High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .

Cr. Appeal No. 258 of 2011.

Reserved on : 10

th

March, 2017

Decided on: 22

nd May, 2017

State of H.P. .........Appellant.

Versus

Surender Kumar ….…Respondent.

Coram

The Hon’ble Mr. Justice Dharam Chand Chaudhary, Judge.

The Hon'ble Mr. Justice Vivek Singh Thakur, Judge

Whether approved for reporting?

1

Yes.

For the appellant : Mr. D.S. Nainta & Mr. Virender Verma,

Addl. A.G.

For the Respondent : Mr. Ajay Kochhar, Advocate.

Dharam Chand Chaudhary , J. (oral).

Learned Special Judge (Presiding Officer,

Fast Track Court), Solan, District Solan vide judgment

dated 15.2.2011 passed in case No. 17FTC/7 of 2009,

while arriving at a conclusion tha t there is no

compliance of the provisions contained under Section

50 of the Narcotic Drugs and Psychotropic Substances

Act, hereinafter referred to as ‘the Act’, nor cogent

1

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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and reliable evidence produced by the prosecution

to show that the contraband allegedly recovered

from the respondent, hereinafter referred to as the

accused, was charas and also that the evidence

available on record is contradictory in nature, has

acquitted the accused of the charge framed against

him under Section 20 of the Act.

2. The legality and validity of the impugned

judgment has been questioned on the grounds inter

alia that cogent and reliable evidence produced by

the prosecution has been appreciated by learned

trial Judge in a slip shod and perfunctory manner and

as a result thereof, based its findings on hypothesis,

surmises and conjectures. The reasoning given by

learned trial Court while acquitting the accused of

the charge is manifestly unrealistic, unreasonable and

also unsustainable. The present being a case of

recovery of the charas from the bag the accused was

carrying on his right shoulder, therefore, Section 50 of

the Act was not applicable in the present case. Also

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that learned Court below has erroneously ignored the

reports of chemical examiner Ex.PW -10/E and

Ex.PW-10/F because in view of the presence of

tetrahydrocannabinol (THC) in the sample sent for

analysis, the same was that of charas. Also that

learned Court below should have not discarded the

prosecution evidence having come on record by way

of testimony of constable Surender Singh PW-1, HC

Yadav Chand PW -2 and the I.O. Santosh Thakur,

PW-11, who all were present on the spot during the

course of search and seizure conducted there. The

acquittal of the accused in the case in hand is stated

to be in utter disregard of the evidence having come

on record by way of their testimonies. There being no

material contradiction nor any omission in the

prosecution evidence, learned trial Court has

erroneously given weightage to the admissions such

as the seal used for sealing the parcels containing the

recovered charas and sample parcels not produced

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in evidence and failure to associate independent

witnesses etc. etc.

3. The facts of the case in a nut-shall are that

PW-11 ASI Santosh Thakur accompanied by PW -1

Constable Surinder Singh, PW-2 HC Yadav Chand

and PW-3 Naresh Kumar vide Rapat Rojnamcha

Ex.PW-11/A left police Station, Solan at 9.00 p.m. in

search of a proclaimed offender towards

Ghundidhar, Pajo, Shamti, Jatoli side. The police went

upto Marridin Factory. On way back, when reached

near Kali Mata temple, Shamti at 10.30 p.m. the

accused was noticed coming on foot from opposite

direction. He was holding a bag on his right shoulder.

On seeing the police party, he turned back and tried

to flee away. He, however, was overpowered and

apprehended by the police there. On inquiry about

his antecedents, he disclosed his name and address

etc.

4. PW-1 Constable Surender Singh and PW-2

HC Yadav Chand were associated as independent

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witnesses. Since the I.O. PW-11 suspected that the

accused may be in possession of some narcotic drugs

or psychotropic substances, therefore, he was

apprised that the search of his bag and person is

required. The accused was also apprised that if he

wants to give his search to a gazetted officer or the

magistrate that is his legal right. The consent memo

Ex.PW-2/A was reduced into writing. The accused,

however, opted for his search to be conducted by

the police official present there. It is thereafter, PW-11

opened the bag Ex.P-1, the accused was carrying on

his right shoulder. In one of the portion of the said

bag, Towel Ex.P-5, Jean Pants Ex.P-6, T-Shirt Ex.P-7 were

recovered. In other portion of the bag one polythene

bag Ex.P-8 was found kept. On opening the bag

Ex.P-8, brown colour substance in the shape of stick

was recovered. The I.O. on the basis of his experience

as well as by way of its smell has identified the same to

be charas. The identification memo Ex.PW-1/D, was

prepared in this regard. Constable Devender Kumar

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was asked to arrange for weights and scale. He

brought the same. The recovered charas when

weighed was found 650 grams. PW-11 has resorted to

sealing and sampling process in the presence of the

official witnesses, he associated to witness the search

and seizure. After separating 50 grams charas from

the recovered bulk for sample, i.e. 25-25 grams each,

the remaining bulk i.e. 600 grams was sealed in a

parcel of cloth with seal having impression ‘S’. The

parcels were also sealed with the same seal. The seal

was handed over to PW-2 Yadav Chand for safe

custody vide memo Ex.PW-2/B. The recovered charas

along with sample parcels was taken into possession

vide recovery memo Ex.PW -1/B. NCB Forms

Ex.PW-10/C was prepared in triplicate. The samples of

seal ‘S’ Ex.PW-1/A, Ex.PW-11/B, and Ex.PW-11/C were

drawn on a piece of cloth. The sample parcels were

marked as A-1 and A-2 whereas parcels containing

recovered charas A-3.

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5. Rukka Ex.PW-1/C was prepared by PW-11

and the same along with case property NCB Forms,

sample of seal ‘S’ was forwarded to Police Station,

Solan through constable Surinder Singh PW-1. On the

basis of Rukka FIR Ex.PW-5/A was registered. During

the course of further investigation on the spot, the I.O.

has prepared the site plan Ex.PW-11/E. The accused

was arrested and arrest memo Ex.PW -11/D was

prepared. Information regarding his arrest was given

to his relatives over telephone. In the Police Station,

the case property along with sample parcel, NCB

Forms and seizure memo was handed over to PW -10,

Jagdish Chand, SHO, who resealed the same with

seal ‘R’. The resealing certificate is Ex.PW-10/D. The

rapat entered in the daily diary in this regard is

Ex.PW-10/J. PW-10 handed over the case property

along with NCB forms to Kehar Singh, PW -5 MHC

Police Station, Solan. PW-5 has entered the case

property and the documents i.e. NCB forms, seizure

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memo and sample of seals in the Malkhana register,

extract whereof is Ex.PW-11/G.

6. The I.O. PW-11, on completion of the

investigation on the spot, returned to police station

and entered rapat Ex.PW-11/F, in daily diary in this

regard. Special report Ex.PW-4/A was also prepared

by PW-10 and forwarded the same to Superintendent

of Police, Solan. One of the sample parcels was

forwarded to Forensic Science Laboratory, Junga on

18.3.2009 through Constable Rakesh Kumar, PW -8.

Subsequently, another sample parcel and parcel

containing the recovered charas duly sealed with

seals ‘S’ and ‘R’ were also forwarded to Forensic

Science Laboratory, Junga on 22.8.2009, through HHC

Krishan Dutt PW-7. The reports of chemical examiner

Ex.PW-10/E and Ex.PW-10/F were received. It is

thereafter; PW-10 has prepared the report under

Section 173 of the Code of Criminal Procedure and

filed the same in the trial Court.

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7. Learned trial Judge on appreciation of the

report filed by the police and documents annexed

therewith has found a prima facie case under Section

20 of the Act made out against the accused and

charge was framed accordingly. He, however,

pleaded not guilty to the charge and claimed trial.

8. The prosecution in support of its case has

examined 11 witnesses in all. As pointed out at the

very outset that the material prosecution witnesses are

PW-1 Constable Surinder Singh, PW -2 HC Yadav

Chand and PW-11 ASI Santosh Thakur, the I.O.

9. The remaining prosecution witnesses are

formal as PW-3 had taken the special report to the

office of Superintendent of Police, Solan, whereas

PW-4 ASI Yashwant Singh, who was reader to

Superintendent of Police, Solan, has received the

special report Ex.PW-4/A and placed before the

Superintendent of Police for perusal. PW-5 is HC Kehar

Singh, who was posted as MHC, Police Station, Solan

at the relevant time. It is he, who registered the FIR

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Ex.PW-5/A and retained the case property in

Malkhana, when hand ed over to him by PW -10

Jagdish Chand. One of the sample parcels was also

forwarded by him to Forensic Science Laboratory,

Junga for analysis, through constable Rakesh Kumar

PW-8. HC Sunil Kumar, PW-6 was working as MHC

Malkhana on 22.8.2009. He has forwarded the parcels

containing the recovered charas and sample parcel

to Forensic Science Laboratory, Junga for analysis

through HHC Krishan Dutt, PW-7. PW-9 SI Rupinder

Kumar has partly investigated the case whereas

PW-10 Jagdish Chand was posted as SHO Police

Station, Sadar, Solan from March 2009 to October

2009 and it is he, who had received the case property

as well as resealed the same and thereafter

deposited with PW-5, the then MHC Police Station,

Solan for safe custody.

10. Now if coming to the defence version, the

accused in his statement recorded under Section 313

Cr.P.C. has denied the entire prosecution case being

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incorrect and stated that two groups of college

students had quarreled at Kotla Nalah. He was

detained by the police there. The police officials

were suspecting him to be one of the boys involved in

the quarrel, however, on his protest and as one of the

police personnel had received injuries on his person,

he was apprehended and this false case planted

against him. He, however, opted for not producing

evidence in his defence.

11. In the light of the facts and circumstances

discussed hereinabove, we have heard Mr. D.S.

Nainta, learned Additional Advocate General on

behalf of the appellant-State and Shri Ajay Kochhar,

Advocate, who is representing the accused in this

case.

12. On analyzing the rival submissions, the

questions such as compliance of Section 50 of the Act

was not required in this case, nor was there any

occasion to learned trial judge to have arrived at a

conclusion that the contraband recovered from the

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accused has not been proved to be charas and that

official witnesses were reliable and dependable

because despite efforts made, independent witnesses

could not be associated, hence their testimony should

have been relied upon being not inconsistent and

rather worthy of credence, arise for our consideration.

The non-production of seal used by the I.O. for sealing

the parcels containing the recovered contraband

and the sample parcels whether has caused

prejudice to the case of the accused or not, has also

engaged our attention.

13. In our considered opinion, the acquittal of

the accused on the ground that the contraband

recovered from the accused has not been proved to

be charas is not legally sustainable for the reason that

while arriving at such conclusion learned trial Judge

has placed reliance on judgment of a Division Bench

of this Court in Sunil Versus State of H.P. and its

connected matters, Latest HLJ 2010 (HP) 207. As a

matter of fact, a larger Bench of this Court in State of

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Himachal Pradesh versus Mehboob Khan, 2014, Cr. L.J. 705,

(FB), while holding that the law laid down in Sunil’s

case supra is not the correct law, has overruled the

same and answered the reference made to it as

follows:-

a. After taking into consideration Section

293 of the Code of Criminal Procedure,

Sections 45 and 46 of the Indian Evidence Act

and the Law laid down by the apex Court as

well as various High Courts discussed in detail

hereinabove, we conclude that on account

of non-consideration of the same by the

Division Bench, which has rendered the

judgment in Sunil’s case, correct law on the

expert opinion and the reports assigned by

the scientific expert after analyzing the exhibit

has not been laid down.

b. We further conclude that on account of

non-consideration of various reports of the

United Nations Office on Drugs and Crime

including Single Convention on Narcotic

Drugs, 1961 and to the contrary placing

reliance on the text books, which basically are

on medical jurisprudence, the Division Bench

in Sunil’s case failed to assign correct

meaning to ‘charas’ and ‘cannabis resin’, the

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necessary constituents of an offence

punishable under Section 20 of the NDPS Act.

c. In view of the detailed discussion

hereinabove, the Division Bench while

deciding Sunil’s case supra has definitely

erred in taking note of the percentage of

tetrahydrocannabinol in three forms of

cannabis i.e. Bhang, Ganja and Charas and

hence, concluded erroneously that without

there being no reference of the resin contents

in the reports assigned by the Chemical

Examiners in those cases, the contraband

recovered is not proved to be Charas, as in

our opinion, the Charas is a resinous mass and

the presence of resin in the stuff analyzed

without there being any evidence qua the

nature of the neutral substance, the entire

mass has to be taken as Charas.

d. There is no legal requirement of the

presence of particular percentage of resin to

be there in the sample and the presence of

the resin in purified or crude form is sufficient

to hold that the sample is that of Charas. The

law laid down by the Division Bench in Sunil’s

case that ‘for want of percentage of

tetrahydrocannabinol or resin contents in the

samples analyzed, the possibility of the stuff

recovered from the accused persons being

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only Bhang i.e. the dried leaves of cannabis

plant, possession of which is not an offence,

cannot be ruled out’, is not a good law nor

any such interpretation is legally possible. The

percentage of resin contents in the stuff

analyzed is not a determinative factor of small

quantity, above smaller quantity and lesser

than commercial quantity and the

commercial quantity. Rather if in the entire

stuff recovered from the accused, resin of

cannabis is found present on analysis, whole

of the stuff is to be taken to determine the

quantity i.e. smaller, above smaller but lesser

than commercial and commercial, in terms of

the notification below Section 2 (vii-a) and

(xxiii-a) of the Act.

e. We have discussed the Single

Convention on Narcotic Drugs, 1961 in detail

hereinabove and noted that resin becomes

cannabis resin only when it is separated from

the plant. The separated resin is cannabis

resin not only when it is in ‘purified’ form, but

also when in ‘crude’ form or still mixed with

other parts of the plant. Therefore, the resin

mixed with other parts of the plant i.e. in

‘crude’ form is also charas within the meaning

of the Convention and the Legislature in its

wisdom has never intended to exclude the

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weight of the mixture i.e. other parts of the

plant in the resin unless or until such mixture

proves to be some other neutral substance

and not that of other parts of the cannabis

plant. Once the expert expressed the opinion

that after conducting the required tests, he

found the resin present in the stuff and as

charas is a resinous ma ss and after

conducting tests if in the opinion of the expert,

the entire mass is a sample of charas, no fault

can be found with the opinion so expressed

by the expert nor would it be appropriate to

embark upon the admissibility of the report on

any ground, including non-mentioning of the

percentage of tetrahydrocannabinol or resin

contents in the sample.

f. We are also not in agreement with the

findings recorded by the Division Bench in

Sunil’s case that “mere presence of

tetrahydrocannabinol and cystolithic hair

without there being any mention of the

percentage of tetrahydrocannabinol in a

sample of charas is not an indicator of the

entire stuff analyzed to be charas” for the

reason that the statute does not insist for the

presence of percentage in the stuff of charas

and mere presence of tetrahydrocannabinol

along with cystolithic hair in a sample stuff is

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an indicator of the same being the resin of

cannabis plant because the cystolithic hair

are present only in the cannabis plant. When

after observing the presence of

tetrahydrocannabinol and cystolithic hair, the

expert arrives at a conclusion that the sample

contains the resin contents, it is more than

sufficient to hold that the sample is of charas

and the view so expressed by the expert

normally should be honoured and not called

into question. Of course, neutral material

which is not obtained from cannabis plant

cannot be treated as resin of the cannabis

plants. The resin rather must have been

obtained from the cannabis plants may be in

‘crude’ form or ‘purified’ form. In common

parlance charas is a hand made drug made

from extract of cannabis plant. Therefore,

any mixture with or without any neutral

material of any of the forms of cannabis is to

be considered as a contraband article. No

concentration and percentage of resin is

prescribed for ‘charas’ under the Act.

g. xxx xxx xxx

h. xxx xxx xxx.”

14. Therefore, in a nut-shell as per the law laid

down by the Larger Bench of this Court in Mehboob

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Khan’s case supra, in a case of recovery of charas,

presence of tetrahydrocannabinol and cystolithic hair

in a sample of charas reveals that the same contains

resin contents and as such, sufficient to hold that the

sample is of charas. The resin obtained from the

cannabis plants may be in ‘crude’ or ‘purified’ form

and charas is hand made drug, made from the

extract of cannabis plant. Therefore, any mixture with

or without any neutral material of any of the form of

cannabis is to be considered as a contraband article.

Therefore, the acquittal of the accused on the ground

that the contraband recovered from him is not

proved to be charas, is not legally sustainable for the

reason that the reports of chemical examiner

Ex.PW-10/E and Ex.PW-10/F make it crystal clear that

tetrahydrocannabinol and cystolithic hair were very

much present in the sample as well as in the entire

bulk analyzed in the laboratory.

15. The compliance of Section 50 of the Act is

not required in the case in hand for the reason that

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the documentary evidence i.e. sei zure memo

Ex.PW-1/B and the Rukka Ex.PW-1/C, leave no manner

of doubt that it is the search of the bag Ex.P-1, the

accused was holding on his right shoulder conduced

and besides his clothes, in one of the portion of the

bag, charas, which was kept in a polythene bag, was

recovered from another portion of the bag. The

present, as such, is not a case of recovery of the

charas during the course of personal search of the

accused.

16. It is well settled at this stage that in the

case of recovery of the contraband during the search

of vehicle or container or bag or some premises, the

compliance of Section 50 of the Act is not required to

be made. We are drawing support in this regard from

the judgment of Hon’ble apex Court in Kulwinder

Singh and another vs. State of Punjab, (2015) 6,

Supreme Court Cases, 674. The relevant portion of this

judgment reads as follows:-

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“20. The next contention that has been raised

by the learned counsel for the appellants

relates to non-compliance of Section 50 of the

NDPS Act. It is undisputed that the bags

containing poppy husk were seized from the

truck. Thus, it is not a case of personal search

of a person. In Megh Singh v. State of Punjab,

it has been held that Section 50 only applies in

case of personal search of a person, but it is

not extended to a search of a vehicle or a

container or a bag or premises.

21. In State of H.P. v. Pawan Kumar, it has

been held that:-

“10. We are not concerned here with the

wide definition of the word “person”,

which in the legal world includes

corporations, associations or body of

individuals as factually in these type of

cases search of their premises can be

done and not of their person. Having

regard to the scheme of the Act and the

context in which it has been used in the

section it naturally means a human being

or a living individual unit and not an

artificial person. The word has to be

understood in a broad common -sense

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manner and, therefore, not a naked or

nude body of a human being but the

manner in which a normal human being

will move about in a civilised society.

Therefore, the most appropriate meaning

of the word “person” appears to be —

“the body of a human being as presented

to public view usually with its appropriate

coverings and clothing”. In a civilized

society appropriate coverings and

clothings are considered absolutely

essential and no sane human being

comes in the gaze of other s without

appropriate coverings and clothings. The

appropriate coverings will include

footwear also as normally it is considered

an essential article to be worn while

moving outside one’s home. Such

appropriate coverings or clothings or

footwear, after being worn, move along

with the human body without any

appreciable or extra effort. Once worn,

they would not normally get detached

from the body of the human being unless

some specific effort in that direction is

made. For interpreting the provision, rare

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cases of some religious monks and sages,

who, according to the tenets of their

religious belief do not cover their body

with clothings, are not to be taken notice

of. Therefore, the word “person” would

mean a human being with appropriate

coverings and clothings and also

footwear.

11. A bag, briefcase or any such article or

container, etc. can, under no

circumstances, be treated as body of a

human being. They are given a separate

name and are identifiable as such. They

cannot even remotely be treated to be

part of the body of a human being.

Depending upon the physical capacity of

a person, he may carry any number of

items like a bag, a briefcase, a suitcase, a

tin box, a thaila, a jhola, a gathri, a holdall,

a carton, etc. of varying size, dimension or

weight. However, while carrying or moving

along with them, some extra effort or

energy would be required. They would

have to be carried either by the hand or

hung on the shoulder or back or placed

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on the head. In common parlance it

would be said that a person is carrying a

particular article, specifying the manner in

which it was carried like hand, shoulder,

back or head, etc. Therefore, it is not

possible to include these articles within the

ambit of the word “person” occurring in

Section 50 of the Act.”

Similar view has been expressed in Jarnail

Singh v. State of Punjab and Ram Swaroop v.

State (Government of NCT of Delhi)

22. In view of the aforesaid, the

submission that non-compliance of Section 50

vitiates the conviction, leaves us unimpressed.”

17. Similar is the view of the matter taken by

the Hon’ble apex Court in State of Rajasthan versus

Parmanand and another (2014) 5 SCC 345 and in

Yashihey Yobin and another versus Department of

Customs, Shillong (2014) 13 Supreme Court Cases 344.

The relevant extract of this judgment reads as follows:

“9. …... The language employed “any

person” under Section 50 of the Act would

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naturally mean a human being or a living

individual unit and not an artificial person.

It would not bring within its ambit any non-

living creature viz.; bags, containers,

briefcase or any such other article. They

are given a separate name and are

identifiable as such. They cannot even

remotely be treated to be a part of the

body of a human being. The scope and

ambit of Section 50 was examined in

considerable detail in the case of State of

Haryana v. Suresh, AIR 2007 SC 2245 and in

a three judges bench decision in State of

Himachal Pradesh v. Pawan Kumar, 2005 4

SCC 350, wherein it is observed that when

a person is not searched, only the bag,

container or the suitcase is searched, the

provisions of Section 50, cannot be pressed

into service. The items like bag, briefcase,

or any such article or container, etc. are

not a part of a human being as it would

not normally move along with the body of

the human being unless some extra or

special effort is made. Either they have to

be carried in hand or hung on the shoulder

or back or placed on the head. In

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common parlance it could be said that a

person is carrying a particular article,

specifying the manner in which it was

carried like hand, shoulder, back or head,

etc. but it is not possible to include these

articles within the ambit of the word

"person" defined in Section 50 of the Act.

10. This position in law is settled by the

Constitution Bench in the case of State of

Punjab v Baldev singh, AIR 1999 SC 2378

and in Megh Singh v State of Punjab, 2003

8 SCC 666, where application of Section 50

is only in case of search of a person as

contrasted to search of premises, vehicles

or articles. But in cases where the line of

separation is thin and fine between search

of a person and an artificial object, the

test of inextricable connection is to be

applied and then conclusion is to be

reached as to whether the search was

that of a person or not. The above test has

been noticed in the case of Namdi Francis

Nwazor v. Union of India and Anr.,(1998) 8

SCC 534, wherein it is held that if the

search is of a bag which is inextricably

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connected with the person, Section 50 of

the Act will apply, and if it is not so

connected, the provisions will not apply. It

is when an article is lying elsewhere and is

not on the person of the accused and is

brought to a place where the accused is

found, and on search, incriminating

articles are found therefrom it cannot

attract the requirements of Section 50 of

the Act for the simple reason that the bag

was not found on the accused person.”

18. This Court has also taken similar view of

the matter while placing reliance on the judgments

supra, in Cr. Appeal No.181 of 2015, titled Arun Kumar

versus State of Himachal Pradesh , decided on

21.10.2016.

19. If the evidence qua this aspect of the

matter is seen, the I.O. PW-11 and official witnesses

PW-1 and PW-2 are categoric while making statement

in the witness-box that the charas was recovered

during the search of the bag Ex.P-1, the accused was

carrying on his right shoulder. Their testimonies find

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corroboration from documentary evidence i.e. seizure

memo Ex.PW-1/B and the Rukka Ex.PW-1/C. True it is

that in the consent memo Ex.PW-2/A, the I.O. PW-11

had suspected and apprised the accused about his

suspicion that he may be in possession of some

contraband, therefore, his search along with bag was

required to be conducted. The charas was

recovered during the search of the bag Ex.P-1. The

personal search of the accused, no doubt, was

conducted vide memo Ex.PW -2/C, however, after the

recovery of the charas from his bag, which , as a

mater of fact, is required to be conducted before the

arrest of an offender in order to ensure that he may

not take anything in his possession including some

dangerous article when after arrest lodged in police

lock up or Judicial custody.

20. It is apparent from the seizure memo

Ex.PW-1/B and the Rukka Ex.PW-1/C that the search of

the bag was conducted first and charas recovered

therefrom. Otherwise also, the consent memo

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Ex.PW-2/A is suggestive of that the accused in so

many words was apprised about his legal right of

being searched before a Magistrate or a gazetted

officer. Being so, the findings that the I.O., has failed

to comply with the mandatory provisions enshrined

under Section 50 of the Act otherwise are also legally

unsustainable and as such acquittal of the accused

of the charge on this score is based upon hypotheses

and conjectures.

21. True it is that the independent witnesses

have not been associated by the I.O. in this case.

There is, however, explanation therefor because PW-1

while expressing his ignorance that there situated

houses and shops nearer to the temple of Kalimata at

a distance of 40 meters and Jogindra Central

Co-operative Bank is also situated there has voluntarily

stated that the accused was apprehended at a

lonely place. As per the version of I.O. PW-11 in his

cross-examination, efforts were made to associate the

witnesses on the spot, but no one was willing to do so.

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Pradeep Kumar resident of Shamti, however, had

handed over only weights and scale to them for

weighing the contraband.

22. True it is that the search was conducted at

Shamti near the temple of Kalimata. It was suggested

to PW-1, PW-2 and PW-11 that Pujari resides in the

temple with his family, however, they expressed their

ignorance. The I.O. PW-11 admits the existence of

building of Jogindra Central Bank adjoining to temple

and shops also. PW-2 also admits the existence of

houses and shops and the building of Bank nearby.

They both, however, expressed their ignorance qua

distance thereof from the spot. PW-1 has expressed

his ignorance qua existence of the houses and shops

nearby the spot. They all had expressed their

ignorance qua existence of house of one Bhagwan

Singh, hotel of Sadi Ram and house of Ram Rattan,

Advocate are situated nearby the temple. Even if the

shops and houses were in existence nearby the spot,

being odd hour, as the accused was apprehended at

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10.30 p.m., no one would have come to assist the

police in conducting the investigation on the spot

because experience shows that as per the latest

trend, no one like to come forward to assist the police

in conducting the investigation even during day time,

how one can expect that the local residents having

houses and shops nearby to have come forward and

associate the police to conduct the investigation that

too during odd hours. Pradeep Kumar, no doubt,

was there because as per prosecution case, the

weights and scale were brought from him. Though

the police could have asked him to associate as an

independent witness, however, its failure to do so will

be fatal to the prosecution case, in case it is ultimately

concluded by us that the official witnesses on

account of so called inconsistencies or contradictions

are not dependable.

23. True it is that the I.O. was required to have

maintained record in this regard and in the event of

efforts made to associate someone from the locality

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in the investigation of the case and his/her refusal to

do so, to have taken action under Section 100(8) of

the Code of Criminal Procedure, however, as noticed

supra, it is due to odd hours any such exercise seems

to be not conducted.

24. Otherwise also, the present is not a case

where no one is associated to witness the search and

seizure because the official witnesses PW-1 and PW-2

were present there and in the absence of the

independent witnesses, the I.O. PW -11, had

associated them as witnesses and conducted the

search and seizure in their presence. As such the

approach of the I.O. in the matter cannot be termed

as illegal for the reason that the apex Court in

Makhan Singh versus State of Haryana, (2015) 12 SCC

247, has held that it is not always possible to join

independent persons to witness the search and

seizure at all places and at every time. At occasions,

the independent persons even show their reluctance

also for being associated as witness. Also that official

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witnesses, if associated, in such an eventuality, if make

trust worthy and consistent statement while in the

witness-box, have to be termed as much good as any

other independent person. The relevant extract of this

judgment reads as follows:

“……In peculiar circumstances of the

case, it may not be possible to find out

independent witnesses at all places

and at all times. Independent witnesses

who live in the same village or nearby

villages of the accused are at times

afraid of to come and depose in favour

of the prosecution. Though it is well

settled that a conviction can be based

solely on the testimony of official

witnesses, condition precedent is that

the evidence of such official witnesses

must inspire confidence. In the present

case, it is not as if independent

witnesses were not available…..”

25. Therefore, merely that the I.O. has failed to

join the independent person to witness the search

and seizure due to the circumstances beyond his

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control, the findings of acquittal should have not

been recorded particularly when PW-1 and PW-2

were associated as witnesses to witness the search

and seizure.

26. The pivotal question, however, would be

that the statements made by the official witnesses

including the I.O. PW-11 are consistent and without

any contradiction as well as inspire confidence. The

close scrutiny of the statements made by PW-1 and

PW-2 amply demonstrate that they are categoric

while telling us that the police party had left the Police

Station at 9.00 p.m. on that day in search of a

proclaimed offender. Though as per the version of

PW-1, the police party was patrolling in that area,

however, PW-2 and the I.O. PW-11 have stated that

they were in search of some proclaimed offender.

PW-1 a constable may have not been in the

knowledge of the purpose of patrolling by them.

Otherwise also in the rapat Ex.PW -11/A there is

specific mention that the police party left the Police

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Station in search of a proclaimed offender. PW-1 and

PW-2 have also stated in one voice that the accused

was noticed coming on foot and while trying to flee

away, was overpowered and apprehended, on

suspicion. He was apprised about his search required

to be conducted and that the charas was recovered

during the search of his bag Ex.P-1, which was kept in

a polythene bag Ex.P-8. They have also stated in one

voice that the scale was brought by Constable

Devender and the charas when weighed found 650

grams. They have also deposed about resorting to

the sampling and sealing process and also taking into

consideration the recovered charas vide seizure

memo Ex.PW-1/B. They also tell us that Rukka

Ex.PW-1/C was taken along with the case property,

sample parcels and other record to the Police Station

by PW-1 constable Surinder Singh. Their testimonies in

examination-in-chief, therefore, corroborate the

prosecution story qua recovery of charas weighing

650 grams from the e xclusive and conscious

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possession of the accused. They both were subjected

to lengthy cross-examination, however, nothing could

be elicited therefrom suggesting that they were not

present on the spot nor the accused apprehended

there and the charas weighing 650 grams recovered

from him.

27. In their cross-examination they are

categoric about the time when they left the Police

Station. They are also categoric about the time when

the accused was spotted and apprehended. True it is

that there are minor contradiction qua existence of

houses, shops etc., nearby the temple of Kalimata

because PW-1 has expressed complete ignorance

qua this aspect of the matter whereas PW -2 while

admitting the existence of the shops and houses

nearby the place of recovery could not tell the exact

distance thereof from that place . He has also

expressed his ignorance qua distance of houses of

Bhagwan Singh, Sadi Lal and Ram Rattan Advocate

from the spot. However, these contradictions are not

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of such a nature, which could have been sai d to

have gone to the roots of the prosecution case.

Therefore, we are not in agreement with learned

Additional Advocate General that the evidence,

available on record has not been appreciated in its

right perspective.

28. The I.O. of the case PW -11 has also

supported the prosecution case and the manner in

which he has conducted the investigation on the

spot. There is nothing in his statement to show that the

convict, who belongs to village Jorna, P.O. Pulbahal,

Tehsil Chopal, District Shimla, a far away place from

the spot, was implicated in this case falsely.

29. The evidence as has come on record by

way of testimony of remaining prosecution witnesses,

who remained associated with the investigation of the

case in one way or the other, produce link to the

prosecution story because PW-5 HC Kehar Singh, who

was posted as MHC Police Station , Solan, had

registered FIR Ex.PW-5/A, on receipt of the Rukka

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Ex.PW-1/C. The rukka was handed over by PW -1 to

this witness whereas as per the testimony of PW-10, the

then Inspector SHO Police Station, Sadar, the case

property containing three parcels duly sealed with

seal impression ‘S’ along with sample of seal, NCB

forms and copy of seizure memo w as produced by

PW-1 before him, in the presence of PW-5 Kehar Singh.

PW-10 also proves the prosecution case qua resealing

of the parcels containing the recovered charas and

sample parcels with seal ‘R’, the resealing certificate,

which is in his hand and bears his signatures

Ex.PW-10/D, and filling of the entries in relevant

columns of NCB form Ex.PW-10/C. He handed over

the case property along with sample seals, seizure

memo and NCB forms to PW -5 Kehar Singh. PW-5

admits so while in the witness-box and further tells us

that the case property was retained by him in safe

custody in the Malkhana. The extract of Malkhana

register Ex.PW-11/G also substantiates the prosecution

case in this regard.

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30. PW-5 further substantiates the prosecution

case qua forwarding of one of sample parcels to

Forensic Science Laboratory, Junga vide RC PW-5/D,

through PW-8 constable Rakesh Kumar. PW-8 Rakesh

Kumar tells us that the sample parcels was deposited

by him in laboratory in safe custody and produced

the receipt on RC before Kehar Singh PW -5. Sunil

Kumar is PW-6 MHC Malkhana. He had forwarded the

parcel containing the recovered charas and another

sample parcel to Forensic Science Laboratory, Junga

vide RC No.136/09 through PW-7 HHC Krishan Dutt on

22.8.2009. In this regard, he has proved the extract of

Malkhana register Ex.PW-5/B also, in which the entries

encircled red was made by him in his own hand. He

had also proved the prosecution case that three

parcels containing the case property and samples

was again taken out from the Malkhana by ASI

Santosh Thakur on 17.3.2009 for exhibiting the same in

the Court, it was re-deposited on the same day at

7.00 p.m. in the Malkhana in safe condition. PW-7

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HHC Krishan Dutt has corroborated the statement of

PW-6 HC Sunil Kumar while stating that two parcels

handed over to him were deposited by him, in the

laboratory in safe custody. Therefore, the link

evidence as has come on record by way of testimony

of the aforesaid witnesses also connects the accused

with the commission of the offence.

31. Now if coming to the last point urged by

learned defence counsel that non-production of seal

‘S’ in the Court is fatal to the prosecution case. We

are not impressed thereby because what prejudice

has been caused to the accused by non -production

of the receipt, nothing tangible has brought to our

notice. The doubt of learned defence counsel that

the case property was tampered with is absolutely

baseless for the reason that the parcels containing the

case property were firstly taken to Forensic Science

Laboratory where the same were found to be duly

resealed with seal ‘S’ and ‘R’. We can make a

reference in this regard to the reports of chemical

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examiner Ex.PW-10/E and Ex.PW-10/F. The chemical

examiner, who received these parcels in the

Laboratory had recorded his satisfaction qua the

sealing thereof and it is thereafter the same were

received. Had the parcels been tampered with, the

chemical examiner would have not received the

same. These parcels were produced in the Court also

during the course of trial and opened in the presence

of learned Public Prosecutor and learned defence

counsel at that time. Had there been any tampering

therewith, the same could have been pointed out at

that stage also. Therefore, non production of the seal

in the Court is not to be treated a circumstance to

render the prosecution case doubtful and to arrive at

a conclusion that the case property was tampered

with. In our opinion, unless and until prejudice caused

to the accused by non -production of the seal is

shown, the accused cannot seek any benefit on this

score. Therefore, the findings recorded by learned

trial Judge that the non-production of seal in the

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Court has rendered the prosecution story doubtful,

are also not legally sustainable.

32. Now if coming to the defence of the

accused, the same is neither probable nor

reasonable. It cannot be believed by any stretch of

imagination that he was present at Kotla Nalah ,

where two groups of college students quarreled and

as he was believed to be a student , hence

apprehended in this case falsely. Interestingly

enough, he belongs to village Jorna, P.O. Pulbahal,

Tehsil Chopal, District Shimla, a far away place from

Shamati in District Solan, what he was doing there that

too during odd hours, he failed to explain.

33. True it is that the onus to prove its case

against the accused is on the prosecution, however,

in the given situation where the accused has

admitted his presence at the place of occurrence,

however, as per his version believing that he is one of

the college students, allegedly quarreled at Kotla

Nalah, hence implicated falsely, he was under a legal

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obligation to have explained his presence during odd

hours at that place. He, however, has failed to do so.

Therefore, the only inescapable conclusion would be

that he was dealing in the business of charas and was

present there in connection with his business.

34. In view of what has been said

hereinabove, we find the present a case, where the

prosecution has successfully pleaded and proved

that on 16.3.2009 at 10.30 p.m., during search of the

bag, the accused was carrying on his shoulder,

charas weighing 650 grams was recovered from his

conscious and physical possession. The prosecution

as such has proved its case against the accused

beyond all reasonable doubt. The impugned

judgment, therefore, is the result of misappreciation of

the evidence available on record and also the law

applicable in a case of this nature, hence not legally

sustainable. We, therefore, allow the present appeal

and convict accused Surender Kumar for the

commission of the offence punishable under Section

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20 of the Act. The impugned judgment as such is

quashed and set aside. Let him to surrender to his bail

bonds and produced in this Court on 13.6.2017, for

being heard on the quantum of sentence.

Production warrant be issued accordingly.

Judgment to continue.

(Dharam Chand Chaudhary )

Judge

(Vivek Singh Thakur)

May 22, 2017 (ps) Judge.

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