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2012 DIGILAW 383 (HP)

State Of Himachal Pradesh v. Mahender Kumar

2012-07-12

DEEPAK GUPTA, RAJIV SHARMA

body2012
JUDGMENT : Deepak Gupta, J. This appeal by the State is directed against the judgment dated 17th July, 2004 delivered by the learned Sessions Judge, Shimla in Sessions Trial No. 13-S/7 of 2004 whereby he acquitted the accused of having committed an offence punishable u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). The prosecution story, in brief, is that on 22nd December, 2003, PW-9 Vijay Kumar alongwith PW-10 H.C. Lai Singh and other police officials was present near the Gurdwara at the cart road Shimla. At about 6.45 p.m., PW-9 Vijay Kumar received secret information that one person, namely, Mahender Kumar indulges in the sale of charas near Veterinary Hospital, Shimla. PW-9 was also informed that Mahender Kumar was seen at Dhalli and his description was also given. PW-9 thereafter recorded the reasons of of belief (Ext. PA) and sent the same to the Additional Superintendent of Police, Shimla. He alongwith other police officials then proceeded towards the Veterinary Hospital, Shimla. He associated two independent witnesses PW-5 Rajinder Kumar alias Raju and PW-6 Rajinder Kumar alias Kali. 2. At about 7.30 p.m., accused was found coming towards the Veterinary Hospital from the Lift side. The accused was carrying a bag in his right hand. The accused was apprehended and asked to disclose his name and address, which he did. Thereafter, the accused was told that his bag was sought to be searched and given option in this regard. The accused gave his consent to be searched by the Police. Thereafter, the search was carried out and charas was recovered from the bag. On weighment, the charas was found to weigh one kg. and 100 gms. Two samples of 25 grams each were drawn from the bulk charas and thereafter the two samples and the remaining bulk charas were packed in three separate parcels and sealed with seal impression 'H'. The case property was taken into possession vide recovery memo Ext. PC. Thereafter, the accused was informed about the ground of his arrest and other codal formalities were completed at the spot. 3. On the same day i.e. 22.12.2003, PW-9 deposited the entire case property alongwith specimen seal impression with MHC Gopal Singh PW-2. The case property was taken into possession vide recovery memo Ext. PC. Thereafter, the accused was informed about the ground of his arrest and other codal formalities were completed at the spot. 3. On the same day i.e. 22.12.2003, PW-9 deposited the entire case property alongwith specimen seal impression with MHC Gopal Singh PW-2. He also filed an application u/s 52A of the Act before the Judicial Magistrate, Court No. 5 Shimla for obtaining a certificate with regard to the sealing and the certified copy of the order passed by the Judicial Magistrate is Ext. PN. One sample was sent for chemical analysis and the Chemical Examiner vide his report Ext. PO opined that the same was of charas. On this basis the accused was charged for having committed an offence as aforesaid. After trial, he has been acquitted. Hence, this appeal by the State. 4. The main ground which weighed with the learned trial Court was that the independent witnesses turned hostile and the testimony of the police witnesses cannot be believed. The independent witnesses PW5 & PW-6 did not support the prosecution at all and both of them stated that they were called to the police station and asked to sign certain documents by saying that it was a formality. Though they admitted their signatures on documents Exts.PB, PC, PD and PE, they stated that when they signed the documents these documents were blank. They were cross examined at length but they stuck to this version. 5. In a case where the independent witnesses turn hostile, the accused can be convicted on the basis of the testimony of the official witnesses but the statements of the official witnesses should inspire confidence and should not be inconsistent. If the statements of the prosecution witnesses do not inspire confidence then it is very difficult to rely upon the same. 6. Though PWs 9 & 10 have by and large supported the prosecution case, there are certain circumstances which clearly show that they are not telling truth in the Court. According to PW-9, the accused was informed about his arrest vide document Ext. PE. The documents in two parts. The "first part is the information which is witnessed by both the independent witnesses and thereafter there is endorsement in the hand of the accused that he wants to convey the information about his arrest to his friend Amar Chand. According to PW-9, the accused was informed about his arrest vide document Ext. PE. The documents in two parts. The "first part is the information which is witnessed by both the independent witnesses and thereafter there is endorsement in the hand of the accused that he wants to convey the information about his arrest to his friend Amar Chand. This statement of the accused is also witnessed by both the independent witnesses PWs 5 and 6. PW-9 was confronted with the carbon copy of Ext. PE. He admitted the carbon copy which has been exhibited as Ext. DA. This document does not contain the endorsement of the accused mentioned hereinabove which clearly indicates that the document was at least partially blank when it was witnessed by the independent witnesses. In Ext. DA, both the independent witnesses have appended their signatures at two places but nothing written in between two signatures and later on the writing of the accused has been introduced. This not only indicates that the investigation was unfair but also is clear indicator of the fact that the document was prepared later on. This casts a doubt on the statements of the official witnesses and makes their testimony unreliable. 7. The learned trial Court also held that the FIR number appeared to have been filled-in in one go in the documents and he came to the conclusion that for this reason also the accused should be acquitted. However, on going through the documents we find that this is not the case and FIR number "392" does not appear to have been filled-in in one go and it appeared to have been inserted later on. In any event, PW-9 has not been questioned in this regard. But even if we were to hold that the FIR number was added later on it is apparent that the statement of the prosecution witnesses cannot be relied upon because as held by us above, there has been interpolations in some documents which cast a doubt on the truthfulness of the statements of these witnesses. 8. We also find that the certification of the Magistrate Ext. PN is not' at all in compliance with the provisions of Section 52A of the Act. 8. We also find that the certification of the Magistrate Ext. PN is not' at all in compliance with the provisions of Section 52A of the Act. The Magistrate is not only required to check the seals but is also required to in fact ensure that the stuff which is produced before him is weighed in his presence and re-sealed. In this case the Magistrate has only seen the seals but nothing else has been done. Therefore, no reliance can be placed on this document. 9. Another discrepancy in the prosecution case is that none of the prosecution witnesses have stated as to who prepared the NCB form. In fact there is nothing on record to show as to how this form was sent to the CFSL. The link evidence in this regard is totally missing. In view of the above discussion, we find no merit in the appeal which is accordingly dismissed. Bail bonds, if any, furnished by the accused are ordered to be discharged.