Research › Search › Judgment

Himachal Pradesh High Court · body

2011 DIGILAW 1226 (HP)

State of H. P v. Gumat Ram

2011-03-11

DEEPAK GUPTA, SANJAY KAROL

body2011
JUDGMENT Deepak Gupta, Judge This appeal by the State is directed against the judgement dated 1.9.2000 delivered by the learned Sessions Judge, Mandi in Sessions Trial No.2 of 2000 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 story, in brief, is that on 23.11.1993, PW/8 ASI Subhash Chand accompanied by other police officials including PW/3 Sh.Harbans Singh, LHC was present in Aut bazar in connection with patrolling duty. The police party saw the accused in the bazar at about 7.15 a.m. when he was carrying a bag. The accused on seeing the police personnel tried to slip away towards Mandi town. This aroused the suspicion of the police officials who apprehended the accused. It was suspected that the accused may be carrying some contraband in the bag. The accused was informed that his bag was sought to be searched and his consent was sought vide memo Ext.PA. He was given an option as to whether he wanted to be searched by Subhash Chand, ASI or by a Magistrate or some other Gazetted officer. The accused allegedly agreed to give his search to the police officials vide memo Ext.PB in the presence of Dile Ram, PW/1 and Gulab Singh, PW/7, the independent witnesses. Thereafter, search of the bag (Ext.P3) was carried out and below the garments, a polythene bag was found which contained charas. LHC Shanti Kumar was deputed to bring the scales and weights and he brought the same. The said charas was weighed and was found to weigh 2 Kgs. Two samples of 20 grams each were drawn out of the bulk charas and thereafter, the two samples and the remaining bulk charas were sealed in three separate parcels and sealed with seal impression ‘D’. The entire charas was taken into possession vide memo Ext.PC. Personal articles of the accused recovered during the search were taken into possession vide memo Ext.PH. Thereafter, Rukka, Ext.PL was prepared and sent to Police Station, Aut for recording the formal FIR, a copy of which is Ext.PM. Special report, Ext.PT was sent to the higher authorities. Before the entire proceedings had ended, PW/9 Dy.SP Gurmeet Singh reached the spot and after verifying the facts, he again sealed the said parcel and seal ‘S’ was affixed on the parcel. Special report, Ext.PT was sent to the higher authorities. Before the entire proceedings had ended, PW/9 Dy.SP Gurmeet Singh reached the spot and after verifying the facts, he again sealed the said parcel and seal ‘S’ was affixed on the parcel. Thereafter, the case property as well as the sample seal impressions were kept in the police station and were sent to the Chemical Analyst in due course. Report Ext.PN was received wherein it was found that the sample contained charas and the resin content was found to be 31.46 per cent. On the basis of this material, challan was filed against the accused and the accused was charged with having committed an offence punishable under Section 20 of the Act. The accused pleaded not guilty and claimed trial. The prosecution examined nine witnesses. After trial, the accused was acquitted. Hence the present appeal by the State. The learned Trial Court acquitted the accused mainly on the ground that the provisions of Section 50 of the Act had not been complied with. There can be no manner of doubt that the provisions of Section 50 of the Act are not applicable in the present case since the contraband was recovered from a bag being carried by the accused and not as a result of the personal search of the accused. In this behalf, reference may be made to the judgment of the Apex Court in State of H.P. vs. Pawan Kumar, Latest LHJ (SC) 399 wherein the Apex Court has clearly held that the provisions of Section 50 are only applicable in the case of personal search and not in the case of search by a bag. Therefore, we have gone into the merits of the case which the learned Trial Court did not go into in detail. PW/8 Subhash Chand is the person who headed the police party and he has virtually repeated the prosecution story. He was cross-examined at length and in cross-examination, he stated that the accused had purchased a ticket and was to travel by Metro Bus service from Aut to Delhi and also proved the ticket Ext.P3. PW/8 Subhash Chand is the person who headed the police party and he has virtually repeated the prosecution story. He was cross-examined at length and in cross-examination, he stated that the accused had purchased a ticket and was to travel by Metro Bus service from Aut to Delhi and also proved the ticket Ext.P3. This witness also stated that photographs of the accused were taken by one of the constables Harbans Singh at about 7.30 or 7.45 p.m. PW/9 Gurmeet Singh, Dy.SP stated that on 23.11.1999 he was asked by the Additional Superintendent of Police, Mandi to go to the spot at about 8.30 p.m. He reached Aut at about 10.30 p.m. and in the bazar, he met PW/8 who disclosed that he had recovered some contraband. The contraband was sealed in a parcel having Seal ‘D’. The original parcel was again wrapped in another piece of cloth and was sealed with seal ‘S’. This witness further stated that Dile Ram, PW/1 and Gulab Singh, PW/7 signed the memos at the time of sealing of the parcels. He also stated that he handed over seal ‘S’ to Dlie Ram. He recorded the statements of the witnesses. PW/1 Dile Ram stated that he saw the accused in the custody of the police outside the shop of his neighbour, Chuni Lal, which shop was closed at that time. The police officials in his presence asked the accused whether he would like to be searched by the police officials or by someone else. The accused agreed to be searched by the police officials vide memo Ext.PA. Thereafter, the bag carried by the accused was searched which contained a polythene bag which was opened by the police. Thereafter, the police stated that there was ‘Bhang’ in the bag. The contents of the bag were weighed and found to be 2Kgs. Thereafter, he was summoned to the police station where the packets were prepared and were taken into possession by the police vide memo Ext.PC. At this stage, this witness was declared hostile since he had resiled from his earlier version that the samples were prepared at the spot itself. In cross-examination, PW/1 denied that he had stated that on seeing the police officials, the accused tried to run away towards Mandi town. He however, clearly admitted that the accused was interrogated in his presence and also that the recovery was made in his presence. In cross-examination, PW/1 denied that he had stated that on seeing the police officials, the accused tried to run away towards Mandi town. He however, clearly admitted that the accused was interrogated in his presence and also that the recovery was made in his presence. He also admitted that the photographs of the accused were taken with the bag. He was confronted with his earlier statement recorded by the police under Section 161, Cr.PC in which it was recorded that out of the contraband recovered from the accused, two samples of 20 grams each were drawn and sealed with seal ‘D’. He however, admitted that residue contraband was made into parcel of cloth and his signatures were obtained on this bulk packet. He also admitted that specimen of the seal used were affixed on a piece of cloth which bore his signature. He could not say whether the accused was informed about the factum of his arrest or not but admitted his signatures on the arrest memo Ext.PG. He also admitted the fact that currency notes worth Rs.1780/- were found in the possession of the accused which were taken into possession vide memo Ext.PH and he also admitted his signatures on this memo also. This witness also admitted his signatures on Ext.P1, the parcel containing the bulk charas and on Ext.P2, a parcel of the sample. He admitted that he was not under pressure of the police and that he was aware at the time when he had signed these documents that he would have to appear as a witness against the accused. He was cross-examined on behalf of the accused and he stated that some documents were prepared in the bazar and remaining formalities were completed in the police station. This witness stated that they landed in the police station at about 8.30 p.m. Here he came up with a new version that the packets were not prepared in his presence. However, it is important to note that he in cross-examination he further stated that the seized contraband was seized and weighed in his presence and the scale was provided by Jeewan Kumar who runs a shop adjacent to his shop. He also stated that the scale was brought to the road-side where the contraband was weighed. However, it is important to note that he in cross-examination he further stated that the seized contraband was seized and weighed in his presence and the scale was provided by Jeewan Kumar who runs a shop adjacent to his shop. He also stated that the scale was brought to the road-side where the contraband was weighed. PW/7 Gulab Singh turned hostile and stated that on 23.11.1999 at about 7.00 p.m., he was summoned by the police to the police station where one bag was lying. The Presiding Officer of the learned Trial Court noted the demeanour of the witness and observed that either the witness is suppressing the truth or is under some sort of complex(sic). After this witness was declared hostile, he initially denied having made a statement to the police but when confronted with his statement Mark ‘C’ recorded under Section 161, Cr.PC, this witness admitted that he had stated that the accused Gumat had given his consent to be searched by the police at the spot and that he (the witness) had signed the memos regarding the preparation of the parcels and seizure of the contraband. He virtually admitted the entire case of the prosecution after being declared hostile. Again when cross-examined on behalf of the accused, he took a different version and stated that he kept sitting in the police station and signed the documents there. PW/3 Harbans Singh was a member of the raiding party. He totally supported the prosecution case. This witness stated that the photographs were taken at about 8.30 p.m or 8.45 p.m. According to him, the police party remained at the place of recovery for about an hour. PW/5 Naresh Kumar, MHC of Police Station, Aut stated that PW/9 Gurmeet Singh handed over two sample parcels and one bulk parcel sealed with seal ‘S’ to him which he kept in the Malkhana and on 28.11.1999 he handed over one of the sample parcels to Kishore Chand, LHC, PW/2 for taking it to C.T.L. Kandaghat. He clearly stated that the parcel remained intact and untampered in his custody. This witness also recorded the FIR. PW/2 Kishore Chand, LHC stated that he took the parcel to Kandaghat where he deposited it with the CTL, Kandaghat. The said parcel remained intact and untampered during this period. He clearly stated that the parcel remained intact and untampered in his custody. This witness also recorded the FIR. PW/2 Kishore Chand, LHC stated that he took the parcel to Kandaghat where he deposited it with the CTL, Kandaghat. The said parcel remained intact and untampered during this period. Sh.Y.P.S.Dhaulta, learned counsel for the accused has strenuously argued that the prosecution story cannot be believed because of the following reasons:- 1. That Jeevan Kumar from whose shop the scales were brought was not examined. 2. That PW/1, Dile Ram had spoken only at the instance of the police and PW/7 had turned hostile. 3. That there is a material contradiction in the prosecution story since PW/3 states that the photographs were taken at about 8.30 or 8.45 p.m. whereas PW/8 states that the photographs were taken at about 7.30 or 7.45 p.m. 4. That there is confusion with regard to Seal ‘D’ and seal ‘S’ and it is not clear as to with which seal, the parcel was sealed. 5. That if two views are possible then Court in appeal should not interfere in the order of acquittal. At the outset, we may state that we are aware that in a case against acquittal, this Court would normally not interfere and substitute its opinion for the opinion of the learned Trial Court. However, as held by us above, the learned Trial Court acquitted the accused on technical grounds and without going into the merits of the case. In fact, the learned Trial Court clearly held that the prosecution had proved that the sample packet remained intact and untampered till it was examined by the Chemical Analyst. The learned Trial Court did not go into the question whether the recovery had been made in the manner alleged by the prosecution or not. In the present case, two independent witnesses were associated with the case. The first witness Dile Ram had to a large extent supported the prosecution case. According to him, the contraband was recovered and weighed in his presence and the parcels were also prepared in his presence. The only contradiction, if any, in his statement is that according to him, the parcels were prepared in the police station and not at the spot. According to him, the contraband was recovered and weighed in his presence and the parcels were also prepared in his presence. The only contradiction, if any, in his statement is that according to him, the parcels were prepared in the police station and not at the spot. He however, admitted his signatures on the seizure and recovery memos which clearly indicate that the parcels were prepared at the spot and in cross-examination, he had in unambiguous terms stated that the scale was provided by Jeewan Kumar and the scale was brought to the road-side where the needful was done. This also indicates that all the proceedings took place on the road side. Even otherwise assuming that the parcels were not prepared at the spot but in the police station which is only 100 yards away, there is an iota of evidence or any suggestion to any witness that during this period, some charas was introduced. This witness clearly stated that the charas was already there. No doubt, PW/7 turned hostile but when cross-examined by the police, he not only admitted the entire statement made by him under Section 161, Cr.PC but virtually admitted the entire prosecution case. He also admitted his signatures on all the documents. The law is well settled that when witnesses turned hostile, the court can rely upon the official witnesses who are as good witnesses as any other. However, caution must be used when only police officials support the case and any contradiction in the statements of the police officials can be fatal to the prosecution case. The only contradiction pointed out by the learned counsel for the accused is that PW/3 stated that the photographs were taken at about 8.30 or 8.45 p.m. whereas PW/8 stated that the same were taken at about 7.30 p.m or 7.45 p.m. This contradiction, in our view, is not a major contradiction. There is barely a difference of about 45 minutes to one hour and when evidence is recorded after a long time, such minor contradictions are bound to occur. The non-examination of Jeewan Kumar is of no consequence since none of the witnesses were cross-examined in this behalf and no suggestion was put that the scales were not brought from the shop of Jeewan Kumar. The non-examination of Jeewan Kumar is of no consequence since none of the witnesses were cross-examined in this behalf and no suggestion was put that the scales were not brought from the shop of Jeewan Kumar. In cross-examination by the defence, PW/1 stated that the scales were brought from the shop of Jeewan Kumar who was present in his shop at that time. As far as controversy with regard to the seals is concerned, there is no confusion at all. It is apparent from the statements of PW/8 and PW/9 that first parcel was prepared and was sealed with Seal ‘D’ by PW/8 and when PW/9 came to the spot, he wrapped the parcel with another piece of cloth and on this cloth, seal ‘S’ was affixed. Therefore, the NCB form only makes a reference to seal ‘S’. It is apparent that seal ‘D’ was not even visible. The witnesses had clearly stated that the parcels remained intact and were not tampered with when they were in their possession. Therefore, the prosecution had proved beyond any reasonable doubt that the recovery of the contraband was made from the possession of the accused. The accused has not been able to give any explanation for such possession. In view of the above discussion, we set aside the judgment of the learned Sessions Judge, Mandi acquitting the accused and convict the accused of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act. Now to hear the accused on the issue of quantum, the matter be listed on 1.4.2011. The bail bonds of the accused are cancelled and he be produced before us on the said date.