard learned Senior Additional Advocate General for the appellant-State as well as learned counsel for the respondent-accused and have also gone through the record.

Prosecution case is that a police party headed by ASI Rajesh Kumar (PW-7), consisting of ASI Dheeraj Singh (not examined), PSI Yograj (not examined), and HC Nand Lal (PW-1), left Police Station Bhuntar on 26.1.2013, at about 4.20 P.M. in official vehicle bearing registration No. HP-34A-9984, driven by PSI Yograj, for routine patrolling towards Hurla-Tharas. In this regard GD Entry No. 30-A dated 26.1.2013 Ex. PW-2/A was registered at Police Station Bhuntar.

As per the prosecution story, at about 5:00 PM, while Police Party was present at place Chhutti-Bihal, they noticed a person, coming from Hurla side holding a bag in his right hand, who on noticing the Police Naka Party, got perplexed and tried to flee by turning around, which created suspicion and, therefore, Police Party overpowered him, who disclosed his name Khem Singh (respondent) age 36 years. Suspecting some illegal article with him, PW-7 ASI Rajesh Kumar sent PW-1 HC Nand Lal to search for independent witnesses, who came back after fifteen minutes with report that the area was a secluded place and he did not find any person to be associated as independent witness to the search and seizure process. Whereupon PW-7 ASI Rajesh Kumar associated PSI Yograj and PW-1 HC Nand Lal as witnesses in the search and seizure proceedings. Thereafter PW-7 ASI Rajesh Kumar gave his personal search to the respondent-accused and then bag of Khem Singh was checked, wherein a light-pink coloured polythene packet was found, wherein sticks type, buttons type, round as well as ball shaped a black substance was found, which was checked by breaking and on smelling and on the basis of experience, it was found as charas (cannabis). Thereafter, as per prosecution case, recovered contraband, on weighing was found 2.00 Kilograms. The recovered contraband was again put in the bag in the same manner and the bag was seized and sealed in a cloth parcel with seal impression 'T' at 8 places. NCB-I form was filled in triplicate and specimen seal was taken and after use, seal was handed over to PW-1 HC Nand Lal. Seizure memo (Ext. PW-1/C) was prepared on the spot and a copy of same was delivered to the respondent-accused free of cost after signing by PW-1 Nand Lal and PSI Yog Raj, as witnesses, which was also signed by respondent Khem Singh.

On finding commission of offence under Section 20 of the NDPS Act, for registration of FIR, rukka Ext. PW-7/A was sent to the Police Station through PW-1 HC Nand Lal at 6:30 PM.

Investigating Officer prepared the site plan of the spot on the spot, recorded statements of witnesses.

In the meanwhile, PW-1 HC Nand Lal reached in the Police Station and after registration of FIR, he came back on the spot and handed over the case file to PW-7 ASI Rajesh Kumar.

It is case of the prosecution that entire proceedings were conducted in official Jeep in torch light.

After completion of spot proceedings, PW-7 ASI Rajesh Kumar alongwith Police Party and respondent came back to the Police Station and produced the parcel for re-sealing alongwith relevant documents, which was re-sealed by PW-6 SI Lal Singh with seal impression 'H' and sample seal ‘H’ was taken as Ex. PW-6/A and he also filled relevant columns of the NCB-1 form Ext. PW-3/C. Case property was handed over to MHC PW-3 Tara Chand, who made entry in Register No. 19 at Serial No. 44, on 27.1.2013. He also filled relevant column of NCB-1, and sent sealed parcel of contraband to State Forensic Science Laboratory (SFSL), Junga, through PW-5 HHC Jinesh Kumar vide RC No. 16/13 on 28.1.2013.

During investigation, special report Ext. PW-4/A was prepared and sent to Additional SP, Kullu, Sandeep Dhalwan, who after making endorsement thereon, handed over the same to PW-4 HC Balbir Singh, the then Reader to Additional SP.

On the basis of Rukka PW-6 SI Lal Singh, registered FIR Ex. PW-6/B and made endorsement Ex. PW-6/A on the rukka. PW-2 Constable Subhash Chand had recorded rapat No. 30-A (Ex. PW-2/A) regarding departure of Police Party and rapat Ex. PW-2/B regarding arrival of Police Party to the Police Station.

It is an admitted case that Police party headed by PW-7 ASI Rajesh Kumar was consisting of ASI Dheeraj Singh, PSI Yog Raj and PW-1 HC Nand Lal. Out of these four official spot witnesses, only three namely ASI Rajesh Kumar, PSI Yog Raj, and HC Nand Lal were cited as witnesses, whereas ASI Dheeraj Singh was not cited as a witness despite the fact that he had signed various documents as witness as per claim of the prosecution.

HC Nand Lal was examined as PW-1 on 5.7.2013. On that day, PSI Yog Raj was also present in the Court. However, PSI Yog Raj was not examined and was given up by the Public Prosecutor being repetitive in nature, despite the fact that at that time only one prosecution witness had been examined, who was the person who had taken ruka to Police Station and was not present on the spot throughout with the Police Party.

After examining only one witness, it could not have been said that PSI Yog Raj was a repetitive in nature, as at that time no other witness, except PW-1 Nand Lal had been examined. Therefore, giving up of PSI Yog Raj being repetitive is fatal for the prosecution, particularly when spot witness ASI Dheeraj Singh was neither cited nor examined as a witness and only Investigating Officer PW-7 Rajesh Kumar was available as another witness, apart from PW-1 HC Nand Lal to corroborate prosecution story. In fact, by not citing or examining ASI Dheeraj Singh and giving up PSI Yog Raj by claiming that he was being repetitive in nature, the prosecution has committed a blunder by not examining any other witness to corroborate the statement of PW-7 Rajesh Kumar, the sole spot witness, who was present on the spot throughout because to corroborate statement of PW-7 Rajesh Kumar at least one other witness was necessary to be examined, which was required, particularly for the reason that no independent witness had been associated in search and seizure process in present matter.

Non-availability of independent witnesses also appears to be incorrect statement as it has come in statement of PW-7 ASI Rajesh Kumar and PW-1 HC Nand Lal, at a distance of one and a half kilometers, there were residential villages. Even if, it is assumed that no independent witness was readily available at that time, being a busy road it was quite possible that some vehicle would have crossed the spot. On this count also plea of the prosecution appears to be concocted, as PW-1 HC Nand Lal received ruka at 6.30 P.M. and was able to get a lift in a private car going towards Bhuntar there and then. It is very strange that while PW-7 ASI Rajesh Kumar claims that the place was secluded and no vehicle crossed during the entire period, availability of private vehicle to PW-1 Nand Lal falsifies the claim of PW-7 ASI Rajesh Kumar that no vehicle crossed during the entire proceedings from the spot. Had it been so, it would not have been possible for PW-1 Nand Lal to get lift in a private car.

In examination-in-chief, PW-7 ASI Rajesh Kumar has stated that he had completed entire proceedings on the spot inside the vehicle with the help of a torch and come back to the Police Station alongwith accused and Police Party at 8:30 PM. He has further stated that he had recorded the statements of SHO, PW-6 SI Lal Singh and PW-1 HC Nand Lal after handing over the contraband and documents to PW-6 SI Lal Singh for resealing, meaning thereby, that was done in Police Station, as in cross-examination, also he has stated that he recorded the statements of the witnesses in the Police Station, since it was dark on the spot.

It is again a material contradiction as in examination-in-chief PW-7 ASI Rajesh Kumar has stated that entire proceedings were conducted on the spot in side the vehicle, but in cross-examination he has stated that it was dark and, therefore, he recorded statements of witnesses in Police Station. Both claims are impossible to be reconciled.

PW-7 ASI Rajesh Kumar has stated that he did not conduct any proceedings after arrival of PW-1 Nand Lal on the spot, with self statement that he only mentioned FIR number on documents on the spot.

On the contrary, PW-1 HC Nand Lal has stated that after handing over the case file to PW-7 ASI Rajesh Kumar on the spot, ASI Rajesh Kumar recorded his statement on the spot and thereafter search of the accused was conducted vide memo Ex. PW-1/D. PW-1 HC Nand Lal has been cited as a witness to the personal search of respondent Khem Singh along with PSI Yog Raj in memo of personal search Ex. PW-1/D. According to PW-1 HC Nand Lal, personal search was conducted in his presence. At this juncture, it is also apt to notice that respondent was arrested on the spot Chutti Bihal at about 7:45 PM as recorded in the memo Ex. PW-7/C. In this memo, PW-1 Nand Lal is not a witness, but PSI Yog Raj and ASI Dheeraj Singh are cited as witnesses, meaning thereby that PW-1 Nand Lal was not present on the spot. For want of examination of ASI Dheeraj Singh and PSI Yog Raj, there is no witness regarding complete search and seizure process. PSI Yog Raj, despite citing as witness has not been examined, whereas ASI Dheeraj Singh was not cited as a witness at all. Both of them have not been examined in the Court, who is also witness PW-7 Rajesh Kumar to memo of arrest and information thereof.

PW-1 HC Nand Lal has stated that after leaving the Police Station at 4:30 PM, the Police Party stopped at Bhuntar Bazar and Bajaura.

On the other hand, PW-7 ASI Rajesh Kumar has stated that they left the Police Station at 4:20 PM and went to Kalheli and Bajaura, and then proceeded to the spot. PW-1 HC Nand Lal is silent about Kalheli, and PW-7 ASI Rajesh Kumar is silent about Bhuntar Bazar.

PW-1 HC Nand Lal has stated that he took lift from the spot in a private vehicle, whereas PW-7 ASI Rajesh Kumar expressed his ignorance about the vehicle in which Nand Lal travelled to the Police Station. PW-7 ASI Rajesh Kumar has also stated that he did not remember that at about 7:00 P.M. any Government bus crossed the spot. PW-7 ASI Rajesh KUmar has stated that when PW-1 Nand Lal came back on the spot, he had completed all proceedings on the spot, with further statement that he recorded the statements of witnesses in the Police Station, as it was dark. When PW-7 ASI Rajesh was able to prepare the site plan Ex. PW-7/B, arrest memo Ex. PW-7/C, ruka Ex. PW-7/A, seizure memo Ex. PW-1/C, and sample seals in torchlight inside the vehicle, then what prevented him from recording the statements of the witnesses on the spot.

With regard to aforesaid discrepancy, it is also apt to record that according to PW-1 Nand Lal, his statement was recorded on the spot and thereafter personal search of accused was conducted vide memo Ex. PW-1/D. At the time of arrest of respondent, PW-1 Nand Lal was not present on the spot. Personal search of the accused was conducted immediately after arrest, probably before 8:00 P.M. and at that time also PW-1 Nand Lal was not present on the spot. In the memo of arrest, only PSI Yog Raj and ASI Dheeraj Singh are witnesses, whereas in memo of Jama Talashi, PSI Yog Raj and PW-1 HC Nand Lal have been shown as witnesses. In case Nand Lal was present at the time of arrest, he would have been cited as a witness to the arrest memo and if he was not there at that time, then it was not possible that he was available at the time of Jamatalashi.

No doubt an accused can be convicted only on the basis of statements of official witnesses, however, at the same time, it is cardinal principle of criminal jurisprudence that requirement of associating independent witnesses is not a mere formality. Even if it is presumed that it was a secluded place and no independent witness was available and two official witnesses were associated by way of compulsion, it was incumbent upon the prosecution to examine both spot official witnesses who were associated in the search and seizure process. PW-1 HC Nand Lal was associated as a witness, but at the same time, he was also sent to the Police Station with rukka, whereas ASI Dheeraj was available on the spot to be associated as a witness, but he was not officially associated in search and seizure process. However, in arrest memo, he has been cited as a witness. In the aforesaid facts, non-citing of ASI Dheeraj Singh as a witness in the list of witnesses and non-examination of PSI Yog Raj, despite mentioning him as a witness of the spot in the list of witnesses, is fatal for the prosecution case.

In month of January, at 6:00 PM also, there exists sufficient darkness and same situation continues thereafter. Therefore, plea of PW-7 ASI Rajesh Kumar that he could not complete the proceedings on the spot due to darkness also appears to be an excuse to justify preparation of documents in the Police Station. Even otherwise, PW-1 HC Nand Lal has also falsified the version of PW-7 ASI Rajesh Kumar regarding recording of statement of witnesses in the Police Station, as PW-1 HC Nand Lal has categorically stated that his statement was recorded by PW-7 ASI Rajesh Kumar on the spot. PW-1 HC Nand Lal had come on the spot after registration of FIR. His statement was recorded on the spot, then what prevented PW-7 ASI Rajesh Kumar to record statements of other witnesses on the spot, who were only two in a number, i.e. PSI Yog Raj and ASI Dheeraj Singh.

PW-7 ASI Rajesh Kumar has also stated that after arrival of PW-1 HC Nand Lal on spot, he did not conduct any proceeding on the spot, except mentioning of FIR number on the documents on the spot. His own statement as well as statement of PW-1 HC Nand Lal falsifies this disposition also.

From the aforesaid discrepancy, it appears that incident has not taken place as alleged and there is something which is being hidden from the Court and prosecution has not come to the Court with clean hands.

It is also apt to record that PW-1 HC Nand Lal is a police official who knows the sanctity of the production of seal handed over to him after use in sealing the parcel of contraband at the time of seizing the contraband, but he has very casually stated that he had lost the same and, therefore, had not brought the same to the Court to produce in evidence.

Respondent has an advantage of acquittal by the Trial Court, fortifying presumption of innocence in his favour, and learned Senior Additional Advocate General has failed to point out any material on record so as to establish a cogent, reliable and convincing evidence to rebut the presumption of innocence of the respondent.

For the foregoing reasons, we find no merit in the present appeal.

The appeal is accordingly dismissed.

Bail bonds furnished by the respondent-accused stand discharged.

Record of Trial Court be sent back forthwith.