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SATYEN VAIDYA, J. –

The State of Himachal Pradesh is in appeal against judgment of acquittal dated 01.01.2011 passed by learned Special Judge-I, Sirmaur District at Nahan, H.P. in Sessions Trial No. 8-ST/7 of 2010.

2. The respondent was charged as under:

“That on 19.12.2009 at about 1.00 P.M. at Giripul under Police Station, Rajgarh, you were found in conscious and exclusive possession of charas weighing about 8.00 Kgs. and that you thereby committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and within the cognizance of this Court.”

3. The case as set-up by the prosecution against the respondent was that on 19.12.2009, PW-2 Constable Rajinder Kumar was on duty alongwith H.C. Sanjay Kumar to escort an accused from Police Station, Rajgarh to the Court of learned JMFC, Sarahan. On way near place Neri Mor, the respondent was spotted dragging his punctured motorcycle on the road with a blue coloured bag tied on the carrier of motorcycle. When queried by PW-2 C. Rajinder Kumar, the respondent became perplexed and such conduct of respondent gave reasons to PW-2 to suspect some foul. PW-2 telephonically informed the Police Station, Rajgarh. The information received at Police Station, Rajgarh was recorded vide G.D. Entry No. 22(A) at 12.10 P.M (Ext.PW-9/A).

4. On above information, PW-9 SI/SHO Rajinder Chauhan alongwith ASI Dula Ram and C. Pritam Singh (PW-1) reached the spot. PW-2 C. Rajinder Kumar was also asked to remain present on the spot. Two independent witnesses namely Man Singh (PW-7) and Satish Kumar (PW-8) were called on the spot through PW-1 C. Pritam Singh.

5. The above mentioned police officials and independent witnesses offered their personal search to the accused and a memo Ext. PW-1/A was prepared. Thereafter, the respondent was afforded option to be searched either in presence of Gazetted Officer or a Magistrate. The respondent had opted to be searched by the police officials present on spot. Memo Ext. PW-1/B was prepared.

6. The bag tied on the carrier of motorcycle was searched and two polythene packets were found inside the bag besides some clothes. On opening the packets, Charas in the shape of small sticks and round shape was recovered. Thereafter, the tool bag of the motorcycle was also checked and another red coloured packet was found therein, which also contained Charas. The recovered Charas was weighed. 3.00 Kgs. of Charas was found in each of the packets recovered from the blue coloured bag and 2.00 Kgs. Charas was found to be contained in packet recovered from tool bag of the motorcycle. The recovered Charas was made homogeneous and a sample weighing 100 grams was prepared and sealed in a cloth parcel with four seals having impression “T”. The remaining bulk weighing 7.900 Kgs. was wrapped in paper, card board and then placed in the polythene packed from which the contraband was recovered and finally placed in a cloth parcel sealed with four seals having impression “T”. The relevant columns of NCB form Ext. PW-9/C were filled by PW-9 SI/SHO Rajinder Chauhan. The sample and bulk contraband were seized alongwith other evidence vide seizure memo Ext. PW-1/C.

7. The Investigating Officer prepared Rukka Ext. PW-5/A and sent the same to Police Station, Rajgarh through PW-1 C. Pritam Singh. FIR Ext. PW-5/B was registered at Police Station, Rajgarh. The respondent was formally arrested and brought to the Police Station Rajgarh alongwith seized contraband and collected evidence. The contraband alongwith NCB form etc. were deposited in the Malkhana of the Police Station by PW-9 SI/SHO Rajinder Chauhan. MHC of the Police Station HC Roshan Lal (PW-4) received the contraband and other collected evidence and made entries in the Malkhana Register. The extract of Malkhana Register is Ext. PW-4/A.

8. On 21.12.2009, the MHC of Police Station, Rajgarh PW-4 sent the sealed packet containing bulk Charas 7.900 Kgs. to SFSL, Junga for chemical analysis vide R.C. Ext. DX. The parcel containing bulk Charas weighing 7.900 Kgs. was received at SFSL, Junga on 22.12.2009. On chemical analysis, the report Ext. PX was prepared by SFSL, Junga and was sent back to Police Station, Rajgarh. The bulk was found to be extract of cannabis and sample of Charas.

9. The photographs Ext. PW-9/B and Ext. PW-9/D were clicked on the spot of recovery. On completion of investigation, the report under Section 173 Cr.P.C. was filed. The respondent was charged as above.

10. The prosecution examined nine witnesses besides proving on record various documents. The respondent was examined under Section 313 Cr.P.C. He did not choose to lead defence evidence. The respondent has been acquitted by learned trial Court vide impugned judgment.

11. We have heard learned counsel for the parties and have also gone through the records of the case carefully.

12. The perusal of impugned judgment reveals that the learned trial Court had doubted the prosecution story on the grounds firstly that the independent witnesses had not supported the prosecution case, secondly, the seal was not produced in the Court, lastly and most importantly had found serious gaps in the prosecution case such as nonrecording of material entries in the Malkhana Register Ext. PW-4/A, there being no justifiable explanation as to the safe custody of contraband during the intervening night of 21/22.12.2009 and the sample having not been sent for chemical analysis etc.

13. We have analyzed the entire evidence and have found the view taken by learned trial Court to be a possible one and borne from the material on record, for the reasons detailed hereafter.

14. PW-1 C. Pritam Singh, PW-2 C. Rajinder Kumar, PW-7 Man Singh, PW-8 Satish Kumar and PW-9 SI/SHO Rajinder Chauhan have been examined as spot witnesses. The police witnesses i.e. PW-1, PW-2 and PW-9 have corroborated each other with respect to the events stated to have taken place on spot. Both the independent witnesses, however, have rendered their own versions which substantially have been different from the version rendered by police witnesses. As per PW-7 Man Singh, there was a female and child aged about 4 years on spot besides the respondent at the time when he reached there. According to PW-8 Satish Kumar only woman and child was present on the spot when he reached and as per this witness respondent was not there. Both these witnesses are signatories to document Ext. PW-1/A search memo, Ext. PW-1/B consent memo, Ext. PW-1/C seizure memo and they after being declared hostile during their cross-examination by the Public Prosecutor have not denied their signatures. It is settled that the evidence of hostile witnesses is not to be discarded as a whole. Since none of these independent witnesses have rendered any plausible explanation for signing the aforesaid documents, it can be presumed that they have signed it after going through the contents. It being so, their presence on spot is established and the recovery of contraband from the bags found on the motorcycle is also proved.

15. However, after evaluating the entire evidence on record, we are constrained to doubt the prosecution story despite the fact that the prosecution witnesses have proved the recovery of contraband from the bags carried on the motorcycle. The first reason for taking the prosecution story with the pinch of salt is that it had initiated at a juncture when only two police officials and the accused in some other case accompanying them had confronted the respondent on spot. Thereafter, there was a gap of time. The DDR No. 22(A) Ext. PW-9/A had been recorded in Police Station at 12.10 P.M. As per PW-9, he alongwith police party had reached the spot at about 1.00 P.M. During trial the other police official accompanying PW-2 C. Rajinder Singh or the accused alleged to have been escorted by them have not been produced as witnesses. There is nothing on record to suggest what had happened in between the period when PW-2 C. Rajinder Singh and HC Sanjay Kumar has first entertained suspicion against the respondent and the time when the Police party reached the spot from police station.

16. PW-1/A search memo is the first document prepared on spot and it is witnessed by some person named as Surinder Kamal. There is no explanation regarding this person as to how he was associated and why he did not continue to associate after preparation of search memo Ext. PW-1/A.

17. It can be next seen that the Investigating Officer PW-9 had taken a homogeneous sample of 100 grams out of the entire bulk. Two separate parcels of the sample and remaining bulk were prepared and sealed. As per PW-9, column Nos. 1 to 8 of NCB form Ext. PW-9/C were filled at spot. Its perusal reveals that there is a mention of only one parcel seized by the police containing 7.900 Kgs. of Charas. The description of second parcel containing homogeneous sample weighing 100 grams is conspicuously absent from the NCB form. There is no explanation for such a gross omission.

18. The above omission can be linked to another glaring fact proved on record. It is not in dispute that the parcel containing of 100 grams Charas (homogeneous sample) was never sent to SFSL, Junga for analysis. The reasons are again unexplained.

19. Road Certificate Ext. DX clearly shows that only one parcel containing 7.900 Kgs. Charas was sent on 21.12.2009 from Police Station, Rajgarh to SFSL, Junga. The SFSL report Ext. PX also verifies the fact that only one parcel containing 7.900 Kgs. of Charas was received in the Laboratory. It is also established on record that the parcel was received by SFSL, Junga on 22.12.2009.

20. PW-5 HHC Nand Lal was the carrier of parcel containing contraband from Police Station, Rajgarh to SFSL, Junga. During his deposition, he tried to explain that on 21.12.2009 the parcel was not received by SFSL, Junga on account of objection regarding the non-accompanying of the parcel containing homogeneous sample. According to this witness, he had brought back the parcel to Police Station, Rajgarh and had deposited the same with PW-4 MHC of the Police Station. To similar effect is the statement of PW-4 HC Roshan Lal (MHC). He also stated that the parcel was returned back by PW-5 HHC Nand Lal to him on 21.12.2009 and the same was again sent through the same official i.e. PW-5 to SFSL, Junga on 22.12.2009. The man may lie but documents do not. Ext. PW-4/A extract of Malkhana Register has no entry of return of parcel containing contraband on 21.12.2009. As per the proforma of the Register, the entries are made in a seriatim. On the left of Ext.PW-4/A an entry has been made purportedly by PW-4 but its contents undoubtedly prove that the entry was incorporated on 22.12.2009. Thus, the safe custody of the contraband between 21.12.2009 and 22.12.2009 is seriously questionable.

21. Another fact that has drawn our attention is the statement of PW-7 Man Singh. In his cross-examination, the witness deposed that though the seal with impression “T” was handed over to him by the I.O. on 19.12.2009, but the same was taken back by the police on the next day. The witness thereafter was not re-examined on this important aspect and his statement to that effect remained unrebutted. If we link the above version of PW-7 with the fact that there is serious discrepancy with respect to the safe custody of contraband during the period between 21.12.2009 and 22.12.2009, it gives us a strong reason to suspect the prosecution version.

22. Though learned Deputy Advocate General submitted that the entry with respect to return of parcel containing contraband in the Malkhana has been recorded vide DDR, but we have not found any such document having been proved during the trial. It also leads us to draw adverse inference against prosecution for not proving such an important document.

23. Another fact which again cannot escape attention is the absence of proof of return of the parcel containing contraband from SFSL, Junga to Police Station, Rajgarh. This gains importance as while observing the condition of the case property brought before the trial Court, it was observed that three seal impressions were broken and the fourth though partially broken was also not legible.

24. Thus, we have no hesitation to concur with the findings and the conclusions drawn by learned trial Court regarding the doubts created in the prosecution story by the gaps found therein. It is settled that in appeal against acquittal the appellate court cannot substitute its view with the view taken by learned trial court unless such view is illegal and perverse. We do not find the instant case to be falling in above category.

25. In view of above discussion, we find no ground to interfere with the impugned judgment. The appeal is accordingly dismissed. Judgment dated 01.01.2011 passed by learned Special Judge-I, Sirmaur District at Nahan, H.P. in Sessions Trial No. 8-ST/7 of 2010, is affirmed.

26. The respondent is directed to furnish personal bond in the sum of Rs.50,000/- with one surety in the like amount to the satisfaction of learned Registrar (Judicial) of this Court strictly in terms of the provisions of Section 437-A of Cr.P.C.

27. The appeal is disposed of so also the pending miscellaneous application(s) if any. Records be sent back forthwith.

Appeal dismissed.

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