Himachal Pradesh High Court
State Of Himachal Pradesh vs Ashok Kumar & Another on 5 July, 2019
Bench: Sureshwar Thakur, Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr. Appeal No. 46 of 2010 Judgment reserved on : 13.6.2019 Date of Decision : July 5 , 2019 State of Himachal Pradesh ...Appellant.
Versus
Ashok Kumar & another
r ...Respondents.
Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge. The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 For the appellant : Mr. Hemant Vaid & Mr. Desh Raj Thakur, Addl. AGs with Mr. Vikrant Chadel, Dy. AG, for the appellant-State.
For the respondent : Mr. Vivek Sharma, Advocate, for respondents No. 1 and 2.
Per: Anoop Chitkara, Judge.
I have the privilege to go through the judgment authored by my Senior Colleague. I have also gone through the complete record of the case as well as the impugned judgment of acquittal passed by learned Special Judge-II, 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 29/09/2019 00:24:44 :::HCHP 2Solan, Distt. Solan, Himachal Pradesh. I say with utmost respect that I have arrived at an opposite finding. With due .
reverence, I do not agree with the reasoning, therefore, I am under a legal obligation to write my separate judgment.
2. The present appeal has been filed by the State of Himachal Pradesh under Section 378 of the Code of Criminal Procedure, assailing the judgment of acquittal dated 20.10.2009, passed by the Special Judge-II, Solan, Distt.
Solan, Himachal Pradesh, in Sessions Trial No. 6-S/7 of 2009, titled as State of Himachal Pradesh vs. Ashok Kumar & another, whereby the trial Court has dismissed the prosecution case and acquitted both the accused of the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the "NDPS Act").
3. The gist of the evidence apposite to arrive at a just conclusion is as follows :
(a) A police party, headed by Addl. SHO, SI Ram Pal (PW-10) and comprising of ASI Jai Gopal (PW-3), HC - Kedar Nath (PW-1), Constable Yash Pal (PW-2) and Constable Kamal Kumar (PW-11), proceeded for patrolling towards Kasauli Chowk, Suki Johri, Dharampur ::: Downloaded on - 29/09/2019 00:24:44 :::HCHP 3 Bazar etc. on 17.12.2008 at 8.00 p.m., vide daily diary entry No. 40-A (Ext. PW-7/F).
.
(b) At about 10.45 p.m., when the police party was patrolling at place Suki Johri and had reached from their to Kasauli Chowk, then they noticed two young men near the rain shelter.
(c) These persons, on seeing the police party, started running towards Kasauli Road by holding one sling each of the black duffel type bag .
(d) This unusual conduct of the two persons aroused suspicion in the mind of SI -
Ram Pal (PW-10), who with the help of other members of the police party, nabbed them.
(e) On inquiry, these persons revealed their names as Ashok Kumar (Accused A-1) and Milap Chand (Accused A-2), both residents of Post Office Kamand, Tehsil and P.S. Ani, Distt. Kullu, H.P.
(f) The police party checked the bag carried by them and on checking from inside the bag they recovered one shawl, one T-shirt, one half T-shirt, two pants, and one photo copy of voter identity card issued by the Election Commission of India in the name of Milap Chand (Accused A-2). Below the clothes, there was a white plastic bag, containing another green coloured polythene bag, on ::: Downloaded on - 29/09/2019 00:24:44 :::HCHP 4 which words "Amrit Cloth House Bus Stand Nirmand" were printed. On checking this bag, .
black coloured substance, in the shape of small and big sized balls, was found, which on experience and smell, looked like charas.
(g) The Investigating Officer SI Ram Pal (PW-10) deputed Constable Kamal Kumar to bring weights and scale from 10 grams to 2 kg.
On weighment the contraband was measured to be 4 k.g. and 500 grams.
(h) From the bulk, the Investigating Office took out two samples of 50 grams each, for the purpose of chemical examination.
(i) These samples were put in separate polythene pouches and thereafter sealed in cloth parcels and three impressions each of seal-N embossed on them. These sample parcels were marked as S-1 and S-2.
(j) The remaining bulk charas of 4 k.g.
and 400 grams was put in the same polythene bags, and then alongwith clothes and photocopy of election identity card, repacked in the black coloured duffel bag, which was put in a cloth parcel and embossed with 12 seals of seal impression-N. This bulk parcel was marked as R-1.
::: Downloaded on - 29/09/2019 00:24:44 :::HCHP 5(k) Seal impression of letter-N were also embossed on separate piece of cloth (Ext. PW-
.
1/B).
(l) The Investigating Officer SI Ram Pal
(PW-10), filled in the pre-printed
"Property Search & Seizure Form", in which
he mentioned all the details stated above and this form was later on proved during trial as Ext. PW-1/A.
(m) Police conducted further investigation and filled up the NCB form (Ext. PW-7/D), in triplicate, and embossed impression of Seal -N on the same.
(n) After completion of the seizure, the Investigating Officer, SI Ram Pal (PW-10), recorded ruka (Ext. PW-2/A) and sent the same through Constable Yash Pal (PW-2) to the MHC, Police Station Dharampur, for registration of the FIR under Section 20 of the NDPS Act.
(o) As per ruka (Ext. PW2/A), the distance of the police station from the spot is mentioned as 100 meters.
(p) The Investigating Officer also
prepared spot map (Ext. DA).
(q) On the basis of ruka (Ext. PW-2/A), FIR
No. 158 of 2008 (Ext. PW-7/E), dated
17.12.2008, under Section 20 of the NDPS Act ::: Downloaded on - 29/09/2019 00:24:44 :::HCHP 6 came to be registered at Police Station Dharampur, Distt. Solan, H.P. .
(r) In compliance of Section 57 of the NDPC Act, Special Report (Ext. PW-5/A) was sent to the Superintendent of Police, Solan, through L/c. Neelam Kanwar (PW-5). The said report was received on behalf of the Superintendent of Police by Constable/Asstt.
Reader Om Prakash (PW-6) and endorsement (Ext. PW-6/A) was made on the report..
(s) After completion of investigation at the spot, the Investigating Officer (PW-10) deposited the case property with HC Hakam Singh (PW-7), who was working as MHC at the police station at the relevant time. The requisite entries were made in the maalkhana register at Sr. No. 438 (Ext. PW-7/B).
(t) On 18.12.2008, HC Hakam Singh (PW-
7), sent one sample parcel which was marked as S-1 to SFSL Junga, through HHC Kanshi Ram (PW-8). The sample was sent through Road Certificate No. 113/08 (Ext. PW-7/C). Prior thereto, he had also made endorsement of the same on the NCB form (Ext. PW-7/D).
(u) The SFSL Junga performed tests and opined the black substance recovered from the sample as cannabis/charas, vide report (Ext. PW-9/A).
::: Downloaded on - 29/09/2019 00:24:44 :::HCHP 7(v) After completion of the investigation, police report under Section 173 Cr.P.C., was .
filed in the Court and the case was sent for trial
4. The accused were prosecuted and the learned Special Judge framed charges under Section 20 of the NDPS Act against both the accused for the possessing 4 k.g. and 500 grams of charas, to which they did not plead guilty and claimed trial. r
5. In Court, prosecution examined spot witnesses HC Kedar Nath (PW-1), Constable Yash Pal (PW-2), ASI Jai Gopal (PW-3), Constable Kamal Kumar (PW-11) and the Investigating Officer ASI Ram Pal (PW-10) to prove search and seizure of the contraband and other proceedings on the spot.
6. To prove the link evidence, prosecution examined MHC Hakam Singh (PW-7), Constable Yash Pal (PW-2) and HHC Kanshi Ram (PW-8).
7. Prosecution also examined Chand Kishore (PW-4), who was running a tea stall near Police Station Dharampur, from whom Constable Kamal Kumar (PW-11) had brought the weights and scale. This witness Chand Kishore (PW-4), ::: Downloaded on - 29/09/2019 00:24:44 :::HCHP 8 owner of the tea stall, did not support the case of the prosecution and was declared hostile. He has denied that he .
had supplied any weights or scale to the police.
8. Defence of the accused was to the effect that both the accused were travelling in Bus No. HP03 6080, which was going from Shimla to Chandigarh. When the bus had reached near Police Station Dharampur, it was stopped by the Police, who had laid a naaka. Police searched the bus, and from its rack, found a bag and took it to the police station. Thereafter the bus had stopped at Sanwara for tea and by that time the police reached there on the motorcycle. They inquired about the bag but none claimed it. On inquiry from the passengers police came to know that both the accused belonged to Ani and on this they were taken to the police station, where they were beaten. It was denied that the identity card of Milap Chand (Accused A-2) was recovered from the bag.
9. After the completion of the prosecution evidence, incriminating circumstances were put to both the accused, as per the requirement of Section 313 Cr.P.C. The accused ::: Downloaded on - 29/09/2019 00:24:44 :::HCHP 9 persons took the defence in answer to question No. 28, which is in the following terms:
.
Ashok Kumar (Accused A1) "Ans. A false case has been planted against me. I along with my co-accused was travelling in bus No. HP-3B-6080 from Shimla to Chandigarh when the bus reached near police station Dharampur it was stopped by the police people who had laid a naka and on search of the bus they found a bag in the rack of the bus which was taken by the police to the police station and our bus proceeded ahead.
Thereafter our bus was stopped at Sanwara for tea and snacks. In the mean time police people reached there on a motor cycle. They again inquired about the title of the bag but none claimed it. When on inquiry I and my co-
accused told that we are from Ani they took us out from the bus and carried to the police station where we were beaten. The identity card of my co-accused Milap has not taken out from the bag as alleged."
Milap Chand (Accused A2) "Ans. A false case has been planted against me. I along with my co-accused was travelling in bus No. HP-3B-6080 from Shimla to Chandigarh when the bus reached near police station Dharampur it was stopped by the police ::: Downloaded on - 29/09/2019 00:24:44 :::HCHP 10 people who had laid a naka and on search of the bus they found a bag in the rack of the bus .
which was taken by the police to the police station and our bus proceeded ahead. Thereafter our bus was stopped at Sanwara for tea and snacks. In the mean time police people reached there on a motor cycle. They again inquired about the title of the bag but none claimed it. When on inquiry I and my co- accused told that we are from Ani they took us out from the bus and carried to the police station where we were beaten. My identity has not taken out from the bag as alleged."
10. In defence, accused examined Sushil Kumar (DW-
1), the conductor of the HRTC bus No. HP03 6080. He has testified, in his examination in chief, that both the accused had boarded the bus from Shimla, on which he was working as conductor. They had purchased the tickets, which were also checked by him in the bus. At around 7.30 - 7.45 p.m., when the bus reached Dharampur, then in front of the police station, police conducted checking of the bus, where they had laid a check post for the said purpose. During checking, one bag was found from the rack of the bus, which was not claimed by anyone. The police took the bag ::: Downloaded on - 29/09/2019 00:24:44 :::HCHP 11 to the police station, and the bus was permitted to leave.
Thereafter, the bus had stopped at Sanwaara for tea. Then .
the passengers boarded the bus and the driver was asked to start the bus, by the police who had come there. Thereafter the accused were asked from where were they coming.
They told that they were from Ani, on which both of them were taken by the police, and the bus departed for Chandigarh. He further stated that he had inquired from the police as to why were the accused being taken, but they did not answer. In cross examination, this witness stated that the accused had purchased the tickets from the booking office. He denied that he was making a false statement.
11. HC - Parveen Kumar (DW-2) was also examined as defence witness. However, it may not be relevant to discuss his testimony. No assistance was rendered by the learned counsel, as such, in the absence of any assistance from the learned counsel, Court is unable to decipher as to why this witness was examined.
12. Defence of the accused, as put to the prosecution witnesses, is that the accused were made to sign all the documents in the police station.
::: Downloaded on - 29/09/2019 00:24:44 :::HCHP 1213. The Trial Court acquitted both the accused for the reason that prosecution could not prove its case, beyond .
reasonable doubt. Hence the present appeal by the State.
14. On appreciation of the entire evidence and application of law, including the settled judicial precedents, my reasoning is given hereinafter:
15. The substratum of the case set up by the prosecution was reiterated by the Investigating Officer, SI Ram Pal (PW-10). He did not even whisper a word that the search and seizure memo (Ext. PW-1/A), NCB form (Ext. PW-
7/D), cloth parcels, seal impression of seal-N, sealing wax (laakh), thread and needles were either with him or he had deputed somebody to bring it from the nearby police station, which was just at a distance of about 100 meters from the spot.
16. A bare perusal of daily diary report (Ext.PW-7/F) reveals that there is no mention that when the police party had gone for patrolling, they were also carrying the investigation kit. There is no mention that the police party was having any source of light or torch with them.
::: Downloaded on - 29/09/2019 00:24:44 :::HCHP 1317. The patrolling was general in nature. Spot is a national highway and it is usual for the police to patrol. Such .
movement is sometimes to control the traffic for high dignitaries and sometimes for control of traffic. Therefore, even if in this departure report (Ext. PW-7/F), there would have been mentioning of patrolling being conducted to detect crime, even then it could have been presumed that the investigating team was carrying the investigating kit with them. However, this is not the case.
18. At 8.00 p.m., when the police party left the police station, it can reasonable be presumed that they may be carrying some search light with them. However, the fact that the Investigating Officer was having any search light with him was not proved on record. In spot map (Ext. DA), there is no mention of any street light on the spot. However, this lapse can be ignored as omission on the part of the Investigating Officer and also because it was not disputed by the accused in cross examination. I am not inclined to draw any adverse inference against the prosecution simply because this fact was not proved.
::: Downloaded on - 29/09/2019 00:24:44 :::HCHP 1419. The improbabilities emerging out of the story of the prosecution are unexplainable. The prosecution did not .
arraign both the accused under Section 20 read with Section 29 of the NDPS Act but their case is of exclusive and conscious possession of both the accused with the aid of Section 20 of the NDPS Act alone.
20. The police witnesses stated that when they had reached a place near Kasauli Chowk near Dharampur, then at 10.45 p.m., they noticed two young persons standing near the rain shelter. Their further case is that on seeing the police, they tried to flee towards Kasauli, by holding one sling each of the bag. Therefore, according to the police, this bag had two slings. It is the case of the prosecution that on opening the bag they found charas weighing 4.5 k.g., two pants, two T-shirts and one shawl. Now the weight of the bag, shawl, T-fhirts and pants would be 4 to 5 kilograms and so the total weight of the bag at the most would be 10 kilograms. In the earliest report (Ext. PW-2/A), it is specifically mentioned by the police that they noticed two young men. In the statements recorded under Section 313 Cr.P.C., Ashok Kumar (Accused A-1) has mentioned his age ::: Downloaded on - 29/09/2019 00:24:44 :::HCHP 15 as 21 years and Milap Chand (Accused A-2) as 29 years.
Both the accused hail from a remote village area of Ani, .
Distt. Kullu, H.P. Judicial notice can be taken of the fact that most of the remote hilly terrains are not connected by roads and even if roads are there, people do not use vehicles to commute from one place to another. Mostly people walk uphill and downhill and that is why people are strong and healthy. Now these two adult males, each of whom would have easily carried weights in excess of 50 kilograms uphill and for miles together, would not share the load of a bag weighing 9 to 10 kilograms, by holding one sling each. It is difficult to run away when two persons are holding a load instead when one is holding it. Moreover, the time when the police party noticed these persons was 10.45 p.m. Spot map (Ext. DA) does not show any street light. Neither the Investigating Officer nor any spot witness say that they had seen them with the help of search lights. All this makes the entire story of the prosecution highly doubtful.
21. Prosecution tried to implead both the accused with the bag and recovery of photocopy of election identity card of Milap Chand (Accused A2). This is again extremely ::: Downloaded on - 29/09/2019 00:24:44 :::HCHP 16 doubtful and is also contradicted from other evidence on record.
.
(a) In the earliest documents, that is, seizure memo (Ext. PW-1/A), ruka (Ext. PW- 2/A), special report (Ext. PW-5/A), FIR (Ext. PW-
7/E), it is consistently mentioned that from the bag, one photocopy of identity card issued by the Election Commission to Milap Chand (accused A2) was recovered. During the trial, spot witness, HC Kedar Nath (PW-1), in his examination-in-chief stated that police had recovered one identity card from the bag. He did not say that they had recovered photo copy of the identity card. He was not cross examined on this count by the Public Prosecutor nor was this evidence rebutted.
(b) Now when the case property was opened in Court, from the bag two photocopies of the Identity Card were recovered and exhibited as Ext. P-10 and Ext. P-11. Case of the prosecution that bag was sealed at the spot, there and then, and it was later on opened only in the Court when the Court found the seals to be intact, establishes that the bag was never sealed at the spot and later on these photocopies of the Identity Cards, were introduced by the police and put in the bag.
::: Downloaded on - 29/09/2019 00:24:44 :::HCHP 17(c) The other spot witness Constable Yash Pal (PW-2), in his examination-in-chief, .
specifically stated that "one identity certificates issued by Election Officer in the name of Milap Chand" was found in the bag. In his cross examination, he stated that after drawing of samples, Identity Card was also put in the main bag (Ext. P1). Now instead of photocopy, this witness has stated Identity Card. So they have contradicted the substratum of the case of the prosecution of recovery of photocopy of election card issued by the Election Commission.
(d) The other spot witness, ASI Jai Gopal (PW-3), has also stated that from the bag, one photocopy of identity card issued by the Election Commission in the name of Milap Chand (Accused A2) was found.
(e) However, the Investigating Officer, SI Ram Pal (PW-10) fully contradicted his own case as set up in the special report under Section 57 of the NDPS Act, and other documents i.e. search memo (Ext. PW-1/A), ruka (Ext. PW-2/A) and FIR (Ext. PW-7/E), wherein it was categorically mentioned that only one photocopy of election card issued by the Election Commission was found from the bag. It is evident that when the alleged sealed ::: Downloaded on - 29/09/2019 00:24:44 :::HCHP 18 bag (Ext. P1) was opened in Court and two photocopies of the election identify card of .
Milap Chand (Accused A2) were recovered then he cleverly improved his case of one photocopy of election identity card to two photocopies of election identity cards. Be that as it may, he has been contradicted by HC Kedar Nath (PW-1) and Constable Yash Pal (PW-
2), who say that election identity card was recovered and not the photocopy.
(f) Now case of the prosecution is that the accused were aware that they were committing the crime and that is why they tried to run away. On that analogy, they would also be aware of the stringent sentencing under the NDPS Act. Can it be believed that they would keep photocopies (Ext. P-10 and P-
11) of election identity card in the bag, which contained the contraband? It appears that the prosecution wanted to prove conscious possession and that is why they introduced photocopy of identity card to connect Charas with Milap Chand (Accused A-2).
22. Another glaring defect in the evidence proved by the prosecution is that the link evidence is not proved.
Substantive evidence of charas having been found, could be proved, only when same was tendered in evidence in the ::: Downloaded on - 29/09/2019 00:24:44 :::HCHP 19 Court, during trial. Prosecution did tender the bulk charas as Ext. P-4, one sample of charas (S-I) as Ext. P-12, and .
another sample (S-II) as Ext. P-13. But before prosecution could prove this substantive evidence, they were under obligation to prove that these were not tampered with, from the time of its seizure till the time of its production in the Court. As far as sample (S-I) is concerned, same was sent to SFSL Junga, which found the seals on it tallying with the initial seals. So far as the second sample (S-II) is concerned, the seals on it were also found to tallying. But as far as the bulk parcel of charas weighing 4 k.g. and 400 grams is concerned, as per own case of the prosecution, after its detection it was placed back in the same bag alongwith clothes and one photocopy of the election identity card.
Such bag was sealed in cloth parcel and 12 seals of impression-N were embossed on the cloth parcel. Further case of the prosecution is that after its use the seal was handed over to HC Kedar Nath (PW-1). During his examination-in-chief, HC Kedar Nath did not testify that the Investigating Officer (PW-10) had handed over seal impression 'N' to him. The Investigating Officer (PW-10) did ::: Downloaded on - 29/09/2019 00:24:44 :::HCHP 20 not tender in evidence any receipt whereby HC Kedar Nath (PW-1) had acknowledged the receipt of seal impression 'N'.
.
Prosecution simply did not prove this fact. At this point in time, it is pertinent to mention that even defence counsel did not cross examine HC Kedar Nath (PW-1) about the non production of the seal in Court. But it is to be kept in mind that the burden is on the prosecution and the initial burden would shift only when the primary burden is discharged, which is not done in the present case.
23. As already stated, when the bag was opened in the Court during trial, two photocopies of election identity cards were found, which were marked as Ext. P-10 and Ext. P-11.
It is not the case of the prosecution that both the papers were sticking to each other and that is why initially the Investigating Officer (PW-10), during night, could not detect whether it was a single photocopy or double photocopies.
Rather, no explanation has been offered by the prosecution regarding this and instead they improved their case from one copy to two copies without offering any explanation as to how it happened. Instead, spot witnesses Constables Yash Pal (PW-2) and Kamal Kumar (PW-11), stated election ::: Downloaded on - 29/09/2019 00:24:44 :::HCHP 21 card and not its photocopy. Only inference, which can be drawn, is that the bag was never sealed at the time when .
ruka was sent for the registration of the FIR. At some later stage, the formality of sealing was done, without realizing that, instead of one photocopy, two photocopies were placed. Be that as it may, prosecution did not prove that the bag allegedly containing charas was untampered from its seizure to its production in the Court.
24. In Noor Aga v. State of Punjab another, (2008) 16 SCC 417, Supreme Court observed as under:
"91. The logical corollary of these discussions is that the guidelines such as those present in the Standing Order cannot be blatantly flouted and substantial compliance therewith must be insisted upon for so that sanctity of physical evidence in such cases remains intact. Clearly, there has been no substantial compliance of these guidelines by the investigating authority which leads to drawing of an adverse inference against them to the effect that had such evidence been produced, the same would have gone against the prosecution."
25. Another contradiction in the case of the prosecution is that when they are trying to connect the bag through photocopy of election identity card of Milap Chand (Accused A-2) then what was the evidence against Ashok ::: Downloaded on - 29/09/2019 00:24:44 :::HCHP 22 Kumar (Accused A-1). Prosecution did not lead any evidence to prove that he was aware of the contents of the bag. The .
prosecution did not make Ashok Kumar (Accused A-1) or even Milap chand (Accused A-2), wear the clothes found in the bag, which was the best evidence. In fact, none of the accused were made to wear the pants (Ext. P-6 and P-7) and T-shirts (Ext.P-8 and Ext. P-9). As such, the evidence of the prosecution of finding a photocopy of the election identity card from the bag containing charas, absolves Ashok Kumar (Accused A-1) of his knowledge of contraband and its possession, in the absence of any other evidence to implicate him. He was not charged under Section 29 of the NDPS Act or 120-B of the Indian Penal Code.
26. HHC Hem Raj (PW-1) was cross examined about independent witnesses and he admitted that road being a National Highway remains busy. Similarly Constable Yash Pal (PW-2) was also examined on this aspect and he admitted the suggestion of the defence lawyer to be correct that there are certain shops on the spot. ASI Jai Gopal (PW-3) was also given a similar suggestion and he said that police party remained on the spot till 1.30 a.m. and nobody from ::: Downloaded on - 29/09/2019 00:24:44 :::HCHP 23 the locality was called, as it was winter season. He improved the case by saying that Constable Kamal Kumar .
(PW-11) was asked to bring witnesses but he came back alone. But this is not corroborated by any other witness including Constable Kamal Kumar (PW-11), who did not whisper a word about his being sent to bring independent witnesses. The Investigating Officer, SI Ram Pal (PW-10), was specifically cross examined that nothing was done at the spot and everything was done in the police station.
Version of the defence was also put to him. He was also suggested that he had retained the bus tickets of the accused.
27. The alleged spot was a National Highway, the busy Shimla - Chandigarh Road. Time was 10.45 p.m., which cannot be said to be midnight. As per its own case, the police were able to procure the weights and scale from Chand Kishore (PW-4). Even if no other witness was associated, then why was Chand Kishore (PW-4) not associated for seizure, sampling and other documentation.
At least, he could have proved the presence of the accused at the spot, with the bag. This assumes significance, in view ::: Downloaded on - 29/09/2019 00:24:44 :::HCHP 24 of the defence taken by the accused, which is corroborated by the conductor of the bus Sushil Kumar (DW-1). The .
Investigating Officer did not make any endeavour to associate independent witnesses. Chand Kishore (PW-4), from whom Constable Kamal Kumar (PW-11) has claimed to have brought the weights, testified that near his residence there are certain other residences. Even otherwise, the police stations are not in isolated areas but usually near habitats. Failure to associate independent witnesses would lead to an inference that the manner in which prosecution has suggested the nabbing of the accused and search and seizure on the spot, in fact it was not done in such manner.
On the other hand, it would lend corroboration to the version set up by the defence.
28. Another aspect of the case is that when initially the charas was detected then samples of 50 grams each were taken. There is not even iota of evidence to say that the Investigating Officer (PW-10) had tried to take out the representative samples. There is no evidence that he mixed the entire bulk, or took out 50 grams from various parts of the bulk by taking some from the bottom, some from the ::: Downloaded on - 29/09/2019 00:24:44 :::HCHP 25 middle or some from the top and then sealed the samples.
Therefore, in the absence of the same, it cannot be said .
that the sample (S-I) which was sent to the Laboratory, was the representative sample of the bulk. It cannot be said that the remaining bulk was charas. No presumption can be raised that because the sample was tested to be charas, therefore, the untested substance is also charas.
29. Entire bulk or sample representing each mass must be sent for testing. In Gaunter Edwin Kircher vs. State of Goa, (1993) 3 SCC 145, factual matrix of case of prosecution was two cylindrical pieces of "Charas" were recovered, which were weighed and found to be 7 grams and 5 grams, respectively. They were seized under a panchnama and were separately sealed in two different envelopes. One of the pieces weighing less than 5 grams was sent for chemical analysis and the other piece weighing 7 grams was not sent nor part of it by way of sample was sent for chemical analysis. Hon'ble Supreme Court observed as under:
"5. ... ...Before examining the scope of this provision, we shall first consider whether the prosecution has established beyond all reasonable ::: Downloaded on - 29/09/2019 00:24:44 :::HCHP 26 doubt that the accused had in his possession two pieces of Charas weighing 7 gms and 5 gms respectively. As already mentioned only one piece .
was sent for chemical analysis and PW 1, the Junior Scientific Officer who examined the same found it to contain Charas but it was less than 5 gms. From this report alone it cannot be presumed or inferred that the substance in the other piece weighing 7 gms also contained Charas. It has to be borne in mind that the Act applies to certain narcotic drugs and psycholtropic substances and not to all other kinds of intoxicating substances. In any event in the absence of positive proof that both the pieces recovered from the accused contained Charas only, it is not safe to hold that 12 gms of Charas was recovered from the accused. In view of the evidence of PW 1 it must be held that the prosecution has proved positively that Charas weighing about 4.570 gms was recovered from the accused. The failure to send the other piece has given rise to this inference. We have to observe that to obviate this difficulty, the concerned authorities would do better if they send the entire quantity seized for chemical analysis so that there may not be any dispute of this nature regarding the quantity seized. If it is not, practicable, in a given case, to send the entire quantity then sufficient quantity by way of samples from each of the packets or pieces recovered should be sent for chemical examination under a regular panchnama and as per the provisions of law."::: Downloaded on - 29/09/2019 00:24:44 :::HCHP 27
30. In Harjit Singh v State of Punjab, (2011) 4 SCC 441, .
Hon'ble Supreme Court observed as under:
"17. ... ... Thus, chemical analysis of the contraband material is essential to prove a case against the accused under the NDPS Act".
31. Therefore, at the most, accused persons could have been convicted only for possessing 54.86 grams, which was measured as such in the report of SFSL (Ext. PW-
9/A), which is the small quantity and maximum punishment provided at that time was six months. Both the accused were arrested on 18.12.2008 and they were in custody during the trial, till they were acquitted vide judgment dated 20.10.2009. It means that they already remained in custody for more than ten months. Be that as it may, this fact would have come into force only when the prosecution would have proved its case of possession, which as per the above reasoning, it has already failed to do so.
32. Having perused the testimony of the prosecution witnesses on record, it cannot be said that prosecution has been able to prove its case, beyond reasonable doubt, by leading clear, cogent, convincing and reliable material on ::: Downloaded on - 29/09/2019 00:24:44 :::HCHP 28 record to the effect that accused were found in conscious and exclusive possession of 4 k.g. and 500 grams of charas, .
in contravention of the provisions of the NDPS Act.
33. Resultantly, even if the learned Special Judge gave slightly different reasons in the judgment of acquittal, it does not mean that this Court is barred from discussing the other evidence from the record or not consider the entire material in a holistic manner. Result would remain the same and the accused were rightly acquitted.
34. The trial Court, in my considered view, has correctly appreciated the evidence. It cannot be said that the judgment of trial Court is perverse, illegal, erroneous or based on incorrect and incomplete appreciation of material on record, resulting into miscarriage of justice and, as such, no interference is warranted in the instant case.
Resultantly, present appeal filed by the State is dismissed. Bail bonds, if any, furnished by the accused are discharged.
(Anoop Chitkara), Judge.
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