State of Hp Vs Gaurav Sharma

State has preferred this appeal against judgment dated 08.04.2015 passed by Special Judge, District Mandi, in Sessions Trial No.45/2010, titled 'State of Himachal Pradesh vs. Gaurav Sharma & Anr.' , arising out of FIR No.37/2010 dated 19.03.2010, registered under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'NDPS Act '), at Police Station Aut, District Mandi, H.P., whereby the Trial Court has acquitted the respondents.

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1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes

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Prosecution's case, in brief, is that on 19.03.2010, SubInspector/SHO-Shreshtha Thakur (PW-6) received information from a reliable informant that two boys were coming with Charas from Banjar towards Aut in a Maruti car bearing registration No.HP-34A6867 and, on checking car, huge quantity of Charas, opium, etc. could be recovered. This information was recorded in GD Entry No.25(A) dated 19.03.2010 at 04:00 p.m. (Exhibit PW1/A) in Police Station Aut by Hansh Raj.

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On basis of aforesaid information, S.I./SHO-Shreshtha Thakur (PW-6), along with ASI-Gurdyal Singh (PW-5), ConstableVipin Kumar (not cited as witness) and Constable-Bhup Singh (not examined), in official vehicle being driven by Constable-Himat Ram (not cited as witness), left towards Larji-Bali-Chowk Road for checking and searching aforesaid car. It was also recorded in the Rapat that witnesses would be associated.

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Separate copy of report was also prepared and sent to superior officer through Constable-Ravi Kumar as information under Section 42(2) of NDPS Act.

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It is further case of the prosecution that the aforesaid police party, along with PW Jasbinder Singh, Pradhan of Gram Panchayat Larji (not examined), who was present near Ghatotkachh Temple, Aut, situated on the road from Aut towards Banjar, reached

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Larji at about 04:15 p.m. and set up a nakka at Larji Chowk road. At about 4:45 p.m., above referred Maruti car came from Banjar side, which was stopped by S.I./SHO-Shreshtha Thakur (PW-6) along with police officials.

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Person sitting on the driver's seat disclosed his name as Gaurav Sharma along with his parentage and address and another boy sitting on the front seat disclosed his name as Suresh Kumar along with his parentage and address, as mentioned in the challan.

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It is further case of the prosecution that S.I./SHOShreshtha Thakur (PW-6) obtained consent of the respondents under Section 50 of the NDPS Act vide memo (Exhibit PW5/A), whereby both accused consented to their search by the Police Party present on the spot, whereupon PW Jasbinder Singh, ASI-Gurdyal Singh (PW-5) and Bhoop Singh were associated as witnesses in the raiding party and the Police Party gave its search to the respondents vide search memo (Exhibit PW5/B) in the presence of PW Jasbinder Singh, ASI-Gurdyal Singh (PW-5) and Bhoop Singh, but nothing incriminating material was recovered from their possession. Photographs of the spot, Exhibits PW5/C-3, PW5/C-4 and PW5/C-7, were snapped by S.I./SHO-Shreshtha Thakur (PW-6), whereas photographs, Exhibits PW5/C-1, PW5/C-2, PW5/C-5 and PW5/C-6, were snapped by ASI-Gurdyal Singh (PW-5).

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Search of the vehicle was carried out and, from the dicky of the vehicle, below the speakers, black substance in the shape of balls, contained in transparent polythene packets, was recovered. On the basis of experience, the contraband was identified by S.I./SHO-Shreshtha Thakur (PW-6) as Charas. On weighing the four packets, the contraband was found to be 4 kg.

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All four packets along with Charas were packed in a parcel and sealed with seal impression 'A' at six places. NCB Form Exhibit PW5/E, in triplicate, was filled at the spot. Specimen seal was also affixed on the NCB Form. Sample seal was also drawn on a piece of cloth (Exhibit PW5/B), which was signed by both witnesses and respondents. Charas was taken into possession vide memo Exhibit PW5/F, copy whereof was supplied to the respondents free of cost, which was also signed by the respondents and witnesses.

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At 06:00 p.m., S.I./SHO-Shreshtha Thakur (PW-6) wrote Rukka (Exhibit PW5/G) and sent it to MHC, Aut, through ConstableBhoop Singh for registration of the FIR.

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FIR No.37/2010 dated 19.03.2010 (Exhibit PW6/A) was registered in Police Station Aut.

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Investigating Officer recorded statements of witnesses, including statement of PW Jasbinder Singh (Exhibit PW6/B), on the

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spot. Accused persons were served upon with notice of arrest (Exhibit PW5/H) at 09:00 p.m. on the spot and were arrested. Thereafter, information regarding their arrest was given to father of respondent No.1-Gaurav Sharma and brother of respondent No.2Suresh Kumar.

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Spot map (Exhibit PW5/J) was prepared by the Investigating Officer on the spot.

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Case property along with relevant documents was handed over by S.I./SHO-Shreshtha Thakur (PW-6) to MHC-HC Kashmir Singh (PW-4), Police Station Aut, on 19.03.2010.

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HC-Kashmir Singh (PW-4) handed over parcel of contraband along with relevant documents to HC Amit Barwal (PW2) on 21.03.2010 for depositing the same in State FSL, Junga, vide RC No.168/09-10 (Exhibit PW2/A), and after depositing case property in FSL, Junga, he handed over receipt (Exhibit PW2/B) to MHC, Aut.

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On 19.03.2010, Constable Ravi Kumar (PW-3) had handed over an envelope given by S.I./SHO-Shreshtha Thakur (PW6) to Hira Singh Thakur, the then Additional S.P., Mandi. HC Lachman Dass (PW-1), at the relevant time, was Reader to the Additional S.P., Mandi. On 19.03.2010, Additional S.P. Hira Singh

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Thakur had handed over Special Report under Section 42(2) of the NDPS Act (Exhibit PW1/A) to him after making endorsement (Exhibit PW1/B). On 20.03.2010, Additional S.P., Mandi, had handed over Special Report under Section 57 of the NDPS Act (Exhibit PW1/C) to him after making endorsement (Exhibit PW1/D) thereon.

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PW-1 had also made endorsement (Exhibit PW1/E) on Special Report (Exhibit PW1/C) and entered the same in the Register maintained in the office of S.P., Mandi. Abstract of the entry in the Register is Exhibit PW1/F and endorsement (Exhibit PW1/G) was also made by PW-1 on report (Exhibit PW1/A).

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On completion of investigation and upon receipt of the SFSL report (Exhibit PW6/C), file was handed over by S.I./SHOShreshtha Thakur (PW-6) to her successor, S.I./S.H.O.-Sharif Mohammad, who prepared the challan and put it in the Court.

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After finding, prima facie, material, the Trial Court framed charge against the respondents under Sections 20 & 29 of NDPS Act.

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Learned Senior Additional Advocate General submits that the Trial Court has failed to appreciate the evidence in the right perspective, whereas, by leading credible evidence on record, prosecution has been able to prove beyond reasonable doubt

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recovery of 4 kg Charas from the respondents, being transported in the dicky of the car occupied by the respondents, and therefore, he has prayed for reversing the judgment, convicting the respondents and awarding appropriate sentence for recovery of commercial quantity of Charas from their possession.

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Learned counsel for the respondents has supported the judgment passed by the Trial Court by referring to various discrepancies in the statements of PW-5 and PW-6 and also on the ground that material witnesses have been withheld by the prosecution and link evidence to corroborate the version of the prosecution is missing and, therefore, it has been contended that the appeal deserves to be dismissed.

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Admittedly, five police officials left the Police Station and laid a nakka. Sixth person, PW Jasbinder Singh, Pradhan of Gram Panchayat, Larji, was also associated in the investigation. Out of five police officials, only three, i.e. S.I./SHO-Shreshtha Thakur (PW-6), ASI-Gurdyal Singh (PW-5) and Constable Bhup Singh (not examined), as well as one independent witness, PW Jasbinder Singh, have been cited as witnesses in the police challan, but Constable Vipin and Constable Himat Ram have not been cited as witnesses.

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No doubt, it is settled law that it is not the quantity of evidence, but the quality of evidence, which matters. Therefore, noncitation of Constable Vipin and Constable Himat Ram as witnesses may not have an adverse impact on the case of the prosecution in normal circumstances, but in the present case, not only two official witnesses were left out of the list of witnesses, but police official Constable Bhup Singh, who was an important witness to prove the link with respect to taking the Rukka to the Police Station, registration of the FIR and then returning to the spot, has not been examined, but has been given up by stating that his statement was repetitive in nature.

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PW-5 ASI Gurdyal Singh and PW-6 Inspector Shreshtha Thakur remained on the spot throughout. PW-6 is the Investigating Officer and PW-5 did not go to the Police Station. Constable Bhup Singh took Rukka to the Police Station and, according to the prosecution, FIR was registered on that basis. But PW-5 and PW-6 are silent about return of Constable Bhup Singh from the Police Station after registration of the FIR.

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Perusal of the FIR indicates that it was registered at 6:40 p.m. Though it contains name of complainant/informant as S.I./SHOShreshtha Thakur (PW-6), there is no entry in the FIR indicating who registered the FIR. The endorsement made on the Rukka regarding

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registration of the FIR has been made under signatures of person endorsing the Rukka and stamp of SHO, Police Station, Aut, has also been affixed.

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It is impossible that the SHO, present on the spot, which is 9 km away from the Police Station, after sending the Rukka for registration of the FIR to the MHC, had registered the FIR and was present at both places simultaneously. It is also apt to record that signature under the endorsement and signatures appended after completion of the Rukka are not similar. There is nothing on record to prove that who registered the FIR.

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Rukka (Exhibit PW5/G) has been addressed to MHC, Police Station, Aut, but MHC, who appeared as PW-4, is completely silent about receipt of the Rukka, registration of the FIR, handing over copy of the FIR to Constable Bhup Singh and arrival as well as departure of Constable Bhup Singh at and from Police Station, Aut. There is no evidence at all to prove arrival of Constable Bhup Singh in the Police Station, registration of the FIR and return to the spot. Person who recorded the FIR and made endorsement on the Rukka is also not in the list of witnesses and identity of that person has not been disclosed.

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In the aforesaid facts, it is apparent that there were certain facts which were only within the knowledge of Constable

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Bhup Singh and ASI-Gurdyal Singh (PW-5), and S.I./SHOShreshtha Thakur (PW-6) did not have personal knowledge of certain facts related to Constable Bhup Singh, and therefore, deposition of Constable Bhup Singh was not repetitive in nature. Thus, withholding Constable Bhup Singh from appearing in the Court as a witness on the ground that his statement was repetitive in nature is fatal to the prosecution case, as a necessary witness to prove the complete chain of facts and guilt of the respondents has not been examined.

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According to PW-1 HC Lachman Dass, Additional S.P., Mandi, had handed over Special Report under Section 57 of the NDPS Act (Exhibit PW1/C) to him with endorsement, upon which PW-1 had also made endorsement after recording the same in the Register maintained for that purpose. However, it is apt to notice that copy of Special Report (Exhibit PW1/C) on record indicates that S.I./SHO-Shreshtha Thakur (PW-6) had sent this Special Report to Additional S.P., Mandi, but S.I./SHO-Shreshtha Thakur (PW-6) is completely silent about this fact. There is nothing on record to indicate at what time and through whom the Special Report was sent to Additional S.P., Mandi. The link with respect to handing over the Special Report to someone for delivering it to Additional S.P., Mandi is completely missing. Additional S.P., Mandi, has not been

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examined. PW-1 has deposed nothing about the person who handed over the Special Report under Section 42(2) as well as Special Report under Section 57 of the NDPS Act. Thus, compliance of mandatory provisions of Section 42(2) of the NDPS Act is also missing.

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PW Jasbinder Singh, who was Pradhan, Gram Panchayat, Larji, and sole independent witness in the alleged incident of recovery of contraband, has not been examined, having been given up by the Public Prosecutor by making a statement that he had been won over by the accused.

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Witnesses are summoned by the Court on the basis of list submitted by the prosecution and they are expected to depose in the Court, independent of any kind of enticement, allurement or tutoring by the police or prosecution, including the Public Prosecutor. We fail to understand that when PW Jasbinder Singh was not produced in the witness box, how and on what basis the Public Prosecutor arrived at the conclusion that he had been won over by the accused. It could have been ascertained only if the said witness had been examined as a witness and, in that eventuality, for resiling from his earlier statement, the independent witness would have been subjected to cross-examination by the Public Prosecutor with leave of the Court, but the prosecution has not done so and, therefore,

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adverse inference has to be drawn against the prosecution for not examining the material witness.

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There is no evidence on record that Constable Bhup Singh came back to the spot, but he has been cited as a witness and his signatures appear on the memo of information of arrest of the respondents prepared at about 9:00 p.m. on the spot at Burah. When there is no evidence on record in statements of PW-5 and PW-6, or even otherwise, regarding return of Constable Bhup Singh to the spot, it is suspicious to cite him as a witness in the memo of information of arrest prepared after departure of the said witness, i.e. Constable Bhup Singh, from the spot.

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Provisions prescribing joining of two independent witnesses are not a formal condition for completing the search and seizure process. In normal circumstances, a sincere endeavour is expected from the Investigating Agency to associate independent witnesses. The alleged recovery was effected between 04:45 p.m. and 05:00 p.m. and search and seizure process was completed before 06:00 p.m. It was month of March, when the sun sets after 7:00 p.m. or quarter to seven or quarter past seven. There is nothing on record as to how PW Jasbinder Singh was associated in the nakka and there is also no evidence of any effort made by the Investigating Officer to associate two independent witnesses,

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particularly when there was specific prior information, including identification of the car, on the basis of registration number disclosed by a reliable informant. Presence of the sole independent witness, PW Jasbinder Singh, also becomes doubtful for withholding him from being produced in the witness box.

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ASI-Gurdyal Singh (PW-5) is a responsible police officer. After completion of search and seizure, the seal was handed over to S.I./SHO-Shreshtha Thakur (PW-6). According to the prosecution story, independent witness was present on the spot and, therefore, instead of handing over the seal to a police official, it should have been handed over to the independent witness.

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It creates another doubt about presence of independent witness on the spot as alleged. The matter does not end here. ASIGurdyal Singh (PW-5) did not produce the seal in the Court. He is not a layman, but a responsible police officer. Therefore, apart from handing over the seal to him, non-production thereof is a serious lapse on the part of the prosecution. In normal circumstances, nonproduction of the seal may not be fatal unless prejudice caused to the accused is established on record. But in the present case, for the peculiar circumstances referred supra, non-production of the seal also adds an adverse circumstance to demolish the prosecution

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Photographs were snapped by PW-5 and PW-6. As evident from the cross-examination, these photographs do not match the spot map prepared by the Investigating Officer, wherein a temple has been depicted to be in existence on the spot, whereas no such temple is visible in the photographs.

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It is also admitted by PW-5 that independent witness PW Jasbinder Singh is not visible in the photographs. Even otherwise, prosecution has failed to prove the link evidence with regard to the photographs so as to connect them with the incident. There is no evidence on record as to by which instrument the photographs were taken and where they were developed, and there is no certificate on record to prove these photographs in accordance with law, as provided under the Indian Evidence Act.

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Proper evidence to prove the GD Entry (Exhibit PW1/A)

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and registration of FIR have also not been produced on record.

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Though memo of consent obtained under Section 50 of NDPS Act is also not legal and valid, but as nothing was recovered from the personal search of respondents, therefore, in view of the exposition of law in this regard by the Apex Court in Ranjan Kumar Chadha vs. State of Himachal Pradesh , reported in AIR 2023 SC 5164 , it has no impact on the recovery of contraband from the vehicle and thus, not relevant to be discussed.

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Though ASI-Gurdyal Singh (PW-5) has stated that Constable Bhup Singh brought the case file to the spot and handed it over to him, it is a fact that the Investigating Officer was PW-6 and, therefore, there was no question of Constable Bhup Singh handing over the file to ASI-Gurdyal Singh (PW-5), whereas S.I./SHOShreshtha Thakur (PW-6) is completely silent about arrival of Constable Bhup Singh at the spot and handing over of the file to her, S.I./SHO-Shreshtha Thakur (PW-6), or anybody else.

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According to the Investigating Officer (PW-6), search was given by the Police Party to the accused persons in presence of witnesses and memo in this regard was prepared as Exhibit PW5/B. This memo reflects that ASI-Gurdyal Singh (PW-5), Constable Bhup Singh and PW Jasbinder Singh were also searched, but all of them are cited as witnesses. It is an additional circumstance indicating discrepancies in the prosecution story, which alone may not be fatal, but coupled with numerous other discrepancies, it adds another circumstance against the veracity of the prosecution case.

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Respondents have advantage of being acquitted by the Trial Court, fortifying the presumption of innocence in their favour. Considering above-referred contradictions and discrepancies in evidence on record, learned Senior Additional Advocate General has

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also not been able to point out any ground warranting interference in the judgement of acquittal.

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