State of H.P. Vs. Hafiz - Court Judgment

Excerpt:
- deepak gupta, j.1. this appeal by the state is directed against the judgment dated 25.5.1999 delivered by the learned sessions judge, chamba, h. p., in sessions case no. 5 of 1999, whereby he acquitted the accused of having committed an offence punishable under section 20 of the narcotic drugs and psychotropic substances act (hereinafter referred to as the act').2. the prosecution story in brief is that on 21.11.1998 pw-11 si babita rana along with pw-2 constable amin chand and constable driver shyam lal (not examined) had laid a naka at meru nallah. according to her, pw-1 piar chand and one subhan had also been joined in the naka. at about 5.30 a.m. in the morning of 22.11.1998 one person was coming from khedi side. on seeing the police personnel he tried to run away. constable amin chand overpowered him and brought him before pw-11. thereafter the accused was given option of being searched by pw-11 and on search a polythene packet wrapped in a handkerchief was found in the bag of the accused. inside this polythene packet there was another polythene packet which contained charas. on weighment the charas was found to be 620 gms. two samples of 25 gms. each were drawn out of the charas. thereafter the bulk charas and the two samples were sealed in three separate parcels with seal 'a'. the sample of the seal impression was also taken into possession. the accused and the witnesses signed the seizure memo ext.pb whereby the charas was taken into possession. pw-11 thereafter sent a wireless message ext.pj to superintendent of police, chamba and also prepared rukka ext.pf and sent the same for registration of the case through constable amin chand to police station, kihar. on the basis of this rukka, f.i.r. ext.pk was registered. thereafter, pw-3 ajay singh, dy.sp came at the spot and carried out further investigation. he prepared the site plan and recorded the statements of the witnesses. thereafter, the accused was arrested after he was informed about the grounds of his arrest vide memo ext.pc. dy. s.p. also re-sealed the three parcels by affixing seal 'h' on the same. according to pw-11, thereafter she went to police station, kihar and deposited the case property with pw-6 mhc des raj. special report ext.ph was also sent to superintendent of police, chamba on 23.11.1998. one sample was sent to the c.t.l. kandaghat and vide report ext.pl it was opined that the samples were of charas. hence the challan was filed in court.3. the learned trial court acquitted the accused on the grounds that the recovery has not been proved since the independent witnesses did not support the prosecution; that the consent of the accused had not been taken in compliance of section 50 of the act; thirdly that the presence of amin chand at the spot was doubtful and lastly that the prosecution had failed to adduce strict proof.4. as far as the consent is concerned, since this recovery is not as a result of personal search, the provisions of section 50 are not applicable. even the presence of amin chand at the spot cannot be said to be doubtful, since the name of amin chand finds mentioned in the relevant documents prepared at the spot i.e. rukka etc. merely because he had not signed the seizure memos, wireless message, would not make his presence doubtful because according to the prosecution the seizure memos were signed by the two independent witnesses.5. however, it is for the prosecution to prove beyond reasonable doubt that the contraband stuff was recovered from the exclusive possession of the accused. the onus to prove this lies squarely on the prosecution. it is only after this that the presumption of culpable mental state of the accused arises under section 35. since the provisions of the act are stringent, the courts have always held that the prosecution must prove beyond doubt that the recovery was made in the manner alleged. there are various factors which militate against the prosecution version. firstly it cannot be believed that the independent witnesses could have joined the police in the naka operation from around midnight and not till 5.30 a.m. next morning that too in the month of november. one could have understood if the case of the prosecution was that this was a case of prior information and, therefore, the independent witnesses were associated. if there was no prior information as is the case of the prosecution then we fail to understand what was the need of associating the independent witnesses only with the naka, that too at midnight.6. secondly the witnesses cannot also be termed to be independent witnesses. pw-1 himself has not supported the prosecution case and turned hostile. he however admitted that he was cited as a witness by the prosecution in other case arising out of the ndps act. as far as other witness subhan is concerned he has not been examined in court. a specific question was put to the investigating officer that both the witnesses had been cited as witnesses by her in more than 10- 12 cases arising out of the ndps act. she no doubt denied the suggestion but fact remains that pw-1 has admitted that he had appeared as a witness in some cases.7. another ground to discard the prosecution story is that according to pw-11, she sent constable shyam lal to bring the weights and scale. she has however no knowledge from where he brought the weights and scale. constable shyam lal has not been examined. there is no material on record to show from where he got the scale at 5.30 a.m. in the morning when no shop was open. if he could wake somebody and get the scales from that person's shop then why such person could not have been associated as an independent witness?8. lastly according to the investigating officer the proceedings in the entire case took about 2 hour to complete which would mean that the proceedings were over by 7 or 7.30 p.m. she stayed at the spot till about 2.30 p.m. when the dy.sp arrived. why she stayed for another 7 hours, has not been explained. in fact according to pw-3 he reached the spot at 11.45 a.m. but this does not appear to be correct since the wireless message ext.pj was sent by pw-8 at 12.35 p.m. pw-8 clearly states that pw-11 babita rana had come to the police station and asked him to send the message. it is, therefore, clear that babita rana after completing the investigation came back to the police station and then got the message ext.pj sent. in this wireless message she had stated that she had completed the preliminary investigation and some official be sent to finalize the investigation. thereafter, pw-4 dy.s.p. came. all that he has done is to prepare the site plan and record the statements of the witnesses. this was something which any person including pw-11 could have done. if babita rana had come back to the police station why did she not deposit the case property immediately with the mhc. there is no explanation why she waited for the dy.sp to come before depositing the case property.9. all these aforesaid factors cast a serious doubt on the prosecution story and, therefore, the learned trial court was justified in acquitting the accused. we find no merit in the appeal which is accordingly dismissed. the bail bonds are discharged.