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2016 DIGILAW 1671 (HP)

State Of Himachal Pradesh v. Rostislav Usov

2016-08-10

SANJAY KAROL, VIVEK SINGH THAKUR

body2016
JUDGMENT : Vivek Singh Thakur, J. The State has filed present petition for leave to appeal against acquittal of respondent in case under Section 20 of Narcotic Drugs and Psychotropic Substances Act in FIR No.149 of 2014, dated 24.09.2014, Police Station, Bhuntar, District Kullu, H.P. by learned Special Judge-II (Additional Sessions Judge), Kullu, and Himachal Pradesh. 2. As per prosecution on 24.09.2014, respondent was traveling on seat No. 11 in Volvo Bus bearing Registration No.DL-1PD-0316 of BFC Highway going from Manali to Delhi being driven by PW-3 Gauri Prasad with conductor PW-4 Rohit Kumar. Police party headed by PW- 12 SI Man Singh consisting of PW-10 HC Hitesh Kumar and Constable Vijay Kumar were present in their official vehicle bearing registration No.HP-34-A-9984 with driver HHG Jagdish at Temporary Check Post, Bajaura District Kullu on Public Highway along with PSI Vikash Incharge, temporary check post and other officials. At about 7.15 PM Volvo bus was stopped by signal of police and after asking name of driver and conductor of bus PW-12 SI Man Singh had associated them as independent witnesses and had started checking luggage of the passengers in the bus. Respondent was having black colour back sack in his lap and on checking of this bag five photographs of accused, one sleti colour lower, one pair of woollen socks and one red colour carry bag were was found in it and in carry bag black colour substance found which on the basis of experience was found to be cannabis/charas. After asking name of respondent, he was de-boarded from bus along with articles including recovered charas. He and witnesses were taken to temporary tent where on weighing charas was found 580 gms. 'Rukka' Ex.PW-9/A was sent to Police Station through PW-10 Head Constable Hitesh Kumar. On the basis of which FIR Ex.9/C was registered and case file was sent back . 3. After receiving case file back on the spot, respondent was arrested and was taken to police station and was handed over along with case property to PW-1 SI Lal Chand, who after resealing the case property had handed over the same to MHC PW-6 Gian Chand. Contraband was sent for chemical examinations to State FSL Jungah vide RC No.216 of 2014 Ex.PW-6/B through PW-11 HHC Janesh Kumar. PW-7 HHC Neel Chand had brought back case property along with chemical analysis report Ex. PX. 4. Contraband was sent for chemical examinations to State FSL Jungah vide RC No.216 of 2014 Ex.PW-6/B through PW-11 HHC Janesh Kumar. PW-7 HHC Neel Chand had brought back case property along with chemical analysis report Ex. PX. 4. Special Report Ex.PW-2/A was sent to DSP Sanjay Sharma who after making endorsement Ex.PW-2/C on the same has handed over it to his Reader PW-2 HC Nirat Singh. Photocopies of documents of bus were also taken in possession. 5. After completing codal formalities, challan was prepared and put in the Court. 6. We have heard learned Additional Advocate General and have perused record of the case, supplied by him. On scrutiny of record, it was found that prosecution has examined PW-3 Gauri Prasad, PW-4 Rohit Kumar, PW- 10 Hitesh Kumar and PW-12 SI Man Singh as spot witnesses of recovery of contraband from respondent. 7. PW-3 Gauri Prasad and PW-4 Rohit Kumar are independent witnesses associated by police in investigation at the time of recovery of contraband from the respondent. Both of them have not lent any support to prosecution whereas out of more than 5 official witnesses only two official witnesses PW-10 HC Hitesh Kumar and PW-12 SI Man Singh were examined in Court have supported the prosecution case. PW-12 SI Man Singh is Investigating Officer and PW-10 HC Hitesh Kumar was present on the spot till Rukka was prepared and handed over to him. 8. Independent witnesses PW-3 and PW-4 had turned hostile. However in case of turning independent witnesses hostile, the conviction can also be based on evidence of official witnesses only in case prosecution case is found to be proved beyond all reasonable doubt on the basis of evidence on record. 9. In the present case, independent witnesses have not only turned hostile by denying to corroborate prosecution story but have also deposed certain facts and circumstances which probabilise the second version of the happenings occurred on the spot. As per official witnesses driver and conductor were associated in investigation and were accompanied by PW-12 SI Man Singh inside the bus at the time of checking of luggage of passengers. However, PW-3 and PW-4 have denied the same. PW-3 has stated that the respondent who was sitting on seat No.11 was de-boarded from bus and was taken into Government tent and this witness had not been accompanying the police official in the said tent. However, PW-3 and PW-4 have denied the same. PW-3 has stated that the respondent who was sitting on seat No.11 was de-boarded from bus and was taken into Government tent and this witness had not been accompanying the police official in the said tent. As per this witness at that time accused was carrying one bag but the same was not opened by police official in his presence. PW-4 has stated that a bag of black colour was found above the seat No.11 in a rack. Thereafter, the police officials had taken the said bag with respondent inside a Government Tent and two police officials remained with him inside the bus whereas driver had gone for having of photocopies of documents of bus and bag and accused was not searched by police in his presence. PW-3 has also stated that after de-boarding respondent from bus he had gone to Buntar to Photostat documents of bus. Both of them in cross-examination have stated that personal search of accused was conducted inside the bus. PW-4 has further stated that when respondent was taken inside the Government Tent, he was asked by police officials for checking of dickey. PW-3 has further stated that he had appended his signature on blank papers and he usually put his signature on blank papers and in present case, passengers were compelling to move bus as some of them had to take flight. As per him they remained there for about 30 to 45 minutes and after taking the respondent inside the tent he was asked to produce documents. PW-4 has also stated that he usually did not put his signature on blank paper but the passengers were compelling to move with the bus as some of them had to take flight. As per him, they remained on the spot for about one hour. PW-3 has not seen that bag was in the lap of respondent whereas PW-4 has stated that bag was lying in the rack above the seat No.11. Therefore, there is second version regarding place of finding bag in question containing contraband article has come on record. PW-10 HC Hitesh Kumar was on the spot from 7.15 PM to 9.30 PM. Thereafter, he was sent with 'Rukka' for registration of FIR. Other witnesses present on spot after 9.30 to 10.50 PM have not been examined by prosecution. PW-12 SI Man Singh is Investigating Officer. PW-10 HC Hitesh Kumar was on the spot from 7.15 PM to 9.30 PM. Thereafter, he was sent with 'Rukka' for registration of FIR. Other witnesses present on spot after 9.30 to 10.50 PM have not been examined by prosecution. PW-12 SI Man Singh is Investigating Officer. His statement is required to be corroborated with further evidence on record and for that purpose other officials present on the spot were necessary to be examined particularly when independent witnesses not only denied to support the prosecution story but have also put forward a parallel story of lying the bag in question in the rack of the bus above the seat No.11. Law requires association of two independent witnesses. Therefore, two official witnesses who were present on the spot should have been examined. Therefore non-examination of other official persons on the spot or at least one of them who was accompanying the Investigating Officer throughout on the spot investigation was required to be examined. 10. It has also come in evidence that bus in question was full of passengers but none of them has been associated in investigation. Even the passengers seating on next seat to the respondent has neither inquired nor associated during the investigation. As per prosecution, contraband was recovered in presence of PW-3 and PW-4 whereas PW-3 had gone to arrange Photostat the copies of documents of vehicle and PW-4 Rohit Kumar was busy for checking of dickey at that relevant point of time and as such both of them had not witnessed recovery of contraband from the bag of respondent. 11. There is nothing on record to show the reasons for not examining official eye witnesses who were claimed to be present on the spot throughout despite the fact that independent witnesses had not supported the prosecution case. 12. We find no infirmity, illegality and perversity in the impugned judgment passed by learned Special Judge. There are no sufficient grounds to grant leave to file an appeal against the impugned judgment. 13. In view of the above discussion, petition for leave to file appeal is dismissed.