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Himachal Pradesh High Court · body

2010 DIGILAW 652 (HP)

STATE OF HIMACHAL PRADESH v. BALAK RAM

2010-04-01

DEEPAK GUPTA, SANJAY KAROL

body2010
JUDGMENT Deepak Gupta, J.(Oral)-This appeal by the State is directed against the judgment dated 17.9.1995 delivered by the learned Sessions Judge, Shimla in Sessions Trial No. 14-S/7 of 1995 whereby he acquitted the accused of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). 2. The prosecution case in brief is that on 2.12.1994 ASI – Ram Singh (PW-4) who was thenposted in the C.I.A. branch had gone to apprehend some persons who were allegedly indulging in illicit felling of trees. This witness was accompanied by HC – Kamal Dev, Constable Jagdev (PW-7) and Constable Yashpal. According to the police at about 3.00 p.m. when they were on the junction of Fagu -Cheog road one person was found coming from Cheog side. On seeing the police he tried to run away. This aroused the suspicion of the police party who apprehended him on the spot. They suspected that he may be carrying some contraband substance and therefore gave him an option of being searched. The person disclosed his name to be Balak Ram (accused) and consented to be searched by the police officials itself vide memo Ext. PW 1/A. According to the police the accused was carrying a bag on his shoulder and from this bag 1 k.g. and 900 grams of Charas was recovered. Out of this Charas two samples of 25 grams each were drawn and thereafter the bulk Charas and the two samples were packed in three separate parcels and sealed with seal-‘T’. The Charas was taken into possession vide memo Ext. PW 1/C. Rukka Ext. PW 3/A as well as the case property was sent to Police Station, Theog through Constable Jagdev (PW-7). The case property was kept in the Maalkhana at Theog and thereafter sent to C.T.L. Kandaghat through Constable Rajinder Singh (PW-2). Vide report Ext. PX of the chemical examiner the sample was found to be that of Charas. On this basis challan was filed against the accused. The learned trial Court acquitted the accused mainly on the ground that there had been non compliance of the mandatory provisions of Sections 42 and 50 of the Act. Vide report Ext. PX of the chemical examiner the sample was found to be that of Charas. On this basis challan was filed against the accused. The learned trial Court acquitted the accused mainly on the ground that there had been non compliance of the mandatory provisions of Sections 42 and 50 of the Act. Some passing observations have also been made that the statements of the police officials do not inspire confidence but in fact the learned Trial Court has not really gone into the merits of the case. Section 42 of the Act is not at all applicable in the present case. Firstly it is not a case of prior information and secondly the recovery was made from a public place. Section 50 of the Act is also not applicable since the recovery was made from a bag and not from the person of the accused. 3. Coming to the merits of the case we find that the only independent witness examined by the prosecution Sh. Ramesh Sharma (PW-1) has turned hostile. The law on the point is very clear. Even if the independent witnesses turn hostile the statements of police witnesses are as good as any other witness. However, they should be scrutinized with greater care and caution. 4. There is a glaring lacuna in the present case. The link evidence connecting the recovery to the report of the sample is totally missing. Therefore, for the sake of arguments, we are assuming that the recovery was made as alleged by the police. According to the police officials the bulk parcel and the sample parcels were sealed with seal-T and taken by PW-7 to the police station at Theog and deposited there. Constable Jagdev Singh (PW-7) states that PW-4 had directed him to take the Rukka alongwith the case property to the police station at Theog. He took the same to Theog and deposited the same with the MHC, Police Station, Theog. He however does not state that during the period the case property remained in his custody it was not tampered with. 5. MHC – Ved Parkash (PW-3) was the incharge of the Maalkhana at Police Station, Theog. According to him he received a Rukka Ext. PW 3/A on the basis of which he recorded F.I.R. Ext. He however does not state that during the period the case property remained in his custody it was not tampered with. 5. MHC – Ved Parkash (PW-3) was the incharge of the Maalkhana at Police Station, Theog. According to him he received a Rukka Ext. PW 3/A on the basis of which he recorded F.I.R. Ext. PW 3/B. He states that the case property duly sealed was deposited with him, which he retained in the Maalkhana and then sent the sample on 3.12.1994 to the Chemical Examiner, Kandaghat through Constable Rajinder Singh (PW-2). In cross examination he admitted that when the case property was deposited in the Maalkhana he did not affix his seal on the same. The S.H.O. also did not affix his seal on the case property. Therefore, there has been violation of the provisions of Section 55 of the Act. True it is, that this provision is not mandatory but some reasonable explanation must be given by the prosecution why the mandate of Section 55 was not followed. 6. Constable Rajinder Singh (PW-2)allegedly took the case property from the police station, Theog to the Chemical Examiner, Kandaghat. He only stated that he took a sealed parcel from Theog to Kandaghat. He does not give the details of the seal affixed on the parcel. He does not give details of the case to which the sealed sample belonged. In fact his statement is totally silent in this regard and there is no averment to link the parcel which he allegedly carried from Theog to Kandaghat with the present case. Surprisingly, neither the copy of the Maalkhana register nor the road certificate has been produced or proved in the present case. 7. We also cannot lose sight of the fact that when the case property was produced in the Court the learned Judge made an observation that though in the Daily Diary No. 17 of Police Station, Theog it was mentioned that the sealed parcel is torn from four places, on examination the Court found that in fact it was torn at eight places having sufficient large holes. Therefore, the possibility of tampering having taken place cannot be ruled out. 8. In view of the above discussions we are of the considered view that the prosecution has failedto link the report of the chemical examiner to the Charas allegedly recovered from the accused. Therefore, the possibility of tampering having taken place cannot be ruled out. 8. In view of the above discussions we are of the considered view that the prosecution has failedto link the report of the chemical examiner to the Charas allegedly recovered from the accused. Therefore, the appeal is dismissed though on wholly different grounds. The bail bonds furnished by the accused are ordered to be discharged. 9. Before parting with the case we are constrained to make some adverse observations about the manner in which Sh. Ramesh Sharma (PW-1) has conducted himself in the present case. PW-1 Sh. Ramesh Sharma was the President of Gram Panchayat, Bani (Fagu) and also a practising Advocate at Theog. According to the prosecution the recovery took place in his presence and he had signed a number of documents at the time of search and recovery. Consent memo Ext. PW1/A whereby the accused consented to be searched before the police party admittedly bears the signature of this witness. Memo Ext. PW 1/B regarding the search of the police officials also bears the signature of this witness. Seizure memo Ext. PW1/C whereby 1 k.g. and 900 grams Charas was recovered also bears the signature of this witness. In Court this witness stated that he had signed the papers without understanding its contents in good faith. According to him consent memo Ext. PW1/A was not prepared in his presence but he was asked to sign the same by the police in the Police Post. According to him no consent of the accused was taken in his presence. He further stated that he did not read the contents of Ext. PW 1/A. According to this witness no personal search was given by the police personnel before the search of the accused. He however admitted his signatures on Ext. PW 1/B according to which the police personnel gave their search in presence of the accused and this witness. 10. This witness denied that after search of the accused, charas was recovered and taken into possession vide memo Ext. PW 1/C. According to him the charas was already kept by the police on the table and only two samples for chemical analysis were drawn in his presence. He also stated that he signed the papers at the instance of the police. 11. PW 1/C. According to him the charas was already kept by the police on the table and only two samples for chemical analysis were drawn in his presence. He also stated that he signed the papers at the instance of the police. 11. We are dealing here with a person who is a lawyer and a Pradhan of a Gram Panchayat. He is not an illiterate unlettered person. Such person commands respect in the society and it is not expected of a person of the stature of this witness to sign documents without reading them and without realizing the implication of his acts. The documents which this witness signed could have led to the conviction of an innocent person. If what the witness is saying in Court is correct then an innocent person could have been sent behind bars for more than ten years. The callous attitude of this witness is apparent from the fact that he became part of a conspiracy to create forged evidence against the accused. 12. Either the statement of this witness in Court is false in which event he would prima facie be liable of having committed an offence punishable under Section 191 of the Indian Penal Code or he is a party to fabricating false evidence in which event he would be also prima facie liable of having committed an offence punishable under Section 192 of the Indian Penal Code. The statement of the witness made on oath in Court cannot co-exist with the documents signed by him. Both cannot be correct. One of them is obviously false. 13. A person holding the post of a Pradhan and also being an Advocate is not expected to sign any document without verifying the contents thereof. The signing of such document without verifying facts can lead to total mis-carriage of justice and conviction of an innocent person. This is an offence against the administration of justice. Giving or fabricating false evidence with an intention to procure conviction is an offence falling under Chapter – 11 of the Indian Penal Code. Making a false statement in Court is also an offence. 14. We are prima facie of the opinion that PW-1 Sh. Ramesh Sharma S/o Sh. Kewal Ram R/o village Padola (Fagu), P.S. Theog, Tehsil Shimla, H.P. is liable to be tried for committing an offence either of fabricating false documents or of committing perjury. Making a false statement in Court is also an offence. 14. We are prima facie of the opinion that PW-1 Sh. Ramesh Sharma S/o Sh. Kewal Ram R/o village Padola (Fagu), P.S. Theog, Tehsil Shimla, H.P. is liable to be tried for committing an offence either of fabricating false documents or of committing perjury. However, before initiating any action against him, we deem it fit that notice be issued to the said witness to show cause why action be not initiated against him as detailed hereinabove. 15. The Registry is directed to register the said notice as a separate petition. Copy of this judgment be sent alongwith the notice and the respondent be directed to file his reply positively before the next date. List the matter before this Bench on 17.5.2010. 16. Record of the Criminal Appeal shall not be sent back and retained in this Court and be attached with the new petition.