Research › Search › Judgment

Himachal Pradesh High Court · body

2010 DIGILAW 1264 (HP)

Anil Kumar v. State of H. P.

2010-12-15

R.B.MISRA, V.K.SHARMA

body2010
JUDGMENT : R.B. Misra,J. The present criminal appeal No. 80 of 2009 has been preferred under Section 36 B of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( in short called ‘NDPS Act') read with Section 374 (II) of Cr.P.C) against judgment dated 27.2.2009 passed by learned (Special Judge) Presiding officer, Fast Track Court, Mandi, District Mandi, H.P. in Sessions Trial Number 19/2008 (State of Himachal Pradesh Versus Rajesh Yadav and Anil Kumar), whereby learned trial Court has convicted the accused under Section 20b (ii)(B) of the NDPS Act for the offence under Section 20 of NDPS Act, 1985 and has sentenced the convict appellant to undergo rigorous imprisonment for five years and also to pay fine of Rs. 50,000/. In default of payment of fine, further simple imprisonment for a period of six months. 2. Criminal appeal No. 182/2009 has also been preferred under Section 36B of the NDPS Act read with Section 374(2) of Cr.P.C against the common judgment dated 27.2.2009 passed by learned (Special Judge) Presiding officer, Fast Track Court, Mandi, District Mandi, H.P. in Sessions Trial Number 19/2008 titled State of Himachal Pradesh Versus Rajesh Yadav and Anil Kumar, whereby the learned trial Court has convicted the accused under Section 20b (ii)(B) of the NDPS Act for the offence under Section 20 of NDPS Act and has sentenced the convict appellant to undergo rigorous imprisonment for 10 years and also to pay fine of Rs. 1,00,000/. In default of payment of fine, convict Rajesh Yadav shall further undergo rigorous imprisonment for one year. 3. The prosecution case is that on 1.3.2008 at about 8.30 AM, HC Dhani Ram No.6 of Police Station, Gohar along with HHC Chet Ram No. 128, Constable Suresh Kumar No. 229, LHC Satish Kumar No. 450 vehicle driver and Constable Roshan Lal No. 222 were present near Pandoh Dam link road, in the meantime two persons (Accused) were seen coming from Kandah road side intended towards Pandoh Dam. The accused after seeing the ‘Naka’ party of the police started walking in speed turning back side. On suspicion both the accused were apprehended by the police personnel on the spot. On inquiry, the accused carrying bag and the other accused carrying suit case/Attache in his right hand disclosed their names Rajesh and Anil Kumar respectively. The accused after seeing the ‘Naka’ party of the police started walking in speed turning back side. On suspicion both the accused were apprehended by the police personnel on the spot. On inquiry, the accused carrying bag and the other accused carrying suit case/Attache in his right hand disclosed their names Rajesh and Anil Kumar respectively. Both the accused could not give satisfactory answer regarding their roaming and police personnel suspected that accused might be possessing contraband. Since the place was deserted and lonely place, thus the accompanying police personnel, namely, Constable Suresh Kumar and LHC Satish Kumar were made witnesses while obtaining the consent of the accused for giving their search. On search, HC Dhani Ram took into possession the black colour bag carried by accused Rajesh Yadav on his right hand in which a towel of green colour was containing ‘Cannabis’ wrapped in three packets with plastic cover. On weighing by the I.O., 4 Kg of ‘Cannabis’ was recovered out of which two samples each sample of 25 Gms were taken for chemical examination and both the samples were put in a cloth parcels and six seal impressions as ‘P’ were put on the sample parcels and the remaining ‘Charas’ i.e. 3 Kgs 950 Gms was also put in 3rd parcel along with three plastic wrappers in the bag and the bag was also sealed with seal impression ‘P’ at six places and the residue parcel was put as mark ‘A1’ and the samples were marked ‘A2’ and Mark ‘A’3’ and the N.C.B1 Form in triplicate was also filled on the spot by the I.O. The specimen of the seal impression was also separately drawn on the piece of cloth. 4. After this, the search of accused Anil Kumar was conducted during which the suit case/Attache of brown (Kaleji) colour was found being carried by him in his right hand, on search, a jacket of light blue colour was taken from that, in which two envelopes, wrapped with plastic containing ‘Battinuma’ Cannabis was found and the ‘Cannabis’ on weighment was found to be 2 Kgs 500 Gms. Two samples of 2525 Gms each were taken from the bulk and both the samples were put in a cloth parcels and were sealed with seal impression ’T’ at six places and the residue ‘Cannabis’ was put in the same envelope along with plastic wrapper and was again put in a suitcase, covered with cloth parcel and sealed with seal impression ‘P’ at six places. The residue parcel was put Mark ‘B1’ and the sample parcels were put mark ‘B2 and Mark ‘B3’ and N.C.B Form in triplicate was also filled. Specimen of seal impression was also taken on a separate piece of cloth and seal after its’ use was entrusted to Constable Suresh Kumar No. 229 and recovery memo was also prepared by HC, Dhani Ram. The signature of the accused and the witnesses were also obtained on recovery memo parcels and one copy of the recovery memo was also given to the accused. 5. Rukka was also prepared by the Investigating Officer for registration of the case and the same was sent through HHC Chet Ram, FIR No. 52/08 dated 1.3.2008 was lodged accordingly. HC Dhani Ram after reaching the Police Station has produced the case property along with the accused before SHO Police Station, Gohar Sh. Jagdish Chand. SHO Jagdish Chand has resealed all the parcels with his seal impression ’H’ three in number on each parcels and has also drawn specimen of the seal impression ‘H’ on a piece of cloth and later on deposited the case property with MHC Inder Dev of Police Station Gohar who deposited the same in the Malkhana after making necessary entry in the Malkhana register. The I.O. HC Dhani Ram has also prepared Special report U/S 57 of ND & PS Act and the same was sent through Constable Parkash Chand to Dy. S.P. Headquarter. After investigation accusedrespondents were charged for the offence punishable under Section 20 of the 'NDPS Act'. 6. In order to prove its case the prosecution examined as many as ten prosecution witnesses, whereas, both the accused in their statements U/S 313 Cr.PC have shown their innocence and have denied the prosecution case. In their defence, Sh. Suresh Kumar, conductor of Haryana Roadways Bus Depot was examined to prove that police personnel made accused persons to get down from the bus No. HR6A4369 at about 8.30 AM. In their defence, Sh. Suresh Kumar, conductor of Haryana Roadways Bus Depot was examined to prove that police personnel made accused persons to get down from the bus No. HR6A4369 at about 8.30 AM. at Pandoh Bazar as they had boarded from Kullu to Chandigarh and at that time they were not having any bag etc. with them. 7. The prosecution has examined Constable Suresh Kumar PW.1, HHC Chet Ram PW.2, HC Inder Dev PW.5, Inspector Jagdish Chand PW.8 and HC Dhani Ram PW.10. The other witnesses HC Narender Kumar PW.3, Constable Tej Ram PW.4, Constable Yashwant Singh PW.6, Inspector Hemant Kumar PW.7 and Constable Prakash Chand PW.9 are formal witnesses. 8. Mr.Anup Chitkara, learned Advocate, has submitted that independent witnesses were neither called nor associated by the prosecution, as reflected from the testimony of PW.1 C. Suresh Kumar, PW.2 HHC Chet Ram and also from the testimony of PW.10 Dhani Ram. No endeavour appears to have been made by prosecution to associate independent witnesses to facilitate the Court to arrive at truth. 9. PW.1Constable Suresh Kumar in his endeavour to support the prosecution case, has stated that sample of 'Bhang' taken from accused Rajesh Yadav is Ex.P7 and sample of 'Bhang' taken from accused Anil Kumar is Ex.P8. In crossexamination PW.1 has stated that Naka was laid at a distance of about 200 meters from National Highway21 near Pandoh Dam at a place Pandoh Kandha road. 10. PW.2 HHC Chet Ram has stated that the raiding party observed from National Highway Pandoh Dam on the Kandha road that at a distance about 810 meters the accused persons were coming towards National Highway21. The point from where a link road goes to Bhakhli side from Pandoh Kandha road is about at a distance of 50 meters from National Highway21, where Naka was laid. 11. PW.1, stated in crossexamination, that where the raiding party laid Naka, there are residential houses at a distance of about 2030 feet but the I.O., had neither sent any of the members of the raiding party to arrange for the independent witnesses from the nearby area nor he himself tried to arrange the witnesses. 11. PW.1, stated in crossexamination, that where the raiding party laid Naka, there are residential houses at a distance of about 2030 feet but the I.O., had neither sent any of the members of the raiding party to arrange for the independent witnesses from the nearby area nor he himself tried to arrange the witnesses. PW.1 has further stated in crossexamination that the raiding party had laid Naka at the spot in the morning at about 7 A.M., and in between 7 A.M., and 8.30 A.M they had not checked any vehicles and they had simply checked some persons, who were passing from there but PW.1 did not remember their names and addresses. PW.1 has further stated that the raiding party had weighed each polythene bags separately to ascertain the weighed of ''Bhang'' in each packets. The weights and scales were with the I.O., as he was having the weights of 1Kg, 500 grams and only 50 grams. 12. In view of the testimony of PW.1, recovery memo Ex.PW.1/D was prepared by the I.O, on the spot at about 9.3010.00 A.M. As per testimony of PW.1, raiding party reached at the police station on 1.3.2008 at about 8. 00 P.M. and arrival was recorded in daily diary. PW.1 has further stated in crossexamination that he could not say on 1.3.2008, accused Rajesh Yadav was travelling in Haryana Roadways bus bound from Manali to Chandigarh and the accused has boarded the same bus from Kullu to Chandigarh. It has also been highlighted by PW.1 in crossexamination that when accused was apprehended, the attachi case was locked and the raiding party started from the spot towards the police station after completing all the formalities at 4.30 P.M., and it takes generally 11.30 hours to reach police station from the spot. The rukka was sent to the police station at about 11.30 A.M., through HHC Chet ram, who came back on the spot about 3.00 P.M. from the police station. After sending rukka, I.O. prepared the spot map, recorded their statements under Section 161 of Cr.P.C etc. and HHC Chet Ram went to the police station with rukka on Government vehicle No.HP.33A8714 and came back to the spot without vehicle. The raiding party went from the spot to Pandoh on private vehicle, however, PW.1 did not remember the name of the private bus. and HHC Chet Ram went to the police station with rukka on Government vehicle No.HP.33A8714 and came back to the spot without vehicle. The raiding party went from the spot to Pandoh on private vehicle, however, PW.1 did not remember the name of the private bus. From the spot Pandoh Dam is about 100 meters away by shortcut. 13. The relevant highlights of the statement of PW.2 indicate that firstly the bag of accused Rajesh Yadav was searched in which three polythene packets of grey colour containing 'Bhang' wrapped in a parrot colour towel was recovered. The recovered black material was weighed and it was found to 4 Kg 'Bhang'. Out of recovered 'Bhang' two samples of 25 grams each were separately drawn. The sample parcels were marked as Mark A1 and Mark A2 and the remaining 'Bhang' parcel was packed in a separate parcel alongwith polythene packets, towel and raxine bag with seal impression 'P' at six places. Sample seal was separately drawn over a piece of cloth which is Ex.PW.1/B. The personal search of accused Rajesh Yadav was carried out vide memo Ex.PW.1/E. Similarly, the search of the suit case of accused Anil Kumar was carried out and black material wrapped in a grey raxine packets two in numbers were recovered. The material was weighed and found to be 2 Kg. 500 grams. Out of the recovered 'Bhang' from the suit case, two samples of 25 grams each were drawn and packed in a cloth packets each and sealed with seal 'P' and the remaining bulk 'Bhang' put into the jacket and suit case was packed with cloth parcel and sealed with seal 'P' at six places. The recovery memo Ex.PW.1/D was prepared. Thereafter, PW.2 was given rukka MarkA by the I.O., which he took and handed over to MHC in police station, Gohar. The case file was prepared by MHC and given to PW.2 which he handed over to the I.O. on the spot. The cloth cover Ex.P1 Attachi Ex.P2, 'Bhang' Ex.P3, jacket Ex.P9 are the same which were recovered from the suit case of accused Anil Kumar. PW.2 HHC Chet Ram in his crossexamination has categorically stated that they reached at the place of Naka in the morning at 7.00 A.M. as they went to the spot in a official vehicle. The cloth cover Ex.P1 Attachi Ex.P2, 'Bhang' Ex.P3, jacket Ex.P9 are the same which were recovered from the suit case of accused Anil Kumar. PW.2 HHC Chet Ram in his crossexamination has categorically stated that they reached at the place of Naka in the morning at 7.00 A.M. as they went to the spot in a official vehicle. In the morning on 1.3.2008 the raiding party were inspecting the vehicles on National Highway at Pandoh from 7.00 A.M. to 8.30 A.M. The raiding party also inspected so many persons and vehicles. The raiding party laid Naka on Nationa Highway21 in the morning at 7.00 A.M., near Pandoh Dam at a point from where a link road goes from N.H.21 to Kandha. The raiding party saw the accused persons from National Highway Pandoh Dam on the Kandha road at a distance about 810 meters coming towards National Highway21. The point from where a link road goes to Bhakhli side from Pandoh Kandha road is about at a distance of 50 meters from National Highway, where they had laid Naka. 14. In view of the testimony of PW.2 in crossexamination, the I.O. sent Constable Roshan Lal in a Government vehicle to stitch cloth parcels which were later on used as parcels. PW.2 however, has admitted that he did not sign any document as witness in this case. PW.2 has denied in crossexamination that the case property was shown to him is not 'Bhang' and it is 'Harbal' Dhoop, which could be analyzed from the statement of PW.10 HHC Dhani Ram that Ex.P1 cloth cover, Ex.P3 raxine bag, 'Bhang' are the same which were recovered from the possession of accused Anil Kumar. Ex.P4 cloth cover, raxine bag Ex.P5, 'Bhang' Ex.P6, sample Ex.P7 and Ex.P8 are the same which were taken in possession from accused Rajesh Yadav. 15. PW.10 in his statement has stated that they laid Naka on PandohKandha road at a distance of 20 yards from NH21, from where National Highway was not visible. In the morning between 7.00 A.M. to 4.00 P.M., the police party had not checked any vehicle on National Highway at Pandoh and have not laid any barricade on the road. 15. PW.10 in his statement has stated that they laid Naka on PandohKandha road at a distance of 20 yards from NH21, from where National Highway was not visible. In the morning between 7.00 A.M. to 4.00 P.M., the police party had not checked any vehicle on National Highway at Pandoh and have not laid any barricade on the road. PW.10 has further stated that at the place of Naka, they checked about 2025 persons before 8.30 A.M. on 1.3.2008, however, he did not remember those persons, were checked by him because no incriminating materials were recovered from them, therefore, he did not remember their names. PW.10 has further stated in crossexamination that from the place of Naka, there were 23 Dhabas/shops on the National Highway at a distance of 2030 yards and has also accepted that there is a water tank of BBMB and water guard of BBMB used to be available at that place. PW.10 HHC Dhani Ram has stated in crossexamination that he did not send any police official to arrange the independent witness before conducting the search. PW.10 has also stated that he had taken the weights and scale with him from Gohar bazar from the shop of Bodh Raj. PW.10 has denied in crossexamination that at Pandoh raiding party given the tickets of accused persons back to conductor Sunil Kumar and took back the tickets amount from the conductor. 16. DW.1 Suresh Kumar has stated that he was working as bus conductor in Chandigarh depot of Haryana roadways. On 29.2.2008, he was deputed in bus No.HR6A4369 as conductor from Chandigarh to Mani and on 1.3.2008, he came with same bus back from Manali to Chandigarh. On 1.3.2008, when aforesaid bus reached at Pandoh bazar at about 8.00 A.M the same was stopped by the police officials. The police officials checked the luggage of the passengers of the aforesaid bus and made the passenger to get down from the bus. Nothing incriminating was recovered by the police during the search at Pandoh. The accused persons were the same persons who were made to get down from the bus by the police. The accused persons were not having any bag with them and they were empty handed when they were made to get down from the bus. Accused persons while boarding the bus at Kullu, purchased the tickets for Chandigarh. The accused persons were the same persons who were made to get down from the bus by the police. The accused persons were not having any bag with them and they were empty handed when they were made to get down from the bus. Accused persons while boarding the bus at Kullu, purchased the tickets for Chandigarh. DW.1 recognize the accused because the police officials handed over their tickets to him (DW1) and demanded the bus fare from Pandoh to Chandigarh. At Pandoh two passengers boarded the bus to Chandigarh and the tickets of the accused persons were given to them by the police and about Rs.350/were paid back to the accused persons by the police after charging the same from the two new passengers, who boarded the bus at Pandoh. In crossexamination, DW.1 Suresh Kumar has stated that he is not Sunil Kumar and he did not remember as to how many times the accused persons had travelled in his bus prior to or after the present incident. 17. In view of the testimony of prosecution witnesses, the submissions made by Mr.Anup Chitkara, learned counsel for convict/respondent Anil Kumar as well as in view of the submissions made by Mr.Ashok Sharma, learned counsel for convict/respondent Rajesh Yadav, the following aspects are noted: (i) From the testimony of PW.1, PW.2 as well as PW.10 that no endeavour was made by the raiding party to call or associate any of the independent witness, whereas, in view of the testimony of PW.10 HHC Dhani Ram, there are 23 Dhabas/shops on the National Highway at a distance of 2030 yards from the place where the Naka was laid. (ii) DW.1 Suresh Kumar has given different version, As per testimony of DW1, the accused persons were asked to get down from the bus when it reached at Pandoh bazar the tickets were issued to the accused persons when they boarded the bus at Kullu, and these tickets were subsequently handed over to DW1 and demanded the bus fare from Pandoh to Chandigarh and at Pandoh two passengers boarded the bus to Chandigarh and the tickets of accused persons were given to them by the police and about Rs.350/were paid back to the accused persons after charging the same from the two new passengers, who boarded the bus at Pandoh. However, such aspect has been denied by PW.10 in his testimony by saying that it is incorrect that at Pandoh, police party have given tickets back to the Conductor Suresh Kumar and took back the amount of tickets from the conductor. (iii) In view of testimony of PW.1, it appears that when accused Anil Kumar was apprehended, the attachi case was locked, it is not known at whose instance the lock was opened and where its key was kept and why it was not recovered. 18. In view of the testimony of PW.10, cloth cover Ex.P1, Attachi/suit case Ex./P2, 'Bhang' Ex.P3 are the same which were recovered from the possession of convict/respondent Anil Kumar. Cloth cover Ex.P4, raxine bag Ex.P5, 'Bhang' Ex.6 are the same which were recovered from the possession of convict/respondent Rajesh Yadav, whereas, PW.1 has given the contrary version that sample of 'Bhang' taken from convict/respondent Rajesh Yadav is Ex.P7 and sample of 'Bhang' taken and recovered from convict/respondent Anil Kumar is Ex.P8. Mr. Anup Chitkara has referred the judgment of this Court dated 20.8.2010 passed by learned Single Judge, in Amar Chand Versus State of H.P, in Criminal Appeal No. 71/2010 and relied upon the following paragraphs, which are extracted as below: In Ajmer Singh versus State of Haryana (2010) 3 SCC 746, the apex Court also observed that it may not be possible to find an independent witness at all place, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence. Further, the report of analysis Ext. PB is also not connected with the alleged recovery. PW3 MHC Kartar Singh stated that the sample in this case was sent for analysis on 19.7.2008. Further, the report of analysis Ext. PB is also not connected with the alleged recovery. PW3 MHC Kartar Singh stated that the sample in this case was sent for analysis on 19.7.2008. He also admitted in the crossexamination that on the same day 19.7.2008 he had sent two samples of charas to deposit it in the Laboratory for analysis which, according to him were deposited on 20.7.2008 as against 21.7.2008 reflected in the report. One sample was of this case and another sample was of FIR No. 16/2008 sent through the same constable Jinesh Kumar. He testified that both these samples were bearing the identical seals ‘A and M’. The perusal of the report of the analysis Ext. PB shows that sample in this case was received on 21.7.2008. Though the report makes reference to the FIR of this case but, in my opinion, it has failed to connect the sample which was analyzed in the laboratory pertains to this case. Because neither the report number nor reference number as mentioned in Ist and 2nd columns could be connected with entry of the report and reference number in this case nor these numbers are borne out from the road certificate Ext. PL. Further, against column No. 7 description of the parcel is given as one cloth parcel bearing four seals of ’A’ and three seals of ‘M’ which also corresponds with the sample of another FIR No. 16/2008 of the same Police Station. Further the, weight of the sample also varies by almost three grams in the instant case. On the top of it, there is no certificate that the seal found on the samples were intact and tallied with the sample of seal separately sent or were corresponding to the facsimile found on the NCBI forms. Therefore, in these circumstances, logical conclusion is that either the sample of the instant case, or that taken on the spot, was not analyzed, or that it was some other sample or even it could be a sample which was tampered with. On the top of it, there is no certificate that the seal found on the samples were intact and tallied with the sample of seal separately sent or were corresponding to the facsimile found on the NCBI forms. 19. On the top of it, there is no certificate that the seal found on the samples were intact and tallied with the sample of seal separately sent or were corresponding to the facsimile found on the NCBI forms. 19. Mr.Anup Chitkara, has submitted that the Statute/Act has prescribed the provisions for search, seizure, recovery and for taking samples and the mode and modalities for putting samples seal while sending the samples for chemical examination to ensure the sanctity of the samples drawn from the recovered contraband goods so that the samples drawn may tally with the chemical examiner's report and further to ensure that the chemical report pertains to that sample which was taken into possession during the search. To ensure that there was no possibility of tampering of the samples from the stage of taking the samples to the stage of getting it tested by the chemical examiner and upto the stage verification, relevant provision of Section 55 of the 'NDPS Act' has been provided and for convenience same is extracted as below: 55. Police to take charge of articles seized and delivered. An officer incharge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of an from them and all samples so taken shall also be sealed with a seal of the officerincharge of the police station. 20. Mr. Anup Chitkara has also referred and relied upon the following decisions as under: (i) The State of Rajasthan Versus Daulat Ram, AIR 1980 SC 1314, where several samples were taken and sealed. The Hon'ble Supreme Court has observed as below: “It is the admitted case of the prosecution that the samples changed several hands before reaching the public analyst. In other words, the samples remained in the custody of S.I. Aidanram, P.S. Udai Mandir, Nathu Singh, Gajraj Singh, Jawan Singh and the Assistant Public Analyst and yet none of these witnesses were examined by the prosecution to prove that while in their custody the seals were not tampered with. In other words, the samples remained in the custody of S.I. Aidanram, P.S. Udai Mandir, Nathu Singh, Gajraj Singh, Jawan Singh and the Assistant Public Analyst and yet none of these witnesses were examined by the prosecution to prove that while in their custody the seals were not tampered with. The inevitable effect of this omission is that the prosecution failed to rule out the possibility of the samples being changed or tampered with during this perioda fact which had to be proved affirmatively by the prosecution. This is the main infirmity which has been relied upon by the High Court in holding that the prosecution has not proved that right from the stage of the seizure of the opium up to the time when the samples were handed over to the public analyst the seals remained intact. The prosecution has not taken the court into confidence in disclosing as to the reasons why the office of the Superintendent of Police refused to take the samples. Even though the labels were not in order it was for the prosecution affirmatively to prove that the seals were still intact. It is true that Hark Chand and Jabbar Singh have stated that the seals of the samples were intact so long as they were in their custody. But then as pointed out above neither Jawan, Nathu, Gajraj, Aidanram and Assistant Public Analyst were examined hence it cannot be said that the prosecution has proved all the links starting from the seizure of the samples till the same reached the hands of the Public Analyst so that the court could conclude that the seals remained intact throughout. The High Court in view of this serious lacuna was of the opinion that the prosecution has not proved beyond reasonable doubt that the opium seized was the opium which was sent to the Public Analyst. In fact, the prosecution realized its mistake and at the fag end of the trial an application was made under Section 540, Criminal Procedure Code to examine Nathu Singh, Gajraj Singh and Jawan Singh. This application was rejected by the learned Magistrate. Even before the High Court the stand taken by the counsel for the State was extremely vacillating and at one time he filed an application for additional evidence and some time later chose to withdraw it. This application was rejected by the learned Magistrate. Even before the High Court the stand taken by the counsel for the State was extremely vacillating and at one time he filed an application for additional evidence and some time later chose to withdraw it. It is obvious that the onus is on the prosecution to prove the entire case at the trial and the prosecution could not be allowed fill up the gaps or lacunae left at the trial, at the appellate or revisional stage. In these circumstances, we do not find any error of law in the view taken by the High Court. We find no merit in this appeal which is accordingly dismissed. (ii) In State of Rajasthan Versus Gopal, AIR 1998 SCC (Cri) 1586, where the accused was searched on Railway Platform and opium was recovered and the same was seized on Railway Platform and seal of Station Master was to put, however, neither the Station Master was examined to prove its seal nor the accused was given option to exercise his discretion for being searched in presence of a Magistrate or Gazetted Police Officer and seal of sample sent for analysis not produced in the Court for verification, in such circumstances, order of acquittal was not interfered with. (iii) In Roshan Lal Versus State of H.P., Latest HLJ 2004 (HP) DB 968, where, possibility of the contents of the sealed packets having been tampered during the period as it remained in the custody of Station House Officer or during the course of its transit to the office of the chemical examiner was not to be ruled out. For convenience, paragraph9 is extracted as below: “9.We have perused N.C.B. Form (Ext.PM). This form appears to have been prepared by Station House Officer, Police Station, Solan and counter signed by PW.9 Additional Superintendent of Police as seizing officer. On scrutiny of the evidence of PW.9, we find that he has not said a word in his deposition in regard to filling up the N.C.B. Form, PW.11 Head Constable Babu Ram who partly conducted the investigation has also not said that N.C.B. Form was prepared by him at the spot. It is also not the evidence of PW.5 Station House Officer that N.C.B. Form was prepared by him. It is also not the evidence of PW.5 Station House Officer that N.C.B. Form was prepared by him. N.C.B. Form is marked as Ext.PM treating it to be a report of Chemical Examiner placed on record by PW.7 Ramesh Chajjta, Deputy Superintendent of Police. No seal impression had been sent to the Chemical Examiner along with the sample packets. On perusal of the report of the Chemical Examiner, we find that there is no mention of seal impression 'N' to 'A' recorded in the said report. In certificate of repacking and resealing of the parcels produced before him, PW.5 Station House Officer has not mentioned as to how many seal impression were affixed by him on each of the packets of the sample and remaining case property after resealing them nor it is stated by him in his deposition before the Court. No evidence has come on record to show that any specimen of the seal used in sealing the samples either by the Investigating Officer or resealing by PW.5 S.I. Nutan Prasad was sent to the office of the Chemical Examiner in a sealed cover while sending the samples for the purpose of analysis. Though the Chemical Examiner in his report (Ext.PM) has certified to the effect that the seals found on the sealed packets were found intact and unbroken, yet in the absence of evidence that the specimen of the seals were with the Chemical Examiner, which is a part of this certificate cannot be accepted. Therefore, the prosecution has not been able to rule out the possibility of the contents of the sealed packets having been tampered with during the period it remained in the custody of PW.3 or PW.5 Station House Officer or during the course of its transit to the office of the Chemical Examiner. (iv) In Dev Raj Versus State of H.P., ( 2005 ) (HP) (DB) Latest HLJ 837, where, the possibility of another sample having been sent to the chemical examiner for analysis was not ruled out. For convenience paragraph23 is extracted as below: 23. Now this is the sample which was examined by the Chemical Examiner contained one seal of impression 'T'. There is categorical statement in this certificate that the seals on the sample tallied with the specimen seal / seals sent separately. There is nothing in this report to suggest that the sample contained three seals. Now this is the sample which was examined by the Chemical Examiner contained one seal of impression 'T'. There is categorical statement in this certificate that the seals on the sample tallied with the specimen seal / seals sent separately. There is nothing in this report to suggest that the sample contained three seals. Thus, the possibility of another sample having been sent to the Chemical Examiner for analysis cannot be entirely ruled out. This aspect of the case also renders the prosecution case open to doubt. (v) In Mahant Bal Giri Versus State of H.P., (2008) Latest HLJ (H.P.) 1253, where nothing was stated that case property alongwith NCB forms and the sample of seal was deposited in Malkhana and the witness to recovery has denied handing over the seal, Column 'B' of NCB form does not show that facsimile of the seal showing three seals of 'H' factually contrary to there being 5 and which could not be proved that sample of seal sent alongwith sample for comparison making the prosecution case highly doubtful. For convenience paragraph12 is extracted as below: 12.PW.7 Inspector Gurdayal Singh has no where stated that after the recovery the case property alongwith NCB forms and the sample of seal was deposited in the Malkhana with MHC Madan Lal (PW.3). Though he (PW.3) has stated in his affidavit that the case property was deposited with him by Inspector Gurdayal Singh but he did not depose about the deposit of sample of seal(s) and the NCBN forms. Further in this behalf, the statement of Constable (sicConstable) Reeta Kumar (PW.6) is also relevant. She has placed on record her affidavit Ex.PK. She had taken the sample for the analysis on 9.12.2003 which was handed over to her by MHC Madan Lal, it was bearing seal impression 'H'. she had deposited the same in C.T.L. Kandaghat, but she has nowhere stated that she had also taken the sample of seal for its comparison by the Chemical Laboratory. Even a perusal of the column No.6 of the NCB form Ex.PN does not show the facsimile of the seal, used on the sample sent for analysis, which could be compared by the Examiner with the seal on the sample. Even a perusal of the column No.6 of the NCB form Ex.PN does not show the facsimile of the seal, used on the sample sent for analysis, which could be compared by the Examiner with the seal on the sample. Though the Chemical Examiner has put a lithographic stamp showing that the seals on the sample tallied with the impression of the seal, is not correct as the sample of the seal was never shown to have been separately sent as discussed. In view of this the contradictions that sample was affixed with three seals of “h” impression whereas it was found to have five seals as described on the NCB form assume importance. The inference of its tampering can be drawn. On the top of it, the Investigating Officer Gurdayal has stated that he had taken the sample of seal only on a piece of cloth Ex.PL, but it is nowhere stated that this sample of seal was sent alongwith the sample for comparison by the Analyst. It is not understood as to how the witnesses have stated that the sample was not produced before the court and Narinder Sharma (PW.1) has stated that it was not handed to him nor there is any document to this effect. Thus, the evidence putforth by the prosecution is far from satisfactory and makes the prosecution case highly doubtful. (vi) In Vineh Kumar Versus State of H.P., 2008 Latest HLJ 1443, it was observed that in absence of any evidence on record to show that seal impressions were separately sent to the chemical examiner makes the prosecution case doubtful. For convenience paragraph10 is extracted below: 10.PW.8 who is the MHC at Police Station, Amb also only talks of the fact that the packets containing the samples of charas and opium were handed over to constable Nardev Singh alongwith NCB form. In crossexamination he also admits that nothing else was given. The report of CTL Ext.PW.11/A bears a stamp above the signatures of the Chemical Examiner which read as follows: “Certified that the Seal/seals on the samples tallied with the specimen impression of seal / seals sent separately.” There is not an iota of evidence on record to show that the seal impressions were separately sent to the Chemical Examiner. Therefore, this part of the report of the CTL is rendered extremely doubtful. 21. Therefore, this part of the report of the CTL is rendered extremely doubtful. 21. Mr.Ashok Sharma, learned counsel for convict/respondent Rajesh Yadav has made following submissions: (i) The station, Gohar is 11 Km from Pandoh and the police party stayed at police post Kandha, but no record was produced that they really stayed at Pandoh and in the facts and circumstances, police officials might not stay 11 km away from their main police station even if it is presumed that the Incharge of police station has stayed, then could have brought on record regarding the proof of his stay. It also appears that unnecessary time was consumed by leaving their main police station and in reaching upto the spot of occurrence. (ii) The contradiction emanating from the testimony of PW.2 HHC Chet Ram, when PW.2 in his crossexamination, has stated that “We reached at the place of Naka in the morning at 7.00 A.M. We went in a official vehicle to the spot. In the morning on 1.3.2008, we were inspecting the vehicles on National Highway at Pandoh from 7.00 A.M. to 8.30 A.M. We inspected so many vehicles and persons. We laid Naka on National Highway21 in the morning at about 7.00 A.M. near Pandoh Dam at a point from where a link road goes from N.H21 to Kandha”. Whereas, PW.1 Constable Suresh Kumar has very categorically stated in crossexamination contrary to the above version by indicating “We had laid Naka at a distance of about 200 meters from National Highway21 near Pandoh Dam. Naka was laid on Pandoh Kanda road. From the place of Naka the road bifurcates towards Bhakli. From point of bifurcation we saw the accused persons coming from Kandha side at a distance of about 20 yards”. PW.1 Suresh Kumar has further stated in crossexamination that “We had laid Naka at the spot in the morning at about 7.00 A.M. It is correct to suggest that on KandhaPandoh road there is a very negligible traffic. We had laid Naka in routine. In between 7.00 A.M. and 8.30 A.M., we have not checked any vehicles, we simply checked some persons, who are passing through but I do not remember their names and addresses. We had laid Naka in routine. In between 7.00 A.M. and 8.30 A.M., we have not checked any vehicles, we simply checked some persons, who are passing through but I do not remember their names and addresses. Such version is contrary to the testimony of PW.2 HHC Chet Ram who had stated in crossexamination that “In the morning on 1.3.2008 we were inspecting the vehicles on National Highway at Pandoh from 7.A.M. to 8.30 A.M. we inspected so many vehicles and persons”. The above testimony of PW.1 and PW.2, on this aspect is contradictory. (iii) From the testimony of PW.10 Dhani Ram, it could be noted that “At about 7.05 A.M. I laid Naka on PandohKandha road at a distance of 20 yards from NH21. Where we had laid Naka, the NH was not visible from that place. In the morning between 7.00 A.M. to 4.00 P.M. we have not checked any vehicle on NH at Pandoh. We have not put any barricade on the road at the point of Naka. At the place of Naka, we checked about 20 to 25 persons before 8.30 A.M., on 1.3.2008.” (iv) The aforesaid statement of PW.10 is also in contradiction to the testimony of PW.1 and PW.2 regarding checking of vehicles and persons on 1.3.2008. PW.1 in crossexamination has stated that the rukka was sent to the police station at about 11.30 A.M. through HHC Chet Ram, who came back on the spot around 3.00 P.M. from the police station. After sending the rukka I.O. prepared the spot map and recorded statements under Section 161 of Cr.P.C. etc. PW.2 HHC Chet Ram went to police station with rukka on Government vehicle No.HP.33A8714 and came back to the spot without vehicle. He did not remember the name of the private bus. From the spot Pandoh Dam is about 100 meters away by shortcut. (v) In the facts and circumstances, HHC Chet Ram (PW.2) took much time in travelling such a little distance. Nothing is known as to why any official or Chowkidar of the BBMB was not associated as independent witness when official of BBMB of Pandoh Dam and the police officials are on duty and are available 24 hours at that place. (v) In the facts and circumstances, HHC Chet Ram (PW.2) took much time in travelling such a little distance. Nothing is known as to why any official or Chowkidar of the BBMB was not associated as independent witness when official of BBMB of Pandoh Dam and the police officials are on duty and are available 24 hours at that place. (vi) The convict/respondents were travelling with tickets in a bus in view of testimony of DW.1, however, such aspect was not highlighted and the convict/respondents were not examined on this aspect. Such aspect of non examining on vital aspect, makes the prosecution story fatal. In view of the decision of this High Court in Rama Nand & Others Versus The State, 1974 Indian Law Reporter (Himachal) 509, where it was observed that when the statement of a witness is left uncrossexamined, the presumption is that the party crossexamining does not intend to challenge the veracity of witness and so far that part of the statement goes for which crossexamination is not directed. The relevant paragraph24 is extracted as below: “24. .........As to the identification of the corpse to be that of Sumitra, the peculiar feature of case is that none of the prosecution witnesses was cross examined on that point by the defence. When the statement of a witness is left uncrossexamined, the presumption is that the party cross examining does not intend to challenge the veracity of the witness in so far that part of the statement goes for which cross examination is not directed......” (vii) In view of the observations of High Court of Patna (DB) in Karnidan Sarda and another Versus Sailaja Kanta Mitra, AIR 1940 Patna 683, it cannot be too strongly emphasized that the system of administration of justice allows of crossexamination of opposite party's witnesses for the purpose of testing their evidence, and it must be assumed that when the witnesses were not tested in that way, their evidence is to be accepted unless of course there are any inherent improbabilities. (viii) PW.10 H.C. Dhani Ram, who stated that it is correct that by the side of Naka, there is water tank of BBMB. Water guard of BBMB used to be available at that place and in that condition for reasons best known why the guard of BBMB was not examined. (viii) PW.10 H.C. Dhani Ram, who stated that it is correct that by the side of Naka, there is water tank of BBMB. Water guard of BBMB used to be available at that place and in that condition for reasons best known why the guard of BBMB was not examined. In view of testimony of PW.10 it could be noted that from the place of Naka, there are 23 Dhabas/shops on the NH21 at a distance of 2030 yards. (ix) The place where Naka was laid and 23 Dhabas/shops were available nearby and so many persons were travelling and vehicles were moving at such place, but it is nobody's case that no independent witness was ready despite making endeavour on the part of the prosecution to associate such person. There is no iota of evidence that prosecution has at all bothered to make an endeavour to associate independent witness, as such, nonassociation of the independent witness makes the prosecution case doubtful in view of the decision of Hon'ble Supreme Court in Ajmer Singh Versus State of Haryana, (2010) 3 SCC 746. (x) The chemical report of State Forensic Science Laboratory, Junga (H.P.) does not reveal that any certificate was indicated that same seal was there and Sr.No.7 indicates Two parcel exhibit tabled A3 and B3 bearing six seals of 'P' and three seals of 'H' on each parcel, nothing known as the seals “P” and “H” are same. 22. In Ajmer Singh's case (supra), the Hon'ble Supreme Court has observed as under: “19. The learned counsel for the appellant has submitted that the evidence of the official witnesses cannot be relied upon as their testimony, has not been corroborated by any independent witness. We are unable to agree with the said submission of the learned counsel. It is clear from the testimony of the prosecution witnesses PW3 Paramjit Singh Ahalwat, DSP, Pehowa; PW4 Raja Ram, Head Constable and PW5 Maya Ram, which is on record, that efforts were made by the investigating party to include independent witness at the time of recovery, but none was willing. It is true that a charge under the Act is serious and carries onerous consequences. The minimum sentence prescribed under the Act is imprisonment of 10 years and a fine. In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. It is true that a charge under the Act is serious and carries onerous consequences. The minimum sentence prescribed under the Act is imprisonment of 10 years and a fine. In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. Therefore, in the peculiar circumstances of this case, we are satisfied that it would be travesty of justice, if the appellant is acquitted merely because no independent witness has been produced. 20. We cannot forget that it may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the Court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The Court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence. 23. We have carefully analyzed the prosecution witnesses and materials on record, we notice that there are minor contradictions and inconsistencies as have been highlighted by the learned counsel for the convictappellants in both the cases but Shri R.K.Sharma, learned Senior Additional Advocate General has referred and relied upon several decisions e.g., Dimple Gupta (Minor) Versus Rajiv Gupta, AIR 2008 SC 239, Kulwinder Singh versus State of Punjab, AIR 2007 SC 2868, Kalegura Padma Rao & Another versus State of A.P., AIR 2007 SC 1299, State of Punjab versus Hakam Singh, (2005) 7 SCC 408, Krishna Mochi & Others versus State of Bihar, (2002) 6 SCC 81 and Leela Ram (Dead) through Duli Chand versus State of Haryana & Another, (1999) 9 SCC 525 and has submitted that since in the facts and circumstances, there are no material discrepancies or contradictions in the testimony of witnesses which go to the roots of the case, as such, evidences cannot be disbelieved merely on the basis of some normal, natural or minor contradictions, inconsistencies, exaggerations, embellishments etc. 24. 24. In the totality of the facts and circumstances and on appraisal of the evidence, we notice that on 1.3.2008, the police team apprehended the appellantsconvicts and on search recovered the contrabandgoods from their bag and two samples each of 25 grams were taken and same were sent for chemical examination and all formalities were made in usual course and in view of the chemical examination, it was found that the contrabandgoods recovered from both the appellantsconvicts, were charas. Though the independent witnesses have not been associated at the spot, even then the prosecution witnesses cannot be disbelieved. In the facts and circumstances, the learned Special Judge has rightly arrived at the findings that the prosecution has able to prove its case beyond reasonable doubt and there is no scope of interference in the conclusion arrived at by the Special Judge in his judgment dated 27.2.2009. 25. Accordingly both the Criminal Appeals being Criminal No.80 of 2009 and 182 of 2009, being devoid of any merit, are dismissed.