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Himachal Pradesh High Court · body

2010 DIGILAW 850 (HP)

Avtar Singh v. State of H. P.

2010-06-01

R.B.MISRA, V.K.SHARMA

body2010
JUDGMENT R.B.Misra, J.- The present appeal has been preferred under Section 36-B of The Narcotic Drugs & Psychotropic Substances Act, 1985 (in short 'the NDPS Act') read with Section 374(2) of the Code of Criminal Procedure, against the judgment dated 30th July, 2009, passed by learned Special Judge, Fast Track Court, Chamba, H.P., in Sessions Trial No.6 of 2009 (State of Himachal Pradesh versus Avtar Singh), whereby learned Trial Court convicted the accused under Section 20(C) of the NDPS Act and the accused has been sentenced to undergo rigorous imprisonment for ten years and also to pay a fine of Rs.1 lac and in case of default of payment of fine, he was further to undergo rigorous imprisonment for a period of one year. 2. In order to adjudicate the present appeal, it is necessary to give the brief facts of the prosecution case. On 25.10.2008, a police party, headed by ASI Lal, = Naka" at Parel Pul. At about 11.30 PM, an HRTC bus, bearing No.HP-48-4529, was coming from Chamba side and proceeding for Amritsar. Bus was stopped by the police party for checking. During the checking, two Borus and one bag were found kept on the roof of the bus. On being asked by the police party, PW-2, Ashwani Kumar, (Conductor) disclosed that Borus and bag were of the passenger j accused, occupying seat No.3, who was called on the roof of the bus where he disclosed his name as Avtar Singh and admitted that the bag and Borus belonged to him. On search, Borus and bag were found to contain Neyojas and a polythene bag kept concealed in the Neyojas. The words 'Mayur School Bag' were printed on the bag. On search of the polythene, it was found to contain black colour hard substance in the shape of sticks, smelling like Charas, on weighment it was found 4 Kgs. 800 Grams. Out of the recovered Charas, two samples of 25 grams each were separated which were separately sealed. The remaining Charas was put in that very polythene and the polythene was put in that very bag and the bag was parceled and sealed. Sample parcels and parcel containing remaining Charas were sealed with seal 'H'. Three seals were affixed on each sample parcel while six seals were affixed on parcel containing remaining Charas. Specimen seal was separately taken. NCB forms in triplicate were filled-in on the spot. Sample parcels and parcel containing remaining Charas were sealed with seal 'H'. Three seals were affixed on each sample parcel while six seals were affixed on parcel containing remaining Charas. Specimen seal was separately taken. NCB forms in triplicate were filled-in on the spot. Seal after use was handed over to Constable Rakesh Kumar. The recovered Charas was taken in possession by the police. The proceedings were carried out in presence of Ashwani Kumar, who was conductor on the bus and Mahesh Nand, who was driver of the said bus. Rukka was sent to the Police Station, on the basis of which, FIR No.226/2008 was recorded at Police Station Sadar, Chamba. Accused was arrested and communicated about the grounds of his arrest. ASI Lal Singh handed over all the parcels, along with sample seal, and NCB forms to Sh.R.P. Jaswal, Inspector j SHO, who re-sealed the parcels with seal 'A' and also filled in the relevant columns of the NCB forms. During personal search of the accused, a ticket was recovered from the accused and it was taken in possession by the police. One part of the sample was sent to FSL Junga, which on chemical examination, was found to be of Charas. 3. The accused was charged for the offence under Section 20 of the NDPS Act, to which he pleaded not guilty and claimed to be tried. 4. In order to prove its case, the prosecution has examined as many as 12 witnesses. PW-1 Constable Rakesh Kumar (No.536), PW-2 Ashwani Kumar, PW-3 Mahesh Nath, PW-4 Constable Neeraj Kumar (No. 133), PW5 Head Constable Vijay Kumar (No.16), PW-6 Constable Mehar Singh (No.295), PW-7 Constable am Parkash (No.461), PW-8 Head Constable Kailash Chand (No.65), PW9 R.P. Jaswal, Inspector/SHO, Police Station, Chamba, PW-10 Gian Chand, HHC (No.556), PW-11 Surinder Mohan, Booking Clerk, HRTC, Chamba Depot and PW-12 Lal Singh, ASI, Police Station, Chamba, were examined. 5. PW-1, Rakesh Kumar, has stated that on 25.10.2008, at about 11.30 PM, ASI Lal Singh constituted a police party, headed by him, which included Constable Neeraj, Lady Constable Ratto Devi, Driver Suresh Kumar, who were taken to Parel Pul. PW-1, accompanying the police party, had gone there in official vehicle No.HP-48-0068 being driven by Suresh Kumar and at 11.40 PM, the police party stopped an HRTC Bus for checking bearing No.HP48-4529 coming from the side of Chamba and proceeding to Amritsar. PW-1, accompanying the police party, had gone there in official vehicle No.HP-48-0068 being driven by Suresh Kumar and at 11.40 PM, the police party stopped an HRTC Bus for checking bearing No.HP48-4529 coming from the side of Chamba and proceeding to Amritsar. Some passengers were sitting while some were standing in the bus and their belongings kept inside the bus were checked. On enquiry about two Borus and one bag, kept on the roof of the bus, the conductor of the bus disclosed that Borus and bag lying on the roof of the bus, belonged to passenger sitting on seat No.3 in the said bus. Accused Avtar Singh was called on the roof of the bus. Driver of the bus also came on the roof of the bus. The accused admitted that the Borus and bag lying on the roof were belonging to him (however, such statement was objected to by learned counsel for the accused). On search of the Borus, Neyoja was found to be kept in the Borus and on search of the bag of blue colour, it was found containing another cloth bag having two Tanies. On search of that cloth bag, it was found to contain polythene of white and blue colour. The word printed on the polythene bag was "School Bag" and on checking of that polythene, it was also found to contain Neyoja and Charas in the shape of sticks. The entire bag, including recovered Charas, was brought down from the roof of the bus and on weighment, the recovered Chams was found to be 4 Kgs and 800 Grams. Out of the recovered Charas, two samples of 25 grams each were drawn, which were put in two separate polythenes and both polythenes containing samples separately parceled and sealed with three seals of seal 'H' each, balance Charas i.e. 4.700 Kgs was put in that very polythene. 6. In cross examination, PW-1 has stated that the bus, in which the accused was travelling, was 52 seated and there were about 70 passengers and the bus was proceeding from Chamba to Amritsar. There was no other luggage on the bus except two Borus and bag. PW-1 did not see any person taking the Borus and bag from the roof of the bus. There was no other luggage on the bus except two Borus and bag. PW-1 did not see any person taking the Borus and bag from the roof of the bus. PW-1 has further stated in his cross examination that he did not state to the Police that ASI and one Constable entered from the front door while he entered the bus from the rear door and the police party remained there for about half an hour for checking the bus. The Investigating Officer did not ask the Conductor about the ticket of the luggage found kept on the roof of the bus. PW1 has also indicated in his cross-examination that it is incorrect that the conductor told the Investing Officer in his presence that tickets for the luggage, found on the roof of the bus, had not been issued. PW-1 has further stated that about one hour was spent on the spot. The bus left the spot at about 2.30 AM and the passengers remained in the bus till that time and the proceedings were carried out in search light. 7. (PW-2) Ashwani Kumar has stated that he was the Conductor and (PW-3) Mahesh Nath was the Driver of the bus bearing No.HP-48-4529 on the date of incident. He did not support the prosecution case. The bus was stopped by the police party and about 65 passengers were sitting in the said bus. At that time, he was issuing the tickets. The police started checking the bus by entering inside it and thereafter the police officials went on the roof and on search of the luggage, Charas was recovered from there from one of the bag. Police asked PW-2 about the luggage found kept on the roof but he stated that he did not know as to whom that luggage belonged. PW-2 has further stated that he cannot tell as to who was the owner of the bag in which the Charas was allegedly found. However, in cross examination, PW-2 admitted his signatures on memo Ext.PW-1/A and has also admitted that the ticket Mark X-1 was issued in respect of seat No.3. PW-2 has also admitted that Borus and bag were taken into possession by the police. PW-2 has also stated in his cross examination that the bag was checked by the police party in his presence and Charas was recovered from that bag. 8. PW-2 has also admitted that Borus and bag were taken into possession by the police. PW-2 has also stated in his cross examination that the bag was checked by the police party in his presence and Charas was recovered from that bag. 8. PW-3, Mahesh Nath, the driver of bus bearing No.HP-48-4529, has not supported the prosecution case except that he had put his signatures on memos Ext.PW-1/A and ExLPW-1/B. PW-3 has stated that on 25.10.2008, he was driving bus No.HP-48-4529 which left Chamba for Amritsar and Ashwani Kumar was the Conductor in the said bus. At about 11.30 PM, when the said bus reached Ballu bridge the police had laid Naka. On police signal, the bus carrying a bout 70 passengers, was stopped. Police officials asked the passengers to get down from the bus. The police entered inside the bus and checked the luggage of the passengers kept inside the bus but nothing was found. Thereafter the police officials went on the roof of the bus and called the conductor on the roof. PW-3 has further stated that thereafter he slept and was not aware about anything, however; PW-3 has admitted his signatures on the memos Ext.PW-1/A and Ext. PW- 1/B. 9. PW-4, Constable Neeraj Kumar, has stated that he was in the raiding party headed by ASI Lal Singh and the police party was present at Parel Put along with Constable Rakesh Kumar, Lady Constable Ratto Devi and ASI Lal Singh. The bus was stopped and on search of the roof of the bus, two Borus and one bag of black colour were found kept there. On being asked from the conductor of the bus, it was disclosed that two Borus and bag belonged to passenger occupying seat No.3. Thereafter, the passenger occupying seat No.3, was called on the roof who admitted that he was the owner of the Borus and bag kept on the roof (which was objected to for and on behalf of the accused). PW-4 has further stated that on search of the bag, it was found to contain another bag having two Tanies which was of white, blue and yellow colour and on search of that bag, it was found to have another polythene bag having Charas in it in the shape of sticks. Samples were taken and sealed and PW-4 has taken Rukka to S.P. Office, Chamba. Samples were taken and sealed and PW-4 has taken Rukka to S.P. Office, Chamba. In cross examination, PW-4 has stated that luggage of other passengers was also found kept on the roof of the bus. PW-4 has also stated in his cross examination that 15 to 20 minutes were spent in checking the bus inside and 5 to 10 minutes were spent in searching the luggage kept on the roof of the bus and the bus was allowed to go after 30 - 45 minutes. PW-4 has also stated that the I.O. did ask the Conductor in his presence as to whether the tickets were issued in respect of the luggage kept on the roof of the bus. In his further cross examination, PW-4 has stated that, the bus was carrying about 65 - 70 passengers. 10. PW-5, HC Vijay Kumar, has stated that he was associated in the investigation. PW-6 Mehar Singh, PW-7 Om Parkash, PW-8 Kailash Chand, PW-9 R.P. Jaswal, Inspector/ SHO, Police Station, Chamba and PW-10 Gian Chand, in usual discharge of their duties, have endeavoured to support the prosecution version. 11. PW-11, Surinder Mohan, has stated that he was Booking Clerk in Chamba Depot of HRTC and it was stated by him that ticket Mark X-1, now PW-11/B was issued by him. The said ticket was for Chamba to Amritsar. 12. PW-12, ASI Lal Singh, has stated that the police party headed by him had set up a Nakka at Parel Pul, where an HRTC bus came from Chamba side which was got stopped for checking and two Borus and one bag were found kept on the roof of the bus and Conductor of the bus disclosed that the Borus and bag belonged to passenger travelling on seat No:3 and, therefore, the accused was also called on the roof of the bus and admitted himself to be the owner of Borus and bag. Thereafter, the Borus, on search, were found to contain Neyoja, while bag was found to contain another bag inside, which on search, was found containing Neyoja and inside Neyoja, a ploythene was found kept concealed containing Charas in it. His further evidence is that Polythene was found containing Charas which on weighment was found 4 Kgs 800 Grams; He has deposed about carrying out of proceedings on the spot. His further evidence is that Polythene was found containing Charas which on weighment was found 4 Kgs 800 Grams; He has deposed about carrying out of proceedings on the spot. He has also, stated that he handed over the case property along with sample seal and NCB form to SMO R.P. Jaswal for re-sealing purpose. This witness has proved the sample seal as Ext.PW-12/A, Rukka Ext.PW-12/B and site plan Ext.PW12/C. He has also proved the statements of witnesses Ashwani Kumar, recorded under Section 161 Cr.P.C. as Ext.PW-12/D, Mahesh Nath as Ext.PW-12/E and Constable Rakesh Kumar as Ext.PW-12/F. He has stated that the accused was arrested and he was communicated the grounds of arrest vide memo Ext.PW-12/G. He has stated that on receipt of report of Chemical Examiner Ext. PX and on completion of investigation, the case file was handed over by him to the SHO for the purpose of preparation of the Challan. In cross-examination, he has stated that apart from the Conductor, he did not verify from any of the passengers about the ownership of the bag and Borus found to be kept on the roof of the bus. 13. According to PW-12, ASI Lal Singh, on being asked about the owner of the Borus and bag, the Conductor of the bus disclosed that the passenger occupying seat No.3 was the owner of the Borus and bag. Thereafter, passenger, occupying seat No.3, was called on the roof and on being asked he disclosed his name as Avtar Singh and admitted himself to be the owner of the Borus and bag. However, the same was objected to by the defence. PW-12, in his cross examination, has stated that the ticket taken from the possession of the accused was not containing the name of the passenger. PW-12, however, did not verify as to how many tickets were issued for Amritsar. According to him, there were 65 to 70 passengers on that day in the bus and 15 to 20 minutes were spent in checking the bus from inside. PW -12 could not disclose the number of bags kept by the passengers inside the bus. According to PW -12, besides Borus and bag, there were other bags of the passengers on the roof of the bus. However, he did not remember the names of the passengers whose bags were lying on the roof of the bus. PW -12 could not disclose the number of bags kept by the passengers inside the bus. According to PW -12, besides Borus and bag, there were other bags of the passengers on the roof of the bus. However, he did not remember the names of the passengers whose bags were lying on the roof of the bus. PW -12, in his cross examination, has stated that he did not record the statement of any passenger whose bags were found kept on the roof along with the Borus and bag in question. PW12 has further stated that apart from the Conductor, he did not verify from any of the passengers about the ownership of Borus and bag in question. According to PW12, proceedings were carried out on the spot and police officials were present on the spot for three hours. Bus and passengers remained there during that period. PW-12 has further stated that nobody told him that tickets were only issued by -the Conductor. 14. Mr. According to PW12, proceedings were carried out on the spot and police officials were present on the spot for three hours. Bus and passengers remained there during that period. PW-12 has further stated that nobody told him that tickets were only issued by -the Conductor. 14. Mr. Anup Chitkara, learned counsel for the appellant, has submitted as follows:- (a) There is no legally admissible evidence that the bag, allegedly containing Charas, recovered from the bag was from the exclusive and conscious possession of the accused/appellant; (b) The bag and Borus allegedly containing Charas from the bag is not proved to be connected or belonging to the accused/appellant; (c) The appellant was neither the driver or the Conductor of the bus and was not shown to be the person in charge of the said bus from whose roof, the bag was allegedly recovered; (d) It is not for the Driver and Conductor of the bus to prove that the said bag was placed on the roof of the bus by the appellant or on behalf of the appellant/accused; (e) It is not for the accused to prove that he did not own the said bag, rather it is for the driver and conductor of the bus to prove that the said bag was placed on the roof of the bus by the appellant or on behalf of the appellant; (f) It is for the prosecution to prove that the appellant/accused had dominion or control over the said bag; (g) The bag found on the roof of the bus containing the Charas could be said to be belonging probably to one of the persons sitting in the bus including its driver and conductor; (h) In respect of the recovery of Charas from the bag kept on the roof of the bus, the first presumption could be that the bag belonged to the driver or conductor of the bus and only if such presumption is rebutted by cogent and reliable evidence only then the passengers can be burdened with the articles found in the bus. Moreso, in the facts and circumstances, the accused has taken a plea that the bag allegedly containing Charas and the alleged Charas recovered from the bag did not belong to him. 15. Moreso, in the facts and circumstances, the accused has taken a plea that the bag allegedly containing Charas and the alleged Charas recovered from the bag did not belong to him. 15. It has, also been argued on behalf of the appellant that no evidence was brought on record that anybody had seen the accused keeping or handling the bag. The mere possession of the alleged bag, containing the alleged Charas, being found from the roof of the bus, in which the accused was allegedly travelling, satisfies the requirement of possession as contemplated in the NDPS Act. When mere possession of the alleged bag, containing the alleged Charas being found from the roof of the bus, in which the accused was allegedly travelling, satisfies the requirement of possession as contemplated in the NDPS Act. When mere possession itself is enacted as an offence, the possession for constituting the offence must be conscious possession. The possession must .mean possession with requisite mental element i.e. it must be conscious possession and not mere custody without awareness of nature of such possession. The essential elements of possession, which makes the very essence of the offence under NDPS Act, are missing in this case. The possession is not purely a legal concept but also a matter of fact. It is a relationship between a person, and a thing and implies a right as well as fact. It involves power of control. Although the accused' is not required to explain still it cannot be said that the accused/appellant had any knowledge about the contents of bag, allegedly containing Charas and the alleged Charas recovered from the bag. Even otherwise, the possession connotes something more than mere knowledge of the presence of the articles. It has not come in evidence that the appellant was aware of the existence of the alleged contraband good. 16. The entire investigation in the case is highly suspicious, doubtful and incredible. The burden was on the prosecution to prove beyond the reasonable doubt that substance allegedly recovered from the bag kept on the roof of the bus was Charas and was belonging to the appellant and none else. Putting signatures by the Conductor of the bus does not mean that recovery of Charas from the bag was belonging to the accused. The burden was on the prosecution to prove beyond the reasonable doubt that substance allegedly recovered from the bag kept on the roof of the bus was Charas and was belonging to the appellant and none else. Putting signatures by the Conductor of the bus does not mean that recovery of Charas from the bag was belonging to the accused. Only one ticket Ext.PW-11/B was recovered from the accused which he purchased from Chamba and there was no separate ticket issued for the alleged luggage, namely, Borus and bag kept on the roof of the bus and the Conductor has never stated that he was going to issue tickets for the luggage (Borus and bag) which was being carried by the passenger occupying seat No.3. Statement of conductor and driver in the form of confession before the police officials regarding the recovery of Charas was protected 'under Section 25 of the Evidence. Act. The learned Sessions Judge, while convicting the appellant for the offence under Section 20 of the NDPS Act, has relied upon the testimony of PW-12 (ASI Lal Singh) who stated that the bag and two Borus were found on the roof of the bus and on search of the bag Charas was found wrapped in a polythene which on weighment was found to be 4 Kgs and 800 Grams and the testimony of PW-12 was supported by PW-l Constable Rakesh Kumar and PW-4 Constable Neeraj Kumar has stated that the testimonies of PW-1, PW-4 and PW-12 have not been shaken in the cross examination, as such, the recovery of Charas from the bag found to be kept on the roof of the HRTC bus was said to be established. From the testimony of PW-2 Ashwani Kumar, PW-3 Mahesh Nath, Conductor and Driver of the bus and PW-12 ASI Lal Singh and PW-9 RP Jaswal, Inspector/SHO and on the basis of report of the Laboratory, the learned Sessions Court has established that the substance recovered from the bag kept on the roof of the bus was of commercial quantity being more than 1 Kg. The learned Sessions Court has also noted down the contention of the defence i.e. the appellant herein that the prosecution has failed to bring on record that the bag from which the Charas was recovered was of the accused and, therefore, prosecution cannot be said to have proved that the recovery was effected from the conscious and exclusive possession of the accused. 17. Shri Anup Chitkara, learned counsel for the appellant, has submitted that in consequence to the case law referred and relied upon by the defence before the learned 'Sessions Judge, he has to rely upon more decisions which shall prove that the Charas recovered from the bag kept on the roof of the bus was not at all relatable to the accused. The learned Sessions Judge in the impugned judgment has noted the submission of defence (appellant) that memo prepared by the Investigating Officer which shows that the accused admitted himself to be the owner of the bag is not admissible in view of the provisions contained under Section 25 of the Evidence Act. The learned Sessions Judge has noted the cases referred to by the defence in the impugned judgment. The learned Sessions Judge, however, has not given much weightage to the referred cases and has indicated that the question whether the recovery was taken from the conscious possession would depend upon the facts and circumstances of the case and in the present case since the accused was travelling in the bus occupying seat No.3 and PW-2 Ashwani Kumar was the Conductor of the said bus, as indicated that the bag kept on the roof from which the Charas was recovered was belonging. to the passenger j accused occupying seat No.3, PW-1, PW-4 and PW-12 have categorically stated that PW-2, Ashwani Kumar, Conductor on the bus, had revealed that the bag belonged to the person who was occupying seat No.3 and the accused occupying seat No.3 on being asked admitted that the bag in question belonged to him, as such, there was no doubt in the testimony of PW-2 which had ultimately supported the prosecution version, however, PW -2 was declared . hostile. PW-2 in his cross examination has admitted that he had put signatures on seizure memo Ext. PW -1/A which indicates that the Conductor of the bus did show to the police that the bag belonged to the accused. hostile. PW-2 in his cross examination has admitted that he had put signatures on seizure memo Ext. PW -1/A which indicates that the Conductor of the bus did show to the police that the bag belonged to the accused. PW-2 has not given any satisfactory explanation as to why he had put signatures on memo Ext.PW-1/A and, therefore, a part of the hostile witness has been taken as to be substantial and supporting the prosecution version and has been treated to be a material to prove the case of prosecution an sufficient to convict the accused. On the basis of the testimony of PW-2, Ashwani Kumar, the Conductor, on being declared hostile and not supporting the prosecution version, the part of the statement of PW-2 has been taken to be material for proving the guilt of the prosecution, whereas, Mr. Anup Chitkara, learned counsel for the appellant, has vehemently argued that the testimony of PW-2 Ashwani Kumar at all cannot be relied upon. Learned counsel for the appellant has invited the attention of this Court that the statement of PW-2 Ashwani Kumar before the Police cannot be used as a conclusive material in view of the provisions of Section 25 of the Evidence Act. For convenience, Sections 25, 26 and 27 of the Evidence Act are being reproduced herein-below:- "25.Confession to police officer not to be proved.- No confession made to a police officer, shall be proved as against a person accused of any offence. 26.Confession by accused while in custody of police not to be proved against him.- No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate shall be proved as against such person. Explanation.-In this section "Magistrate" does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 1882. 27. Explanation.-In this section "Magistrate" does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 1882. 27. How much of information received from accused may be proved.- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved." 18. Mr. Anup Chitkara, learned counsel for the appellant, has also relied upon the following decisions:- (A) In Bheru Singh S/o Kalyan Singh versus State of Rajasthan.1994 SCC (Cri)555, the relevant paragraph is extracted below:- "17. Where the first information report is given by an accused himself to a police officer and amounts to a confessional statement, proof of the confession is prohibited by Section 25 of the Evidence Act. No part of the confessional statement can be proved or received in evidence, except to the extent it is permitted by Section 27 of the Evidence Act. The first information report recorded under Section 154 Cr.P.C. is not a substantive piece of evidence. It may be used to corroborate the informant under Section 157 of the Evidence Act or to contradict him under Section 145 of the Evidence Act in case the informant appears as a witness at the trial. Where the accused himself lodges the first information report, the fact of his giving the information to the police is admissible against him as evidence of his conduct under Section 8 of the Evidence Act and to the extent it is non-confessional in nature, it would also be relevant under Section 21 of the Evidence Act but the confessional part of the first, information report by the accused to the police officer cannot be used at all against him in view of the ban of Section 25 of the Evidence Act." (B) The circumstantial evidence was not complete to lead the conviction of the accused in view of the decision in Prabhoo versus State of Uttar Pradesh, AIR 1963 SC 1113 . The relevant Paragraph is extracted as below:- "9. .. .. The relevant Paragraph is extracted as below:- "9. .. .. The statement that the axe was one with which the murder had been committed was not a statement which led to any discovery within the meaning of S. 27 of the Evidence Act. Nor was the alleged statement of the appellant that the blood stained shirt and dhoti belonged to him a statement which led to any discovery within the meaning of S. 27. Section 27 provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved. In Pulukuri Kotayya v. Emperor, 74 Ind App 65: (AIR 1947 PC 67), the Privy Council considered the true interpretation of S. 27 and said: "It is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fat that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which I stabbed N. These words are inadmissible since they do not relate to the discovery of the knife in the house of the informant." (p.77 of Ind App): (at p. 70 of AIR). We are, therefore, of the opinion that the courts below were wrong in admitting in evidence the alleged statement of the appellant that the axe had been used to commit murder or the statement that the blood stained shirt and dhoti were his. We are, therefore, of the opinion that the courts below were wrong in admitting in evidence the alleged statement of the appellant that the axe had been used to commit murder or the statement that the blood stained shirt and dhoti were his. If these statements are excluded and we think that they must be excluded, then the only evidence which remains is that the appellant produced from the house a blood stained axe and some blood stained clothes. The prosecution gave no evidence to establish whether the axe belonged to the appellant or the blood stained clothes were his." (C) There is bar of admissibility of statement of witnesses and also that of accused in view of the decision of Supreme Court in Mahabir Mandai & Others v. The State of Bihar, AIR 1972 SC 1331 . For convenience, Para-39 is being extracted herein below:- "39. Coming to the case of Kasim we find that there is no reliable evidence as may show that Kasim was present at the house of Mahabir on the night of occurrence and took part in the disposal of the dead body of Indira. Reliance was placed by the prosecution upon the statements alleged to have been made by Kasim and Mahadeo accused at the Police Station in the presence of Baijnath P.W. after Baijnath had lodged report at the Police Station. Such statements are legally not admissible in evidence and cannot be used as substantive evidence. According to S.162 of the Code of Criminal Procedure, no statement made by any person to a Police Officer in the course of an investigation shall be signed by the person making' it or used for any purpose at any enquiry or trial in respect of any offence under investigation at the time when such statement was made. The only exception to the above rule is mentioned in the proviso to that Section. The only exception to the above rule is mentioned in the proviso to that Section. According to the proviso, when any witness is called for the prosecution in the enquiry or trial, any part of his statement, if duly proved, may be used by the accused and with the permission of the Court by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act and when any part of such statement is so used any part thereof may also be used in the reexamination of such witness for the purpose only of explaining any matter referred to in his cross-examination. The above rule is, however, not applicable to statements falling within the provisions of CI.1 of Sec.32 of the Indian Evidence Act or to affect the provisions of Section 27 of that Act. It is also well established that the bar of inadmissibility operates not only on stater.1ents of witnesses but also on those of the accused (See Narayana Swami V. Emperor, AIR 1939 PC 47). Lord Atkin, in that case, while dealing with Section 162 of the Code of Criminal Procedure observed; 'Then follows the Section in question which is drawn in the same general way relating to "any person." That the words in their ordinary meaning would include any person though he may thereafter be accused seems plaint Investigation into crime often includes the examination of a number of persons none of whom or all of whom may be suspected at the time. The first words of the Section prohibiting the statement if recorded from being signed must apply to all the statements made at the time and must therefore apply to statement made by a person possibly not then even suspected but eventually accused.' Reference may also be made to section 26 of the Indian Evidence Act, according to which no confession made by any person whilst he is in the custody of a Police Officer, unless it be made in the immediate presence of a Magistrate shall be proved against such person. There is nothing in the statements which were made by Kasim and Mahadeo accused on September 18, 1963 at the Police Station in the presence of Baijnath resulted in the discovery of any incriminating material as may make them admissible under Section 27 of the Indian Evidence Act. There is nothing in the statements which were made by Kasim and Mahadeo accused on September 18, 1963 at the Police Station in the presence of Baijnath resulted in the discovery of any incriminating material as may make them admissible under Section 27 of the Indian Evidence Act. As such, the aforesaid statements must be excluded from consideration." 19. According to Shri Anup Chitkara, learned counsel for the appellant, obtaining of signatures of an accused on the recovery memo was unusual without proving that the Charas recovered from the bag kept on the roof of the bus belonged to accused and the accused alone, and the accused was in exclusive possession of the bag and Charas. Mr. Anup Chitkara, learned counsel for the appellant, has further submitted that the statement" made by accused to the police, during the course of investigation, is inadmissible and if such statement is of confession, it is also hit by Section 25 of the Evidence Act. In respect of this Section, he has referred and relied upon the decision of a Division Bench of Punjab & Halyana High Court in State of Punjab versus Kulwant Singh, 1996(3) Recent CR 363. For convenience relevant Para is being extracted as below:- "12. A Division Bench of this Court in Amrit Singh v. State of Haryana, 1990 (2) Recent Criminal Reports 525: 1990(1) Chandigarh Law Reporter 437, has observed that to give meaning and content to the clear legislative intent underlying the safeguard provided by Section 50 of the N.D.P.S. Act, mere statement of a police' officer saying that the accused was made aware of his right to be searched under the Act is not sufficient compliance of the act. Learned Judges of the Division Bench have gone to the extent of observing that the statements made by an accused to police, in the course of investigation, are inadmissible and if such statement is a confession, it is also hit by Section 25 of the Evidence Act." 20. Mr. Learned Judges of the Division Bench have gone to the extent of observing that the statements made by an accused to police, in the course of investigation, are inadmissible and if such statement is a confession, it is also hit by Section 25 of the Evidence Act." 20. Mr. Anup Chitkara, learned counsel for the appellant, has also referred and relied upon the decision of this Court in Naveen Sood v. The Narcotic Central Bureau, Chandigarh, 2010 Latest HLJ (HP) 450 and has submitted that the presence of accused in the bus does not mean that the charas, if recovered from the bag, was said to be belonging to the accused only on the basis of the testimony of PW-2, who was declared hostile. For convenience, the relevant Paragraph is being extracted herein-below:- "14.Clause (3) of Article 20 of the Constitution of India provides that no person accused of any offence shall be compelled to be a witness against himself. In fact a confession is irrelevant under Section 24 of the Indian Evidence Act, if it is caused by any inducement, threat or promise having reference to the charge against the accused, proceedings from a person in authority and sufficient, in the opinion of the Court, to give the accused person ground, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him." 21. On analysis of the prosecution witnesses, it appears PW-2, Ashwani Kumar, Conductor of the bus and PW-3, Mahesh Nath, driver of bus, being an independent witness, however, have not supported the prosecution case in view of the testimony of PW-1, Rakesh Kumar, he accompanied the police party on 25.10.2008 when bus in question was stopped and checked, at the relevant time some passengers were sitting while some were standing in the bus and their belongings were kept inside the bus and two Borus and one bag kept on the roof of the bus were said to be belonging to the passenger sitting on seat No.3 and the said accused was celled on the roof of the bus along with driver, then accused admitted that the Borus and bag kept on the roof of the bus were belonging to him. PW-1 has also stated that at the relevant time 70 passengers were sitting in the bus and has also stated in cross examination that there was 'no. other luggage on the bus except two Borus and bag arid PW-1 did not see any person taking the Borus arid bag from the roof of the bus. Such testimony of PW-1 was contradicted by the testimony of PW-2 Ashwani Kumar, Conductor and PW-3 Mahesh Nath, Driver of the bus, who have been declared hostile, however, since PW-2 Ashwani Kumar has stated that the police officials went on the roof and on search of the luggage, asked about the luggage kept on the roof where PW-2 had shown his ignorance and could not tell about the owner of the Borus and bag. However, PW-2, though declared hostile, his testimony has been relied upon by the prosecution that he has put his signatures on Memoes Ext.PW-1/A on recovery of Charas from the bag. 22. PW-3, Mahesh Nath, though also declared hostile, however, to the extent of his putting signatures on Memos Ext. PW -1/A and Ext. PW -1/B regarding the recovery of Charas from the bag was relied upon by the prosecution but PW-2 and PW-3 being Conductor and Driver were consistent regarding showing their ignorance about the ownership of the luggage, as such, in their presence appellant/accused had not accepted that the Borus and bag kept on the roof were belonging to him. PW-2 has stated that 65 passengers were sitting in the bus at the relevant time, whereas, PW-3 has said that about 70 passengers were sitting when the bus was stopped and PW-2 being Conductor and PW -3 being Driver have not stated that when the bus was stopped many passengers were standing and many passengers were sitting on the bus. PW-2, being the conductor of the bus, has only stated that ticket Mark 'X-1' was issued in respect of seat No.3 and nothing is revealed from the statements of prosecution witnesses that any separate ticket was issued for Borus and bag kept on the roof. PW-2, being the conductor of the bus, has only stated that ticket Mark 'X-1' was issued in respect of seat No.3 and nothing is revealed from the statements of prosecution witnesses that any separate ticket was issued for Borus and bag kept on the roof. In view of the testimony of PW-1, appellant/accused was called on the roof of the bus along with 'driver, whereas, PW-3 has stated that police officials asked the passengers to get down from the bus and thereafter police officials went on the roof of the bus and called the Conductor on the roof, whereas, in view of the testimony of PW-1 Rakesh Kumar, only driver was called on the roof, along with appellant/accused, as such, there is a contradiction in the version of PW-1, PW-2 and PW-3 as to who have gone on the roof of the bus. As per the testimony of PW -1, there was no other luggage on the roof of the bus Borus and bag, whereas, in view of the statement of PW-4, Constable Neeraj Kumar, who was present on the spot, in his cross examination, has stated that luggage of the other passengers was found kept on the roof of the bus and has stated that the bus was carrying about 65-70 passengers at the relevant time. There is apparent contradiction in view of the testimony of PW-1 Rakesh Kumar and the testimony of PW-4 Constable Neeraj Kumar about the keeping of bags and luggage of other passengers on the roof of the bus. PW-4 has stated in his cross examination that the Investigating Officer had asked PW-2, Ashwani Kumar, Conductor, in his presence as to whether the tickets were issued in respect of the luggage kept on the roof of the bus, whereas, such statement has not been emanating from the statement made in cross examination by PW-12, ASI Lal Singh, who has only stated that he did not verify from any of the passengers about the ownership of the bag and Borus found kept on the roof of the bus. From the testimony of PW-12 also nothing is revealed that except the Borus and bag from where the contraband goods were recovered, other bags were also kept on the roof of the bus. From the testimony of PW-12 also nothing is revealed that except the Borus and bag from where the contraband goods were recovered, other bags were also kept on the roof of the bus. PW -12, ASI Lal Singh, has stated that Conductor of the bus disclosed that the passenger, occupying seat No.3, was the owner of the Borus and bag and according to PW-12, 65 to 70 passengers were sitting in the bus at the relevant time and PW-12 has further stated that there were other bags of the passengers on the roof of the bus. However, he did not remember the names of the passengers whose bags were lying on the roof of the bus. PW-12 in his cross examination has stated that he did not record the statement of any passenger whose bags were found kept on the roof along with the Borus and bag in question. Such statement of PW-12 ASI Lal Singh is contradictory to the testimony of PW-1 who has stated that there was no other luggage kept on the roof of the bus except two Borus and bag belonging to the appellant/accused. Such apparent contradiction emanating from the statements of the prosecution witnesses indicate that out of the many bags and luggage kept on the roof of the bus, no enquiry was made and it could not be properly ascertained by the prosecution to link that the Borus and bag in question, taken into possession from the roof of the bus, from which the contraband goods were recovered, were actually belonging to the appellant/accused occupying seat No.3 in the bus. 23. In our considered view, it cannot be said that the Charas recovered from the Borus and bag was under the dominion or control or in exclusive possession of appellant/accused. 24. Learned counsel for the appellant has argued that for the sake of argument, without admitting that the entire prosecution story, if taken to be true, even then most material and vital aspects of proving the guilt of the appellant in respect of the offence under Section 20 of the NDPS Act cannot be said to be proved as the prosecution has failed to connect the bag and the Borus Ext. P-1, allegedly containing the Charas that it was recovered from the exclusive and conscious possession of the accused/appellant. P-1, allegedly containing the Charas that it was recovered from the exclusive and conscious possession of the accused/appellant. From this point of view, we find force in the submission of learned counsel for the appellant. 25. Learned Additional Advocate General has referred and relied upon several decisions e.g., Dimple Gupta (Minor) v. Rajiv Gupta, AIR 2008 SC 239 , Kulwinder Singh v. State of Punjab, AIR 2007 SC 2868 , Kalegura Padma Rao & Another v. State of A.P., AIR 2007 SC 1299 , State of Punjab v. Hakam Singh, (2005) 7 SCC 408 , Krishna Mochi & Others versus State of Bihar, (2002) 6 SCC 81 and Leela Ram (Dead) through Duli Chand v. 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 a witness, his evidence cannot be disbelieved merely on the basis of some normal, natural or minor contradictions, inconsistencies, exaggerations, embellishments etc. 26. In view of the above mentioned contradictions, inconsistencies and improbabilities and in light of the observations made in the above mentioned cases, we are of the considered view that in the facts and circumstances, the prosecution has failed to bring home the guilt to the accused and has miserably failed to link the recovery of Charas with appellant and in our considered view the prosecution has failed to prove its case beyond reasonable doubt. Therefore, the appeal is allowed and the impugned judgment dated 30th July, 2009, passed by learned Special Judge, Fast Track Court, Chamba, in Sessions Trial No.6 of 2009, is set aside and consequently the appellant is ordered to be set at liberty forthwith unless otherwise required in any other case or any other process of law.