Suridner Singh, J.@mdashThe learned Special Judge, while holding the appellant, hereinafter referred as "the accused", guilty of the offence punishable u/s 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985, in short "the Act", convicted and sentenced him to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. . 1,00,000/-, in default of payment of fine to further undergo rigorous imprisonment for a period of 2 years, for allegedly keeping in his possession 6 Kgs. of "Charas", whereas, other co-accused, namely Vinod Kumar and Amit @ Mitta, alleged suppliers were acquitted, hence the present appeal by the convict. In short, the prosecution case can be stated thus. On 5.3.2008, a police party was headed by PW21 SI Vidya Chand under the supervision of PW18 Inspector Partap Singh. They were on traffic checking and had put a Naqa 1 K.M. ahead of Bajaura on the National Highway.
(ii) HRTC Bus No. HP-63-2817 was on its way from Manali to Delhi. At about 6.30 p.m., it reached Naqa point where it was stopped for checking. PW21 SI Vidya Chand entered the bus alongwith sniffer squad dog named "Pluto" with his handler PW3 HC Rakesh Kumar and started checking the luggage. While doing so, the sniffer dog reached near seat Nos. 23 and 24 and started scratching the bag of accused Nitin Khanna lying between his legs. His identity was asked and the person sitting on seat No. 24 disclosed his name as Tarun Sharma.
(iii) Police on getting suspicious included PW1 Joginder Kumar, driver and PW2 Manohar Lal conductor of the bus as independent witnesses and deboarded Nitin Khanna alongwith his bag and also Tarun Sharma with his belongings.
(iv) PW21 SI Vidya Chand, on checking the bag of Nitin Khanna in the presence of the aforesaid witnesses and PW19 C. Diwan Chand recovered, one polythene envelope with the print " Binu Garments" alongwith two other Khakhi coloured polythene envelopes which contained 6 Kgs. contraband (Charas) in the shape of sticks. The bag also contained half sleeve T-shirt Ext.P8, two Mobile chargers of Sony Erickson Ext.P15 and Nokia make Ext.P16, a pant Ext.P14, another orange coloured T-shirt Ext.P9 and in the outer pocket of the said bag learner licence Ext.P7 and two debit cards one of ICICI Bank Ext.P5 and another of HDFC Bank Ext.P6 of accused Nitin Khanna.
(v) After mixing the whole stuff, two samples of 25 grams each were separated and sealed with seal impression "O". The remaining bulk was also sealed with the same seal and both the sample parcels were marked as S1, S2 and remaining Charas as A1.
(vi) NCB forms in triplicate, one of which is Ext.PW17/C were filled in and the facsimile of the seal was also affixed against the relevant column. The sample of seal Ext.PW21/E was separately taken and seal after its use was entrusted to PW1 Joginder Kumar.
(vii) Case property was taken into possession in the presence of the witnesses aforesaid vide seizure memo Ext.PW19/A.
(viii) Police also prepared site plan of the place of alleged recovery. Ruqa Ext.PW21/A was sent for registration of the case through PW19 C. Diwan Chand, on the basis of which PW20 ASI Ram Swarup registered formal FIR Ext.PW20/B.
(ix) The accused persons were arrested and grounds of arrest were informed to them. During the personal search of the accused, police also took into possession two Mobile Sims. During investigation, he disclosed that the aforesaid contraband was supplied to him by accused Vinod Kumar, who was arrested on 7.3.2008 and also disclosed that 4 Kgs. Charas was supplied by accused Amit @ Mitta. He was also arrested on 10.3.2008.
(x) The accused Nitin Khanna was arrested and the grounds of arrest were informed to him in writing.
(xi) Case property alongwith NCB forms and sample of seal was produced before PW18 Inspector/SHO Partap Singh on the spot, who resealed the sample parcels at three places with seal impression "W" and also affixed the sample seal on the NCB form against the relevant column. He also took the sample of seal used on a plain cloth Ext.PW18/A.
(xii) Case property was deposited with PW17 MHC Manoj Kumari who made the entry in the Malkhana register, extract of which is Ext.PW17/A.
(xiii) Special report Ext.PW10/A with respect to the search and seizure was sent to the Officer superior within the statutory period, entry whereof was made in the relevant register, copy of which is Ext.PW10/B.
(xiv) On 9.3.2008, one sample parcel was sent to FSL Junga for analysis through PW14 HC Narpat Ram vide R.C. No. 68 of 2008 Ext.PW14/A. On its deposit in the Laboratory, he obtained the receipt Ext.PW14/B on the reverse of the RC and on his return handed over back to MHC aforesaid. As per report Ext.PB, sample so sent for analysis tested positive for Charas.
2. Finding prima-face a case against the accused persons, accused Nitin Khanna was charge-sheeted for the offence punishable u/s 20 of the Act, whereas, other accused persons were charge-sheeted for the offence punishable u/s 20 read with Section 29 of the Act, to which they pleaded not guilty and claimed trial.
3. To prove its case, prosecution examined its witnesses. The accused persons were also examined u/s 313 of the Code of Criminal Procedure. At the end of trial, the learned trial Court did not find any cogent and reliable evidence against accused Vinod Kumar and Amit @ Mitta, accordingly they were acquitted, but however, accused Nitin Khanna was convicted and sentenced as aforesaid, which is under challenged in the present appeal.
4. Shri M.S. Guleria, learned counsel duly assisted by Shri Sanjeev Kuthiala, learned counsel, forcefully argued that though it stands proved that the accused Nitin Khanna was travelling in HRTC Bus and occupying seat No. 23, but it is denied that any recovery of the contraband was effected from his possession, as alleged. It is also pointed out those so-called independent witnesses i.e. the driver and conductor of the bus had turned hostile and did not support the case of the prosecution. It is further argued that the statements of the official witnesses are contradictory. Learned counsel also took us through the statement of the witnesses to support their submissions and further argued that the police during the search of the bus started harassing the person named Shri Sanjay Abrol. On the intervention of accused Nitin Khanna, he was taken out of the bus and the bus crew took out his bag out of the luggage compartment. For about 20 minutes, he remained at barrier and thereafter taken to Police Station. During the night around 12 O''clock, police informed him that he was arrested. He alleged false implication in the case and also examined Shri Sanjay Abrol as defence witness. Our attention was also invited to the statement of PW7 Bhupinder Singh, Booking Clerk of H.R.T.C. Kullu. According to him, the bus had left Kullu at 5.30 p.m. and seat Nos. 23 and 24 were booked for Delhi as per way-bill Ext.PW7/A and further according to PW1 Joginder Kumar and PW2 Manohar Lal, the bus was detained for 30 minutes at Naqa, whereas the arrival time at Mandi was 7.30 p.m. and it had in fact reached there around 8 p.m. which fact falsified the entire prosecution case regarding recovery and arrest of the accused. PW1 Joginder Kumar and PW2 Manohar Lal also denied signing of the seizure memo aforesaid and it is also pointed out that they had deposed before the Court that they were made to sign the said documents on 9.3.2008 in Police Station itself. There has been variation in the weight of sample parcel when received for examination in the Laboratory. The learned trial Court lost sight of the contradictions appearing in the statements of the witnesses and non-appreciation of these facts has caused prejudice to the accused.
5. On the other hand, Mr. D.C. Pathik, learned Additional Advocate General while supporting the judgment of conviction and sentence passed against the accused, submitted that there are no material contradictions in the statements of the prosecution witnesses. The variations in the sample parcel as noted by the Laboratory are insignificant and on analysis, the result is not effected in any way. It is further submitted that the learned trial Court has appreciated the evidence in the right perspective, the hostility of PWs 1 and 2 aforesaid is for extraneous reasons and they have proved themselves as blatant liars, whereas, the documentary evidence substantiates the case of the prosecution case in material particulars. The link evidence is complete, therefore, no interference is called for.
6. We have appreciated the rival contentions of the parties and have carefully reappraised the evidence on record.
7. Before coming to any conclusion, we would like to reappraise the evidence of the prosecution. First of all, we take up the statement of PW21 SI Vidya Chand, the Investigating Officer. He testified that he alongwith PW18 Inspector/SHO Partap Singh, ASI Kishan Chand and other police officials including police sniffer dog named "Pluto" and his handler PW3 C. Rakesh had put a Naqa for traffic checking 1 K.M. ahead of Bajaura. In the evening, the bus being driven by PW1 Joginder Kumar, bound for Delhi arrived from Kullu side was stopped by police. On stopping it, he alongwith sniffer dog and its trainer C. Rakesh entered the bus and started checking the passengers. They noticed two bags lying under Seats No. 23 and 24 which were blue in colour. The sniffer dog started scratching the bags. On this, he asked the names and addresses of the persons sitting on the said seats. Accused Nitin Khanna resident of Faridabad was sitting on Seat No. 23 and Tarun Sharma on Seat No. 24. Police entertained some suspicion upon Nitin Khanna and took him out of the bus alongwith his bag and Tarun Sharma was made to alight with the bag by ASI Kishan Chand. On conducting the search of the bag of the accused in the presence of PW1 Joginder Kumar driver of the bus and PW2 Manohar Lal its conductor, they recovered the Charas in question and further the said bag also contained ATM-cum-Debit Cards Exts. P5 of ICICI and P6 of HDFC Banks, Learner licence Ext.P7, T-shirts Exts.P8, P9, Pant P14, Nokia charger Ext. P15 and Sony charger Ext.P16.
8. He further stated that out of recovered Charas, two samples of 25 grams each were separated, which were sealed with seal impression "O" and the remaining bulk was also sealed with the same seal. He further testified that both the samples were marked as S1 and S2 and remaining bulk as A1. Sample of seal was also taken on a separate piece of cloth and its facsimile was also taken on NCB forms, against the relevant column, which were filled in triplicate. Case property was taken into possession vide memo Ext.PW19/A, its copy was also given to the accused in the presence of the witnesses aforesaid.
9. In defence, the accused has denied the recovery of contraband from his possession. According to him, it was a false case foisted upon him as he had objected to the harassment being caused to DW1 Sanjay Abrol, who was an occupant of the bus. Significantly, said Sanjay Abrol defence witness admitted the checking of the bus by the police and stated that the police alongwith sniffer dog had entered the bus at the barrier for checking the luggage of the occupants. He further stated that Nitin Khanna accused was sitting behind his seat and objected to the manner in which his hand was caught by the police official and asked him as to why he was harassing him. He gave a different story that the Police kept the bag lying on the rack in the middle of the bus and started opening it and also stated that the conductor of the bus was asked by the police to take the luggage from the luggage compartment and the bag which was lying on the rack of the bus was put into the luggage of Nitin Khanna, which was neither put to the prosecution witnesses nor stated by the accused in his statement u/s 313 of the Code of Criminal Procedure. He further stated that the accused was made to alight for interrogation and after about 15 minutes, the bus started for its destination which fact is incorrect. In cross-examination, he admitted that Nitin Khanna was sitting on Seat No. 23 and Tarun Sharma on Seat No. 24 and further that the sniffer dog had been smelling the bag, which was checked by the police, therefore, it goes to show that the bag was not lying on the rack of the bus as stated by him in examination-in-chief and further he also admitted that the police had no enmity with Nitin Khanna and that he also did not know him prior to the incident and thereafter he saw him during the trial of the case when he appeared as defence witness in the Court. If that being so, how the accused was able to trace him out and produce him as his witness.
10. PW3 HC Rakesh Kumar, the dog handler and PW19 C. Diwan Chand both have corroborated the version of PW21 SI Vidya Chand and identified their signatures on the seizure memo Ext.PW19/A and further stated that PW1 Joginder Kumar and PW2 Manohar Lal also appended their signatures in their presence on the said documents as well as, on each of the parcels.
11. PW1 Joginder Kumar and PW2 Manohar Lal though turned hostile to the prosecution, but their hostility does not affect the recovery of the contraband in any manner. Importantly, both of them have admitted the checking of the bus by the police in the manner aforesaid in their presence. Though, they denied that the bag pertains to the accused and also denied the recovery of the contraband and other articles from the said bag, but admitted that the bag in question was sealed with seal impression "O" on the spot, but expressed their ignorance about sampling. They further admitted their signatures on the sample parcels and the remaining bulk as well as on the seizure memo, but according to them, their signatures were obtained by the police in the Police Station after about three days i.e. on 9.3.2008, which fact stands falsified for the reasons stated in the succeeding paras. They also admitted that the police had neither threatened nor induced or compelled them to sign the aforesaid documents and parcels and also did not sign the blank papers at any point of time. In addition, PW2 Manohar Lal stated that he had given intimation about checking of the bus and recovery to the Adda Incharge telephonically. Interestingly, if nothing was recovered from the accused then what was the occasion for him to intimate the Adda Incharge about the recovery of the contraband, meaning thereby that he knew that some contraband has been recovered from the bag which was in possession of the accused, but later sided with the accused to save him.
12. Further, the aforesaid hostile witnesses stated that their bus was detained for about 20 minutes at Naqa and they had left the place of Naqa around 6.35 p.m. and reached Mandi at about 8.15 p.m. Learned counsel for the accused referred to the statements of PW3 HC Rakesh Kumar, PW19 C. Diwan Chand and PW21 SI Vidya Chand whereby they stated that at 11.00 p.m. when PW19 C. Diwan Chand returned after handing over the Ruqa in the Police Station, the bus was at the Naqa point alongwith PW1 Joginder Kumar and PW2 Manohar Lal. Against this, learned counsel for the accused argued that the statements of hostile witnesses may be taken into consideration to doubt prosecution version as the bus had already reached Mandi at 8.30 p.m. and there was no question of preparing the seizure memo at 11 p.m. in their presence.
13. The statements of the hostile witnesses i.e. PW1 Joginder Kumar and PW2 Manohar Lal aforesaid in favour of the accused persons also stands belied as they had admitted their signatures on the seizure memo Ext.PW19/A coupled with the fact that Ruqa Ext.PW21/A was prepared at 9.30 p.m. which was sent for the registration of the case through PW19 C. Diwan Chand wherein details of the recovery and witnesses stands mentioned and on the same day, FIR Ext.PW20/B was registered on its basis. Its endorsement was made on the Ruqa Ext.PW21/A, consequently, the FIR was received by the Chief Judicial Magistrate on 6.3.2008 at 6 a.m. The accused was arrested and the grounds of arrest were informed to him vide memo Ext.PW19/B. He was produced before the Magistrate within 24 hours alongwith the case file, who was remanded to police custody, meaning thereby that all the documents including the seizure memo, grounds of arrest memo and the entire case file was produced for the perusal of the learned Magistrate, which contained the signatures of both the hostile witnesses on the case property and memos of recovery. Therefore, it stands falsified that they were made to sign the documents aforesaid on 3rd day i.e. on 9.3.2008 by the police in the Police Station and they have deliberately suppressed the truth to save the accused.
14. Not only this, PWs 1 and 2 aforesaid have proved to be dishonest witnesses to the prosecution, for the reasons that each of the parcels had contained their signatures and the recovered articles were produced before PW18 Inspector/SHO Partap Singh, who received it and sealed with seal impression "W" and the facsimile of the seal was taken on the NCB forms against the relevant column, one of which is Ext.PW17/A and also on the cloth Ext.PW18/A on the same day i.e. on 5.3.2008, thereafter these articles were deposited with PW17 MHC Manoj Kumari. She also identified the remaining bulk Ext. P1 and one of the sample parcel Ext.P2 during the trial of the case.
15. It is well settled that the evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused, but it can be subjected to the close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted. But we find that their statements do support the official witnesses in material particulars. Their hostility is dishonest and it appears that they have been boodled to make favourable statements to save the accused. Being public servants working in Himachal Road Transport Corporation, their conduct is required to be enquired into in a domestic enquiry.
16. Though, learned counsel for the accused cited
17. It is further argued by the learned defence counsel that there has been a variation in the weight of the sample parcel received and examined in the laboratory. Since as per the prosecution case they separated 25 grams of Charas from the recovered bulk in each of two parcels, but when one of the sample parcel was sent for examination, it turned to be 28.561 grams, which means that the sample was not of the alleged recovery. This argument deserves to be rejected outright on the ground that the scale and weights which were obtained for its weightment on the spot were conventional provided by PW4 Smt. Dhanwanti Sharma who was running a Karyana shop nearby but examination report Ext.PB reveals that weightment of the sample parcel was done by the electronic balance so this variation of approximately 3.561 grams in our considered opinion is of no consequence. Further the said sample of 25 grams was taken and made into a parcel. The increase can also be because of cloth which was used for wrapping the sample parcel. The report does not show that the contents of the sample were weighed without its cloth, therefore, no much significance can be attached to the increase in weight.
18. Further, PW6 R.P. Sharma, Bank Manager proved the transaction Exts.PW6/B and C from the ATM cards of the accused on 4.3.2008 and 5.3.2008 which shows that the accused was at Kullu and incident in question pertains to 5.3.2008. The recovery of learner licence Ext.P7 of accused Nitin Khanna serves as connecting evidence.
19. We have also examined other link evidence. PW17 MHC Manoj Kumari stated that Inspector/SHO Partap Singh had deposited these articles at 1.15 p.m. during the intervening night of 5th/6th March, 2008 with her, duly sealed, which were entered at Sl. No. 93 in the Malkhana register by her alongwith requisite documents and next day i.e. on 9.3.2008, one of the sample parcels marked S1 was sent for examination alongwith NCB forms in triplicate, sample of seals "O" and "W" to FSL Junga through PW14 HC Narpat Ram, which were deposited by him on the same day and obtained receipt on the reverse of the RC Ext.PW14/A. Therefore, signing of these documents/ parcels on 9.3.2008 in the Police Station by PWs 1 and 2 aforesaid stands totally falsified.
20. The official witnesses examined in the instant case proved the case of the prosecution beyond reasonable doubt with respect to the recovery of 6 Kgs. of Charas from the possession of Nitin Khanna from his bag in accordance with law. The link evidence in the instant case is complete from the time of its recovery till one of the sample parcels S1 was examined in the Laboratory, which tested positive for Charas. The minor contradiction about the place of preparing documents and bus haltage are of no consequence.
21. For the aforesaid reasons, in our considered opinion, the prosecution case stands proved beyond reasonable doubt in accordance with law. The defence version could not be probabilised. There is no significant contradiction in the statements of the official witnesses, which otherwise stands fully corroborated in material particulars. Thus, the recovery of the contraband stands proved from the accused, for which he does not have any plausible explanation. We do not find any infirmity in his judgment of conviction and order of sentence passed by the learned trial Court. Therefore, the appeal is without any merit and is accordingly dismissed.
22. However, we are constrained to note that PW1 Shri Joginder Kumar, Driver of the bus and PW2 Shri Manohar Lal, its conductor, working in H.R.T.C. Kullu, have prima-facie mis-conducted themselves being public servants as disclosed in Paras 13 to 17 and 20 supra, therefore, it requires to be probed, as such, the Managing Director, H.R.T.C., is hereby directed to conduct a departmental enquiry against them and take it to a logical conclusion. Let a certified copy of the judgment be sent to him by the Registry of this Court and seek compliance within a month, which shall be placed on the administrative side of this Court. The matter stands disposed of, so also the pending application(s), if any. Records of the learned trial Court be returned forthwith.
