State Of Himachal Pradesh vs Bhawan Sood

Vivek Singh Thakur, Judge

Present appeal has been preferred by the State against the judgment of acquittal dated 09.07.2014, passed by Special Judge, Kullu, H.P., in Sessions Trial No. 20 of 2013 (271 of 2013), titled State vs. Bhawan Sood, in Case FIR No. 10/2013, dated 15.01.2013, registered at Police Station Kullu, District Kullu, H.P., under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘NDPS Act’), whereby respondent has been acquitted of charge, framed against him.

Prosecution case in brief is that on 15.01.2013, PW-7 HC/IO Netar Singh, along with HHG Anil Kumar and PW-3 Constable Diwan Chand, left Police Post Akhara Bazar by recording Daily Diary Entry No. 20 (Ext. PW7/A), dated 15.01.2013, for patrolling within the jurisdiction of Police Post.

At about 4:30 PM, police party, while patrolling near Tapu Bridge in Akhara Bazar, noticed a person coming from left bank towards Akhara Bazar, who on seeing police, immediately turned around and started running towards left bank, which created suspicion. Therefore, PW-7 HC/IO Netar Singh, with the help of accompanying police officials, chased him, who, after running for a while, fell down on the bridge, after stumbling. On overpowering him, it was noticed that he had suffered injuries on face on account of fall, which were bleeding. On inquiry, he disclosed his name as Bhawan Sood (respondent), along with his address of Akhara Bazar. This person could not explain the reason for running on seeing the police, which created suspicion that he might be carrying some narcotic drug and, therefore, PW-7 HC/IO Netar Singh, intending to search respondent, Bhawan Sood, informed him orally as well as in writing that he had a legal right to be searched before Magistrate or Gazetted Officer, whereupon, Bhawan Sood consented in writing for his search before some Gazetted Police Officer. Consent memo (Ext. PW1/A) was prepared in presence of witness Constable Diwan Chand (PW-3).

PW-7 HC/IO Netar Singh contacted PW-1 Sandeep Dhawal, HPS, Additional SP Kullu through his mobile and informed about the consent given by the respondent. Additional SP directed to produce this person in his office at Dhalpur.

HC/IO Netar Singh (PW-7) submitted a telephonic request to Police Station to send a vehicle and a Police Officer. In this regard, GD Entry No. 31(A) (Ext. PW7/B) was recorded in Police Station Kullu at 4:50 P.M.

After some time, HC Jai Singh, along with vehicle being driven by Constable Karam Chand, reached on the spot. Thereafter, police party along with respondent went to SP Office Dhalpur in the said vehicle.

After reaching Dhalpur, respondent was produced before Additional SP in his office, and in presence of Additional SP as well as Head Constable Jai Singh and Constable Diwan Chand, Investigating Officer gave his personal search to respondent, and in this regard Memo (Ext. PW-1/B) was prepared. In personal search, nothing incriminating was found with PW-7 HC/IO Netar Singh.

Thereafter, in presence of ASP and witnesses Head Constable Jai Singh and Constable Diwan Chand (PW-3), personal search of respondent was conducted and from pocket of pant of respondent, two small paper packets (Pudiya) containing powder and brown granules were recovered, which on the basis of experience and disclosure of respondent were identified as Smack. On weighing, granules were found to be 7 grams, whereas powder was found to be 17 grams, and it was total 24 grams Smack. The same were kept in same paper packets and were sealed with 6 seals of impression 'T'. Relevant columns of NCB-1 Form (Ext. PW4/C) were filled and seal impression was taken thereon. Sample seal (Ext. PW-1/C) was also prepared, and after using, seal was handed over to Constable Diwan Chand (PW-3).

Regarding search and seizure, memo (Ext. PW-1/D) was prepared, which was signed by HC Jai Singh and Constable Diwan Chand (PW-3) as witnesses. It was also signed by respondent Bhawan Sood and Additional SP PW-1, Sandeep Dhawal.

PW-7 HC/IO Netar Singh at 7:00 P.M. prepared Rukka (Ext. PW7/C) and sent it to Police Station through Constable Diwan Chand (PW-3) for registration of FIR.

On the basis of Rukka, produced by PW-3 Diwan Chand, FIR (Ext. PW-6/A) was registered by PW-6 SI Harish Chander. In this regard endorsement (Ext. PW-6/B) was made on Rukka and case file was handed over to Constable Diwan Chand (PW-3), who came to the spot and handed over the file to PW-7 HC/IO Netar Singh.

Investigating Officer HC Netar Singh (PW-7) prepared Spot Maps (Ext. PW-1/D) of the Tapu Bridge and (Ext. PW-7/E) of SP Office, and recorded the statement of witnesses.

Investigating Officer HC Netar Singh (PW-7) arrested respondent at Tapu Bridge at 10:10 PM, and information of his arrest was given to his mother on mobile phone disclosed by him in presence of witnesses Head Constable Jai Singh and Constable Diwan Chand (PW-3). Arrest information memo (Ext. PW7/F) was also signed by respondent Bhawan Sood.

After reaching Police Station, HC/IO Netar Singh (PW-7) handed over parcel of the contraband along with relevant documents to PW-6 SI Harish Chander, who re-sealed the parcel with seal 'K'. This seal was also embossed on NCB-1 form (Ext. PW-4/C) in the relevant column and relevant columns were filled. Memo qua re-sealing (Ext. PW-6/C) was prepared and after re-sealing, case property was deposited by PW-6 SI Harish Chander to PW-4 Head Constable Ram Krishan, the then MHC.

PW-4 HC Ram Krishan, after receiving case property, made entry in Register No. 19, abstract whereof has been proved on record as Ext. PW4/A. On 17.01.2013, he sent the case property to FSL Junga for chemical examination through RC No. 9/13 (Ext. PW-4/B), through PW-8 Constable Sanjay Kumar, who deposited the case property in State FSL and on return handed over the receipt of deposit of case property to MHC Ram Krishan (PW-4).

PW-7 HC/IO Netar Singh prepared Special Report (Ext. PW1/E) on 17.01.2013 and sent it to Additional SP Sandeep Dhawal (PW-1).

PW-2 Balbir Singh, was Reader to Additional SP. On 17.01.2013, Additional SP PW-1 Sandeep Dhawal handed over Special Report (Ext. PW-1/E) to him with endorsement in red circle on the Special Report. PW-2 HC Balbir Singh recorded the entry in register, abstract whereof is Ext. PW2/A.

After receiving report from State Forensic Laboratory, Challan was prepared and presented in the Court by PW-5 Inspector Sher Singh, SHO PS Kullu.

On finding prima facie material, Trial Court framed charge against the respondent under Section 21 of NDPS Act.

On pleading not guilty, respondent was subjected to trial.

During trial, prosecution examined 8 witnesses to substantiate its case, whereas, after recording statement under 313 Cr.P.C., no defence evidence was led on behalf of respondent.

On assessing and evaluating the evidence and material on record, Trial Court has acquitted the respondent.

We have heard learned Senior Additional Advocate General as well as Mr. Azad Kaith, Advocate for the respondent, and have also gone through the record.

After considering the entire material on record, we are of the considered opinion that appeal must fail for the discussion hereinafter.

There were three police officials present on the spot when respondent was allegedly apprehended by Police party. Fourth police official, i.e., Head Constable Jai Singh had joined the police party in the office of ASP, where respondent was allegedly produced before Additional SP for personal search.

Out of these four police officials, only three have been cited as witnesses, and HHG Anil Kumar has not been cited as a witness. Head Constable Jai Singh was cited as witness, but was not examined, whereas Constable Diwan Chand was examined as PW-3 and Investigating Officer Head Constable Netar Singh was examined as PW-7. There is no independent witness associated by police party in the entire process.

It is settled law that absence of independent witness is not itself sufficient to reject the case of prosecution, rather each and every case has to be adjudicated on its given facts and circumstances and on its own merits. However, in absence of independent witnesses, evidence of official witnesses is to be assessed with care and caution.

Firstly, Investigating Officer had suspected some narcotic drug in possession of respondent when he was overpowered at Tapu Bridge. However, despite the fact that it was day time at 4:30 PM, and incident is stated to be on bridge adjacent to Akhara Bazar, there was no dearth of independent witnesses, but no independent witness had been associated in the entire process.

Even when respondent was allegedly produced before Additional SP for personal search in Dhalpur, which is again in the heart of town of Kullu and there are sufficient independent witnesses always available, no effort was made to join independent witnesses in the search and seizure process.

The joining of independent witnesses is not a mere formality. There may be case when on account of odd hours, secluded place, midnight or otherwise, for any justifiable reason, it would not be possible to associate independent witnesses, but in present case, alleged incident is of day time, occurred in the town, within 2 km of Police Station, and within half kilometer of Police Post, and Large number of shops are there in Akhara Bazar and Dhalpur, however, no effort was ever made for associating independent witnesses.

PW-3 Diwan Chand in his examination-in-chief remained silent about effort made by Investigating Officer for joining independent witnesses with further statement that Investigating Officer had associated him and HHG Anil Kumar as witnesses in search and seizure process. However, in cross-examination, he has stated that Investigating Officer did not try to associate any of the residents or any other respectable person from Akhara Bazar. Further, that Investigating Officer had not sent any of them from spot to bring local witnesses.

For non-joining independent witnesses, PW-7 HC/I.O Netar Singh, in his cross-examination, has stated that respondent was saying that he would jump into the river and he had caught hold of him and, therefore, he could not go to call any independent witness. It is a fact that no such reason has been assigned either in Rukka, FIR, seizure memo or in examination-in-chief in the Court. This fact first time has been narrated in cross-examination, therefore, this plea does not appear to be reliable because apart from PW-7 HC/IO Netar Singh, there were two other officials, either of whom could have been sent in search of independent witnesses.

Independent witnesses have not been joined. Two police official witnesses, HHG Anil Kumar and HC Jai Singh, have been withheld. Investigating Officer, PW-7 Netar Singh and PW-3 Constable Diwan Chand have admitted that no effort was made to associate independent witnesses, keeping in view the fact that it was day time and search was conducted in the office of ASP, situated at a place in the heart of town, and respondent was allegedly apprehended near the main market, the non-joining of independent witnesses, is fatal for prosecution, especially for further discrepancies and contradictions in statements of official witnesses discussed hereinafter.

It is case of personal search where compliance of Section 50 of NDPS Act is mandatory. Ext. PW-1/A is consent memo. Though, it has been recorded in this memo that respondent was informed that it was his legal right to give search before some Magistrate or competent Gazetted Officer, and respondent had consented for his search before Gazetted Officer, however, it does not have signature of respondent. No independent witness was associated at this stage also. Only one police official, Constable Diwan Chand, was cited as a witness. PW-1 Sandeep Dhawal has endorsed on it the word "Seen", and put his signature below that.

PW-3 Constable Diwan Chand has stated that Investigating Officer had informed the respondent whether he would like to be searched either by the Police or Gazetted Officer, with further statement that respondent had consented to be searched by Gazetted Officer, but had again stated that respondent told that he wanted to be searched by Police Gazetted Officer.

PW-7 HC/I.O. Netar Singh in examination-in-chief has stated that he inquired the respondent that in whose presence he would like to be searched, and respondent told him that he would like to be searched in presence of Gazetted Officer.

PW-1 Additional S.P. Sandeep Dhawal has stated that consent memo was also signed by witnesses and respondent had also signed the memo, however, respondent had not appended his signature in his presence on Ext. PW-1/A. In cross-examination, he has stated that respondent had desired to be searched before competent Police Officer, but in his presence he did not ask the respondent about search before any competent Police Officer with further statement that when this witness asked respondent, he (respondent) was ready to be searched in his presence.

PW-3 Constable Diwan Chand has stated that consent memo (Ext. PW-1/A) was prepared in the office of ASP Kullu, whereas according to PW-7 HC/I.O. Netar Singh, consent memo was prepared on the spot at Tapu Bridge.

Consent memo as well as deposition of witnesses, i.e., PW-1 Additional S.P. Sandeep Dhawal, PW-3 Constable Diwan Singh and PW-7 HC Netar Singh depict that there is lack in compliance of Section 50 of the NDPS Act. There is remarkable difference between the contents recorded in consent memo and stand taken by official witnesses in their statements.

Rukka has been stated to have been prepared at 7:00 PM, but it is evident with naked eye that earlier time was mentioned as 6:25 P.M., and by overwriting, it has been converted into 7:00 P.M.

Now timeline as per record, is that, Police party apprehended respondent at Tapu Bridge at 4:30 P.M, informed PW-1 Additional S.P. Sandeep Dhawal at 4:45 PM, made request for sending vehicle at 4:50 P.M, thereafter reached in office of ASP, and as per NCB Form, contraband was recovered at 6:00 P.M., and respondent was arrested at 10:10 P.M. Re-sealing was done at 10:50 P.M.

From the copy of FIR placed on record as Ext. PW-6/A, FIR was registered at 7:10 P.M. Constable Diwan Chand (PW-3) reached in Police Station within 10 minutes, and immediately thereafter FIR was registered. At that time, Investigating Officer is claimed to have been preparing spot map in ASP Office. According to PW-1 ASP Sandeep Dhawal, his statement was recorded by Investigating Officer at 7:30-7:45 P.M.. Therefore, at about 8:00 P.M. also, Investigating Officer was in ASP Office, but Constable Diwan Chand (PW-3) did not reach in the office of ASP after registration of FIR.

According to PW-3 Constable Diwan Chand, he handed over case file to Investigating Officer in the office of ASP. According to PW-3 Constable Diwan Chand and PW-7 HC/I.O. Netar Singh, Rukka was prepared in ASP Office. Though, on Rukka (Ext. PW-7/C), under the signature of I.O., place has been written as "Camp at ASP Office Kullu", but on the other hand, he has written "Ba Muqam Tapu Pul".

In NCB Form, recovery of contraband has been reflected in the office of ASP at 6:00 P.M. Therefore, at the time of preparing Rukka, police party was neither present at Tapu Bridge, nor Rukka could have been prepared at Tapu Bridge, because recovery was allegedly made in ASP Office, because place of recovery is also not Tapu Bridge, but ASP Office.

Cutting on timing of Rukka, place of occurrence or recovery shown as Tapu Bridge, and the story narrated in Rukka as well as seizure memo, are irreconcilable.

Evidence of spot official witnesses as well as documents prepared by them are not reliable and notice alleged to be given under Section 50 of NDPS Act, is also not in consonance with law, and therefore, other evidence on record regarding re-sealing the contraband, depositing in Malkhana, sending for chemical analysis, and receipt from FSL, become irrelevant, as very genesis of prosecution case has become doubtful on account of irreconcilable discrepancies, contradiction as well as omission in joining independent witnesses, despite possibility of availability in Kullu town, as occurrence allegedly taken place adjacent to Akhara Bazar within Kullu town.

Therefore, there is no need to discuss remaining evidence on record, as it would be of no help to prosecution, as in absence of substantial, sufficient, cogent, reliable, confidence-inspiring evidence on record, respondent is entitled for benefit of doubt, as it is cardinal principle of criminal jurisprudence that in case of slightest doubt also, benefit has to be extended to accused.

Respondent has advantage of having been acquitted by Trial Court, fortifying presumption of innocence in his favour, whereas appellant-State has failed to point out any material on record, so as to warranting reversal of judgment of acquittal.

In view of the aforesaid discussion, we are of the considered opinion that there is no merit in the appeal and accordingly, appeal is dismissed.

Before parting, in view of the provisions of Section 481 of Bhartiya Nagarik Suraksha Sanhita, 2023 (437-A of the Code of Criminal Procedure), the respondent is directed to furnish bail bonds in the sum of ₹25,000/- with one surety in the like amount to the satisfaction of Registrar (Judicial) within four weeks, 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 respondent on receipt of notice(s) thereof, shall appear before the Hon’ble Supreme Court.

Bail bonds furnished in this appeal, at the time of admission of appeal, stand discharged. However, bail bonds to be furnished under Section 481 of BNSS remain in force, as already directed.

Record of Trial Court be sent back forthwith.

Pending miscellaneous application(s), if any, are also disposed in the same terms.