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SATYEN VAIDYA, J. –

This is an appeal by the convict against the judgment and sentence dated 2.7.2019, passed by learned Special Judge, Ghumarwin, District Bilaspur, H.P. in Sessions Trial No. 7-3 of 2016, whereby, the appellant has been convicted for the offence under Section 21 of the Narcotic Drugs & Psychotropic Substances Act (for short the Act) and has been sentenced to undergo rigorous imprisonment for a term of ten years and to pay a fine of Rs. 1,00,000/-. In default of payment of fine, the appellant has been further ordered to undergo rigorous imprisonment for a period of one year.

2. The prosecution had alleged that on 9.3.2016, the police officials from Police Station, Ghumarwin, District Bilaspur while on patrol duty had laid a ‘Naka’ (picket) near Kasaul Bridge at a distance of about six KMs from the Police Station. Appellant was spotted walking from Kasaul Bridge side to the side of village Badhrog with a white coloured carry bag in his hand. On noticing the presence of police, the appellant became perplexed. He turned back and started running towards the side of the rivulet through a ‘Katcha’ path after throwing the carry bag on the road. The appellant was apprehended by the police. On checking the carry bag thrown by the appellant on the road, 30 bottles of syrup named ‘Relaxcof’ and 600 tablets of Tramadol Hydrochloride were recovered. The ‘Relaxcof’ bottles were found to have contents of codeine phosphate and chlorpheniramine maleate.

3. Having found violation of the Act, 30 numbers of bottles of ‘Relaxcof’ recovered from the bag carried by the appellant were placed in a cloth parcel and the parcel was sealed with six seals having impression ‘S’. The box containing 600 tablets of ‘Tramadol Hydrochloride’ were also placed in a separate cloth parcel and the said parcel was also sealed with six seals having impression ‘S’.

4. Relevant columns of ‘NCB form’ were filled. Facsimile of seal impression ‘S’ was preserved on a separate piece of cloth and on NCB Form. Recovery memo in respect of the recovered 30 bottles of ‘Relaxcof’ and 600 tablets of ‘Tramadol Hydrochloride’ was prepared. The Investigating Officer clicked the photograph at the spot.

5. ‘Rukka’ was prepared by the Investigating Officer and was sent to Police Station for registration of FIR through Constable Raj Kumar No. 476. FIR was registered.

6. The Investigating Officer prepared the spot map and formally arrested the appellant. The seized contraband was produced before the SHO, Police Station Ghumarwin, who after conducting the re-sealing proceedings, handed over the sealed contraband to MHC of the Police Station for safe custody in Malkhana.

7. On 10.3.2016, special report under Section 57 of the Act was prepared and sent to SDPO Ghumarwin through Constable Vipan Kumar No. 139.

8. On 16.3.2016, the appellant made a disclosure statement that he could identify the spot where he had purchased 30 bottles of ‘Relaxcof Syrup’ and 600 tablets of ‘Tramadol Hydrochloride’ for a sum of Rs. 4000/- from Ajay Dhiman and Subhash Chand. The appellant identified the spot in presence of Chint Ram Pradhan of Gram Panchayat, Dabla and Ram Prakash, Ward Member of the said Panchayat.

9. On the basis of information provided by the appellant, two other persons namely Subhash Chand and Ajay Dhiman were arrested. While in police custody on 18.3.2016, accused Subhash Chand made a disclosure statement under Section 27 of the Indian Evidence Act to the effect that he could get recovered bottles of ‘Relaxcof’ Syrup. On the basis of such disclosure, two bottles of ‘Relaxcof’ Syrup were recovered from a place behind a rain shelter at place Talai on Kuthera-Sarkaghat Road in the presence of Ms. Suman, President of Gram Panchayat Kuthera and Shri Dalel, Singh Ward Member of the said Panchayat.

10. The recovered two bottles of ‘Relaxcof’ Syrup having codeine phosphate were sealed in cloth parcel with six seals having impression ‘M’. Spot photographs were taken. Specimen of the seal was preserved on a separate cloth piece. NCB Form was filled. The contraband was handed over to SHO, Police Station, Ghumarwin, who after re-sealing the same handed over to MHC for safe custody in the ‘Malkhana’. Information under Section 57 of the Act was sent to SDPO, Ghumarwin on 21.3.2016.

11. During investigation, the contraband recovered on 9.3.2016 and 18.3.2016 were got examined from SFSL, Junga and were found to be samples of prohibited drugs namely Codeine Phosphate and Tramadol Hydrochloride.

12. The Investigating Officer also obtained mobile phone call details of all the accused persons. On completion of investigation, report under Section 173 Cr.P.C. was submitted. Appellant along with co-accused namely Subhash Chand and Ajay Dhiman were tried for offence under Sections 21 and 29 of the Act in Sessions Trial No. 7-3 of 2016 and vide impugned judgment, Subhash Chand and Ajay Dhiman were acquitted of all the charges whereas, the appellant was convicted and sentenced, as noticed above.

13. We have heard learned counsel for the parties and have also gone through the record carefully.

14. The State has not filed any appeal against the acquittal of Subhash Chand and Ajay Dhiman. Therefore, the findings recorded in respect of the acquitted persons have attained finality. Thus, what is required to be examined is the allegation against appellant of being found by the police in conscious possession of contraband near Kasaul Bridge on 9.3.2016 at about 7.30 PM.

15. As per prosecution, a police party comprising of PW-17 ASI Kewal Singh, PW-1 HC Prakash Chand No. 152, HC Jai Kishore No. 22, HHC Naresh Kumar No. 312, PW-2 Constable Raj Kumar No. 475, Constable Anil Kumar No. 470and HHC Ajeet Singh, driver of official vehicle No. HP-07-5317 had left Police Station, Ghumarwin for routine patrolling for detection of mining violations. DDR No. 43 Ext. PW-8/H-1 in respect of departure of police party was recorded at 5.13 PM at the Police Station. At about 7.30 PM, the police party had laid a picket near Kasaul Bridge. The appellant was found walking from Kasaul Bridge towards village Badhrog, however, on noticing the presence of police, appellant tried to flee from the spot by throwing a carry bag on the road. Appellant was apprehended. The carry bag was checked and 30 bottles of syrup named ‘Relaxcof’ and 600 tablets of ‘Tramadol Hydrochloride’ were recovered.

16. The recovered bottles and boxes containing tablets alongwith their respective contents were placed in separate cloth parcels and each parcel was sealed with six seals having impression ‘S’. Seizure memo Ext. PW-1/B was prepared. Sample of seal Ext. PW-1/A was preserved on a separate cloth parcel. NCB Form Ext. PW-8/E was filled. Photograph Ext. PW-17/A was taken at spot. ‘Rukka’ Ext. PW-17/B was prepared and sent to Police Station through PW-2, Constable Raj Kumar. On the basis of ‘Rukka’ Ext. PW-17/B, FIR Ext. PW-17/C was registered. After registration of FIR, the case file was brought back by PW-3, Constable Raj Kumar to the spot for handing over the same to the Investigating Officer PW-17 ASI Kewal Singh. Spot map Ext. PW-17/D was prepared. The appellant was formally arrested vide arrest memo Ext. PW-17/E.

17. The appellant along with seized drugs was handed over to PW-19, SI Ashok Chauhan, who was posted as SHO, Police Station Ghumarwin at the relevant time. He re-sealed the contraband by fixing four seals having impression ‘T’. Sample seal was preserved on separate cloth parcel Ext. PW-19/B. PW 19 SI Ashok Chauhan prepared re-sealing certificate Ext. PW-8/A and handed over the sealed parcel containing contraband to PW-8 MHC Mahender Singh for safe custody in the Malkhana.

18. On 10.3.2016, special report under Section 57 was sent by PW-17 ASI Kewal Singh to SDPO, Ghumarwin through PW-10, Constable Vipan Kumar, who had handed over the same to the CDPO, Ghumarwin. Special report was entered in the Special Report Register maintained in the office of SDPO, Ghumarwin and its extract has been proved on record as Ext. PW-14/A. A copy of special report has also been placed on record Ext. PW-14/B.

19. The case property was sent to SFSL Junga for scientific analysis on 11.3.2016 through PW-11 HHC Dinesh Kumar vide RC No. 35/16 Ext. PW-8/E. As per report of FSFL, Junga, bottles of Relaxcof were found to contain codeine phosphate and the samples of tablets recovered from the appellant were found to contain Tramadol Hydrochloride.

20. Prosecution examined PW-1 HC Prakash Chand No. 52, PW-2 Constable Raj Kumar No. 475 and PW-17 ASI Kewal Singh as spot witnesses.

21. There is no dispute as to the fact that the police party had not associated or even attempted to associate any independent witness. The explanation submitted in this regard by PWs, 1, 2 and 17 is that the place where the appellant was apprehended was secluded and no independent witness was readily available.

22. The association of independent witness is not the requirement of law. The conviction can be recorded on the basis of statement of police witnesses only, provided their statements inspire confidence and are consistent with the hypothesis suggested against the accused.

23. In Pramod Kumar vs. State (Government of NCT of Delhi) (2013) 6 SCC 588 Hon’ble Supreme Court has held as under:-

“13. This Court, after referring to State of U.P. v. Anil Singh, State, Govt. of NCT of Delhi v. Sunil and another and Ramjee Rai and others v. State of Bihar, has laid down recently in Kashmiri Lal v. State of Haryana that there is no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at large show their disinclination to come forward to become witnesses. If the testimony of the police officer is found to be reliable and trustworthy, the court can definitely act upon the same. If, in the course of scrutinising the evidence, the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him but it should not do so solely on the presumption that a witness from the department of police should be viewed with distrust. This is also based on the principle that quality of the evidence weighs over the quantity of evidence.”

24. In Sathyan vs. State of Kerala 2023 INSC 703, the legal position has been reiterated as under:-

“22. Conviction being based solely on the evidence of police officials is no longer an issue on which the jury is out. In other words, the law is well settled that if the evidence of such a police officer is found to be reliable, trustworthy then basing the conviction thereupon, cannot be questioned and the same shall stand on firm ground….”

25. In light of aforesaid exposition of law, we have gone through the statements of alleged spot witnesses in details and have also examined the relevant record.

26. The prosecution has relied upon the spot map Ext. PW-17/D alleged to have been prepared by PW-17 ASI Kewal Singh on spot after the recovery of the contraband. According to Ext. PW-17/D, Kasaul Bridge has been depicted by letter ‘E’. One side of bridge has been shown to be leading towards village Kasaul and the opposite side is shown to be leading towards villages Badhrog and Ghumarwin.

27. PWs 1 and 2 have been categoric about the fact that the police had placed the picket on the road towards that side of Kasaul bridge which lead towards village Badhrog. Even the spot map Ext. PW-17/D reveals the same position. Both the witnesses i.e. PW-1 and PW-2 have stated in unison that the appellant was coming from the side of village Kasaul and after crossing the Kasaul Bridge was proceeding towards village Badhrog. As per these witnesses, on noticing the police, the appellant had thrown his carry bag on the road and had started running towards rivulet through the ‘katcha’ path. By analyzing the statement of these witnesses vis-à-vis the contents of Ext. PW-17/D, it becomes clear that the ‘katcha’ path, through which the appellant had allegedly tried to flee, was on that side of Kasaul bridge which fell towards village Badhrog.

28. As compared to above, the investigating officer of the case PW-17 ASI Kewal Singh has given an entire different version. In the examination-in-chief, PW-17 had specifically mentioned that when he along with other police officials was present at Kasaul bridge, appellant was noticed coming from the side of village Badhrog with a white coloured carry bag in his right hand. This version of the investigating officer is in total contradiction to the prosecution case as also the statements of PWs 1 and 2. While being cross-examined, PW-17 had specifically mentioned that the police picket had been stationed on the Kasaul Bridge towards village Kasaul and not towards village Badhrog, which again is antithetical to the prosecution case. PW-17 further gave a total different spot position by stating that when one approaches Kasaul bridge from Ghumarwin, village Kasaul comes ahead of village Badhrog, whereas the position is different. While approaching village Kasaul from Ghumarwin, it is village Badhrog which comes earlier and after crossing the Kasaul Bridge at some distance is village Kasaul.

29. The contradictions in the statements of spot witnesses, as noticed above, cannot be brushed aside being insignificant. These are material contradictions. In fact in the statement of investigating officer PW-17, it clearly appears that either he was not on the spot or he had manipulated the records with some ulterior motives. It cannot be assumed that the investigating officer of the case would contradict himself with the document i.e. spot map Ext. PW-17/D prepared by him on spot. Even otherwise, his entire version is quite contrary to the prosecution story.

30. Another material discrepancy that has been found in the version given by PWs 1 and 2 on one side and PW-17 on the other is that according to PWs 1 and 2, the entire documentation was done inside the police vehicle as it had turned dark whereas according to PW-17, who is none else than the investigating officer of the case, the entire documentation was done outside the vehicle while standing on the road itself.

31. The burden of proof in a criminal trial is to be discharged by the prosecution by proving the allegations against the accused beyond all reasonable doubts. It is also well settled that the more stringent are the provisions of criminal law, more conscious approach has to be adopted by the Court.

32. In Amar Chand vs. State of H.P., Criminal Appeal No. 2035 of 2022 decided on 22.11.2022 Hon’ble Supreme Court has given the benefit of doubt to the accused by finding gaps in the prosecution story with respect to the location of site where the accused was allegedly apprehended with contraband. In the instant case also, the prosecution story has been shattered by the investigating officer himself. A serious doubt has been created and it is cardinal principle of criminal jurisprudence that every doubt in prosecution story has to benefit the cause of accused.

33. Since, we have found the statements of spot witnesses to be contradictory and discrepant the same cannot be held sufficient to hold the appellant guilty in absence of any corroborative evidence. In such circumstances the omission of the Investigating Officer to associate independent witness also assumes significance more particularly when PWs 1 and 2 have deposed that village Badhrog was at a distance of about 200-300 meters from the spot.

34. In light of above discussions, we have found that the prosecution has failed to discharge its burden in accordance with law. The guilt of the accused has not been proved beyond all reasonable doubts.

35. Accordingly, the impugned judgment and sentence dated 2.7.2019, passed by the learned Special Judge, Ghumarwin, District Bilaspur, H.P. in Sessions Trial No. 7-3 of 2016, is set aside to the extent it convicted and sentenced the appellant. The appellant is acquitted of all charges. Appellant is already on bail after suspension of sentence by the orders passed by Hon’ble Supreme Court on 16.9.2022 in Criminal Appeal No. 1582 of 2022.

36. The appellant is directed to furnish personal bonds in the sum of Rs. 25,000/- with one surety in the like amount to the satisfaction of Registrar (Judicial) of this Court in terms of provisions of Section 437A of the Cr.P.C. Pending applications, if any, also stand disposed of. Record be sent back forthwith.

Appeal allowed.

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