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2011 DIGILAW 1953 (HP)

State of H. P. v. Hans Peter Wuthrich

2011-04-01

DEEPAK GUPTA, RAJIV SHARMA

body2011
JUDGMENT Deepak Gupta, Judge This appeal by the State is directed against the judgment dated 1.12.1999 passed by the learned Sessions Judge, Kullu in Sessions Trial No.17 of 1997 whereby he acquitted the accused of having committed offences punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the Act’) and Section 25 of the Arms Act, 1959. 2. The prosecution version, in brief, is that on 1st December, 1996, PW-19 K.C. Rana, who was then posted as Station House Officer in Police Station, Manali, was on patrolling duty in Manali Bazaar alongwith other police officials, including PW18, Amarjit Singh. At about 2.00 p.m. PW-19, K.C. Rana received a secret information that the accused, who was residing in the house of PW-14, Ahlya Devi, is engaged in the sale and purchase of charas. The secret information supplied also revealed that the accused is having some arms without licence and that he is living there without a valid passport. On receipt of the secret information, PW-19 sent rukka Ex. PB to the Superintendent of Police and he constituted a raiding party consisting of some police officials and two independent witnesses were also associated. They are PW-16, Jindu Ram and PW-17, Jiwan Sood. 3. According to the police, when raid of the house was conducted, 2 Kg. 350 Gms. Charas, one loaded revolver and one double barrel gun alongwith two cartridges were recovered at the spot. All this incriminating material was taken into possession vide memo Ex.P-H. Charas and guns recovered were sealed at the spot. Two samples of 25 grams each were drawn out of the bulk charas which were sealed in two separate parcels with seal “A” and the seal after use was handed over to PW-17, Jiwan Sood. Thereafter other codal formalities were completed on the spot and on completion of investigation he deposited the case property in the Police Station with M.H.C., PW-6, Sita Ram at Police Station, Manali. One sample was sent to C.T.L., Kandaghat. It appears that this sample was not analysed. It came back unanalyzed. The second sample was sent to CFSL, Chandigarh and report Ex.PW-19/C was received, according to which, the sample was that of charas. On this basis, the accused was challaned and charged with having committed the offences aforesaid. 4. Accused pleaded not guilty and claimed trial. After trial, he has been acquitted. It came back unanalyzed. The second sample was sent to CFSL, Chandigarh and report Ex.PW-19/C was received, according to which, the sample was that of charas. On this basis, the accused was challaned and charged with having committed the offences aforesaid. 4. Accused pleaded not guilty and claimed trial. After trial, he has been acquitted. Hence, this appeal by the State. 5. At the outset, we may mention that the main ground which weighed with the learned trial Court was that there has been no compliance with Section 50 of the Act and since the mandatory provisions of the Act have not been complied with, the accused was dealt with as aforesaid. Though the learned trial Court was right in taking this view at the relevant time as the law was then, but the provisions of Section 50 of the Act are not attracted in the case of search of house. In this behalf, reference may be made to the judgment of the Apex Court in State of Himachal Pradesh vs. Pawan Kumar, latest LHJ 2004 (SC) 1247, 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 of a bag. 6. Since the learned trial Court erred in acquitting the accused on the main ground that the provisions of Section 50 of the Act have not been complied with, we have gone through the entire evidence ourselves. This is a case of prior information, where the Investigating Officer was accompanied not only by the police officials, but also two independent witnesses, PW-16, Jindu Ram and PW-17, Jiwan Sood. In addition thereto, at the time of search, PW-14 Ahlya Devi, the landlady of the accused was also present. None of these three witnesses has supported the prosecution version. Though they have been declared hostile, nothing material has been extracted in their cross-examination conducted by the learned Public Prosecutor. 7. This Court has repeatedly held that if the independent witnesses turn hostile, that does not mean that the accused has to be acquitted straight way. The police official witnesses are also equally good witnesses. Though they have been declared hostile, nothing material has been extracted in their cross-examination conducted by the learned Public Prosecutor. 7. This Court has repeatedly held that if the independent witnesses turn hostile, that does not mean that the accused has to be acquitted straight way. The police official witnesses are also equally good witnesses. The only caveat is that in the case of police officials, their testimony has to be scrutinized more carefully and in case there is any variation in the testimony of official witnesses, the benefit of doubt will go to the accused. 8. In the present case, the only official witness examined on this aspect is the Investigating Officer, PW-19, Shri K.C. Rana. PW-2 H.C. Lal Chand and PW-11 Constable Gurdyal Singh were also present on the spot, but they have not stated a word with regard to the search or the manner in which it was conducted. They have also not stated what was recovered at the time of search. No other official witness was examined. When the independent witnesses turn hostile, it is the duty of the prosecution to examine the official witnesses so that the Court can weigh the testimony of these witnesses and decide whether reliance can be placed on the testimony of official witnesses or not. In a case like the present one, where no explanation is given for non-examination of the other official witnesses except the Investigating Officer and where the other official witnesses, who were present on the spot are examined, but do not testify in respect of most important aspect of the case, i.e. the search, the Court is left helpless and has no way to decide whether the police version should be believed or not. We cannot convict the accused only on the sole testimony of the Investigating Officer when all the independent witnesses have turned hostile and for reasons best know to the prosecution, the official witnesses, who were present, have not been examined on this aspect of the matter. 9. Another reason to doubt the prosecution version is that according to the prosecution, the search took place on 1st December, 1996. The first sample was sent to C.T.L., Kandaghat on 31st December, 1996. It was brought back unanalyzed from Kandaghat on 24th March, 1997. In between a fresh sample was sent to the CFSL, Chandigarh on 16th March, 1997. 9. Another reason to doubt the prosecution version is that according to the prosecution, the search took place on 1st December, 1996. The first sample was sent to C.T.L., Kandaghat on 31st December, 1996. It was brought back unanalyzed from Kandaghat on 24th March, 1997. In between a fresh sample was sent to the CFSL, Chandigarh on 16th March, 1997. There is no explanation as to why and how the sample was returned from Kandaghat. There is no explanation as to what was the need to send the second sample to CFSL, Chandigarh. The Investigating Officer, who appeared in the witness box, should have stated something in this regard. In the absence any specific averment, it may not be unreasonable to presume that the report of CTL, Kandaghat was not in favour of the prosecution. 10. In view of the above discussion, we find no merit in this appeal, which is accordingly dismissed. In view of the fact that the accused has been acquitted, we direct the Superintendent of Police, Kullu to release the passport of the accused to him.