State of Himachal Pradesh vs Dinesh Kumar and Others

Surinder Singh, J.—The State has challenged the acquittal of the respondents for the offence punishable under Sections 20 and 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 in short ''the Act'' for allegedly keeping in possession 880 grams ''charas'' and 60 grams of ''heroin'' (diacetylmorphine). During the pendency of the appeal, respondent-Asarafi Lal had died and vide order dated 10.10.2012, the appeal stands abated against him.

We have heard the learned counsel for the parties and have reassessed the evidence on record.

Precisely the case of the prosecution is that the police party, headed by PW-10, ASP/SHO, Asif Jalal, was on patrolling duty near Chadiyar Chowk, falling under the jurisdiction of Palampur Police Station. It is alleged that a scooter bearing registration No. PB57-1886 came from the opposite side, which was being driven by respondent -Ravi Kumar with other two co-accused pillion riders. On seeing the police party, they tried to run away but in that process, the scooter became unbalance and they fell down. The police got suspicious and apprehended the respondents hereinafter to be referred as "accused". PW-10, Asif Jalal, asked about the identify of the accused persons and the documents of the scooter, but they failed to produce. On checking the ''dickey'' of the scooter, the police recovered one plastic envelop, Ex.P4 which contained 880 gm ''charas'' and 60 gm ''heroin'' (diacetylmorphine). Out of the recovered charas, two samples of 25 grams each were separated and sealed with seal impression ''K''. Further two samples of 5 grams each from the recovered ''heroin '' (diacetylmorphine) were also separated and sealed with the same seal.

The sample of seal was taken separately on a piece of cloth, Ext. PW1/A. The case property was taken into possession, vide seizure memo Ext. PW1/B. The NCB forms in triplicate were prepared on the spot. Rukka Ext. PW1/J was sent to the police station for registration of the case, on the basis of which FIR, Ext. PW9/A, was registered. The police arrested the accused persons and information regarding their arrest was also intimated to their relatives.

The report with respect to seizure of the contraband and arrest of the accused persons was also sent to the superior officers within statutory period.

The case property was deposited with PW-9 MHC-Kaushal Kumar. One of the sample parcels of each of the recovered stuff was handed over to PW-4 HHC Hari Ram alongwith NCB forms to deposit the same with CFSL, Chandigarh, vide RC No. 82/21 dated 26.4.2004, which was deposited by him on 27.4.2004, receipt whereof was also deposited with PW-9 aforesaid on his return.

On its examination by the FSL one of the sample was found to be of charas and the another of heroin. The report is Ext. PB.

After completing investigation, challan was presented in the Court against the accused persons for their trial.

Accused persons were accordingly charge sheeted for the offences aforesaid, to which they pleaded not guilty and claimed trial.

To prove its case, prosecution examined its witnesses and accused were also examined u/s 313 of the Code of Criminal Procedure. Their case was denial simplicitor and no evidence in defence was led.

On appreciating the evidence and after hearing the learned counsel for the parties, the learned trial court acquitted the accused persons on the ground that no independent witnesses were associated and there was non-compliance of Section 50 of the Act and further that there have been material contradictions in respect of the official witnesses.

On the reappraisal of the evidence, we find that there are material discrepancies in the prosecution case which go to the root of the case making not fit for converting it into conviction but however, it was a case which do not attract the provisions of Section 50 of the Act nor the association of independent witnesses was imperative.

PW-10 Asif Jalal had played the main role in investigating the case. Though he had tried to substantiate the prosecution story and also stated that the NCB forms were prepared on the spot and the case property was deposited in the Malkhana, but unfortunately neither the NCB forms did find the light of the day nor the excerpt of Malkhana register. Though PW-9 MHC Kaushal Kumar also stated having deposited it in the Malkhana alongwith the case property and also the sample of seals, which fact has been disputed in the cross-examination. Further the case property and the samples of seal impression ''K'' were handed over to PW-4 Hari Ram, who took the same to CFSL, Chandigarh, vide RC No. 82/21 dated 26.4.2004 but PW-4 Hari Ram aforesaid did not substantiate the fact of taking the samples of seal with impression ''K''. Even the road certificate has not been produced and proved on record, which would have been otherwise helpful to know what were the articles entrusted to him apart from the case property and what were deposited by him in the laboratory, whether the case property was accompanied by NCB forms/sample of seal. Though importantly he stated about having taking the sample parcels alongwith the NCB forms, but PW-7 Dr. A.K. Dalela, Junior Scientific Officer, CFSL, Chandigarh when examined during the trial did not even make a fleeting reference that he had received the NCB forms in the laboratory alongwith the case property. However, he stated about the samples of seal to which PW-4 Hari Ram did not refer it in his statement. Then the question arises from where the sample of seal with which the case property was tallied appeared in the laboratory. This fact assumes importance in the light of the fact that the case property on the spot was sealed by the police officer with seal impression ''K'' and the same was handed over to S.I. Mool Raj posted in the same police station, who also failed to produce the seal during the trial. The very fact of entrustment of the seal with one of the police officer does not mean to overrule the possibility of its tampering, more specifically in the light of the above contradictory oral evidence when the record did exist in the police station and was deliberately withheld. The presumption is that had it been produced it would have gone against the prosecution.

Therefore, for the above stated reasons, we do not find the evidence of the official witnesses consistent and inspiring confidence. The onus to prove the criminal case lies entirely on the prosecution and in our opinion they have failed to prove it in accordance with law, as such we are unable to convert the acquittal into conviction and the appeal sans merit and is accordingly dismissed. The bail bonds entered upon by the respondents during the proceedings of the case are hereby discharged.