State of H.P. vs Nanak Chand and Parma Nand

Deepak Gupta, J.—This appeal by the State is directed against the judgment dated 29.5.2004 delivered by the learned Sessions Judge, Kullu in Sessions Trial No. 35/2003, whereby he acquitted the accused persons of having committed an offence punishable u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 mainly on the ground that the prosecution has failed to prove that the contraband was recovered from the exclusive and conscious possession of the accused persons. The prosecution story, in brief, is that PW10, Shiv Singh, Incharge, Police Post Jari stated that on 23.10.2002 at 5.30 p.m., he received a telephonic call, whereby secret information was given to him that the accused persons deal in the business of ''charas'' and in case, their house is searched, then ''charas'' can be recovered. He recorded the secret information vide memo Ext. PW2/B and sent it through Constable Kuldeep Kumar to Deputy Superintendent of Police, Kullu for obtaining the search warrant. Thereafter, the search warrant, Ext. PW7/A was procured and PW10 along with Constable Kuldeep Kumar, Constable Gurdial, HHC Yanter Singh, HHG Rattan Lal (all three not examined) proceeded at 9.30 p.m. from Police Post Jari and reached Village Jhanag (Rasol) at midnight. There, PW8 and PW9 were joined as witnesses. The house of the accused was cordoned. Thereafter, search of the room of accused Parma Nand was conducted and from a wooden box, kept in the room, one bag containing ''charas'' was recovered, which on weighment, turned to be 360 grams. Two samples of 25 grams each were drawn. Thereafter, the procedure of sampling was completed and the case property was taken into possession vide seizure memo, Ext. PW7/A. According to PW10, then the search of the room of accused Nanak Chand was conducted and on search of his room, one gunny bag containing cannabis seeds was recovered. On weighment, cannabis seeds were found to be 3.500 kgs. Two samples of 500 grams each were drawn and after completing sampling procedure, the case property was taken into possession vide memo, Ext. PW7/ B. NCB form, Ext. PW10/E was prepared and filledin at the spot. Thereafter, the case property was deposited and one sample each of ''charas'' and cannabis seeds was sent for chemical analysis and the Chemical Analyst vide his report opined that the samples were of ''charas'' and cannabis seeds.

On this basis, the accused persons were charged with having committed the offence aforesaid. After trial, the learned trial Court acquitted the accused persons on the grounds that the prosecution has failed to prove that the contraband was recovered from the exclusive and conscious possession of the accused persons, the independent witnesses have turned hostile, the testimonies of the official witnesses, PW7 and PW10 contained material contradictions and their testimonies cannot be relied upon.

First of all, we shall deal with so called independent witnesses, PW8 and PW9. In the ruka, Ext.PW10/G, which is the first document prepared at the spot, it is mentioned that these two witnesses were residing in the tent, close to the house of the accused. PW10, while appearing in the witnessbox stated that when they reached Village Jhanag, near Rasol, at midnight, PW8 and PW9 were joined as witnesses. Thereafter, the house of the accused was cordoned. In crossexamination, PW10 came out with a total different version. According to him, PW8 and PW9 were associated from the house of the accused as they had taken a room on rent from them. This version is totally different to what is recorded in the ruka. When asked further question, PW10 came out with a story that on the way, they inquired from the labourers of the span with regard to the persons who had taken a room on rent from the accused. This makes the prosecution story in this regard totally unbelievable.

The version of PW7, Constable Kuldeep Kumar, is that they proceeded from Police Post Jari at 9.30 p.m. and reached Village Jhanag (Rasol) at midnight and went to the house of both the accused persons. His version is totally different. According to him, PW8 and PW9, who were joined as witnesses, were employed on span in the same village and they were found present in the house of the accused. Therefore, the very genesis of the story as to where independent witnesses were associated from, with the search is not free from doubt and the credence of the prosecution case is itself doubtful.

PW7 admitted in crossexamination that there are about 1011 houses in Village Jhanag and people reside there. According to PW7, PW10 did not call for any local witness. There is another big contradiction in the statement of these two witnesses. According to PW7, first the room of Nanak Chand was searched. This is totally contradictory to the version of PW10, according to whom, first the room of accused Parma Nand was searched. Therefore, there is material contradiction in the statements of prosecution witnesses inasmuch as according to PW7 first, the room of Nanak Chand was searched, whereas according to PW10 first, the room of Parma Nand was searched.

According to PW7, three rooms on the ground floor of the house and one room on the first floor of the house were searched, whereas according to PW10 the rooms, from which the recovery was made, were situated on the first floor of the house. This is another material contradiction. It is also in the evidence of PW7 that in the room occupied by Nanak Chand, his wife and two children were found sleeping and in the room occupied by accused Parma Nand, his wife was sleeping. It is also in the evidence of this witness that parents of both the accused persons, who are real brothers, were sleeping in the first floor of the house. There were major and grown up children also residing in the house of the accused persons.

Another material contradiction is that according to PW10, ''charas'' was recovered from the room, occupied by accused Parma Nand and cannabis seeds were recovered from the room of Nanak Chand, whereas version of PW7 is totally opposite. Another important fact is that despite material contradictions in the statement of PW7, he was not declared hostile.

The law is wellsettled that if the independent witnesses turned hostile, conviction of the accused can be maintained on the statements of the official witnesses, but their statements should inspire confidence and should be consistent with each other. When there are material contradictions in the statements of the official witnesses, then it would be unsafe and imprudent to rely upon the testimonies of these witnesses to convict the accused. In the present case, there are glaring contradictions in the statements of the official witnesses. Therefore, we find no merit in this appeal, which is accordingly dismissed. Bail bonds are discharged.