Order
1. This appeal is directed against the final judgment and orders dated 2-9-2016 2016 SCC OnLine HP 3346, (2016) 4 RCR (Cri) 293 and 8-9-2016 2016 SCC OnLine HP 4257 passed by the High Court of Himachal Pradesh, Shimla in Criminal Appeal No. 347 of 2012 whereby the Division Bench of the High Court allowed the appeal of the respondent State and set aside the judgment of acquittal passed by the Special Judge, Kinnaur, Sessions Division at Rampur Bushahr in NDPS Case No. 3 of 2011 and convicted the appellant under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the NDPS Act”) and sentenced him to undergo rigorous imprisonment for a period of 20 years and to pay a fine of Rs 2,00,000 with default stipulation.
Brief facts
2. On 27-11-2010, the complainant SHO Gurbachan Singh, (PW 6) along with ASI Rattan Chand, HC Tain Singh, and Constable Umesh Kumar, were on patrolling duty, allegedly at about 5.00 a.m, when they were present at Patarna Bridge, where they had gone in government vehicle, a person was seen coming from Patarna side carrying rucksack on his back.
3. On seeing the police party, he tried to run away. He was chased and apprehended. He disclosed his name as Krishan Chand and his bag was searched and found to have contained black substance in wicks and rounded shape which appeared to be that of charas.
4. The recovered charas was weighed and found to be 7 kg. The same was sealed in a parcel with seal H (9 seals), the impression of which was also taken separately on a piece of cloth. NCB form in triplicate was filled and recovered charas was taken into possession by preparing the seizure memo. The accused was arrested. Rukka was prepared and sent to the police station through Constable Umesh Kumar. The case property was deposited with MHC.
5. After following the due procedure, a case was registered under the NDPS Act, the samples were sent to the forensic science laboratory (FSL) for examination. As evidence had been found against the accused to have committed the offence under the NDPS Act, after completion of investigation, he was sent up to face trial.
6. The prosecution, in order to prove its case, has examined as many as six witnesses. The accused was also examined under Section 313 CrPC. He explained that bag (Ext. P-2) did not belong to him and that no charas was recovered from him. He further stated to be innocent, who was falsely implicated. By way of defence, he examined two witnesses, namely, Narain Singh and Govind Singh.
7. The Special Judge, Kinnaur, Sessions Division at Rampur Bushahr, after hearing the parties and considering the materials placed before it, by way of an elaborate judgment, held that the prosecution has not been able to prove the case beyond reasonable doubt acquitted the accused of the charge framed against him.
8. Challenging the same, the respondent herein filed Criminal Appeal No. 347 before the High Court of Himachal Pradesh, Shimla. The Division Bench of the High Court, by the impugned orders dated 2-9-2016 2016 SCC OnLine HP 3346, (2016) 4 RCR (Cri) 293/8-9-2016 2016 SCC OnLine HP 4257, allowed the appeal and set aside the judgment of acquittal passed by the trial court. The High Court convicted the accused under Section 20 of the NDPS Act and sentenced him to undergo rigorous imprisonment for a period of twenty years and to pay a fine of Rs 2,00,000 and in default of payment of fine, he shall further undergo rigorous imprisonment for a period of two years. Being aggrieved, the appellant has preferred this appeal.
9. Heard Mr Anil Nag, learned counsel for the appellant-accused and Mr Ashish Kumar, learned counsel for the respondent State.
10. The only question which arises for our consideration is whether the High Court was justified in reversing the findings of the acquittal recorded by the trial court without pointing out any perversity in the order of the trial court.
11. The learned counsel appearing for the appellant drew our attention to the impugned order passed by the High Court and contended that the High Court erred in convicting the appellant for the offence punishable under Section 20 of the NDPS Act. It was his submission that the High Court failed to appreciate that in the absence of independent witnesses, the evidence of the police witnesses must be scrutinised with greater care especially when police witnesses contradicted themselves on the issue as to in whose handwriting the seizure memo, the arrest memo, consent memo and the NCB form were written and the evidence adduced by the prosecution is not reliable.
12. By taking us through the evidence of PW 4 and PW 6, he submitted that the trial court rightly acquitted the appellant holding that there are material contradictions which have come on record and the failure of the prosecution to have joined independent witnesses, despite the fact that they could have been made available, renders the alleged recovery highly doubtful. He finally submitted that the evidence adduced by the prosecution was also not sufficient to warrant the appellant's conviction and the same is unsustainable and deserves to be set aside.
13. Per contra, the learned counsel for the respondent State supported the impugned judgment and contended the High Court relying on the well-settled principles of law and relying on the evidence adduced by the prosecution rightly interfered with the order of the trial court and convicted the appellant and no case is made out to interfere in the impugned judgment.
14. We have considered the rival submissions made by the learned counsel for the parties and perused the records of the case.
15. We find that the trial court relied on two main points to decide the matter against the State — (i) no independent witness was examined, and (ii) contradictions in the testimonies of PW 4 and PW 6.
16. It appears that the trial court acquitted the appellant-accused of the charge under Section 20 of the NDPS Act as seizure memo, arrest memo were said to be prepared on the spot by PW 6 as per deposition of PW 4, however PW 6 himself deposed they had been dictated by him.
17. We have carefully perused the evidence of Constable Umesh Kumar (PW 4) who, in his statement, deposed that on 27-11-2010, he was accompanying the complainant PW 6 along with other police officials while on patrol/naka duty. That at about 5.00 a.m when the police party was present at Patarna Bridge, near Kandugad, the accused was seen carrying a bag on his back and that on having seen the police party, he tried to escape. He was overpowered and apprehended. Since the place was isolated having no habitation nearby, the complainant associated him and HC Tain Singh in the investigation. The accused was told by Gurbachan Singh (complainant) that he intended to search his bag and also to take his personal search and further that if, he (accused) desired, his search could have been taken before the Magistrate or gazetted officer. Upon that, the accused had consented/opted to be searched by the police party, present on the spot, and in this regard, consent memo, Ext. PW-4.A was prepared which is signed by him and also by HC Tain Singh. Vide memo, Ext. PW-4.B, Gurbachan Singh (complainant) gave his personal search to the accused, his bag was searched and it was found to have contained charas weighing 7 kg which was put in a parcel and sealed with seal H (9 numbers). NCB form, in triplicate, was filled in and sample seal was taken separately on a piece of cloth and seal, after use, was handed over to HC Tain Singh. Vide memo, Ext. PW-4.C, the recovered charas was taken into possession which is signed by him as well as HC Tain Singh. In the cross-examination, he stated that they were on the spot for about 1 hour 40 minutes when the accused came at about 5 a.m before being apprehended. It was dark at that time. Neither were they having searchlight nor had kept the lights of the vehicle on. He does not know in whose handwriting, consent memo, Ext. PW-4.A is. Search memo of witnesses, seizure memo, arrest memo, sample seal of H and NCB form are in the hand of SI Gurbachan Singh. He does not know as to who had scribed/authored the personal search memo of the accused.
18. The complainant, PW 6 has supported the prosecution version on all material particulars including that he, along with other police officials, was on routine checking and patrol duty on 17-11-2010. When they were present at place called Patarna near Kandugad, at about 5.00 a.m, a person was seen coming from Patarna side carrying a bag and on seeing them he immediately turned back and tried to run away and he was overpowered and caught by the police party.
19. In the cross-examination, he confirmed to have gone to the spot in the vehicle, the log book of which was filled by the driver. The vehicle had been taken up to Patarna. No obstruction had been laid/put on the road. He did not remember as to how long, the police party had been on the spot, before the accused was apprehended. When the accused was seen, at that time, it was not night-time. From a distance of about 10 m, the accused had been seen by the police party which was in uniform. Consent memo, memo of search of witnesses, seizure memo, noting on the sample seal, memo of personal search on the accused as well as memo of arrest are not in his hands but the same, he got written, from one of the members of the police party, under his dictation.
20. From the evidence as mentioned above, it has been stated by Umesh Kumar (PW 4) that when the accused was allegedly apprehended, at that time, it was dark. He further confirmed that proceedings had been carried out in searchlight as it was dark. However, when the evidence of the complainant, PW 6 is considered, it is revealed that according to him, it was not dark when the accused was apprehended. Specifically, he made it clear that when the accused was seen, the night had broken. He further clarified that the accused had been seen from a distance of 10 m and at that time, they were in uniform. It is pertinent to mention here that the complainant, PW 6 is very certain that it was not dark when the accused was seen/apprehended, it was dark and the proceeding had to be conducted in searchlight. By no stretch of imagination, such contradiction can be said to be minor. It is to be noted that the defence version is to this effect that at the instance of one Shri Bittu, resident of Village Gurga, the accused had been falsely implicated in this case. When, the defence version is of false implication then it was required of the prosecution to have explained each and every material circumstance/contradiction which came on record.
21. From the evidence which has come on record, it is quite clear that the place, where the accused is alleged to have been apprehended, cannot be said to be an isolated one as the house of Govind Singh, DW 2 is situated on the edge of Patarna Bridge. Thus, the version of the complainant, PW 6 that independent witnesses could not be associated as it was an isolated place does not inspire confidence. Moreover, from the evidence of Govind Singh, PW 2 the case of the prosecution regarding apprehension of the accused, at Patarna Bridge, while being in possession of bag containing 7 kg of charas, becomes highly doubtful because had he been so apprehended, by the police, this fact was to come to his notice, for the reason that his house is situated at the edge of the bridge in which he resides, along with his family.
22. The complainant, PW 6 is not the scribe/author of the various memos including the entries as made in Columns 2 and 7 of NCB form. It has been stated by Umesh Kumar, PW 4 that the complainant had prepared the search memo of witnesses, seizure memo, arrest memo, seal of H and NCB form in his own hand. The above version had been contradicted by the complainant, PW 6 himself.
23. In our opinion, the High Court failed to appreciate that the harsher is the punishment, the more is the strictness of proof required from the prosecution and that failing to associate independent witnesses at the time of recovery created a dent in the case of prosecution.
24. As rightly pointed out by the counsel for the appellant that the High Court failed to appreciate that in the absence of independent witnesses, the evidence of the police witnesses must be scrutinised with greater care especially when police witnesses contradicted themselves on the issue as to in whose handwriting the seizure memo, the arrest memo, consent memo and the NCB form were written and the evidence adduced by the prosecution is not reliable.
25. The High Court has not appreciated the fact that PW 4 contradicted himself when he stated that it was dark at 5.00 a.m but no searchlights or the headlights of the vehicles were switched on at the time of preparing the search memo and other documents at the spot. The High Court failed to appreciate that recovery of knife at the time of opening the bag before the Court while there was no mention of the same in the seizure memo create serious doubt in the prosecution case.
26. It is settled law that the testimony of official witnesses cannot be rejected on the ground of non-corroboration by independent witness. Though, in the present case, the prosecution, in support of its case, has examined the complainant, PW 6 and Umesh Kumar, PW 4 who have supported the alleged recovery of charas from the accused. However, there are material contradictions, as pointed out in their statements, which make the prosecution case highly doubtful. In our considered view, the High Court by not taking into account the contradictions in the evidence adduced, held that in case there are minor contradictions in the depositions of the witnesses, the same are bound to be ignored and convicted the appellant as aforesaid.
27. In view of the material contradictions which have come on record, we find that the High Court wrongly convicted the appellant as the evidence adduced by the prosecution was not carefully scrutinised by the High Court. We are of the considered opinion that the High Court committed error in convicting and sentencing the appellant.
28. In the result, we find the appellant not guilty of the offence under Section 20 of the NDPS Act and the judgment of the High Court cannot be sustained.
29. The appeal stands allowed. The conviction and sentence imposed on the appellant is set aside and the appellant shall be set at liberty forthwith, if not required in any other case.