State of H.P. vs Prem Singh and Others

Sureshwar Thakur, J.�The instant appeal has been preferred by the State against the judgment, rendered on 18th December, 2007, by the learned Presiding Officer, Fast Track Court, Mandi, H.P., in Sessions Trial No. 19/2007, whereby, the respondent Karam Chand has been acquitted for the offences punishable under Sections 20 and 29 and respondent Prem Singh for offence under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (herein-after referred to as ''the NDPS Act''.

The facts, in brief, are that on 23.9.2006, HC Mohan Singh, along with HC Dharam Chand, Constable Vijay Kumar and Constable Nand Lal, left the Police Station on Government Motor-cycles, bearing registration Nos. HP-33-0105 and HP-33-0130, in connection with detection of Narcotic and Excise cases and when the police party reached near Magrunala, at about 3:00 p.m., two persons were noticed coming on foot from Jhantingri to road-side and after seeing the police party, they fled away towards opposite side. Out of two, one person was carrying a bag around his neck. The person carrying the bag, was apprehended with the help of the police officials. Thereafter, on asking, the accused disclosed his name as Prem Singh S/o Sh.Hari Ram. The place, where the police party laid Naka, is isolated and having bushes. Efforts were made to associate the independent witnesses but the same were not available, as such, H.C. Dharam Chand and C. Nand Lal were associated in the investigation, as witnesses. H.C. Mohan Singh and witnesses gave their personal search to the accused. Thereafter, the accused were apprised by the Investigating Officer under consent memo of theirs right being searched by a Gazetted Officer or by any Judicial Magistrate and the accused expressed their desire to be searched by the police in the presence of the witnesses. On checking of the bag, one trouser of light green colour was found. Beneath the trouser three parcels/packets, wrapped with ''khakhi'' cello tape, were found. On opening the packets, with the help of blade, one by one, in two packets, black colour charas, in the shape of sticks, was found. The third packet was covered with news paper and on removing the news paper, one packet of white polythene was found and on checking the polythene packet, black coloured charas, in the shape of the sticks, was also found. The recovered contraband was made homogeneous and thereafter it was weighed. On weighment, it was found to be 1 kg 550 grams, out of which, two samples of 25 gram each were separated and packed in cloth parcels and were sealed with seal impression ''H'' in three numbers and the remaining charas was put into the same polythene bag and was wrapped with the trouser. Thereafter, the remaining charas, along with trouser, was put into the bag Ex.P-1 and the bag was packed in a cloth parcel and the parcel was sealed with seal impression ''H'' in six numbers and sample of seal was separately taken on a piece of cloth. The seal was handed over to H.C. Dharam Chand after its use. Rukka was prepared on the spot and the same was sent to the police station through C. Vijay Kumar for registration of FIR. Thereafter, H.C. Mohan Singh prepared the site plan. The accused Prem Singh has revealed the name of his companion as Karam Chand son of Jethu Ram, resident of Village Bulang, Tehsil Padhar, District Mandi, H.P. The case property, along with samples, residue charas and NCB form were taken into possession vide recovery memo in the presence of witness Dharam Chand and C. Nand Lal. The Investigating Officer recorded the statements of the witnesses. Accused Karam Chand was arrested on 2.2.2007 on search of his house and memo to this effect was prepared in presence of Dharam Chand and Puran Chand. He was also apprised of the crime, its punishment and about his arrest. During the course of investigation, accused Prem Singh disclosed that the charas was jointly owned and possessed by them. H.C. Mohan Singh filled the NCB form in triplicate. Special report was handed over to MHC by the Investigation officer on 24.9.2007 for sending it to the Higher Authority. The sample was sent for chemical analysis to CFSL, Chandigarh.

On conclusion of investigation into the offences, allegedly committed by the respondents, challan was filed under Section 173 of the Code of Criminal Procedure.

The respondent-accused Prem Singh was charged for his having committed offence punishable under Section 20 of the NDPS Act and accused Karam Chand was charged for his having committed offences punishable under Sections 20 and 29 of the NDPS Act, by the learned trial Court, to which they pleaded not guilty and claimed trial.

In proof of the prosecution case, the prosecution examined as many as 8 witnesses. On closure of the prosecution evidence, the statements of respondents under Section 313 Cr.P.C. were recorded by the Court, in which they claimed false implication and pleaded innocence. In defence, respondent Prem Singh examined one witness and respondent Karam Chand did not choose to lead any defence.

On appraisal of evidence on record, the learned trial Court acquitted the respondents for theirs having committed the offence, aforesaid.

The first witness, who stepped into the witness box, in support of the prosecution case, is, Head Constable Dharam Chand (PW-1). He deposes that on 23.9.2006, he was present along with, HC Mohan Singh, Constable Vijay Kumar and Constable Nand Lal at Magrunala Jhatingri in connection with detection of Narcotic and Excise cases and had laid a Naka 1 K.M. ahead from the Magrunala and an isolated place and at about 3.00 p.m.

In his cross-examination, this witness deposes that Magrunala is about 1 to 1 1/2 kilometer away from Ghatasni and Magrunala is on National Highway No. 20. He further deposes that from Magrunala to Jhatingri, the path is on foot which is about 2 to 2 1/2 Kilometers. He continues to depose that the police party had laid Naka in the middle of above path i.e. about 1 kilometer away from Magrunala National Highway. After parking the motorcycle, he deposes to have sat on the road. He proceeds to depose that there is no tea-stall and Karyana shop at Magrunala. He further deposes that they laid Naka in the footpath at or about 7.30 a.m. Right from 7.30 a.m. to 3.00 p.m., none has crossed that footpath and prior to the alleged occurrence, he never went through that footpath. He, in his cross-examination, continues to depose that there are no villages near Magrunala. He admits the suggestion, put to him, that Magrunala is a very busy place and thousands of people crossed through that point daily. He proceeds to depose that the SHO, Jogindernagar, had directed HC Mohan Singh to lay Naka where he thought that the crime of Narcotic can be detected. He feigns ignorance that as to who had written the consent memo comprised in Ext.PW-1/B, self stated that both the memos had been written by one person. He further feigns ignorance that as to at what time the memos Ext.PW-1/A, Ext.PW-1/B and Ext.PW-1/C were prepared and as to who had written Ext.PW-1/C. This witness admits the suggestion put to him that Ext.PW-1/A, Ext.PW-1/B and Ext.PW-1/C do not contain any F.I.R. number, date and offence. He, in his cross-examination, admits the fact that in his presence the Investigating had not made homogeneous the entire sticks and thereafter taken the sample from the mixture.

Constable Vijay Kumar (PW-2), in his deposition, has deposed that on 23.9.2006, he was with HC Mohan Singh, HC Dharam Chand, Constable Nand Lal, near Magrunala in connection with information of detection regarding NDPS and Excise cases. At about 3.00 p.m., when they had laid a Naka, two persons were noticed coming from the upper side and they, on sighting the police party, went back, upon which, this witness and HC Mohan Singh over powered respondent Prem Singh and the other respondent, namely, Karam Chand was followed by HC Dharam Chand and HC Nand Lal but they could not catch him on the spot. Respondent Prem Singh is deposed to be the same person who was present in the Court. PW-2 further deposes that he was deputed by HC Mohan Singh to bring independent witnesses from the locality as the Investigating Officer suspected some contraband being carried by the respondents. He proceeds to depose that he (PW-2) came back after 15 minutes to the spot and no person was available nearby at that time. The search of the bag, which was being carried by respondent Prem Singh, was conducted by HC Mohan Singh. HC Dharam Singh and Constable Nand Lal were on the spot at that time. On opening of zip of the bag, one trousers, light green in colour, was found and three packets were underneath the trousers. The packets were wrapped and closed with cello tape and after removing the cello tape from the packets, one plastic envelope, white in colour, was found. On checking the sticks of all the three packets, these were found to be Charas. The sticks from the three packets were mixed and after missing the sticks, two samples of 25 grams each were separately taken. PW-2 continues to depose that the sample and bulk parcels were packed in a cloth packet. The samples were sealed with three seals impression ''H'' and bulk parcel was sealed with six seals with seal impression ''H''. Thereafter, the bulk parcel was again put in the same bag after wrapping the same in the trousers. The weight and scales were in the bag of Investigating Officer. On weighment, the Charas was found to be 1.500 Kgs. The seal, after use, was handed over to HC Dharam Chand. Thereafter, recovery memo and other memos were prepared. He proceeds to depose that the Investigating Officer, after reducing into writing, Ruqua Ext.PW-1/E, handed over the same to this witness, by putting an endorsement on it, for taking the same to Police Station, Jogindernagar for registration of F.I.R. and handed over the Ruqua to SHO. After registration of F.I.R., the file was prepared and he proceeded on the spot with the case file and handed over the same to HC Mohan Singh.

During his cross-examination, PW-2 (Constable Vijay Kumar), feigns ignorance that there was village Gawalan at a distance of 100 yards from Magrunala towards Jhatingari. He admits the suggestion, put to him, that he had not visited nearby villages to bring the witnesses and where they laid Naka, there were fields of the villagers and the path passes through the fields.

PW-3 (HC Raj Kumar) deposes that on 25.9.2006, Constable Vijay Kumar handed over special report to SDPO Shri Bimal Gupta at 2 p.m. and the SDPO handed over the same to him to be kept it in safe custody. Copy of the special report is deposed to be comprised in Ext.PW-3/A, which bears his signatures.

PW-4 (MHC Milap Chand) deposes that on 23.9.2006, SI/SHO deposited three packets duly sealed with seals ''H'' and ''K'' with him, along with sample seals and NCB Forms in triplicate. He further deposes that he made entry in Register No. 19 and sent one sealed sample of Charas, sample of seals along with NCB Form in triplicate through Constable Swami Nand to deposit the same at CFSL, Chandigarh vide RC No. 322/06.

PW-5 (Constable Swami Ram) deposes that on 4.10.2006, MHC Milap Chand handed over one packet of Charas, duly sealed with seals H and K along with sample seals and NCB form in triplicate vide RC No. 122/06 for depositing the same at CFSL, Chandigarh, to this witness. During his cross-examination, he denies the fact that during the custody of the case property, he tampered with the same.

PW-6 (SI/SHO Kapoor Chand) proved the F.I.R. comprised in Ext.PW-6/B as also the endorsement comprised in Ext.PW-6/A on Ruqua Ext.PW-1/E. He deposes that he re-sealed both the samples with seal impression K in three numbers and also re-sealed the bulk Charas parcel with seal impression K in three numbers. He further deposes that he filled the Column No. 8 to 11 of the NCB Form over he deposed to have appended his signatures. He continues to depose that after completion of the investigation, he prepared the challan under Section 173 (2) of the Code of Criminal Procedure and presented the same in the Court. During his cross-examination, this witness denies the fact that he has not conducted any inquiry personally in this case, however, he deposes that he prepared the challan on the basis of the record and re-sealed the case property. He feigns ignorance qua the fact that any paper was prepared regarding handing over of the case property by the Investigating Officer to him. He denies the suggestion, put to him, that Column Nos. 9 to 11 of NCB Form were not filled in by him.

PW-7 (HHC Dalip Singh) deposes that on 23.9.2006, he recorded Rapat No. 33 comprised in Ext.PW-7/A. During his cross-examination, he denies the fact that the daily diary No. 33 Ext.PW-7/A is fictitious and forged one.

PW-8 (HC Mohan Singh) in his deposition has deposed a version which is in squarely in tandem with the genesis of the prosecution version, as referred to hereinabove. He deposes that the police party laid Naka on foot path Jhatingri to Magrunala at about 3.00 p.m. During the cross-examination, he deposes that he laid Naka as he was hoping that some person will come with Narcotic substances through that path on that day. He concedes to the fact that he had not written the grounds of belief or suspicion regarding the possession of Charas by the accused at any stage during his investigation. He further deposes that he remained at the spot for about 2 to 2 1/2 hours. He continues to depose that he sent Ruqua at about 4.30 to the Police Station through Constable Vijay Kumar, Constable Vijay Kumar met him near Police Station at the approach road in the evening at 6.00 p.m.

We have heard learned Additional Advocate General for the appellant-State and learned counsel for the respondent at length.

The learned Additional Advocate General contends that the impugned judgment of acquittal recorded by the learned Court below, necessitates interference by this Court, as the learned trial Court has over emphasized upon certain inter se and intra se contradictions, inter-se the testimonies of the official witnesses, which, were however, minimal as well as insignificant and hence necessitated theirs being overlooked, rather theirs having been accorded preponderance by the learned trial Court below has sequelled erroneous findings. Moreover, it is argued that hence when the testimonies of the official witnesses were both inspiring as well as credible, there was no corroboration required, as unwarrantedly insisted upon by the learned trial Court by the deposition of in sequel to association of independent witnesses in the apposite proceedings nor also it was legally warranted for the learned trial Court to conclude that for want of omission by the Investigating Officer to associate independent witnesses the entire prosecution case staggers.

Initially to test whether the learned trial Court has neither over emphasized or lent preponderant stress upon the occurrence of purported minimal inter se or intra se contradictions in the testimonies of the official/police witnesses, it is necessary to advert to the testimony of PW-1, who in his cross-examination has feigned ignorance qua the person who scribed the consent memo Ext.PW-1/B. He in his cross-examination has also feigned ignorance qua the time of scribing of Ext.PW-1/A and Ext.PW-1/B. Moreover, he has also conveyed in his cross-examination, his ignorance, qua the person who scribed Ext.PW-1/C, rather in his cross-examination he has conveyed that Ext.PW-1/C does not bear any F.I.R number nor any date. Moreover, while adverting to his further cross-examination wherein he deposes that in his presence the Investigating Officer did not homogenously mix the contents of the sticks constituting/comprising Charas, allegedly recovered from the conscious and exclusive possession of the accused persons, for extraction of a sample there-from, cumulatively, the aforesaid facts as have emanated during the course of cross-examination of PW-1 while entwined with the revelation made by Rapat No. 2 of Police Station, Jogindernagar, which manifests the presence of all the official witnesses in the police station, hence, inclusive of the police officials who were carrying out Nakka at Magrunala for detection of narcotic and excise cases at 3.00 p.m., Except there being revelation of Rapat No. 33 of constable Vijay Kumar and constable Nand Lal having proceeded to an unknown destination, forcefully conveys the fact that the police officials, though purportedly available at the site of occurrence were as a matter of fact not present there as their presence at the site of occurrence is belied by communication made in Rapat No. 37. A further natural corollary which arises from the aforesaid deduction is that hence the search, seizure and recovery of contraband from the alleged exclusive and conscious possession of the accused persons was not effected from the purported site of occurrence rather was effected elsewhere, as a further sequel, it has to be concluded that the entire prosecution case gets infected with the vice of falsity, it being anchored upon stark material and blatant inter-se contradictions inter-se the testimonies of the official witnesses. What compounds the aforesaid inference is the existence of a deposition in the cross-examination of PW-1 of the Investigating Officer having not in his presence homogeneously mixed the contents of charas for extraction therefrom samples, inasmuch, as it too marks the absence of PW-1 at the site of occurrence when the apposite proceedings of search, seizure and recovery of contraband from the alleged exclusive and conscious possession of the accused persons were carried out. Therefore, when his presence at the site of occurrence is dispelled as a corollary then it has to be convincingly concluded that the proceedings relating to search, seizure and recovery of contraband were not carried out in the presence of PW-1. In aftermath when the deposition of PW-1 cannot be relied upon, also then it has to be obviously inferred especially with the deposition of PW-1 having been construed to be both unreliable and uninspiring that the deposition of other witnesses too conveying his presence at the time when the proceedings relating to contraband were carried out at the site of occurrence also suffer from falsity rendering infirm the factum of the aforesaid proceedings having been carried out in the presence of all or any of the police officials at the purported site of occurrence.

When the aforesaid infirmities ingraining or imbuing the prosecution case with the vice of prevarication as well as untruth, obviously then when this Court has concluded that the deposition of the official witnesses are both unreliable as well as uninspiring for on their strength recording finding of conviction against the accused, the factum of non association of independent witnesses by the Investigating Officer gets momentum, inasmuch, as, it seals the fate of the prosecution case or lends to it fatality or also it can be concluded that the Investigating Officer omitted to associate independent witnesses in the proceedings relating to search seizure and recovery of contraband as the proceedings as were conducted by him were neither impartisan nor fair rather were both slanted as well as prevaricated. Initially to gauge whether the independent witnesses were available for theirs being associated or have also concluded whether hence omission to join was both intentional as well as deliberate so as to cast a spell of doubt on the prosecution case, it is necessary to advert to the testimony existing in the cross-examinations of the official witnesses who all in unanimity have therein conveyed the fact of the Naka having been laid for the purpose of detection of narcotic and excise case. Consequently, given the purpose of laying of Naka and its per-se communicating the fact that hence prior information was available with the Investigating Officer qua the transportation or carrying of contraband in the area, where the Naka was laid, it was enjoined as well as incumbent upon the Investigating Officer given the prior information available with him, to associate independent witnesses. However, he omitted to do so. Even though it is deposed by PW-1 that the place of Naka was a busy place and thousands of people crossed the area, hence, given the fact that the recovery was effected from the alleged exclusive and conscious possession of the accused person at 3.00 p.m., it was expected of the Investigating Officer to before proceeding to carry out the apposite proceedings, associate independent witnesses so as to imbue the proceedings with the hue of impartisanship. Even PW-2 deposes in his cross-examination that he had not visited the houses in the nearby villages to associate their inhabitants in the proceedings relating to search, seizure and recovery of contraband. The testimonies of PW-1 and PW-2 in their cross-examinations while conveying the factum of the purported site of incident being a busy place, which fact remains un-belied by the deposition of PW-8 the Investigating Officer, yet when no independent witnesses stood associated nor their participation was solicited in the proceedings relating to search, seizure and recovery despite availability, besides despite the fact that the presence of the independent witnesses was both procurable as well as solicitable, it being a case of prior information, hence enjoining upon the Investigating Officer to solicit the association of independent witnesses. In aftermath, the aforesaid omissions portray the fact that they were spurred and goaded by the Investigating Officer intending to camouflage or hide the truth qua the occurrence or his having carried out the proceedings at a place other than the place where the purported incident took place, which later inference on the material available on record already stands drawn by this Court.

In view of the above discussion, this court finds that the judgment of the learned trial Court acquitting the accused persons for the offences charged against them does not suffer from any perversity or absurdity of non-appreciation and mis-appreciation of evidence on record. Consequently, the judgment of acquittal, recorded by the learned trial Court, in its entirety does not warrant interference.

In view of above discussion, we find no merit in this appeal, which is accordingly dismissed, and, the judgment of the learned trial Court is affirmed. Record of the learned trial court be sent back forthwith.