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2025 DAILYLAW 4090 (HP)

Ram Pal v. State of H. P.

2025-12-04

Rakesh Kainthla

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JUDGMENT : Rakesh Kainthla, Judge The present appeal is directed against the judgment of conviction dated 7.12.2011 and order of sentence dated 22.12.2011, passed by learned Special Judge, Kullu, District Kullu, H.P., (learned Trial Court), vide which the appellant (accused before learned Trial Court) was convicted of committing an offence punishable under Section 20 of Narcotic Drugs and Psychotropic Substances Act (NDPS) and sentenced to undergo rigorous imprisonment for two years, pay a fine of Rs. 20,000/- and in default of payment of fine, to undergo further imprisonment for six months. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.) 2. Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the accused before the learned Trial Court for committing an offence punishable under Section 20 of the NDPS Act. It was asserted that ASI Naresh Chand (PW7), HC Chaman Lal (PW6), HHC Chet Ram and HHC Laxman Dass (PW2) were going towards Bhuntar on 11.10.2010. They saw the accused sitting on the left side of Shelidhar Naal Road at about 1:30 pm. The accused had a bag with him. He got up after seeing the police, picked up the bag and ran on the footpath. The police became suspicious and apprehended him at a distance of 50 ft. The place was lonely and deserted. No person was found in the vicinity. The police waited for 20 minutes for someone to reach the spot, but no one came. They sent HHC Chet Ram to bring a witness, but he could not find any witnesses. Hence, HC Chaman Lal and HHC Chet Ram were associated as witnesses. The accused disclosed his name as Ram Pal on inquiry. ASI Naresh Chand informed the accused that he had a right to be searched before a Magistrate or a Gazetted Officer. The accused opted to be searched by the police. Memo (Ex.PW6/A) was prepared. The police officials gave their personal search to the accused. Nothing incriminating was found in their possession. Memo (Ex.PW6/B) was prepared. ASI Naresh Chand checked the carry bag (Ex. P1) being carried by the accused and found one polythene bag (Ex. P2). The police opened the polythene bag and found one cardboard box (Ex. P3) containing charas (Ex. P4). The police officials gave their personal search to the accused. Nothing incriminating was found in their possession. Memo (Ex.PW6/B) was prepared. ASI Naresh Chand checked the carry bag (Ex. P1) being carried by the accused and found one polythene bag (Ex. P2). The police opened the polythene bag and found one cardboard box (Ex. P3) containing charas (Ex. P4). The charas was weighed with the help of an electronic weighing scale, and its weight was found to be 500 grams. The charas was put in the cardboard box, the cardboard box was put in the polythene packet in the same manner in which they were recovered, and the packet was put in a cloth parcel (Ex.P1). The parcel was sealed with six seals of seal impression ‘A’. NCB-1 Form (Ex.PW1/F) was filled in triplicate. A seal impression was put on the form. Sample seal (Ex.PW6/D) was taken on a separate piece of cloth, and the seal was handed over to HC Chaman Lal after use. The case property was seized vide memo (Ex.PW6/C). The personal search of the accused was conducted, and a memo (Ex.PW6/E) was prepared. ASI Naresh Chand prepared a rukka (Ex.PW1/B) and sent it to the Police Station, where FIR (Ex.PW1/A) was registered. ASI Naresh investigated the matter. He prepared the site plan (Ex.PW7/B). He arrested the accused vide memo (Ex.PW6/F). He produced the case property and the accused before SHO Narain Singh (PW5), who resealed the parcel with six seals of seal ‘T’. He obtained the specimen seal ‘T’ (Ex.PW5/F) on a separate piece of cloth. He filled relevant columns of the NCB-I Form (Ex.PW1/E) and put the seal impression ‘T’ on the form. He handed over the case property to MHC Tara Chand (PW1), who made an entry in Register No.19 at Serial No. 128 (Ex.PW1/C) and deposited the case property in the malkhana. He handed over the case property, specimen seal impression ‘A’ and ‘T’, NCB-1 form in triplicate and other documents to HHC Laxman Dass (PW2) on 12.10.2010 with a direction to carry them to SFSL, Junga vide RC No. 96/10 (Ex.PW1/D). HHC Laxman Dass deposited the case property at SFSL, Junga, in safe condition vide receipt (Ex.PW1/E) and handed over the RC and receipt to MHC Tara Chand. ASI Naresh Chand prepared the special report (Ex.PW4/A) and submitted it to Ram Lal, Deputy Superintendent of Police (Headquarters), on 12.10.2010. HHC Laxman Dass deposited the case property at SFSL, Junga, in safe condition vide receipt (Ex.PW1/E) and handed over the RC and receipt to MHC Tara Chand. ASI Naresh Chand prepared the special report (Ex.PW4/A) and submitted it to Ram Lal, Deputy Superintendent of Police (Headquarters), on 12.10.2010. Dy.SP Ram Lal made an endorsement on the special report and handed over the special report to his Reader HC Nirat Singh (PW4). HC Nirat Singh made an entry in the relevant register at Serial No.68 (Ex.PW4/C) and retained the special report on record. The result of the analysis (Ex.PA) was issued, mentioning that the exhibit was cannabis and a sample of charas containing 43.77% w/w resin in it. The statements of remaining witnesses were recorded as per their version, and after the completion of the investigation, the challan was prepared and presented before the learned Trial Court. 3. Learned Trial Court charged the accused with the commission of an offence punishable under Section 20 of the NDPS Act, to which he pleaded not guilty and claimed to be tried. 4. The prosecution examined seven witnesses to prove its case. HC Tara Chand (PW1) was working as MHC with whom the case property was deposited. HHC Laxman Dass (PW2) carried the case property to FSL, Junga. Constable Lal Singh (PW3) proved the entry in the daily diary. HC Nirat Singh (PW4) was Reader to Dy.SP (Headquarters) to whom the special report was handed over. Narain Singh (PW5) was working as the SHO who resealed the sample. HC Chaman (PW6) witnessed the recovery. ASI Naresh Chand (PW7) investigated the matter. 5. The accused, in his statement recorded under Section 313 of CrPC, denied the prosecution's case in its entirety. He stated that the witnesses deposed falsely against him at the instance of the Investigating Officer. He did not produce any evidence in defence. 6. Learned Trial Court held that HC Chaman Lal (PW6) and ASI Naresh Chand (PW7) consistently deposed about the recovery of the charas from the carry bag being carried by the accused. The integrity of the case property was duly established. Minor contradictions in the statements were insufficient to doubt the prosecution’s case. The recovery was made at the lonely place, and the non-association of the independent witnesses was not material. The integrity of the case property was duly established. Minor contradictions in the statements were insufficient to doubt the prosecution’s case. The recovery was made at the lonely place, and the non-association of the independent witnesses was not material. The quantity of resin in the recovered charas was 43.77% which had to be considered while determining the quantity of charas. Hence, the accused was held guilty of possessing 219 grams of charas, and he was convicted and sentenced as aforesaid. 7. Being aggrieved by the judgment and order passed by the learned Trial Court, the accused has filed the present appeal, asserting that the learned Trial Court erred in convicting and sentencing the accused. There were major contradictions in the testimonies of the police officials. The failure to join independent witnesses was fatal to the prosecution’s case. The mandatory provisions of the NDPS Act were not complied with. HHC Laxman Dass stated that he had kept the sample with him during the night, and the integrity of the case property was not established. Therefore, it was prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside. 8. I have heard Mr Rajesh Mandhotra, learned counsel for the appellant/accused, and Mr Prashant Sen, learned Deputy Advocate General, for the respondent/State. 9. Mr Rajesh Mandhotra, learned counsel for the appellant/accused, submitted that the appellant is innocent and he was falsely implicated. The police did not join any independent witness despite the opportunity and availability. The prosecution witnesses contradicted each other on a material aspect, which made the prosecution’s case highly suspect. Therefore, he prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside. 10. Mr Prashant Sen, learned Deputy Advocate General for the respondent State, submitted that the learned Trial Court rightly held that it was a case of chance recovery. The police made efforts to associate independent witnesses, but could not find any. The failure to join the independent witnesses is not fatal to the prosecution’s case. Therefore, he prayed that the present appeal be dismissed. 11. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 12. HC Chaman Lal (PW6) stated that the Investigating Officer joined him and HHC Chet Ram as witnesses. Therefore, he prayed that the present appeal be dismissed. 11. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 12. HC Chaman Lal (PW6) stated that the Investigating Officer joined him and HHC Chet Ram as witnesses. The name and address of the accused were ascertained. The Investigating Officer apprised the accused orally as well as in writing that he might be possessing some contraband in the bag being carried by him, and the search of the bag was required. The accused had a right to be searched before a Gazetted Officer. Similarly, ASI Naresh Chand stated that he joined HC Chaman Lal and HHC Chet Ram as the witnesses and inquired about the name and address of the accused. He apprised the accused orally as well as in writing that he (the accused) might be possessing some contraband in the bag being carried by him, and the search of the bag was required. The accused had a legal right to be searched before the Magistrate or a Gazetted Officer. The accused consented to be searched by the police. Thus, the witnesses consistently stated that the consent memo (Ex. PW6/A) was prepared before searching the carry bag. 13. Memo (Ex.PW6/A) mentions the FIR number, date and Section 20 of the NDPS Act (61 of 85). Section 20 of the NDPS Act deals with charas. There is nothing on record to show how the police knew about the existence of the charas in the bag. Thus, the mention of Section 20 of the NDPS Act makes it suspicious that the memo was prepared before searching the bag. 14. In State of H.P. v. Gyasho Ram , 2024 SCC OnLine HP 4192, the police had recorded the Section in the consent memo. It was laid down by this Court that mentioning the Section suggested that the document was prepared after the search. It was observed: “20. Now in case, Ext. PW-1/A to Ext. PW-1/C are perused, it would be noticed that the number of the FIR on these documents is conspicuously missing, and the heading thereof reads as “Fard Sahmati Patar Adhin Dhara 50 NDPS Act, i.e Consent Memo Under Section 50 of the NDPS Act.” This memo, as per the prosecution, was written on the spot and prepared before the recovery of the contraband. 21. 21. Once the police party had gone for patrolling duty, we really wonder as to how, prior to the recovery of the contraband, the provisions of Section 50 of the NDPS Act could have been invoked. Even if some suspicion had arisen, how could it be only for the charas and for anything illegal like liquor, gold, forest produce, wild animal body parts, etc., etc. 22. In this background, the fact that the document makes a mention of only the NDPS Act can only lead to an inference that the police had prior information regarding the respondents being in possession of contraband punishable under the NDPS Act or that this document was prepared not only before the search of the respondents but after the recovery of the charas.” 15. A similar view was taken in State of H.P. v. Manoj Bahadur , 2024 SCC OnLine HP 3442, wherein it was observed: “16. Apart from the above, the manner in which the prosecution claims to have prepared the document is also not free from doubt. As per the prosecution, search memos Ext.PW-1/A and Ext.PW-1/B were prepared prior to the signing of the rukka; however, it is not understandable as to how these documents bear FIR number and the provisions of law, under which the respondent was stated to have committed the crime.” 16. The cross-examination of the witnesses also makes it doubtful that the memo was prepared before the search. HC Chaman Lal (PW6) stated in his cross-examination that the accused was nabbed at a distance of 50 ft. and was searched there and then by the Investigating Officer. ASI Naresh Chand also stated in his cross-examination that the accused was nabbed at a distance of 50 ft. and was searched there and then only. This shows that the search was conducted immediately after the apprehension of the accused. Therefore, the prosecution’s case that an option was given to the accused is not correct. 17. ASI Naresh Chand (PW7) stated that he had deputed Chet Ram to bring the witness, but no independent witness could be found. HC Chaman (PW6) stated in his cross-examination that they stopped the accused at Charod Nallah. He admitted that shops and houses are located at Charod Nallah Bridge. He admitted that the village Jachni falls before Charod Nallah. 17. ASI Naresh Chand (PW7) stated that he had deputed Chet Ram to bring the witness, but no independent witness could be found. HC Chaman (PW6) stated in his cross-examination that they stopped the accused at Charod Nallah. He admitted that shops and houses are located at Charod Nallah Bridge. He admitted that the village Jachni falls before Charod Nallah. ASI Naresh Chand (PW7) also admitted in his cross-examination that shops and residential houses exist ahead of the bridge. Many pilgrims visit Manikaran during Navratras, and people from remote localities and their deities visit for Kullu Dussehra. He admitted that there is frequent vehicular traffic on the road during Navratra. It is difficult to believe that HC Chet Ram could not have found any person when the houses and the shops were located near the place of the recovery. The statements of HC Chaman Lal (PW6) and ASI Naresh Chand (PW7) in their cross- examination that the accused was searched there and then after the apprehension make it doubtful that efforts were made to join independent witnesses. 18. The fact that the witnesses consistently deposed about giving the option to the accused before his search and efforts to join independent witnesses makes their credibility highly suspect. 19. It is an admitted case of the prosecution that ASI Naresh Chand, HC Chaman Lal, HHC Chet Ram and HHC Laxman Dass were together. The search and the seizure were made in their presence. HHC Laxman Dass (PW2) did not depose anything about the recovery of charas in his examination-in-chief. He stated in his cross-examination that he was a member of the police party but did not remember the exact time when the police party proceeded towards the Police Station, Bhunter. It was submitted that failure to depose about the recovery of the charas makes the prosecution’s case suspect. This submission is not acceptable. It was laid down by this Court in Chet Ram v. State of H.P. 2008 :HHC: 2755 that the prosecution can examine the witnesses regarding one fact when he is a witness to multiple facts, and this does not make the prosecution’s case suspect. It was observed: “21. This submission is not acceptable. It was laid down by this Court in Chet Ram v. State of H.P. 2008 :HHC: 2755 that the prosecution can examine the witnesses regarding one fact when he is a witness to multiple facts, and this does not make the prosecution’s case suspect. It was observed: “21. It was argued that even though, according to the testimony of PW-6 LHC Narpat Ram and PW-8 HC Ram Lal, Constable Dhan Dev (PW7) was with them when the appellant was intercepted, and Charas was recovered from his bag, but he did not make even a whisper of his being present on the spot and witnessing the search and recovery of Charas. It was argued that his silence was enough to hold that he was not there, and hence, the testimony of PW-8 HC Ram Lal and PW-6 LHC Narpat Ram that recovery was effected in Dhan Dev’s presence cannot be believed, and consequently, their entire version regarding search and seizure becomes unbelievable. 22. PW-7 Dhan Dev was examined by the prosecution to prove another fact, viz., he carried one of the two sample parcels from Malkhana to the laboratory of the Chemical Examiner. So, he confined his statement only to this fact. It was known to the defence side that PW-7 Dhan Dev was cited as a witness of search and recovery because copies of the challan and other papers filed therewith had been supplied to the appellant before the start of the trial. Memo. Ext.PW6/C not only records that Dhan Dev was one of the two witnesses of the search and seizure, but it also bears his signature as one of the witnesses. Now when it was known to the defence that Dhan Dev was a witness of search and seizure and the prosecution examined him to prove some other fact and not the fact of search and seizure, because one witness, namely PW-6 LHC Narpat Ram had already been examined and Investigating Officer PW-8 HC Ram Lal was also going to be examined to prove the fact, defence could have cross-examined PW-7 Dhan Dev with regard to the search and recovery. No suggestion was put either to PW-6 LHC Narpat Ram or PW-8 HC Ram Lal that Dhan Dev (PW7) was not on the spot, nor was any such suggestion put even to PW-7 Dhan Dev, in the cross- examination. 23. No suggestion was put either to PW-6 LHC Narpat Ram or PW-8 HC Ram Lal that Dhan Dev (PW7) was not on the spot, nor was any such suggestion put even to PW-7 Dhan Dev, in the cross- examination. 23. In view of the above-stated position, no inference or presumption is required to be drawn against the prosecution for PW-7 Constable Dhan Dev not testifying about the search and seizure, even though he was a witness thereto and had even signed the search and seizure memo as a witness.” 20. Thus, in view of this precedent, the prosecution is free to examine the witness regarding one fact, even if he has witnessed multiple facts and the prosecution case cannot be doubted simply because he has not deposed about the other facts; however, it has to be taken into consideration that the prosecution had not sought corroboration of the testimonies of ASI Naresh and HC Chaman Lal from him. 21. HC Chaman Lal (PW6) stated in his examination-in- chief that the rukka was handed over to him at 3.15 PM with a direction to carry it to the Police Station, which he carried and handed over to SHO Tara Chand. However, he stated in his cross- examination that he left with the rukka at 1.15 PM in a private vehicle; however, he did not remember the registration number of the vehicle. Thus, there is a discrepancy in his testimony about the time of departure from the spot. Indeed, a person does not remember the time by looking at the watch; however, HC Chaman Lal had specifically mentioned 3:15 pm and 1:15 pm, which shows that he could not have been mistaken about the time. Hence, his statement in the cross-examination that he had left the spot with the rukka at 1.15 PM would make the whole of the prosecution case suspect because the accused was apprehended at 1.30 PM as per the prosecution, and this witness could not have left with the rukka at 1.15 PM. 22. The prosecution did not examine HHC Chet Ram and gave him up being repetitive. Learned Public Prosecutor is free to choose the witness whom he wishes to examine. However, the fact that the prosecution has not examined HHC Chet Ram will assume significance when the testimonies of HC Chaman Lal and ASI Naresh Chand are suspect. 23. 22. The prosecution did not examine HHC Chet Ram and gave him up being repetitive. Learned Public Prosecutor is free to choose the witness whom he wishes to examine. However, the fact that the prosecution has not examined HHC Chet Ram will assume significance when the testimonies of HC Chaman Lal and ASI Naresh Chand are suspect. 23. When the case property was opened in the Court, a polythene packet (Ex.P2), a cardboard box with cello tape (Ex.P3) and charas (Ex.P4) were taken out. HC Chaman Lal (PW6) and ASI Naresh Chand (PW7) stated that Ex.P2 and Ex.P3 are the same, which were recovered from the accused and sealed on the spot in the parcel (Ex.P1). No witness identified the charas (Ex.P4) as the one that was recovered from the accused. Therefore, the testimonies of these do not establish the case of the prosecution that the charas (Ex. P4) was recovered from the accused in their presence. 24. HHC Chaman Lal (PW6) stated in his cross- examination that the charas was completely wrapped with cello tape. The record of the learned Trial Court does not show that any cello tape was found when the case property was produced. It was not separately exhibited, and there is no identification of the cello tape. 25. Learned Trial Court held that the cardboard with the cello tape (Ex.P3) was proved; however, Chet Ram stated that the charas was wrapped with cello tape and not that the cardboard was wrapped with the cello tape. The exhibition of cardboard with cello tape is different from the charas wrapped with cello tape. Further, no person deposed that the cello tape shown to him was the same with which the charas was wrapped. Therefore, the absence of the cello tape with which the charas was wrapped makes the prosecution’s case suspect. 26. Learned Trial Court held that the discrepancies were minor and bound to come with time. There can be no dispute that the human memory fails with the passage of time, and minor contradictions are bound to come because of failure to remember the facts identically. 26. Learned Trial Court held that the discrepancies were minor and bound to come with time. There can be no dispute that the human memory fails with the passage of time, and minor contradictions are bound to come because of failure to remember the facts identically. However, in the present case, when the official witnesses have not explained the writing of Section 20 of the NDPS Act in the consent memo, their testimonies regarding the attempt to associate independent witnesses are doubtful, HHC Laxman Dass was not examined regarding the recovery, HHC Chet Ram was given up, and no witness identified the charas as the one which was recovered on the spot; the discrepancies assume significance and make the prosecuiton’s case suspect that the accused was found in possession of the charas. 27. Once it is held that the prosecution’s case regarding the accused being found in possession of the charas is doubtful, the subsequent steps, like depositing the case property in the malkhana, sending it to the FSL and the result of analysis, will not help the prosecution because the charas analysed cannot be connected to the charas recovered. 28. No other point was urged. 29. In view of the above, the judgment and order passed by the learned Trial Court cannot be sustained. Consequently, they are ordered to be set aside, and the appellant/accused is acquitted of the charged offence. The fine, if deposited be refunded to the appellant/accused after the expiry of the period of limitation, in case no appeal is preferred, and in case of appeal, the same be dealt with as per the orders of the Hon’ble Supreme Court of India. 30. In view of the provisions of Section 437-A of the Code of Criminal Procedure [Section 481 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)], the accused is directed to furnish personal bond in the sum of Rs. 25,000/- with one surety in the like amount to the satisfaction of the learned Registrar (Judicial) of this Court/learned Trial Court, within four weeks, which shall be effective for six months with stipulation that in the event of Special Leave Petition being filed against this judgment, or on grant of the leave, the appellant/accused, on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. 31. A copy of this judgment, along with the records of the learned Trial Court, be sent back forthwith. 31. A copy of this judgment, along with the records of the learned Trial Court, be sent back forthwith. Pending miscellaneous application(s), if any, also stand(s) disposed of.