CRIMINAL APPEAL 34 of 1999 on 28 September 2000

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Criminal Appeal No. 34 of 2001

Date of Decision:22[nd] December, 2010

State of Himachal Pradesh

Appellant

Versus Raju Respondent

Coram

The Hon’ble Mr. Justice R.B.Misra,J. The Hon’ble Mr. Justice Sanjay Karol,J.

Whether approved for reporting[1]? No.

For the appellant: Mr. R.K.Sharma, Sr. Addl. Advocate General.

For the respondent: Mr.Deepak Bhasin, Advocate.

Sanjay Karol, J.(Oral)

For an offence, which is alleged to have been committed on 30.05.19979, accused was put to trial. In terms of judgment dated 28.9.2000 passed by learned Sessions Judge, Una, H.P., in Sessions case No.34 of 1999 titled as State of H.P. vs. Raju, accused stands acquitted of the charged offence.

2. It is the case of the prosecution that in May, 1999 accused was working as a servant in the orchard owned by Whether the reporters of Local Papers are allowed to see the Judgment?

Subhash Guatam at Jatpur (Santokhgarh). Accused was residing in the house, which was in the dilapidated condition, situated on the orchard itself. On 30.5.1999 Constable Subhash Chand (PW-9) received a secret information that accused was dealing with sale and purchase of poppy husk. This information was got recorded with Inspector Kishan Singh (PW-11). Memo (Ext.PC) was sent to the Police Station for endorsement (Ext.PC/1). Information report (Ext.PA) was sent by Inspector Kishan Singh (PW-11) to the concerned Superintendent of Police through LHC Dalbir Singh (PW-2). Thereafter PW-11 associated Smt. Nirmala Devi (PW-8), Narinder Rana and Bhajan Singh, Panches of Nagar panchayat Santokhgarh and formed a raiding party. Kishan Singh also informed Dy.S.P. about the same. The raiding party including Shri Madhusudan Dy.S.P. (PW12) carried out the search of the room occupied by the accused. On query accused disclosed his name as Raju. Kishan Singh (PW-11) informed him that he was suspected of dealing with sale and purchase of Poppy Husk without permit. Offer of search (Ext.PK) was given to the accused. Room in which accused was allegedly staying was searched by PW-12 and PW-11 in the presence of independent witnesses. From the room, one drum covered with Tarpaulin filled with poppy husk was recovered and a bag full of poppy husk was also found lying nearby. Upon weighing poppy husk recovered from the drum was found to be 92 kg. 700 gms. and poppy husk recovered from the bag was found to be 13 kg. 100 gms. Two samples each of 500 gms. were taken from the poppy husk recovered from the drum and the bag. Four samples and the remaining poppy husk were sealed with seal impression ‘S’. Seal was handed over to Smt. Nirmala Devi (PW-8) and contraband substance taken into possession vide recovery memo (Ext.PL). Accused was arrested vide memo (Ext.PM) after being informed of the grounds of arrest. After completion of investigation at the spot, Kishan Singh (PW-11) deposited the case property in the Police Station with SHO ASI Kishan Singh (PW-4), who then re-sealed it and deposited the same with MHC Kulwant Rai (PW-6). Kishan Singh prepared report (Ext.PF) and sent it to Superior Officer through SI Sarup Chand. Same was received by ASI Mahant Ram (the Reader to S.P.). Sealed samples were sent through Constable Chint Ram (PW-4) for chemical analysis to the Chemical Examiner at Kandaghat and report (Ext.PL) obtained by the police. With the completion of investigation, challan was presented in the Court for trial.

3. Accused was charged for having committed an offence punishable under Section 15 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (for short, the Act), to which he did not plead guilty and claimed trial.

4. In order to prove its case prosecution examined 12 witnesses and statement of accused under Section 313, Cr.P.C. was also recorded.

5. Accused was acquitted of the charged offence by the trial Court, hence the present appeal.

6. Prosecution has to prove, beyond reasonable doubt that 75 kg. 800 gms. of poppy husk was recovered from the conscious possession of accused.

7. Having minutely examined the statements of the prosecution witnesses, we are of the view that no case for interference is made out by the prosecution. In the instant case, relevant witnesses have materially contradicted themselves with regard to not only the time of search but also the place and the manner in which the recovered contraband was weighed. We found that presence of PW-12 Dy.S.P. Madhusudan (PW-12) at the spot to be doubtful.

8. According to Kishan Singh (PW-11) search was carried out in the presence of independent witnesses and the Dy.S.P. (PW-12). He states that Dy. S.P. reached at the spot at about 3 p.m. and only thereafter search operation was commenced. Dy. S.P. was present at the spot till 7 p.m. and only thereafter left for his office. While he was present all proceedings took place before him. Now PW-12 states that he reached the spot at about 3.30 p.m. The contradiction is minor and, therefore, ignorable. However, significantly he could not remember the type of construction and material used for construction of the room from where recovery was effected. Even the description of the room from which contraband was recovered does not match with the description narrated by PW-11. According to PW-12, room was without shutter of the door. The dilapidated house was without roof. If this were so then obviously prosecution case that accused was residing in the house stands falsified. Also he could not state the type and the quality of the tree with which the scales were hung at the spot weighing the seized contraband. Even PW-8 does not corroborate presence of the Dy.S.P. at the spot.

9. According to PW-11 search commenced at about 3 p.m. Now this version of his stands materially contradicted by the unrebutted and uncontroverted testimony of Smt. Nirmala Devi (PW-8), Pradhan, Nagar Parishad, Santokhgarh, who in no uncertain terms has categorically deposed that she was associated by the police at about 11 a.m. and within just 2-3 minutes thereafter they reached the site in question and the police carried out the search and seizure operations. According to him, the operation went on for about half an hour and after proceedings concluded police went away and they returned from the spot by about 12 noon. This version she qualifies by stating that they remained at the spot till about 3-4 p.m. Even this version of hers does not improve the prosecution case. We also note that this witness does not state that the drum from which contraband substance was covered was actually covered with tarpaulin. She also deposed that local people were associated for digging out the drum from the pit. They have not been associated by the police during investigation nor examined in Court.

10. According to PW-11 weighing scales were got from the flour mill belonging to Prem Lal. Scales were hung on the tree found at the spot and after weighing the seized contraband they were returned to the owner. Significantly in cross-examination he could not tell the species of the tree with which the scales were hung. Be that as it may be, even otherwise this version of his stands materially contradicted by Ashok Kumar (PW-1), nephew of Prem Lal, who categorically states that the material brought by the police for weighing at their flour mill was weighed there. This witness was declared hostile and cross-examined by the Public Prosecutor. However, in spite of extensive cross-examination prosecution could not show that he falsely deposed. This contradiction is absolutely material and goes to the root of the matter. In fact version of PW-1 stands corroborated by the unrebutted testimony of PW-8, who deposed that, “ Police and we witnesses went to the flour mill while other persons remained there. It was weighed by the person who was the owner of the flour mill. Thereafter, the proceedings in writing were drawn”.

11. We may further observe that recovery took place from the spot which was neither fenced nor enclosed. Possibility of the contraband substance being placed in a room by somebody else, which was in a dilapidated condition and lying in an uninhibited state cannot be ruled out. Smt. Nirmla Devi (PW-8) has categorically deposed that no belongings of the accused were found or recovered from that place. In fact grass was stacked in the room and fresh grass had also grown in the portion of the room. It is a big farm of 8-9 acres and open from all sides. There is a foot path adjoining the farm land. Importantly no action whatsoever has been taken by the police against the owner of the land. At least he could have been associated during investigation.

12. Thus contradictions being glaring go to the root of the matter and as such learned Sessions Judge has rightly acquitted the accused. 13.Accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010)

1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. No ground for interference is made out. Present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged.

(R.B.Misra) Judge.

December 22, 2010 (C)

(Sanjay Karol) Judge.