Dharam Chand Chaudhary, J.—Challenge herein is to the judgment dated 2.3.2010, passed by learned Special Judge, Mandi, Division at Mandi, H.P. in Sessions Trial No. 5 of 2008, whereby both the accused respondents (hereinafter referred to as the accused) were acquitted of the charge under Sections 18 & 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ''the NDPS Act'' in short), framed against each of them. Accused Mahender Pal Singh was acquitted of the charge framed under Section 181 of the M.V. Act, also. Accused Mahender Pal Singh has expired during the pendency of this appeal. The appeal as such stands abated against the said accused.
2. The learned trial Court on the basis of the evidence available on record while discarding the plea raised in defence by the accused that Section 50 of the NDPS Act has not been complied with has concluded that in view of recovery of charas from the bag being carried by accused Krishna, the compliance of Section 50 of the Act was not required to be made. However, on taking into consideration the contradictions, inconsistencies and improvements in the prosecution evidence, both the accused were given benefit of doubt. In the opinion of learned trial Judge, the recovery of charas weighing 800 grams and opium weighing 150 grams from physical and conscious possession of accused Krishna is not proved beyond all reasonable doubt. The discrepancies qua time of preparation of rukka Ext. PW-4/A, the time when FIR Ext. PW-9/A/1 was registered and the prosecution case that parcels containing recovered charas and opium and sample parcels when produced by the I.O. before PW-4 Amar Nath MHC, Police Station were already sealed with seals "A" & "C" whereas as per the testimony of PW-4 MHC Amar Nath, seal "C" was used by him for resealing the parcels when produced before him, were also taken into consideration by learned trial Court. The cuttings in the date (7 adjusted to 8 by way of overwriting) on reseal memo Ext. PW- 4/C also weighed with learned trial Judge while acquitting both the accused. The prosecution case that the search of lady accused Krishna was conducted by a lady Constable is also not proved on record. Learned trial Judge has also noted that the independent witnesses PW-1 Sher Singh and PW-8 Roshan Lal associated by the I.O. PW-9 Ami Chand have also not supported the prosecution case. The findings that there is no mention about the preparation of NCB form in rukka Ext. PW-4/A are, however, without any substance as reference thereto is very much there in this document. The another ground that as per the report of Chemical Examiner Ext. PW-9/F, the resin contents in the sample of charas being 20.950 grams and in that of opium 15.488 grams, the weight of recovered charas was only 167.600 grams whereas that of opium 23.232 grams and as such even if the same is held to be recovered from accused Krishna, in that event also, it was a case of recovery of small quantity, however, is not available to the accused because a Larger Bench of this Court in State of Himachal Pradesh v. Mahboob Khan has held that the entire bulk is to be treated as charas unless and until it is proved that some foreign material was found to be mixed therein. As per further ratio of this judgment, the other part of cannabis plaint i.e. leaves, branches and stem etc. if mixed in the recovered mass is also charas.
3. It is, in the above backdrop, the fate of this appeal has to be decided or before that it is desirable to take note of the facts in a nut shell.
4. On 7.9.2007 around 6:00 PM, PW-9 SI Ami Chand along with Constables Gopal Singh and Lekh Ram was conducting traffic checking at Slapper bridge near the gate of Dehar Power House. One motor cycle bearing registration No. HR-36F-0146 TVS Fiero being driven by accused Mahender Pal Singh (since dead) and occupied by lady accused Krishna as pillion rider was stopped for checking by the police. The antecedents of both the accused were ascertained. The documents of the motor cycle were checked. During the course of checking of bag being carried by accused Krishna with her, charas weighing 800 grams and opium weighing 150 grams was recovered from two different polythene carry bags which were kept therein. After resorting to sealing and sampling process, the recovered charas was taken into possession vide memo Ext. PW-7/A. Specimen of seal "A" Ext. PW-7/B was drawn. The NCB form Ext. PW-4/F was also updated in triplicate. The seal after its use was handed over to Roshan Lal (PW-8). The rukka Ext. PW- 4/A was sent to Police Station through Const. Lekh Ram (PW-7), on the basis whereof FIR Ext. PW-9/A/1 was registered by the Police. The I.O. prepared the spot map Ext. PW-9/A. The accused were arrested vide arrest memos Ext. PW-9/D and PW-9/E, respectively. They were apprized about the grounds of arrest i.e. the offence they committed and the provision of sentence prescribed therefor. The accused and parcel containing the recovered contraband were produced before PW-4 MHC Amar Nath, Police Station Sundernagar and the officiating SHO who resealed the same with seal "C". The motor cycle was taken into possession vide memo Ext. PW-7/A. Accused Mahender Pal Singh was found driving the motor cycle without driving licence. Special report Ext. PW-3/A was prepared and sent to DSP (Headquarters), Mandi through Const. Lekh Ram (PW-7). The samples of recovered charas and opium were sent to FSL Junga. As per the report Ext. PW-9/F, the same after analysis were found to be the sample of charas and opium.
5. The Investigating Agency, on completion of the investigation has filed the Challan against the accused. Learned trial Judge, has framed charge against both of them under Sections 18 & 20 of the ND & PS Act. Accused Mahender Pal Singh was additionally charged with the offence punishable under Section 181 of the M.V. Act, also. They, however, pleaded not guilty and claimed trial.
6. The material witnesses examined by the prosecution in order to sustain charge against the accused are PW-1 Sher Singh, PW-4 Amar Nath, PW-5 Gopal Singh, PW-7 Lekh Ram, PW- 8 Roshan Lal and PW-9 SI Ami Chand, the Investigating Officer. The remaining prosecution witnesses are formal, being police officials.
7. Learned trial Court, on appreciation of the evidence has, however, acquitted both the accused for the reasons recorded in the impugned judgment and discussed in para supra also.
8. The State of Himachal Pradesh, aggrieved by the impugned judgment has questioned the legality and validity thereof on the grounds, inter alia, that learned trial Court has failed to appreciate the evidence available on record in its right perspective. The same rather is stated to be appreciated in slipshod and perfunctory manner. The Court below is stated to have based its findings on hypothesis, surmises and conjectures. The reasoning as given by the Court below is stated to be manifestly wrong and unsustainable. The cogent and reliable evidence produced by the prosecution has erroneously been brushed aside. The minor contradictions in the statements of the prosecution witnesses have weighed heavily with learned trial Court while recording the findings of acquittal against the accused. There being overwhelming, cogent and reliable evidence suggesting the involvement of both the accused in the commission of offence, the factum of independent witnesses having turned hostile to the prosecution should have not been given undue weightage. The recovery of charas weighing 800 grams and opium 150 grams from the exclusive and conscious possession of the accused is satisfactorily proved, however, the accused have been acquitted erroneously.
9. Mr. D.S.Nainta, learned Addl. Advocate General while taking us to the evidence available on record has strenuously contended that the trial Court has failed to appreciate the evidence available on record in its right perspective. The impugned judgment, as such, has been sought to be quashed and set aside.
10. On the other hand, Sh. G.R.Palsra, Advocate, learned counsel representing the accused respondent Krishna has urged that for want of cogent and reliable evidence to prove the recovery of contraband allegedly charas and opium from the conscious and exclusive possession of the said accused renders the entire prosecution case highly doubtful. The improvements, contradictions as occurred in the evidence are stated to be fatal to the prosecution case. It has thus been urged that learned trial Court has not committed any illegality or irregularity while acquitting the accused of the charge framed against each of them.
11. At the out set, it is deemed appropriate to observe that the recovery of narcotic drug or psychotropic substance from the conscious and physical possession of the accused is sine qua non for recording the findings of conviction against him. We have drawn the support from the judgment of a Division Bench of this Court in Criminal Appeal No. 71 of 2013, titled State of Himachal Pradesh v. Karnail Singh @ Kaila, decided on 8th September, 2016, in which judgment of Bombay High Court in Rubyana alias Smita Sanjib Bali v. State of Maharashtra and others, 1996 Crl. L.J. 148 to conclude that the possession must be conscious and intelligent and mere physical presence of the accused in proximity or even close to something incriminating is not sufficient.
12. Now if coming to the rival contentions in the light of the given facts and circumstances and the evidence available on record, rapat rojnamacha Ext. PW-5/A reveals that the police party headed by Sub Inspector Ami Chand (PW-9), incharge of Police Post, Slapper left for village Slapper for conducting traffic checking at 5.00 p.m. on national highway. As per the prosecution case, when PW-9 along with other police officials were present at Slapper bridge at 6.00 p.m. near the gate of Dehar Power House, both accused arrived there on a motorcycle bearing registration No. HR-36F-0146. The motorcycle was being driven by accused Mohinder Pal Singh (since dead) and the pillion rider was his co-accused Krishna. Admittedly, nothing incriminating was recovered from either of them or from the dicky etc., of the motorcycle. The contraband allegedly charas was recovered from a military coloured bag being carried by accused Krishna with her. The independent witnesses PW-1 Sher Singh and PW-8 Roshan Lal though have admitted their signatures on all the documents put to them while in the witness box, however, they have not supported the prosecution case qua the recovery of charas weighing 800grams and opium weighing 150grams from the bag allegedly being carried by accused Krishna with her in their presence at all. The present as such is a case, which is not supported by the independent witnesses allegedly associated by the I.O at the time of conducting search and seizure on the spot.
13. Learned Additional Advocate General has heavily relied upon the own statement of the I.O and that of Constable Gopal Singh, PW-5 and Constable Lekh Ram, PW-7, none else but two Constables, who as per rapat Rojnamcha Ext. PW-5/A were accompanying the I.O. for conducting traffic checking on the national highway at Slapper. True it is that the official witnesses can be relied upon, however, with all circumspection and caution i.e. their testimony needs to be closely scrutinized. It is held by a Division Bench of this Court in Criminal Appeal No. 3 of 2013 titled Joga Singh v. State of Himachal Pradesh, decided on 7th July, 2016 while placing reliance on the judgment of the Apex Court in Makhan Singh v. State of Haryana, (2015) 12 SCC 247. The relevant extract of the same reads as follows:
"��In peculiar circumstances of the case, it may not be possible to find out independent witnesses at all places and at all times. Independent witnesses who live in the same village or nearby villages of the accused are at times afraid of to come and depose in favour of the prosecution. Though it is well settled that a conviction can be based solely on the testimony of official witnesses, condition precedent is that the evidence of such official witnesses must inspire confidence. In the present case, it is not as if independent witnesses were not available."
14. Whether in the given facts and circumstances, the evidence as has come on record by way of testimony of I.O. PW- 9, Constable Gopal Singh, PW-5 and Constable Lekh Ram, PW-7 can be relied upon or not, the answer to this poser in all fairness and also in the ends of justice would be in negative for the reason that the recovery of contraband allegedly charas and opium in the manner as claimed in the police report filed under Section 173 of the Code of Criminal Procedure and the documents annexed thereto is highly doubtful. The accused were nabbed at Slapper bridge allegedly at 6.00 p.m. Had the investigation been taken place on the spot in the manner as claimed, it was likely to take only 2-3 hours for completion. The rukka Ext. PW-4/B if seen amply demonstrates that the time of reducing the same into writing was initially at 18.30 hours (6.30.p.m). However, there is cutting in time, which by way of overwriting was changed to 10.00 p.m. The I.O. PW-9 and the witness Lekh Ram, PW-7 have admitted such cutting in this document, however failed to explain the same. Meaning thereby that the accused were not nabbed at 6.00 p.m. at Slapper bridge, however, before that during day time and may be at 1.00-1.30 p.m. as deposed by the independent witness Roshan Lal or 2.00- 2.30 p.m. as deposed by PW-8 Roshan Lal while in the witness box. They both have not been cross-examined to elicit something contrary that they were not called at 1.00-1.30 p.m. or 2.00-2.30 p.m. but 6.00 p.m in the evening. The accused, therefore, seems to have been apprehended during day time i.e. around 1.00-1.30 p.m. or 2.00-2.30 p.m. and being so, the rukka was rightly prepared at 18.30 hours (6.30 p.m). The time of preparation of this document, however, has been changed as 10.00 p.m. to the reasons best known to the I.O., which according to us for filling up the lacuna left in the investigation of the case.
15. The updation of NCB forms on the spot is also doubtful for the reason that in the rukka reference qua updation thereof has been added later on and in different ink. Similarly, if coming to the recovery memo Ext. PW-7/B, the reference qua updation of this document is not in continuity and in sequence of the recitals made therein and rather in the end of this document.
16. Interestingly enough, according to PW-7, the personal search of accused Krishna was conducted by him, however, to the contrary, as per version of the I.O. PW-9, her search was conducted by a Lady Constable, who was called from Police Station, Sundernagar by him at sometime in between 6.00 p.m. to 10.00 p.m. His ignorance as to when she reached on the spot belies his testimony that the search of accused Krishna was conducted by a Lady Constable. The story to this effect has also been fabricated and engineered.
17. When the search and seizure seems to be not taken place at 6.00 p.m and rather during day time itself, therefore, it is not known as to why the registration of the case was delayed till 23.40 hours (11.40 p.m.). Otherwise also, had the search and seizure been taken place at 6.00 p.m., as claimed by the prosecution, six hours time was not required to deliver the rukka in the Police Station at Sundernagar, which as a matter of fact, is connected by Chandigarh-Manali-Leh national highway one of the busiest roads.
18. Interestingly enough, as per re-seal memo Ext. PW- 4/C, the parcel containing the recovered charas and opium along with sample parcels were produced before Head Constable Amar Nath, PW-4 and the then MHC, Police Station, Sundernagar as well as officiating SHO. As per this document, the said witness has re-sealed all the parcels with seal ''C'', however, if coming to his statement Ext. D-X recorded under Section 161 of the Code of Criminal Procedure, the I.O. PW-9 when produced before him the parcel containing the case property and also the sample parcels, the same were already sealed with seal ''A'' and ''C''. Although, when statement Ext. D-X was put to him in his cross-examination, he has denied portion A to A, B to B and C to C thereof being incorrect, however, without any reasonable and plausible explanation as to how his statement under Section 161 of the Code of Criminal Procedure came to be recorded in such a manner and fashion. Meaning thereby that the parcels containing the case property and samples were not re-sealed in the manner as claimed by the prosecution.
19. The contradictions, discrepancies and improvements as discussed herein above and occurred in the prosecution evidence renders the testimony of I.O. PW-9 and also Constable Gopal Singh, PW-5 as well as that of Constable Lekh Ram, PW-7 highly doubtful and it would not be appropriate to place reliance on the same in order to record the findings of conviction against the accused.
20. The independent witnesses have turned hostile to the prosecution as according to them, search and seizure have took place on the spot in their presence. As per testimony of PW-1 Sher Singh, a meat seller at Slapper, he admits that the police had come to his shop around 2.00-230 p.m and had taken the scale and weights therefrom. True it is that when put to cross-examination, he has admitted his signatures on the documents and also on the parcels containing the recovered charas and opium as well as on sample parcels, however, as per his testimony, he had signed the same at the instance of police. His education is only up to 2nd or 3rd standard, therefore, it can reasonably be believed that he could have not understood the contents of the documents even if readover and explained to him by the police. Therefore, he seems to have signed these documents at the instance of police without knowing the consequences thereof. Now if coming to the testimony of another independent witness Shri Roshan Lal, PW-8, he has also denied the search and seizure having taken place in his presence, however, according to him he was made to sign the documents by the police. He is matriculate and seems to have deposed falsely, however, when the prosecution case right from the beginning till end hardly inspires any confidence, even if it is believed that this witness has deposed falsely, the final outcome shall remain the same as in the trial Court. The testimony of PW- 1 and PW-8 rather leads to the only conclusion that the accused were not apprehended on Slapper bridge at 6.00 p.m and rather during day time i.e. as per testimony of PW-1 1.00-1.30 p.m., whereas, as per that of PW-8 at 2.00-2.30 p.m. Furthermore, as per testimony of PW-8, he was called to the office of CID police near Slapper bridge where many police officials including three Lady Constables were present. Otherwise also, the degree of proof in a case of this nature should be high because there is provision of deterrent punishment against an offender, if otherwise held guilty after holding full trial. We can draw support in this regard from the judgment of apex Court in Noor Aga v. State of Punjab, (2008) 16 SCC 417, wherein it has been held as under:
"56. The provisions of the Act and the punishment prescribed therein being indisputably stringent flowing from elements such as a heightened standard for bail, absence of any provision for remissins, specific provisions for grant of minimum sentence, enabling provisions granting power to the Court to impose fine of more than maximum punishment of Rs. 2,00,000/- as also the presumption of guilt emering from possession of Narcotic Drugs and Psychotropic Substances, the extent of burden to prove the foundational facts on the prosecution, i.e.,"proof beyond all reasonable doubt" would be more onerous. A heightened scrutiny test would be necessary to be invoked. It is also so because whereas, on the one hand, the court must strive towards giving effect to the parliamentary object and intent in the light of the international conventions, but, on the other, it is also necessary to uphold the individual human rights and dignity as provided for under the UN Declaration of Human Rights by insisting upon scrupulous compliance of the provisions of the Act for the purpose of upholding the democratic values. It is necessary for giving effect to the concent of "wider civilization". The courts must always remind itself that it is a well settled principle of criminal jurisprudence that more serious the offence, the stricter is the degree of proof. A higher degree of assurance, thus, would be necessary to convict an accused. In State of Punjab v. Baldev Singh, it was stated: (SCC p. 199, para 28)
"28�.It must be borne in mind that severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed." [See also Ritesh Chakravarti v. State of M.P.)
57. It is also necessary to bear in mind that superficially a case may have an ugly look and thereby, prima facie, shaking the conscience of any court but it is well settled that suspicion, however, high may be, can under no circumstances, be held to be a substitute for legal evidence."
21. In view of what has been said herein above, we find no illegality or infirmity with the impugned judgment. The same, as such, calls for no interference by this Court. Consequently, the appeal being devoid of any merits is dismissed. The personal bond furnished by accused Krishna stand cancelled and surety discharged.
