Surjit Singh, J.
1. The present two appeals, particulars whereof have been given in the title of this judgment, are being disposed of by a common judgment, because both of them arise out of the same judgment of the trial Court, i.e. judgment dated 31st May, 2006.
2. Case of the prosecution, as per record, is like this. On 10th July, 2004, PW-12 Anjani Kumar, Inspector CID, Shimla, was present at Panarsa. He received secret information that some people living in that area indulged in illicit trade of Charas. PW-12 Anjani Kumar prepared report of that information, copy Ex. PW-11/B, and sent the same to the Superintendent of Police, CID, Shimla, through PW-11 Constable Rajinder Kumar, immediately. Thereafter, he proceeded towards Panarsa Bridge, in the company of PW-9 ASI Gian Chand, PW-8 Constable Rakesh Kumar, Sub Inspector Chandra, ASI Ravinder and some other police officials. Around 9.30 p.m., a Maruti Van appeared at the Bridge. PW-1 Amar Chand and PW-2 Kuldeep Kumar were travelling by that vehicle. They were required to park their Van on one side of the road and associated as witnesses. At 11.30 p.m. Trilok Chand, appellant in Criminal Appeal No. 220 of 2006, and Santosh Kumar, appellant in Criminal Appeal No. 348 of 2006, appeared from the opposite direction. When they reached the middle of the Bridge and saw the police, they tried to run away. They were overpowered. Appellant Santosh Kumar was carrying two bags, one in the right hand and the other on the left shoulder, while appellant Trilok Chand was carrying a bag on his right shoulder. These were gunny bags. Both the appellants were told by PW-12 Anjani Kumar that it was intended to search their baggage, as it was suspected that they had been carrying Charas and that in case they so desired search could be arranged in the presence of a Magistrate or a Gazetted Officer. Appellants opted for being searched on the spot. Search was conducted and all the three bags were found to contain Charas. PW-9 Gian Chand was deputed to fetch scale and weights. He brought the same from PW-5 Hem Raj, who runs a shop at Aut. Contents of each of the three bags were weighed separately. Two bags, which appellant Santosh Kumar was carrying, contained 23 kgs Charas (151/2 kgs in one bag and 71/2 kgs in the other). The bag carried by appellant Trilok Chand contained 16 kgs Charas. Two samples from each of the three bags were separated and marked distinctly to corelate them with the individual bag from which they were taken. All the six samples were made into separate parcels and sealed with a seal that produced impression of English letter 'T'. Gunny bags were also sealed with the same seal. Written report of the matter was prepared, which is Ex. PH and sent to Police Station, Aut, where case was formally registered vide FIR Ex. PG. NCB forms were filled in.
3. Three sample parcels, one from each of the three bags, were deposited by PW-12 Anjani Kumar with PW-6 MHC Gandhi Ram, Police Station Aut, at 9 a.m. on 11th July, 2004, alongwith NCB form, with a direction that the same be sent to the Chemical Examiner. PW-6 Gandhi Ram, after making entry in the Malkhana register, sent those three parcels to the Chemical Examiner, the same day at 6 p.m., through Constable Chandermani (PW-7). Remaining three sample parcels and the gunny bags, containing the bulk Charas, were produced by PW-12 Anjani Kumar to PW-4 Dabe Ram, SHO Police Station, Aut, at 8.30 p.m., on 11th July, 2004, who, after resealing them with his own seal, which produced impression of letter 'K' of English alphabet, deposited them with PW-6 MHC Gandhi Ram. Special Report of the case was also sent to the Superintendent of Police, CID, on 11th July, 2004 at 8.30 p.m., which reached him on the next following day at 5 a.m. Chemical Examiner reported that all the three sample parcels contained resin of cannabis plant. One sample contained 33.56 per cent resin, another 34 per cent resin and the third 34.5 per cent resin.
4. On completion of investigation, report was filed in the Court, under Section 173 of the Code of Criminal Procedure. Prosecution examined 13 witnesses. It examined PW-1 Amar Chand, PW-2 Kuldeep Kumar (both independent witnesses), PW-8 Constable Rakesh Kumar, PW9 ASI Gian Chand and PW-12 Anjani Kumar, Inspector to prove the search of the baggage of the appellants and the recovery of Charas during such search. It also examined PW-4 Dabe Ram, SHO Police Station Aut, PW-6 Gandhi Ram, MHC Police Station, Aut, and PW-7 Constable Chandermani to connect the report of the Chemical Examiner with the stuff allegedly recovered from the police.
5. Appellants took the plea that the Charas was recovered from a deserted and abandoned Dhara from near the Bridge, in question, and it was then planted upon them. They claimed that they were at a tea stall in Nagwain on 10th July, 2004, around 6 or 7 p.m., taking tea at the Dhaba of DW-3 Bihari Lal, from where they were taken to Police Station Aut and implicated in this case.
6. Trial Court disbelieved the defence version. It accepted the prosecution evidence and convicted the appellant of offence, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act and sentenced them to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/-, each; in default of payment of fine to undergo imprisonment for a further period of two years, each.
7. This Court, at the time of admission of the appeal filed by appellant Santosh Kumar, ordered issuance of notice for enhancement of sentence, per order dated 3rd November, 2006. Notice was issued accordingly. So, alongwith the two appeals filed by Santosh Kumar and Trilok Chand, we would be disposing of the notice for enhancement of sentence issued to appellant Santosh Kumar.
8. We have gone through the evidence and heard the learned Counsel for the appellants as also the learned Assistant Advocate General.
9. We have noticed some contradictions in the evidence of the prosecution, which may not seem to be relevant, if examined without taking into account the defence plea, but when they are looked into in the light of the defence plea, they assume a great deal of significance. We may point out those contradictions.
10. According to PW-12 Anjani Kumar, Inspector CID, Shimla, he left Shimla for Mandi-Kullu area on 9th July, 2004, leaving instructions with the MHC to send Constable Rajinder Kumar to join him at Mandi or Kullu and that as per instructions given by him Rajinder Kumar joined him at Kullu on 10th July, 2004, before 3 p.m. PW-11 Constable Rajinder Kumar left Shimla on 10th July, 2004, after recording an entry in the Rojnamcha at 8 a.m. He testified that he joined PW-12 Anjani Kumar at Panarsa, a place about 20 kms short of Kullu and not at Kullu. It may be noticed that alleged seizure was made at the bridge of Panarsa, which is at a distance of one kilometer from Panarsa village.
11. Not only that there is a contradiction in the statements of the two witnesses as to the place where PW-11 Rajinder Kumar joined PW-12 Anjani Kumar, but also they contradict each other as to how PW-11 Constable Ranjinder Kumar came to know that he was to proceed beyond Mandi to join PW-12 Anjani Kumar. According to PW11 Rajinder Kumar, he was informed by the MHC at Police Station, Shimla that he was supposed to join PW-12 Anjani Kumar at Mandi. PW-12 Anjani Kumar stated that he made a call to PW-11 Rajinder Kumar on his cell-phone, informing him to join at Kullu and so he reached Kullu and joined him at the office of Superintendent of Police, CID, Shimla. PW-11 Rajinder Kumar does not say that he received any telephonic call from PW-12 Anjani Kumar. Also, from the fact that he joined PW-12 Anjani Kumar at Panarsa, it appears that he did not receive any call, as stated by PW-12 Anjani Kumar. It may be pointed out that Panarsa is beyond Mandi but ahead of Kullu. The aforesaid contradictions indicate that PW-11 Rajinder Kumar might not have been present on the spot, at the time of the alleged nabbing of the appellants and the recovery of Charas from them.
12. Also, there are contradictions in the testimony of PW-12 Anjani Kumar, PW-9 Gian Chand and PW-8 Rakesh Kumar, which indicate that PW-9 Gian Chand and PW-8 Rakesh Kumar might not have been with PW-12 Anjani Kumar, at the time of the alleged seizure of Charas and that the story, regarding seizure of Charas at Panarsa Bridge, may not be true. PW-12 Anjani Kumar stated that Gian Chand was deputed to fetch scale and weights and he returned to the spot with scale and weights at 11.30 p.m. Gian Chand himself stated that he was asked by PW-12 Anjani Kumar to fetch scale and weights and that he left the place of seizure around 11.30 p.m. and returned at 8.15 p.m. How could he have returned at 8.15 p.m., when he went at 11.30 p.m. PW-8 Rakesh Kumar stated that Gian Chand left the place at 1 a.m. to arrange for scale and weights and returned after one hour.
13. Report Ex. PF was prepared at 2.30 a.m., as per time recorded at the bottom, below the signature of PW-12 Anjani Kumar. Now, according to the statement of PW-8 Rakesh Kumar, Gian Chand returned with the scale and weights at 2 a.m. Report Ex. PF records that the stuff, in all the three gunny bags had been weighed separately, two samples from each of the three bags were separated, samples were made into parcels and the parcels and the gunny bags were sealed, seizure memo was prepared and the NCB forms were filled-in. That means all the aforesaid proceedings had been carried out before report Ex. PF was drawn. It could not have been possible to complete the aforesaid process and so draw report Ex. PF in just 30 minutes.
14. In the form prescribed, under Section 51, 102 and 165 of the Code of Criminal Procedure, in respect of property seized on search, which is Ex. PC/2, the place of search and seizure is mentioned as Nagwain, Police Station, Aut, District Mandi, and not Panarsa Bridge. Even at the bottom of this form, the place where the form had been filled- in, is recorded as Nagwain and not Panarsa Bridge. Also, in this form only one appellant is named as the person from whom Charas had been seized after search of his baggage. He is Santosh Kumar. Name of the other appellant Trilok Chand is missing from this form. Appellant Santosh Kumar could not have been carrying three bags at a time. It appears that the story regarding involvement of the second appellant was introduced to make it look natural, because as already noticed, one person could not have carried three bags at a time, especially when all the three were quite bulky and were being carried on shoulders and in hand.
15. Evidence of the prosecution, with regard to the deposit of the case property at Police Station Aut also does not inspire confidence. According to PW-12 Anjani Kumar, he had deposited the entire case property alongwith six parcels of samples with PW-6 MHC Gandhi Ram, on reaching the Police Station at 9 a.m., on 11th July, 2004. He nowhere says that he had produced the case property to PW-4 Dabe Ram and that the latter deposited the same with the MHC, after resealing the same with his own seal that produced impression of letter 'K' of English alphabet. Three samples, which were sent to the Chemical Examiner, were also sealed with only one seal, i.e. the seal that produced the impression of English letter 'T'. However, the other three sample parcels and the three gunny bags, which were produced in the Court, during trial, bore impressions of two seals. One sample seal read like English letter 'T' and the other like English letter 'K'. It appears that resealing of the three gunny bags and the remaining three parcels was done subsequently on noticing that the requirement of Section 55 of Narcotic Drugs and Psychotropic Substances Act, which says that the case property is to be produced before the SHO of the concerned Police Station, who is to reseal the same with his own seal, had not been met. PW-4 Dabe Ram, SHO, Police Station Aut, stated that the three gunny bags and three sample parcels were produced before him at 8.30 p.m. by PW-12 Anjani Kumar. Prosecution proved an entry in the Rojnamcha, maintained at Police Station, Aut, copy Ex. PH, per which three gunny bags and three sample parcels sealed with seal impression 'T' were produced by PW-12 Anjani Kumar to PW-4 Dabe Ram at 8.30 p.m. The entry is fabricated. It is demonstrated from the fact that at 8.30 p.m., on 11th July,2 004, PW-12 Anjani Kumar was not at Aut. He was present at Police Station, Sadar, Mandi, at that time, as is made out from the special report, Ex. PW-11/A, which he sent to Superintendent of Police, CID, Shimla.
16. PW-5 Hem Raj, shopkeeper of Aut, from whom PW-9 Gian Chand allegedly borrowed scale and weights, on the night intervening 10th and 11th July, 2004, stated that scale and weights had been borrowed from him on 11th July, 2004 at 9 or 10 a.m. The witness was declared hostile and was cross-examined by the Public Prosecutor. One of the suggestions, which was put to the witness, in the cross- examination by the prosecution, is very interesting. The suggestion is that two Constables went to the Shopkeeper, one in uniform and the other in civil dress, to fetch scale and weights. This is contrary to the prosecution version, as testified by PW-12 Anjani Kumar, PW-9 ASI Gian Chand and PW-8 Rakesh Kumar that it was PW-9 Gian Chand, who had been deputed from the spot to fetch scale and weights. The suggestion not only gives a lie to the prosecution story, but also probabilises the defence plea that bags were recovered by the police from an abandoned place and taken to Police Station, Aut, on 10th July, 2004, during day time and lateron and a false case was foisted upon the appellants.
17. Also, we notice contradictions in the statements of the witnesses of the prosecution as to the sending of report Ex. PH from the spot. PW-8 Rakesh Kumar, who carried the report to the police station, stated that he took lift in a truck at 3 a.m. PW-9 Gian Chand, however, stated that PW-8 Rakesh Kumar went by a scooter. PW-12 Anjani Kumar stated that he travelled on foot, both ways, i.e. while going to Police Station Aut and when he returned to the spot, with a copy of the FIR.
18. Independent witnesses, namely PW-1 Amar Chand and PW-2 Kuldip Kumar, did not support the prosecution case. They denied that the appellants were apprehended at the Panarsa Bridge and three gunny bags containing Charas were recovered from them. They also denied having gone to Panarsa Bridge or even in that direction on the relevant day. They stated that they were called to Police Station Aut and their signatures were obtained on certain papers. They admitted the suggestion of the defence counsel that they had been cited as witnesses of the prosecution in a few cases, under the Narcotic Drugs and Psychotropic Substances Act, earlier also.
19. Appellants examined DW-3 Bihari Lal, who runs a tea stall at Nagwain. The witness stated that on a day in the month of July, some police officials came to his shop and carried away the two appellants, who were taking tea at his stall.
20. Plea of the appellants is further corroborated by the testimony of DW-1 Budh Ram, Patwari and a couple of documents proved by him. The witness stated that application Ex. DW-1/D was made to him by PW-12 Anjani Kumar for supply of Jamabandi and Tatima, in respect of Dhara of one Bhagat Ram, situated near Panarsa Bridge and that he supplied Tatima Ex. DW-1/A and copy of Jamabandi to PW-12 Anjani Kumar. This Tatima Ex. DW-1/A was among the documents, presented by the police alongwith report, under Section 173 of the Code of Criminal Procedure and bears the stamp of the office of PW-12 Anjani Kumar. The fact that PW-12 Anjani Kumar procured Tatima of an abandoned Dhara, near the site of the alleged search and seizure, also probabilises the defence plea that there is a Dhara near Panarsa Bridge and the three bags containing Charas were recovered from that Dhara and then planted upon them. Also, the police got a Dhara, near the bridge, photographed. The photograph is Ex. PM/1. It was proved by PW-10 Jagdish Kumar.
21. In view of the abovestated position, we are of the considered view that the case of the prosecution does not stand established, beyond reasonable doubt. Hence, both the appeals are allowed, judgment of the trial Court, convicting and sentencing the appellants, is set aside and they are acquitted. The appellants, being in jail, serving out the sentence awarded by the trial Court, are ordered to be set at liberty, forthwith, in case their detention is not required in any other case.
22. Notice for enhancement of sentence issued to appellant Santosh Kumar is discharged having become infructuous, on account of acceptance of his appeal. Pending applications, if any, also become infructuous. Both the appeals stand disposed of accordingly.