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Himachal Pradesh High Court · body

2001 DIGILAW 11 (HP)

MANJIT SINGH v. STATE OF H. P.

2001-01-10

KAMLESH SHARMA, M.R.VERMA

body2001
JUDGMENT M.R. Verma, J.:- Since all these three appeals have been preferred by the appellants (here-in-after referred to as the accused) against the judgment dated 23.2.2000 passed by the learned trial Judge in Sessions Trial No. 24-S/7 of 1999 whereby all the accused have been convicted under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the Act) and each one of them has been sentenced to undergo rigorous imprisonment for a term of 10 years and to pay fine of Rs. 1 lakh and in default of payment of fine to further undergo rigorous imprisonment of a period of three months each, therefore, these are being disposed of by this common judgment. 2. Case of the prosecution, in brief, is that on 5.10.1999 telephonic secret information was received by A.S.P. Sunder Lai (PW-11) that charas is being transported in Maruti Esteem Car (Blue coloured No. CHO-IE-2764 which was coming towards Oachghat. This information was reduced by him into writing vide Ext. PW-5/A. He gave the direction to the S.H.O. Police Station, Solan where Ext. PW-5/A was recorded to send the information to the Superintendent of Police and thereafter proceed towards the spot where said car was expected to come. On reaching the spot, when the car arrived there, he formed a raiding party consisting of Jainarain (PW-1) and Ashwani Kumar Gupta (PW-2). The accused Manjit Singh was driving the car and the remaining accused were sitting therein. In the presence of the witnesses of the raiding party PW-11 gave the option to the accused persons whether they wanted to be searched by a Magistrate or by him vide memo Ext. PW-1/A. The accused consented for their search by PW-11. On personal search of the accused nothing incriminating was found on their person. Thereafter the said Car was also searched and one black coloured bag was found which contained a steel doloo kept in a plastic bag. Said doloo contained charas weighing 820 gms. After separating two samples of 25 gms each the samples and the remaining charas were separately sealed vide memo Ext.PW-1/B. A ruqua Ext.PW-6/A was then sent by PW-11 to the Officer Incharge, Police Station, Solan for registration of a case on the basis of which F.I.R. Ext. PW-9/A was recorded at the Police Station. After separating two samples of 25 gms each the samples and the remaining charas were separately sealed vide memo Ext.PW-1/B. A ruqua Ext.PW-6/A was then sent by PW-11 to the Officer Incharge, Police Station, Solan for registration of a case on the basis of which F.I.R. Ext. PW-9/A was recorded at the Police Station. The Car along with its documents and key was also taken in possession vide memo Ext.PW-2/B. The sealed parcels of the case property were handed over to the SHO (PW-9) who re- sealed the same. The samples of charas1 were got analysed and vide report Ext.PW-10/A given by the Chemical Examiner the sample were found to be that of a charas. On being satisfied of the commission of an offence punishable under Section 20 of the Act by the accused persons all of whom were traveling in the said Car, the Officer In charge, Police Station, Solan submitted a charge-sheet against them under Section 20 of the Act and a charge was accordingly framed against them by the learned trial Judge. 3. To prove the charge against accused persons prosecution examined as many as 11 witnesses. 4. Statements of accused persons were recorded under Section 313 Cr.P.C. wherein they denied the case of the prosecution as a whole and claimed that they have been falsely implicated in the case. The accused however did not lead any evidence. Finally, they were convicted and sentenced as aforesaid. Hence, these appeals. 5. We have heard the learned counsel for the accused persons and the learned Assistant Advocate General for the State, and have also gone through the records. 6. It was contended for the accused that this is a case where the police had the prior information, therefore, provisions of Section 42 of the Act ought to have been complied with, but were not complied with, therefore, the conviction of the accused is rendered unsustainable. To substantiate the contention our attention was drawn to the statement of PW-5 who has admitted in his cross examination that there was over-writing on receipt number of information Ext.PW-5/A and the trial Judge in this regard has observed as follows: "There is over writing in serial number as well as on the date. There is also over-writing in the number of FIR. The copy of this document is already on record which is Ext.PW-5/A". 7. There is also over-writing in the number of FIR. The copy of this document is already on record which is Ext.PW-5/A". 7. We have carefully gone trough the statements of the material witnesses i.e. PWs 5,8 and 11 and have also perused the original register which was sent for. On examination of the said register we made the following observation vide order dated 27.12.2000:- "L.H.C. Sohan Lai No. 125, S.P. Office, Solan has produced the receipt register for the period from 24.8.1999 to 5.10.1999 of the office of Superintendent of Police, Solan. We have perused the entry at Sr. No. 32358 where PW-5/A has been received and entry at Sr. No.32487 where PW-5/B was received. We do not find any over-writing or cutting in these entries. However, there are cuttings and over- writing in other entries but those are not relevant so far the present case is concerned." 8. Thus, we find that the over-writing/cuttings in the said register are of the entries which have no relevance to the case in hand. PW-11 has stated that on receipt of information about the transportation of the Charas he recorded it in the daily-diary a copy whereof is Ext.PW-5/A and directed the S.H.O. to send a copy thereof to the S.P. There is nothing in the cross-examination of this witness which may render his version in this regard suspicious or unreliable. 9. Constable Garja Ram (PW-8) has stated that he had taken Ext.PW-5/A to the S.P. Office and handed it over to Reader of the S.P. at 10.40 AM. PW-5 has corroborated the statement of PW-8 about the delivering of copy of information to him on 5.10.1999 and has further stated that he had presented the same before the S.P. The statements of these witnesses thus fully support the prosecution version that the information about the transportation of charas was reduced into writing and a copy of such information was sent without delay to the S.P. who is the immediate Official superior to PW-11. Therefore, the contention regarding non-compliance of the provisions of Section 42 of the Act is not sustainable. 10. It was next contended for the accused that there had been non-compliance of the provisions of Section 50 of the Act. Elaborating the contention, it was argued that the option and consent memo Ext. Therefore, the contention regarding non-compliance of the provisions of Section 42 of the Act is not sustainable. 10. It was next contended for the accused that there had been non-compliance of the provisions of Section 50 of the Act. Elaborating the contention, it was argued that the option and consent memo Ext. PW- I/A on the face of it reveals that it was not complete option inasmuch as no option for search before a Gazetted officer of any of the departments specified in Section 42 was given and that the memo is a composite document and consent of the accused persons was not separately and individually taken. According to the learned counsel these lapses are violative of a valuable right of the accused person with the result that they are entitled to be acquitted. In support of the contention the learned counsel had relied on CALI v. State of Kerala 1999 SCC (Cri)l 183, State of Punjab v. Baldev Singh 1999 SCC (Cri) 1080:Current Law Journal (Criminal) 1992(2):449, Chameli Devi v. State 1993 (3) RCR 566 and a few other cases we need not set out the ratio in these cases. Suffice to say that the propositions laid therein are (i) that noncompliance of the provisions of Section 50 of the Act being violative of valuable right of the accused, will vitiate the conviction and (ii) that recording of joint consent statement of the accused will be in violation of the procedure prescribed by Section 50 of the Act. 11. It is the case of the prosecution that nothing was recovered from the possession of the accused on search of their person but the charas was? recovered from within a car in which they were travelling at the material time. The provisions of Section 50 of the Act evidently and indisputably apply to a) case where the search of the person of the suspect is to be conducted, therefore, non-compliance of the provisions of Section 50 of the Act will render the search of the person illegal. However, in a case, as in hand, where nothing incriminating was found on the person of the accused, the compliance or non-compliance of the provisions of Section 50 will be of no consequence. However, in a case, as in hand, where nothing incriminating was found on the person of the accused, the compliance or non-compliance of the provisions of Section 50 will be of no consequence. Since, the bag containing charas in a dolu was recovered on search of the Car in which the accused were travelling, therefore, the search of the Car and consequential recovery of charas there from is not vitiated for want of compliance or defective compliance of the provisions of Section 50 of the Act because for conducting search of the Car provisions of Section 50 of the Act are not applicable. 12. The view we have taken is supported by the decision of a Division Bench of this Court in State of H.P. v. Edward Samual Chareton 2000 (2) S.L.J. 1418 : Current Law Journal (HP) 2000 (1); 286 and the decision of the Apex Court in Kalema Tumba v. State of Maharashtra and another J.T. 1999 (8) S.C. 293. 13. In Edward Samual Charetons case supra it was held as under: "9. The controversy about the non-compliance of the provisions of Section 50 of the Act, in fact, has no bearing on the fate of this case. The case of the prosecution is that the Charas was found in two plastic bags kept in a helmet which itself was kept in a gunny bag. Thus, the alleged recovery was not effected on search of the person of the accused but on search of the luggage allegedly belonging to the accused. Therefore, the provisions of Section 50 of the Act are not attracted in this case. 10. The relevant part of Section 50 of the Act reads as follows: (1) when any officer duly authorized under Section 42 is about to search any person under the provisions of Section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest magistrate. 11. It is clear from the bare reading of the aforesaid provisions that these will apply only in a case of search of a "person" and not to the search of luggage of such person because luggage does not form part of a "person". 11. It is clear from the bare reading of the aforesaid provisions that these will apply only in a case of search of a "person" and not to the search of luggage of such person because luggage does not form part of a "person". Thus, in this case wherein the luggage of the accused was the subject matter of search, the provisions of Section 50 of the Act were not applicable, therefore, it was not legally required to make an offer to the accused for search in the presence of a Gazetted Officer or a Magistrate." 14. In Kalema Thumbas case supra the Apex court held as follows: "4.....As rightly pointed out by the High Court search of baggage of a person is not the same thing as search of the person himself. In State of Punjab v. Baldev Singh, JT 1999(4) SC 595 Current Law Journal(Criminal) 1999(2):449 this Court has held that the requirement of informing the accused about his right under Section 50 comes into existence only when persons of the accused is to be searched. The decision of this Court in State of Punjab v. Jasbir Singh and ors. JT 1995 (9) SC 308, wherein it was held that though poppy straw was recovered from the bags of the accused, yet he was required to be informed about his right to be searched in presence of Gazetted Officer or a Magistrate, now stands over ruled by the decision in Baldev Singhs case (supra). If a person is carrying a bag or some other article with him and narcotic drug or the psychotropic substance is found from it, it cannot be said that it was found from his person. In this case herein was found from a bag belonging to the appellant and not from his person and therefore it was not necessary to make an offer for search in presence of a Gazetted Officer or a Magistrate." 15. In view of the above settled position in law the contention raised is devoid of any merit and substance. 16. It was next contended by the learned counsel for the accused that there are circumstances indicative of the fact that the case property had been tempered with. In view of the above settled position in law the contention raised is devoid of any merit and substance. 16. It was next contended by the learned counsel for the accused that there are circumstances indicative of the fact that the case property had been tempered with. To substantiate his contention the learned counsel submitted that; (i) according to the witnesses the contraband which was recovered by the police was of black colour but the substance which was exhibited in the court was of white colour, (ii) that the seal used by the Investigating Officer for sealing the case property and samples and the seal used for resealing them by SHO have not been produced in the Court, (iii) that as per PW-4 he handed over only one sample of the case property to PW-7 but at the laboratory two samples were found; and (iv) that the weight of both the samples when weighed at the laboratory varied from the given weight of the samples inasmuch as as one sample weighed 20 gms and the other 25.14 gms instead of 25 gms each. 17. As contended for the accused and as specified by Modi, charas is of dark green or brown colour. It has been admitted by PW-1 and PW-2 that the charas recovered at the time of search was black. PW-1 has further stated on seeing the Charas (Ext.P-2) at the time of his statement in the Court that it was whitish. However, even PW-1 has stated that charas Ex.P2 was similar to the recovered charas and PW- 2 has identified it to be the same which was recovered in his presence. The emphasis by the learned counsel was on change of colour which according to him could only be dark green or brown and not whitish. 18. The trial Judge had not made any observation about this aspect of the matter, therefore, we had called for the case property and on seeking it we made the following observations vide order dated 27.12.2000: "The case property is produced by L.H.C. Garja Ram No.438, Police station, Sadar, Solan. After breaking the seals, the container is opened and we have examined the sticks of contraband. These sticks are of black colour but there is a thin layer of whitish material on some of the sticks. After breaking the seals, the container is opened and we have examined the sticks of contraband. These sticks are of black colour but there is a thin layer of whitish material on some of the sticks. The container of the case property is ordered Jo be re-sealed under the supervision of Registrar (Vigilance) with the seal of the Registrar General of this court and is ordered to be handed over to L.H.C. Garja Ram No. 438, P.S. Sadar, Solan for re- depositing the same with the Malk-hana Police Station, Solan." 19. In view of the above observations we are of the view that since the recovered charas remained sealed and secured in pockets therefore some of the sticks developed fungal growth turning outer portion whitish. The circumstance, therefore, does not form a basis for holding that the charas was tampered with. 20. The seals used for sealing the charas Ext.P-2 and its sample at the time of recovery by PW-11 and at the time of resealing by SHO have not been produced at the trial. According to the learned counsel for the accused an inference that case property was tempered with is permissible. 21. In the absence of any mandatory provision in the law/Rules of procedure relating to sealing of the case property, that the seal used in sealing the case property must be produced at the trial, it cannot be said that failure to produce such seal at the trial will be fatal to the case of the prosecution. It will depend on the facts and dicrumstances of each cash whether by non-production of the seal at the trial any doubt is raised about the safe custody of the case property or not. 22. In the case in hand, PW-11 used seal X to seal the case property on the spot vide memo Ext.P:W-l/B. he has stated that the seal used for sealing the case property, after use was given to PW-1 against receipt Ext.PW-1/P. As per the contents of this receipt PW-1 has acknowledged that the seal was handed over to him. PW-1 has in his statement admitted that the seal after use was handed over to him but he has lost it somewhere. PW-1 has in his statement admitted that the seal after use was handed over to him but he has lost it somewhere. PW-10 has stated that he had re-sealed the case property that is by keeping the sealed case property in a parcel and by sealing such a parcel with seal A. It has been observed by the trial court while recording the statement of PW-1 that one pocket bearing seals having impression A produced, seals are intact. "On opening of this sealed pocket a bag and the sealed container of the charas referred to as box, were found therein. The trial Judge observed, that the box was sealed in a clothe parcel having the seal impression X and the seals were intact. In view of this unshattered evidence on record inference of the case property having been tempered with is not permissible for the reasons that seals were not produced at the trial. 23. It is the case of prosecution that two samples of charas each weighing 25 gms were separately sealed with seal X at the time of recovery and seizure of charas vide memo Ext.PW-1/B. These samples were subsequently resealed by the SHO (PW-9) with seal A and were handed over to PW-4 for safe custody. PW-4 has .stated that he sent one sample to CTL Kandaghat on 7.10.99 through Devinder Singh (PW-7). Devinder Singh has stated that he was given one pocket on 7.10.1999 by PW-4 for delivering at CT7. Kandaghat which he deposited there on the same day. In his cross examination he has stated that one read certificate No.75/99 and Form M was also along with the said sample. As per contents of the report Ext.PW-10/A of the Chemical Examiner, two samples were received in the Laboratory and they weighed 20 gms and 25.14 gms. On these facts the learned counsel contended that this was a case of tampering with the sample and the conviction of the accused is vititated. In support of his contetion the learned counsel relied on Anoop Joshi v. State 1992 (2) R. Cr. R. 342 wherein the sample of 50 gms of smack was allegedly sent to CFSL where it was found only 44.6 gms and it was held as under: " 13. A hypothetical answer was obtained from the witnesses that in case the weighing is done in windy atmosphere, the same could not be so accurate. R. 342 wherein the sample of 50 gms of smack was allegedly sent to CFSL where it was found only 44.6 gms and it was held as under: " 13. A hypothetical answer was obtained from the witnesses that in case the weighing is done in windy atmosphere, the same could not be so accurate. The prosecution has not brought on record any evidence of such windy conditions when the sample was being taken by the I.O. It is to be remembered that the seal of OPY was not given to any independent person after it was used and the same remained with the SHO throughout. When we keep in view the facts that not only the CFSL form containing the specimen seals affixed on the case property was not shown to have been deposited in the Malkhana, and no explanation having been given as to in whose possession it remained before it was sent to the CFSL and also the fact that there was some tampering with one of the seals and also the fact that quantity of the smack recovered from the sample by the CFSL was much less, should lead to reasonable doubt that the sample which was taken at the spot was not kept untampered till it was examined by the CFSL expert." 24. It will not make any difference as to whether one of the sample of charas or both of them were sent to the CTL for chemical analysis. The material aspect of the matter is whether the samples were tampered with or not. As per the form NCRB-1 two samples each weighing 25 gms were sent to the CTL. Both the samples bore the seal impression A on the outer cover and seal impression X in the inner cover. These impressions are of the seals with which the samples were sealed in the police station by S.H.O. and on the spot by the I.O. respectively. The samples of seal were also enclosed with the said form. PW-4 and PW-7 both have stated that till the sample remained in their custody it remained intact. This part of their statements has not been challenged in their cross examination by suggesting the alleged tempering. The samples of seal were also enclosed with the said form. PW-4 and PW-7 both have stated that till the sample remained in their custody it remained intact. This part of their statements has not been challenged in their cross examination by suggesting the alleged tempering. The possibility of tempering before the case property was deposited with PW-9 stands ruled out in view of the discussion and conclusions on the contention regarding non-production of the seals used for sealing the case property and samples. It is evident from the certificate of the Chemical Analyst that the seals on the sample were intact and tallied with the specimen impressions of the seals separately sent. The difference in the weight of the samples in our view cannot be held fatal to the case of the prosecution. 25. In Anoop Joshis case supra the shortage in the weight of smack was further accompanied by the unexplained facts that the seal used for sealing the case property was not given to independent witness, one of the seal was found to have been tampered with and the weight of the sample was found less. Such accompanying factors are missing in this case. 26. In Pon Adithan v. Dy Director, Narcotics Control Bureau, Madras 1999 (6) SCC 1 while dealing with the question of effect of lesser weight of sample then alleged by prosecution the Apex Court held as under: "8. It was lastly contended by Mr. Lalit that in view of the inconsistency regarding identity of the sample the courts below committed a grave error in holding that the sample which was examined by the chemical analyst was a part of MO 3, the article which was seized from the appellant. He drew our attention to the evidence of Govinda (PW-3), who was working as an Assistant in the Court of the Magistrate. He has deposed that under the directions of the Magistrate he had prepared two sdamples of 5 gm each out of MO 3 which was before the Court and the said samples were sent by him to the chemical analyst for analysis. PW-2, the chemical analyst, in his evidence has stated that the sample which he had received from the Court weighed 6.9 gm. PW-2, the chemical analyst, in his evidence has stated that the sample which he had received from the Court weighed 6.9 gm. Relying upon this inconsistency as regards the weight it was submitted by the learned counsel that benefit of doubt should be given to the appellant as it cannot be said with certainty that the sample which was examined by the chemical analyst was the same sample which was sent by the Court. On 15.4,1998 PW-1 had given an application to the Magistrate for drawing a sample from the brown powder which was seized from the appellant and which was believed to be hereoin, for analysis by the Forensic Sciences Laboratory. Granting this application the learned Magistrate directed Govinda (PW-3), to prepare two samples of 5 gm each out of MO 3, The said samples were prepared as stated earlier in the Court and thereafter they were property put in separate bags and then sealed with the court seal. One sample was then forwarded with a covering letter which contained necessary details regarding case number and the sample. Therefore, even though PW 3 had stated that he had correctly weighed the two samples and there was no possibility of any mistake on his part much weight cannot be given to his evidence as in the forwarding letter prepared by him he had mentioned that the weight was about 5 gm. As the samples were prepared in the court in the presence of the Presiding Magistrate and were properly packed and the court seal was applied on them and as the chemical, analyst had also found the seal intact there is little room for doubt that the sample which was examined by the chemical analyst was a part of MO 3. In our opinion, the courts below did not commit any error in holding that what was found from the appellant was heroin." 27. Be it stated that the variation in the weight of sample in the aforesaid case was to the extent of 38% whereas the variations in this case are of 20% lesser weight in case of one sample and 5.6% more weight in another sample, these variations in weight of the charas are inconsequential. 28. The above discussion leads us to the conclusion that there had been no tempering with the case property or the samples thereof; therefore, this contention also merits rejection. 29. 28. The above discussion leads us to the conclusion that there had been no tempering with the case property or the samples thereof; therefore, this contention also merits rejection. 29. It was further contended for the accused that the investigation, right from the beginning, has been conducted in a manner which render the search and recovery highly suspicious. Elaborating the contention, the learned counsel submitted, (1) that it is case of the prosecution that the secret information had been received at about 9.30 am but instead of going ahead in search of the Car and blocking other connecting roads the police laid a naka just 8 kms away from the place where information was received, and awaited for arrival of the car for about 5 hours, (ii) the documents allegedly prepared at about 3 PM on the spot contain F.I.R. number whereas Ruka was sent to the Police Station for registration of case after the alleged preparation of such documents and (iii) no attempt was made to find out the owner of the Car. These unnatural acts coupled with major contradictions in the statements of prosecution witnesses render the version regarding search and recovery of charas highly doubtful. 30. The secret information about transportation of charas was reduced to writing at 10 am and thereafter the police party headed by PW-11 preceded to Oachghat and waited for the arrival of the Car carrying the accused and charas there. As per that information Ext.PW-5/A the Car was coming from Sayanj on Jaswant Nagar Road. The police party proceeded for nakabandi towards ochhghat-Nauni and laid the naka at Ochhghat. There is nothing oh the record to suggest that naka bandi at Ochhghat was unnatural nor there is anything wrong or unnatural on the part of the police to have waited for the arrival of the Car for about 5 hours. 31. According to the Investigating Officer the document Ext PW-l/A, PW- 1/B, PW-2/A, PW-1 I/A, PW-11/B.PW-l 1/C, PW-l l/D, PW-11/E and PW-11/F were prepared at the spot i.e. in the office of S.D.O. which is at a close distance from the place of recovery which was effected on the road. Except Ext. 31. According to the Investigating Officer the document Ext PW-l/A, PW- 1/B, PW-2/A, PW-1 I/A, PW-11/B.PW-l 1/C, PW-l l/D, PW-11/E and PW-11/F were prepared at the spot i.e. in the office of S.D.O. which is at a close distance from the place of recovery which was effected on the road. Except Ext. PW- I/A all the aforesaid documents contain the F.I.R. number whereas the admitted case of the prosecution is that these documents were prepared before Ruka was sent for registration of the F.I.R. In view of this learned counsel for the accused contended that these documents had not been prepared before recording of the F.I.R and were prepared before recording of the F.I.R. and were prepared subsequent thereto and therefore are fabricated documents. This belies the search and recovery version of the prosecution and entitles the accused for acquittal. In support of his contention the learned counsel has relied on Mohd. Hashim v. S\ate 2000 (I) RCR (cr.) 235 and Kailash alias Kuddu v. State 2000(1) RCR (Cr.) 330. 32. In Mohd. Hashims case supra a learned Single Judge of Delhi High Court held as under: "4. Though a number of submissions were made by the learned counsel for the appellant, I need not detain myself to deal with all those submissions as in my opinion, there is force in the argument of the learned counsel that the prosecution has failed to prove that the contraband was seized in accordance with the provisions of Section 50 of the Act. The evidence of the prosecution pertaining to the recovery of the contraband revolves around the testimony of Head Constable Nafe Singh (PW-5) and sub-Inspector Narender Tyagi (PW-7). The only independent "Panch" witness, namely, Manzar Hussain (PW-6) has not supported the prosecution evidence. Sub Inspector Narender Tayagi (PW-7) corroborated by Head Constable Nafe Singh (PW-5) testified that on 15.3.1993, at about 9.40 p.m., while he was on patrolling duty near the Navjyoti Public School, Yamuna Pusta, he received a secret information that a boy having smack in his possession would be coming from the side of Trans Yamuna. He, therefore, reduced the said information into writing (Ex.PW-7/A) and organized a raiding party. At about 10.20 p.m. to 10.30 p.m., the appellant was spotted near the Yamuna Bridge and was apprehended on the spot. He was given the option (Ext.PW-5/A) of being searched before a Gazetted Officer or a Magistrate. He, therefore, reduced the said information into writing (Ex.PW-7/A) and organized a raiding party. At about 10.20 p.m. to 10.30 p.m., the appellant was spotted near the Yamuna Bridge and was apprehended on the spot. He was given the option (Ext.PW-5/A) of being searched before a Gazetted Officer or a Magistrate. The appellant declined the offer. Thereafter, he took search of the appellant and recovered sixty five grams of smack from his possession vide seizure memo (Ext.PW-I/A). A sample was drawn from the seized contraband. The sample as well as the remaining smack were converted into separate parcels and they were duly sealed on the spot. CFSL form was duly filled up. In the meanwhile, Inspector Raja Ram Yadav (PW-1) also came on the spot, who took the sealed parcels along with CFSL Form in his custody and deposited them in the Police Mai Khana. The evidence of Sub-Inspector Narender Tyagi (PW-7) further shows that the rukka (Ext.PW-R/A) was sent to the police station on the basis of which the FIR (Ext./PW-4/B) was registered at the police station on 16.3.1993 at 1.15 a.m. and the FIR was registered at 1.20 a.m. Surprisingly, the secret information (Ext.PW-7/A) received by the sub-Inspector Narender Kumar Tyagi (PW-7), the notice under Section 50 of the Act (Ext.PW-5/A) alleged to have been served on the appellant, the seizure memo (Ext.PW-1/A) and the report submitted under Section 57 of the Act (Ex.PW-7/D) bear the number of the FIR (Ex.PW-4/B). The number of the FIR (Ex.PW-4/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation as to under what circumstances number of the FIR (Ex.PW-4/B) had appeared on the top of the aforesaid documents which were allegedly prepared on the spot. This gives rise to two inferences that cither the FIR (Ex.PW-4/B) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution." 33. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution." 33. To the same effect is the ratio in Kailashs case (supra) which has also been decided by the same learned Judge. 34. In view of the FIR number finding mention in the aforesaid documents "in fact three inferences are possible, viz.(i) either the F.I.R. had been recorded before the search and seizure; or (ii) the FIR number had been inserted therein after the FIR was recorded; or (iii) the documents were prepared only after the investigating officer received the number of the F.I.R. from the police station. In case the FIR had been lodged before the recovery but contains details of search and recovery the only inference would be that the recovery was planted/fake and will cut at the root of the case entitling the accused for acquittal. In case the documents regarding search and recovery are prepared only after receipt of FIR number from the police station, it will suffer from the vice of delay in preparing such documents which must be prepared immediately after the action taken and as a result thereof the recovery will be rendered doubtful. However, in case of insertion of the number of the FIR on the documents which had been prepared immediately after the search and recovery will not necessarily be rendered illegal or doubtful. 35. There cannot be any doubt that the documents like search/seizure memo etc. prepared during the course of investigation be so prepared that they are capable of being identified as the documents relating to the case in which these are prepared. Perhaps the best mode to do so is to indicate the FIR number on such documents, and this is the procedure adopted by the investigating agencies at least in Himachal Pradesh. Therefore, the deciding factor in such a case will be the evidence on record regarding the preparation of such documents and the place of preparation. 36. In the case in hand apart from the documents which contain FIR number, document Ext. PW- I/A was also prepared on the spot as is the version of the I.O. which is corroborated by two independent witnesses, viz. PW-1 and PW-2. However, Ext. 36. In the case in hand apart from the documents which contain FIR number, document Ext. PW- I/A was also prepared on the spot as is the version of the I.O. which is corroborated by two independent witnesses, viz. PW-1 and PW-2. However, Ext. PW-I/A does not contain the F.I.R. number but before the written portion thereof it has sufficient left over blank space wherein the FIR number could have been inserted and in all probability this space appears to have been left out so that FIR number could be inserted therein as in other documents to identify it qua the case to which it pertained. What is more important is the fact that PW-11 has stated about the preparation of all these documents on the spot one after the other and his statement is duly and fully corroborated by PW-1 and PW-2 both of whom are independent witnesses of the search and recovery. Both these witnesses have stated about the preparation of these documents on the spot i.e. in the office of PW-2 step by step and there is no suggestion to the I.O. or the said witnesses that these documents were not so prepared. It cannot, therefore, be held that FIR in this case was registered before the search and recovery or that the preparation of the documents was delayed till the registration of the FIR. At the most it can be a case of insertion of the FIR number in the said documents after they had been prepared and FIR number was received by the Investigating Officer when SHO (PW-9) reached on the spot after recording of the FIR along with file of the case which is started after recording of the FIR. Therefore, mention of FIR number on the documents duly proved to have been prepared on the spot, the search and recovery in this case cannot be doubted. In view of the above discussion, the case law relied upon for the accused is not applicable to the facts and circumstances of this case. 37. The major contradiction in the statements of the witnesses as pointed out at the time of arguments is that according to PW-1 and P-l 1 the person of PW-II was searched by PW-1 and as per PW-2 and the contents of memo hx.PW-2/A search was given to the accused persons. 37. The major contradiction in the statements of the witnesses as pointed out at the time of arguments is that according to PW-1 and P-l 1 the person of PW-II was searched by PW-1 and as per PW-2 and the contents of memo hx.PW-2/A search was given to the accused persons. On the strength of this contradiction it was contended for the accused that it is not established that the I.O. gave his search before conducting the search of the accused and the search was illegal. 38. The contradiction so pointed out is of no help to the accused. The recovered bag and dolu containing charas are incapable of being concealed in or under the wearing apparels without being noticed. Therefore, if the search of the 1.0 was not properly taken or even not taken at all it may at the most be an irregularity and will not vitiate the search and recovery which is otherwise fully proved in view of the statements of the independent witnesses. The quantity of the recovered charas is such that it is improbable that it should have been planted by the police just to falsely implicate the accused against whom they had no ill-will for any reasons whatsoever. 39. There is nothing on the record to show that any attempt was made by the police to find out and interrogate the owner of the vehicle. However, such owner was not driving or accompanying the Car at the material time, therefore, the lapse if any in this regard has no bearing on the merts of the case against the accused. 40. Lastly it was contended for the accused other than Goyal Nath that the prosecution has failed to prove that the accused or anyone of them were/was in conscious possession of the charas. Elaborating the contention the learned counsel submitted that there were five occupants of the car. There is no evidence that this bag was jointly possessed by all the accused knowing that it had a dolu containing charas. The bag was allegedly found below the front seat where accused Goyal Nath was sitting. For accused Goyal Nath it was contended that there is no evidence that he owned and possessed the bag containing dolu and charas. The mere finding of the bag near the seat he was sitting on, does not prove that he was in conscious possession of the contraband. For accused Goyal Nath it was contended that there is no evidence that he owned and possessed the bag containing dolu and charas. The mere finding of the bag near the seat he was sitting on, does not prove that he was in conscious possession of the contraband. To substantiate these contentions reliance was laid on the State of H.P. v. Butinath AIR 1957 HP 37, Harcharan Singh v. State of Punjab 2000 (3) RCR (Cr.) 174:Current Law Journal (Criminal) 2000( 1) 232 and Suraj Mai v. State of Haryana 2000 (1) RCR (Cr.) 845. 41. On the other hand it was contended for the State that the accused who were travelling in the Car wherein the charas was transported must be held in joint possession thereof. 42. In Buti Naths case supra it was held as under: "7. The case is on all fours with a Calcutta case reported in Cyril C. Baker v. Emperor, AIR 1930 Cal.668 (B) (which has been referred to by the Court below). There, the facts were: "The appellant (Baker) is, or was, at the time of the alleged occurrence. Assistant Wireless Operator of the B.I.S.N. Cos "S.S. Edavana" which was due to leave on the night of 23rd January or morning of 24th January last for Rangoon and the Straits. On the evening of 23rd January at about 7 PM a party of Customs Preventive Officers went on board the ship and searched the appellants cabin, which was an ordinary second class cabin on the lower deck having in it, two berths and a settee. The accused accompanied the officers from the top deck and opened the door of the cabin with a key which he produced, either from his pocket, or from the top of a ledge, outside the door of the cabin. Upon that point, there was some controversy at the trial. This much, however, is clear that the door was locked and that it was opened by a key produced by the accused. On search being made twenty-seer packets of opium were found concealed in the covering of the settee and the mattresses of the upper and lower berths. Upon that point, there was some controversy at the trial. This much, however, is clear that the door was locked and that it was opened by a key produced by the accused. On search being made twenty-seer packets of opium were found concealed in the covering of the settee and the mattresses of the upper and lower berths. The accused was thereupon taken into custody, and was in due course, set up for trial and convicted and sentenced as stated." The defence of C.C. Baker in that case was that the opium in question had been planted by a Goangse boy, who used to serve Baker and another officer. Setting aside the conviction of C.C. Baker, Grahamn and Panck-ridge, JJ., observed that "Possession implies knowledge, and there would be no possession when there is no knowledge on the part of the ostensible occupant of the cabin or room as the case may be. Possession without knowledge can hardly have been meant since in that case the element of criminal intention or knowledge would be entirely wanting." Where there is undoubtedly ground for grave suspicion regarding possession against the accused, but the element of reasonable doubt is- not excluded, it would not be safe to conclude that the accused had the knowledge, which is necessary to convict him of the offence. The onus of proving that knowledge is upon the prosecution, and relying solely upon the bare fact that the opium was found in the accuseds cabin, without proof of any additional or extraneous facts to establish any connection between him and the opium, is not sufficient to discharge that onus. 43. In Harcharan Singhs case supra a learned single Judge of Punjab and Haryana High Court held as under: "4.....It must be proved by the prosecution that the gunny bags containing poppy husk have been kept at the place of recovery by the accused but there is absolutely no evidence to prove his fact. When there is no evidence that the gnny bags containing poppy husk belonged to the accused he cannot be convicted for the offence under Section 15 of the Act. It requires imposition of minimum sentence of 10 years. The necessary material for holding the accused guilty of the offence has not been proved." 44. In Suraj Mais case supra the same learned single Judge of the Punjab and Haryana High Court held as under: "7. It requires imposition of minimum sentence of 10 years. The necessary material for holding the accused guilty of the offence has not been proved." 44. In Suraj Mais case supra the same learned single Judge of the Punjab and Haryana High Court held as under: "7. After carefully going through the evidence of PW-l.PW-4 and PW-5, I am unable. to place any reliance on their evidence. Their evidence is not supported by the Driver or Conductor of the bus or by any other person. The accused in defence examined one witness. His evidence clearly shows that the accused was not having any luggage or attache- case with him when he boarded the bus. The evidence of DW-1 is also supported by the evidence of the Driver and Conductor and also by PW-2 who is an independent witness and who is cited as Panch witness for the alleged recovery. 8. On a consideration of the evidence on record, I am of the view that the prosecution failed to prove that the attache-case from which the opium was recovered belonged to the accused and he was holding the same. Therefore, the conviction and sentence imposed on the accused-appellant are liable to be set-aside." 45. The facts and circumstance of the above cases are quite distinct from the facts and circumstances of the present case and there was evidence and material on record to disbelieve the version regarding exclusive/conscious possession of the accused over the recovered contraband. In the case in hand there is not dispute that the accused persons belong to the same area inasmuch as accused Goyal Nath, Manjeet Singh and Swaran Singh are residents of village Sarseeni and accused Madan Lai and Avtar Singh are residents of Lalroo Mandi and Tiban, all falling within the same police station. Thus, they were not strangers to each other nor it is their case, they were admittedly travelling in the Car in which the bug containing doloo having charas therein was recovered. It is not their case that they did not board the Car at the same time from the same station but from different places. All of them have denied recovery of charas from all of them and not individually from each of them. It is not their case that they did not board the Car at the same time from the same station but from different places. All of them have denied recovery of charas from all of them and not individually from each of them. Thus, they have not stated anything from which it may be inferred that they were travelling in the Car for individual purposes and not to accomplish any joint venture. The Car in question is a small vehicle not shown to be in use as a Taxi. In these circumstances and other surrounding facts and circumstances of the case an inference of joint possession, control and domain can be legitimately drawn against the occupants of the Car i.e. the accused persons. Once such an inference is deductible, it was for the accused to furnish at least a plausible explanation or to disclose facts negativing such inference. The accused however had failed to give such explanation and to state explanatory facts in their statement under Section 313 Cr. P.C. Therefore, the learned trial Judge has rightly held them to be in joint possession of the charas. A contrary view is not possible in the facts and circumstances of the case. 46. The prosecution version about search and recovery of charas is fully supported by the Investigating Officer, two independent witnesses and the opinion of the chemical examiner and the charge against the accused persons is proved beyond any reasonable doubt. Therefore, the impugned conviction and sentences call for no interference. 47. As a result, all these appeals are liable to be dismissed and arc accordingly dismissed.