State of Haryana vs Kamla Ram

A.S. Nehra, J.

This appeal is directed against the judgment dated 10.12.1986 passed by the Additional Sessions Judge, Karnal, by which the respondent has been acquitted of the charge under section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

The prosecution story is that on 4.2.1986, Assistant Sub Inspector Satbir Singh of Police Station City, Panipat, alongwith Head Constables Virsa Singh, Gulab Singh and Shiv Kumar, and Constable Balraj, was present near ganda gala close to the PWD Rest House on the G.T. Road, Panipat, where he saw the respondent coming from the Railway Crossing along the ganda nala, carrying a bag in his hand. On taking note of the presence of the police party, he tried to slip away towards the Rest House, which aroused suspicion. He was, therefore, stopped. After offering himself for search by the respondent, leading to recovery of some cash and a wrist watch. However, on examination of the contents of the bag, the Assistant Sub Inspector found the respondent in possession of charas wrapped in a wax paper placed below the wearing clothes, which constituted an offence. Accordingly, the Assistant Sub Inspector seized the contraband material, from which he separated 10 grams as sample and made it into a parcel. He also converted the remainder into a separate parcel and sealed both the parcels in the presence of the witnesses, with his seal bearing the inscription of "S.S.". He took the case property into possession, vide recovery memo Exhibit PA, and sent ruqa Exhibit PB to the police station for registration of formal FIR. He also prepared rough site plan Exhibit PC of the place of occurrence, recorded the statements of the witnesses, arrested the respondent and deposited the case property intact with the H.M.C. on the same day.

The prosecution to prove its case, has relied upon the testimony of two witnesses, namely, Head Constable Virsa Singh PW1 and Sub Inspector Satbir Singh PW2 and also brought on record the recovery memo Exhibit PA, ruqa Exhibit PB, formal FIR Exhibit PB/1, roughsite plan Exhibit PC, report of the Chemical Examiner (Ext. PD) and link evidence in the form of affidavits Exhibits PE and PF, to prove the charge against the respondent.

When examined under section 313, Code of Criminal Procedure, the respondent denied the allegations and pleaded innocence. He examined Satpal Singh DW1 in his defence. DW1 deposed that Devi Ram, elder brother of the respondent, owned an apple orchard in Soma Kothi, District Mandi (Himachal Pradesh), of which he had taken a contract about two years ago. He stated that in February 1986, Devi Ram came to his house to collect the contract money; that Devi Ram told him that he had deputed his brother Kamla Ram for the purpose of collecting the contract money, on which he told Devi Ram that Kamal Ram had never contracted him; that after 910 days. Devi Ram again came to his house to tell him that Kamal Ram had been arrested by the police.

The learned counsel for the appellant has argued that both the prosecution witnesses examined in this case have consistently supported the prosecution case and the charge framed against the respondent stands established and, therefore, the respondent is liable to be convicted. The learned counsel for the respondent has contended that the prosecution evidence is full of contradictions and, therefore, the credibility of the two prosecution witnesses stands eroded. The learned counsel for the respondent has further argued that the Investigating Officer has deliberately withheld the independent witnesses although many private persons were available and since the prosecution story is not supported by independent evidence, therefore, the respondent is not liable to be convicted. He further contended that the affidavits forming part of the file do into conform to the requirements of section 297, of the Code of Criminal Procedure and, for that reason also, the respondent cannot be convicted on the material on the record.

The recovery of the contraband material is shown in the recovery memo Exhibit PA to have been made in the presence of Head Constable Virsa Singh and Gulab Singh. Out of the two witnesses, the prosecution has examined Head Constable Virsa Singh PW1 who has testified to the interception of the respondent and the recovery of the contraband material from him by ASI Satbir Singh. PW1 also proved the taking of the sample, the sealing of the parcels and the attestation of the recovery memo by him. S.I. Satbir Singh PW2 who has claimed the credit for the apprehension of the respondent, has supported the prosecution story in all its material particulars. PW2 also proved recovery memo Exhibit PA, ruqa Ext. PB, formal FIR Ext. PB/1, siteplan Ext. PC and the report of the Chemical Examiner (Ext. PD). The evidence of PWs 1 and 2 does not inspire confidence because it is replete with contradictions. In his crossexamination, Head Constable Virsa Singh PW1 stated that Constable Balraj, who was accompanying the police party, had brought the empty tin container. However, he has been contradicted by S.I. Satbir Singh who deposed that it was Head Constable Gulab Singh who had brought the tin container. It is in the cross examination of Head Constable Virsa Singh PW1 that ruqa Exhibit PB was sent to the police through Head Constable Shiv Kumar although in the ruqa it is Constable Balraj who is shown to have taken it to the police station. The matter does not rest here. Sub Inspector Satbir Singh PW2 had stated that the case property was given over by him to Inspector Sada Ram SHQ, who had affixed his own seal on the tin container. This position is contradicted by the affidavit Exhibit PE of MHC Bhale Ram, which clearly shows that the tin container carried only one seal of "S.S." (which belonged to ASI Satbir Singh). It will thus be seen that the witnesses are not only at variance with each other but also the statement of S.I. Satbir Singh is against the record. The evidence of these two witnesses, in our opinion, does not pass the test of credibity so as to make it the basis of conviction of the respondent. There is no quarrel with the proposition of law that the evidence of official witnesses cannot be discarded merely because of their official status but, in order to qualify for acceptance, it should be creditworthy. In the case in hand, however, as would appear from the foregoing discussion, thee evidenced on the file does not inspire confidence. This warranted its corroboration by some indecent witness which the Investigating Officer had not associated. Sub Inspector Satbir Singh PW2 has stated that he tried to contact twothree persons to associate them but they refused to join the investigation. This explanation of PW2 cannot be accepted, because he had not noted the names of those persons in the case diary.

The affidavits Exhibits PE and PF of MHC Bhalle Ram and Constable Sunder Lal, who had handled the case property at one stage or the other, do not carry attestation of the Magistrate. No doubt, the affidavits are shown to have been signed by a Magistrate but the word `attested'' is conspicuously missing so that these do into answer to the requirements of section 297 of the Code of Criminal Procedure. Therefore, the important link evidence is also missing in this case.

In view of the abovementioned discussion, we find no merit in this appeal and the same is dismissed.