STATE OF HIMACHAL PRADESH Vs. HARI RAM

JUDGEMENT

(1.) This appeal by the State is directed against the judgment dated 2.12.2002 passed by the learned Sessions Judge, Kullu, in Sessions trial No. 59-02 whereby he acquitted the accused of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act). Briefly stated the prosecution story is that on 31.1.2002 PW-9 Inspector Shiv Chaudhary alongwith PW-4 ASI Baldev, ASI Mathru Ram, HC Gangbir Singh, H.C. Ranjit Singh, PW-2 HHC Santosh Kumar and constable Sukh Dev were present near Kalakendra, Kullu for the purpose of traffic checking. At about 6.15 p.m. a bus of Harison Travels bearing registration No. HP-01/2043 came from Manali side. It was going to Delhi. The bus was stopped and on checking a person was found sitting on seat No. 18. When the police party searched him he looked perplexed. The said person was having a bag on his lap. The driver of the bus PW-5 and conductor PW-6 were associated as independent witnesses. On inquiry the person sitting at seat No. 18 disclosed his name to be Hari Ram, the accused. Thereafter, the bag of the accused was searched and inside this bag charas was found in a polythene packet inside a sky-blue coloured towel which on weighment was found to be two kilograms. After weighment two samples of 25 gram each were drawn and thereafter two samples and the remaining bulk charas were packed in three separate packets and sealed with seal bearing impression "A". Thereafter codal formalities were completed at the spot and the accused was arrested. Rukka Ext. PW-9/B was sent for registration of the case on the basis of which PW-8 Inspector Sanjay Kumar registered F.I.R. Ext. PW-8/A. On return to the police station PW-9 Inspector Shiv Chodhary produced the case property before PW-8 Sanjay Kumar who resealed the same and deposited the same with PW-3 MHC Bhagat Ram. On 3.2.2002 PW-3 sent one sample alongwith NCB form and documents to CTL Kandaghat through constable Sunder Lal. The chemical examiner vide his report Ext. PW-8/G opined that the sample was of charas. On this basis the accused was charged of having committed the aforesaid offence. The accused pleaded not guilty and claimed trial.

(2.) The learned trial Court held that the recovery was not proved and hence acquitted the accused.

(3.) At the outset it may be stated that independent witnesses PW-5 and PW-6 did not support the prosecution version at all. They were declared hostile and cross-examined at length by the learned public prosecutor but nothing favourable to the prosecution could be extracted from them. They denied that any charas was recovered from the accused in their presence. No doubt they admitted their signatures on various documents, such as, consent memo, seizure memo, etc. but stated that they signed blank papers on the asking of the police. It is well settled that when independent witnesses turn hostile the prosecution can rely upon the official witnesses but the statements of the official witnesses should inspire confidence and in case there are contradictions in the statements of the prosecution witnesses the benefit has to be given to the accused.