w w w . L a w y e r S e r v i c e s . i n



Lal Chand v/s State of H.P.


Company & Directors' Information:- S CHAND AND COMPANY LIMITED [Active] CIN = L22219DL1970PLC005400

Company & Directors' Information:- S CHAND AND COMPANY LIMITED [Active] CIN = U22219DL1970PLC005400

Company & Directors' Information:- C. LAL LIMITED [Active] CIN = U51909HR2012PLC046499

    Criminal Appeal No. 660 of 2017

    Decided On, 29 February 2020

    At, High Court of Himachal Pradesh

    By, THE HONOURABLE MR. JUSTICE DHARAM CHAND CHAUDHARY & THE HONOURABLE MR. JUSTICE VIVEK SINGH THAKUR

    For the Appearing Parties: Dibender Ghosh, Vikas Rathour, Narinder Guleria, Advocates.



Judgment Text


Vivek Singh Thakur, J.

1.The present appeal has been preferred by accused-convict-appellant Lal Chand against the judgment dated 25.3.2017, passed by learned Additional Sessions (Special) Judge, Kullu, District Kullu, Himachal Pradesh, in Sessions Trial No.38 of 2015, titled as State of Himachal Pradesh v. Lal Chand, whereby the accused has been convicted for having committed an offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1,00,000/-, and further to undergo simple imprisonment for a period of one year in case of default of payment of fine.

2. We have heard learned counsel for the accused, learned Additional Advocate General, and also gone through the record.

3. Prosecution case in brief is that a police party, headed by ASI Dinesh Kumar (PW-9), consisting of HHC Tikkam Ram (not examined), HHC Chet Ram (PW-8), had left Police Station, Sadar (Kullu) in official vehicle, bearing No.HP-34A-9986, being driven by Constable Karam Chand (not examined), for patrolling in the jurisdiction of Police Station, Sadar (Kullu), after making DD Entry No.7, dated 28.3.2015 at 4 a.m. (Ex.PW-5/A). At about 5.15 am, when police party was present near Raugi Nala, on the road from Kullu to Manali, a person, carrying a bag in his hand, was noticed coming on foot from Manali side to Kullu side, who, on noticing the police party, took about turn and started running towards Manali, whereupon he was chased and apprehended by ASI Dinesh Kumar (PW-9), with the help of other police officials, at a distance of 10 metres and was asked reason for running from the spot, but he could not give satisfactory answer. On asking about his carry bag, he started trembling and did not answer anything, causing suspicion of carrying stolen articles and necessitating the search of his bag. As per prosecution case, at that time, there was no movement on the road and the place was secluded. Therefore, PW-9 ASI Dinesh Kumar sent HHC Tikkam Ram in search of witneses towards Kayas, who returned after about 20 minutes and informed that he did not find any person, which led to the forming of search party by associating PW-8 HHC Chet Ram and HHC Tikkam Ram (not examined), for carrying out search and seizure procedure. Before conducting search of the accused, the police party gave its search to the accused vide Memo Ex. PW-8/A, and thereafter during search of the bag of the accused, stick-shaped black substance was found wrapped in a transparent polythene envelope. On the basis of experience, after smelling the substance, it was identified as charas. After weighing the same, alongwith the carry bag, on Electronic Weighing Machine, it was found to be 2.015 kg. Thereafter, the contraband substance, alongwith the carry bag, was sealed in a cloth parcel with seal impression 'I' and taken into possession vide Memo Ex.PW-8/E, which was signed by the accused and two witnesses, namely PW-8 HHC Chet Ram and Tikkam Ram, copy of which was also supplied to the accused, free of cost. Facsimile of the seal Ex.PW-8/B was also taken on a piece of cloth. Thereafter, Ruka (Ex.PW-8/C) was prepared and sent to Police Station, Kullu, through PW-8 HHC Chet Ram, who reached the Police Station at 9.15 a.m. and handed over the same to SHO Anil Kumar (PW-4). On the basis of Ruka, FIR No.77/15, dated 28.3.2015 (Ex.PW-4/A) was registered at 9.15 a.m. and after making endorsement (Ex.PW-4/B) on the Ruka, the case file was handed over to PW-8 Chet Ram for giving it to Investigating Officer ASI Dinesh Kumar.

4. It is the case of prosecution that the accused was arrested on the spot at about 10.30 a.m., after giving him information about his arrest vide Memo Ex.PW-8/F, which was signed by the accused as well as Tikkam Ram (not examined) and PW-8 Chet Ram. After arrest of the accused, his personal search was conducted vide Memo Ex.PW-8/G, according to which a Mobile Phone, a copy of Memo Ex.PW-8/E and an amount of Rs.620/- were found being carried by him.

5. Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure and Spot Map (Ex.PW-9/A) was prepared by the Investigating Officer (PW-9) on the spot and thereafter case property alongwith accused was taken to the Police Station and produced before PW-4 Inspector Anil Kumar (SHO) at 2.05 p.m. and in this rgard GD Entry No.16A (Ex.PW-2/A) was made in Daily Station Diary of the Police Station. Thereafter, PW-4 had resealed the parcel of the contraband substance with seal 'S' and filled the relevant column of NCB Form in triplicate and had taken sample of seal 'S' on a separate piece of cloth (Ex.PW-4/C). Thereafter, the case property alongwith documents was handed over to MHC Rakesh Kumar (PW-3) by PW-4 Inspector Anil Kumar, after making GD Entry No.18A, dated 28.3.2015 (Ex.PW-2/B) in the Daily Station Diary, at 2.25 p.m. PW-3 MHC Rakesh Kumar, after entering the case property and the documents at Sr. No.1753 in the Malkhana Register (Abstract Ex.PW-3/B), had kept the same in Malkhana.

6. Pw-9, the Investigating Officer prepared Special Report (Ex.PW-6/A) on 29.3.2015 and had sent it to the Additional Superintendent of Police, which was received by him at 5.20 p.m. and was handed over to PW6 Constable Ajay Sharma, his Assistant Reader, who had made entry in the Register at Sr. No.24 (Abstract Ex.PW6/B).

7. On 30.3.2015, the recovered contraband was sent for Chemical Examination by PW-3 MHC Rakesh Kumar through PW-1 Constable Mahesh Kumar, vide RC No.112/15 (Ex.PW-3/C), alongwith Forwarding Letter (Ex.PW-4/D). PW-1, after depositing the case property with State Forensic Science Laboratory, Junga, had handed over the receipt thereof to PW-3 HHC Rakesh Kumar.

8. On receipt of the report (ExPW-9/B) of the Chemical Examiner and completion of investigation, challan was presented in the Court for trial.

9. On fining prima facie complicity of the accused in the alleged crime, he was charge-sheeted for having committed an offence under Section 20 of the NDPS Act. The accused had pleaded not guilty and claimed trial.

10. To bring home the guilt of the accused, prosecution examined as many as 9 witnesses. Statement of the accused under Section 313 of the Code of Criminal Procedure was also recorded, in which he took the following defence:

"I am innocent. In fact, on 27.3.2015 at 7.00 P.M., I was waiting for the bus at Bus Stand Kullu for Manali side and I was under the influence of liquor. One unclaimed bag was found underneath the bench made for the passengers to sit at Bus Stand. Other passengers were also there. All the passengers denied the ownership of the unclaimed bag. On search of the bag charas was recovered from the said bag on the Bus Stand. I was under intoxication and could not reply satisfactorily at the Bus Stand. Therefore, on suspicion I alongwith the bag was brought to Police Station for thorough investigation and on suspicion on 28.3.2015 at morning time false case was made against me."

The accused had chosen not to lead any evidence in defence.

11. On conclusion of trial, accused stands convicted and sentenced, as aforesaid.

12. Learned counsel for the accused has pointed out that there are glaring contradictions and discrepancies in the evidence of the prosecution, going to the root of the genesis of the prosecution story, for which the accused is entitled for acquittal. He has pointed out that it is claim of the prosecution that the accused was apprehended at 5.15 a.m. and HHC Tikkam Ram, who was sent for search of independent witnesses, came back after 15-20 minutes and thereafter official witnesses were associated in the search and seizure procedure and after giving their search to the accused, personal search of the accused was conducted, meaning thereby that search of the accused was conducted at about 5.30-5.35 a.m., but in Memo of personal search of officials (Ex.PW-8/A), time of giving personal search by these officials has been mentioned as 5.20 a.m. and further in the NCB form the time of recovery of the contraband substance has been mentioned as 7.15 a.m., which indicates that the entire story of recovery of contraband substance has been cooked up by the prosecution by sitting in the Police Station, which probablizes the defence of the accused that he was apprehended a day before the alleged recovery on Bus Stop, while he was intoxicated, after thrusting upon him the recovery of contraband substance from an unclaimed bag lying on the Bus Stand. Further that it is the prosecution case in the Special Report (Ex.PW-6/A) that photographs were taken on the spot, but no such photographs have been produced in the Court, rather it is claimed by the prosecution witnesses in the Court that no photographs were taken on the spot, which again creates serious doubt about the case of the prosecution, and lastly it is submitted that there being habitation and market within a radius of 100-300 metres from the spot of the alleged recovery, and also alleged spot of recovery being on the Kullu-Manali National Highway, no efforts, made to join independent witnesses, have been proved on record and only official witnesses have been cited as available witnesses. It is further contended that PW-8 and PW-9 have admitted that vehicles were crossing from the road, but there is nothing on record to reflect that any effort, to associate any occupant of those vehicles, was made by the Investigating Officer.

13. Mr. Sunny Dhatwalia, learned Deputy Advocate General, has submitted that the contradictions and discrepancies pointed out by the learned counsel for the accused are minor in nature and do not go to the root of the case and thus are not of any help to the accused. He has supported the impugned judgment and reasons enumerated therein by the learned Special Judge.

14. It is claim of prosecution that the accused was noticed on the spot at 5.15 a.m. In Ruka (Ex.PW8/C), Special Report (Ex. PW-6/A) and FIR (Ex.PW-4/A), it is categorically stated that when HHC Tikkam Ram, who was sent by PW-9 ASI Dinesh Kumar in search of independent witnesses, returned empty handed after 20 minutes, then the police officials, PW-8 Chet Ram and HHC Tikkam Ram, were associated as witnesses for conducting the search of the accused, and thereupon they gave their search to the accused. Believing the prosecution case as such, the time of giving personal search by the police officials must be 5.30-5.35 am, however, in the Memo of Search (Ex.PW-8/A), this time is mentioned as 5.20 a.m.

15. In his deposition in Court, PW-8 Chet Ram has categorically stated that after associating himself and HHC Tikkam Ram in the investigation, the Investigating Officer gave his personal search to the accused and regarding that Memo Ex.PW-8/A was prepared and he had signed the said Memo in Red Circle 'A'. He is silent about his personal search and that of HHC Tikkam Ram, having been given to the accused a claimed by PW-9ASI Dinesh Kumar in his deposition as also in Memo Ex.PW-8/A, which renders not only Memo Ex.PW-8/A but also the sequence of events, as claimed by the prosecution, to be doubtful.

16. Further, even if timings mentioned in Ex.PW-8/A are ignored, there is another document NCB Form Ex.PW-3/A filled-in by the Investigating Officer on the spot, wherein in Column-3, time of seizure has been mentioned as 7.15 a.m. There is a gap of two hours between recovery of contraband substance and taking the same into possession, as if we believe the Ruka, Special Report and also the Memo Ex.PW-8/A, time of recovery is about 5.30 a.m. Wherefrom the time of seizure has been mentioned in NCB Form Ex.PW-3/A as 7.15 a.m., is not clear.

17. As per statement of Investigating Officer (PW-9), the police party remained on the spot for about three hours, meaning thereby that the police party was on the spot till 8.15-8.30 a.m. Even if further margin of half an hour is given, the police party should have left the place by 9 a.m. In the Memo of information of arrest Ex.PW8/F, the accused has been shown to have been arrested at 10.30 a.m. on the spot near Raugi Nala. According to PW-8 Chet Ram he returned to the spot with the case file at 10.30 a.m., after registration of FIR at 9.15 a.m. If PW-9 Investigating Officer is believed, the police party was not there after 9 a.m., then how the accused was arrested at 10.30 a.m., on the spot, and to whom PW-8 Chet Ram met and handed over the case file on the spot at 10.30 a.m., are the facts which could not be reconciled with the other timings of the story mentioned in the prosecution case.

18. In Special Report (Ex.PW-6/A), it is categorically mentioned by the Investigating Officer that the Site Map was prepared and the photographs on the spot were taken, but no such photographs have seen light of the day during trial. In their cross- examination, PW-8 Chet Ram and PW-9 ASI Dinesh Kumar have stated that no photographs were taken. Special Report was prepared by PW-9 Investigating Officer on the very next day of the alleged recovery of the contraband substance, i.e. on 29.3.2015, which was sent by him to his superior, i.e. Additional Superintendent of Police, wherein he has categorically recorded that photographs of the spot were taken. In his deposition in Court, he has not clarified the same despite the fact that mention of taking photographs in Special Report (Ex.PW-6/A), prepared by him, was put to him and he had admitted the same to be correct. There is no explanation on record, either documentary or oral, to reconcile this discrepancy.

19. Ex.Pw-8/G is a Memo of personal search of the accused, conducted after his arrest, wherein recovery of Mobile Phone and some cash alongwith a copy of seizure memo has been indicated. At the bottom of this Memo there is an endorsement, alleged to have been made by the accused, wherein he has stated that he has received his Mobile Phone and Cash. The accused was arrested and articles recovered during his personal search (Jamatalashi) were taken into possession by the police and thereafter the said articles were to be returned only after his release, that too under the orders of the competent Court or authority only. It is not clear that under what circumstance and for what reason and under which provision, these articles have been shown to have been returned to the accused, that too on the Memo of personal search conducted on his arrest. The arrested person cannot be allowed to carry his mobile phone or cash with him in any eventuality. In the given facts and circumstances, it is another circumstance to discredit prosecution story.

20. It is the case of prosecution that the accused was arrested at 10.30 a.m. and thereafter his personal search was conducted vide Memo Ex.PW-8/G, but in GD Entry Ex.PW-2/A, entry made after resealing the case property in the Police Station by PW-4 Inspector Anil Kumar, it has been mentioned that after handing over the accused by PW-9 to PW-4, he was interrogated and thereafter, after conducting his personal search, he was lodged in the Lock-up, but no Memo of such personal search has been produced in Court. In case personal search had already been conducted on the spot, there was no occasion to conduct the personal search again. It again creates doubt about fairness of investigation.

21. It is claimed by prosecution that recovery of contraband was effected on the National Highway at about 5.20-5.35 a.m. in the month of March. It is not dark in the morning in the month of March at 5.30 a.m. It was not absolutely secluded place as it has also come in evidence in cross-examination of PW-8 Chet Ram, though denied by PW-9 Dinesh Kumar, that habitation at Raison was at a distance of 150 metres from the spot and during that period vehicles were also crossing the spot. HHC Tikkam Ram was sent in search of independent witnesses but in which direction, he was sent or he went, has not been clarified in the evidence on record. No one was available or someone available had refused to become a witness has also not been clarified. The facts could have been clarified by HHC Tikkam Ram but incidentally he has not been examined by the prosecution. It is also true that, for more than one reason, it may not be possible for prosecution every time to arrange or to make available and associate independent witnesses to witness the search and seizure process during police investigation. Keeping in view the stringent provisions of NDPS Act and consequences thereof, affecting the personal liberty of accused, the Legislature as well as Courts have legislated and evolved procedure to provide fair investigation, safeguarding the interest of accused, and for this reason necessity of associating independent witnesses at the time of search and seizure process is pressed into. However, in exceptional circumstances, in cases where satisfactory and plausible explanation for non-joining or non-availability of independent witnesses is there, Courts do not reject the case of prosecution only for not joining or associating independent witnesses. In present case, no plausible, satisfactory explanation has come on record for not joining or associating the independent witnesses. The only version of PW-8 Chet Ram and PW-9 ASI Dinesh Kumar, available on record, speaks that HHC Tikkam Ram was sent for search of independent witnesses but after 20 minutes he reported non-availability of the same. As stated supra, reason for the same has not come on record despite the fact that there was habitation at a distance of 150 metres and the alleged spot of recovery is National Highway, wherefrom vehicles were also crossing.

22. It is also settled law that in absence of independent witnesses, testimony of official witnesses is not to be discarded only on this count. In case evidence on record, otherwise is found cogent, reliable and trustworthy, conviction can be based upon the testimony of official witnesses only. But, in present case, prosecution has chosen not to produce even the available official witness(es). There are only four main witnesses of the spot, out of them PW-9 ASI Dinesh Kumar, HHC Tikkam Ram and Driver Constable Karam Chand remained on the spot throughout, during investigating, whereas PW-8 HHC Chet Ram had left the spot at 8.30 a.m. and, according to him, he had returned to the spot at 10.30 a.m. Between 8.30 a.m. and the time when the police left the spot, only PW-9 HHC Tikkam Ram and Driver Constable Karam Chand were present on the spot, but the prosecution has not examined HHC Tikkam Ram, who alongwith Shri Nihal Chand, Additional Superintendent of Police was given up being repetitive in nature, as the contents of recovery memo and Special Report have been proved by other witnesses. Constable Karam Chand, Driver of official vehicle, has not been cited as witness nor has been examined. It is true that it is quality of evidence not quantity which matters but at the same time considering the facts and circumstances of present case, where no independent witness is there and punishment for offence charged is also stringent, prosecution should have examined available witnesses to corroborate version of Investigating Officer PW-9 Dinesh Kumar.

23. Pw-9 ASI Dinesh Kumar is Investigating Officer. To corroborate his statement in entirety, examination of Tikkam Ram was necessary, as he was the person who was with PW-9 during the entire investigation. PW-8 HHC Chet Ram remained with the Investigating Officer for a specific period and rest of the investigation, which was conducted in the presence of Tikkam Ram was to be corroborated/proved by him. Therefore, withholding the examination of HHC Tikkam Ram is also fatal to the prosecution.

24. According to PW-8 Chet Ram, after departing from the spot at 8.30 a.m., he reached in Police Station at 9.15 a.m. and thereafter FIR Ex.PW-4/A was recorded by PW-4 Anil Kumar and the case file was handed over to PW-8 Chet Ram at 9.45 a.m. who reached back on the spot at 10.30 a.m. According to PW-4 Anil Kumar, he had received the file at around 8.30 a.m. Arrival of PW-8 Chet Ram in the Police Station is 9.15 a.m. How can and wherefrom Ruka was received by PW-4 Anil Kumar at 8.30 a.m. is irreconcilable. Further, according to the prosecution story, police party was having official vehicle and Investigating Officer PW-9 Dinesh Kumar has expressed his ignorance about the means by which PW-8 Chet Ram had gone to Police Station and returned from there, which indicates that the official vehicle was not used by PW-8 Chet Ram for going and coming back. By arranging the means for visit to and return from the Police Station, PW-8 Chet Ram had taken 45 minutes for one side journey. It is also prosecution case, as has come in deposition of PW-9 Dinesh Kumar, that police party had left the spot after three hours and even after giving concession of half an hour, at the most, the police party had left the place at 9 a.m. Contrary to this, it has also come in evidence that police party was on the spot till 10.30 a.m. In any case, if this discrepancy is ignored for a moment, there is no evidence that police party had stayed on the spot after 10.30 a.m. Therefore, at least, after 10.30 a.m., the police had left for the Police Station, but as per GD Entry No.16 (Ex. PW-2/A), police party had arrived in the Police Station at 2.05 p.m. After consuming time to arrange the means to reach and come back from Police Station, a police official has taken 45 minutes, to cover the distance from spot to Police Station, whereas by using the official vehicle, the police party had taken 4- 5 hours to reach the Police Station from the spot. In Ruka Ex.PW-8/C, distance of place of recovery from the Police Station has been mentioned as 15 kms. It is again unbelievable that for travelling a distance of 15 kms, that too on National Highway, in official police vehicle, the police party consumed 4-5 hours. In these circumstances, testimony of police official with respect to timings claimed in the documents, as well as in their deposition, is not trustworthy.

25. It is also noticeable that appellant-Accused has raised specific defence that on 27.3.2015 at 7.30 p.m., when he was intoxicated and was not able to reply the interrogation of the police official, at a Bus Stop where other passengers alongwith luggage were also present and Charas was found in an unclaimed bag lying there, then he was apprehended and taken to the Police Station for thorough investigation and on suspicion, on 28.3.2015, a false case was foisted upon him. Suggestions have also been put to PW-2 Saroj Kumari and PW-5 Khub Ram that Daily Station Diary entries, i.e. No.7 Ex.PW-5/A, No.16 Ex.PW-2/A and No.18 Ex.PW-2/B are fabricated. To prove movement of police party, i.e. departure at 4 a.m., from the Police Station and return at 2.05 p.m. to the Police Station, prosecution has relied upon GD Entry No.7 dated 28.3.2015 (Ex.PW-5/A) and GD Entry No.16 dated 28.3.2015 (Ex.PW-2/A), and for establishing the resealing of case property and depositing the same in Malkhana and putting the accused in Lockup at 2.25 p.m., prosecution has placed on record copy of GD Entry No.18 dated 28.3.2015 (Ex.PW-2/B). For proving Ex.PW-5/A, Ex.PW-2/A and Ex. PW-2/B, prosecution has examined PW-2 Lady Constable Saroj Kumari and PW-5 HHC Khub Ram. These Reports have been disputed on behalf of accused by putting suggestion to the witnesses that the aforesaid Reports were fabricated lateron, meaning thereby the timing of entry of these GD entries in Daily Station Diary has been disputed by the accused. No doubt, a Certificate Ex.PW-2/C has been placed on record, wherein PW-2 Saroj Kumari has certified that Rapt Nos.16 and 18 dated 28.3.2015 were entered by her in the official Computer, which is an electronic device maintained in the Police Station by her and that at the time of making entries and also taking out the print of the same the system was in working order with proper power supply and no tampering, addition, alteration or editing had been done to any of the contents of the electronically generated document, either by her or any other person. A similar certificate (Ex. PW-5/C) has been produced on record by PW-5 Khub Ram with respect to copy of Report No.7. But these Certificates do not certify that these reports were entered in Daily Station Diary at the time as reflected in these copies of reports nor there is such assertion in the deposition of PW-2 Saroj Kumar and PW-5 Khub Ram. Normally, contents, including the data and time contained in the copies of such reports, are considered to be true and correct and are believed by the Courts, but when timings thereof are disputed by the accused and it is claimed that these documents are fabricated and timings thereof are manipulated and further that evidence otherwise on record is indicating irreconcilable timing of events and ultimately not establishing convincing story on record, it becomes imperative for the prosecution to prove the timing of preparation of record of such electronic documents, particularly computer generated copies, by placing on record the METADATA of such documents, which contains the complete details of computerised documents from date and time of its origination till taking out the copy thereof, including indication of alteration, modification or addition/subtraction therein and details thereof. In present case, CIPA Certificates placed on record are silent about the same. Relevant witnesses are also silent about timings of origination of these documents. In such a situation METADATA of these documents would have thrown light in regard to authenticity as METADATA of a document speaks itself.

26. As stated supra, production of MATADATA of a document may not be necessary in all cases but where story of prosecution is otherwise doubtful and construction/ preparation of documents has been alleged to be fabricated, production of METADATA by prosecution shall definitely clinch such issues as to our knowledge METADATA of a document cannot be tampered and in case of modification, alteration or tampering, these activities will also be reflected alongwith date and time of origination of document, in METADATA which is not available in present case. Therefore, for want of reliable evidence with respect to Ex.PW-2/A, Ex.PW-2/B and Ex.PW-5/A, the timing of preparation thereof cannot be treated to have been proved beyond reasonable doubt.

27. Each contradiction, discrepancy or embellishment in the prosecution case, if considered singly, may not be fatal, but the cumulative effect of the aforesaid contradictions, discrepancies and embellishments definitely renders the prosecution story to be doubtful as conjunctive reading of the entire evidence creates doubt about the manner of recovery, as claimed by the prosecution. It is cardinal principle of the criminal jurisprudence that where there is a doubt, benefit of the same is to be extended to the accused.

28. Keeping in view the increasing menace of drug addiction, an accused, for transporting the contraband, does not deserve leniency, however, at the same time it is also settled that stringent the punishment, higher the assurance of evidence for conviction and sentencing is required. Therefore, for awarding stringent punishment, strict proof of commission of offence, by leading cogent, reliable, tangible and convincing evidence is necessary, which is lacking in present case for the discussion herein above as we see that the very genesis of the case of prosecution has been shaken and, therefore, the accused deserves benefit of doubt.

29. Accordingly, the appeal is allowed and the impugned judgment is set aside. Consequently, the conviction and sentence imposed upon the accused are also set aside and he is acquitted of the charged offence, by giving him benefit of doubt. The amount of fine, if stands deposited by the accused, be refunded to him. The accused is ordered to be released, if not required in any other case. Release warrants be prepared and issued accordingly.

30. We place on record our appreciation for the assistance rendered by Mr. Dibender Ghosh, learned Legal Aid Counsel.

Appeal stands disposed of, so also pending application(s), if any.

Cr. Appeal No. 660 of 2017

Per Dharam Chand Chaudhary, J.

Though, I agree with the view of the matter taken by my brother Vivek Singh Thakur, J., in allowing this appeal and acquittal of the accused from the charge framed against him under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985, however, not on all the reasons recorded in the judgment.

2. Be it stated that brother Thakur, J, has rightly observed that with the increasing menace of drug addiction, the drug peddlers do not deserve any leniency. The offence committed by the accused is thus not only heinous, but also serious in nature, because the illicit trafficking of drugs not only affect a particular individual, but the society at large and in particular, our young generation. The Act in fact is a piece of social legislation enacted with the sole idea to curb illicit trafficking of drugs. There is need to maintain a balance between the various safeguards available to an offender under the Act vis--vis rights of the society as a whole. Therefore, the Courts seized of the matter should ignore the variation of time if not fatal to the prosecution case. No doubt, in the case in hand, the accused was apprehended at 5:15 AM and the IO PW-9 ASI Dinesh Kumar, PW-8 HHC Chet Ram and HHC Tikam Ram have given their personal search to the accused at 5:20 AM. The record further reveals that the personal search was given to the accused by the police officials when HHC Tikam Ram was deputed in search of independent witnesses returned to the spot after 15-20 minutes. Therefore, the variance of 15-20 minutes may be on account of memory faded away with the passage of time is not fatal to the prosecution case.

3. If coming to the NCB form Ext. PW-3/A, as per the same, 7:15 AM is the time of seizure of the contraband allegedly charas recovered from the accused and not that of its recovery. The seizure takes place after the recovery of the contraband and the seizure memo is prepared after sealing process is over.

4. The memo Ext. PW-8/A amply demonstrates that besides IO PW-9 ASI Dinesh Kumar, the accused had also conducted the personal search of PW-8 HHC Chet Ram and HHC Tikam Ram. Though, PW-8 HHC Chet Ram has not stated anything in this regard while in the witness-box, may be due to an oversight, however, the memo Ext. PW-8/A has to be believed to be true as the witness may omit to say something but a document never tells a lie. Even, PW-9 ASI Dinesh Kumar, the I.O. while in the witness-box has also supported the prosecution case in this regard.

5. The recovery of the contraband in the case in hand is after 5:30-5:35 AM, whereas the time of seizure thereof as per Ext. PW-3/A is 7:15 AM. In a case of this nature, sometime is required for preparation of parcel of clothes and some time to sew the same after the recovered contraband is kept therein and also some time for conducting sealing and sampling process. Thereafter, the seizure memo is also prepared. Since this process takes considerable time, therefore, the possibility of the seizure of the contraband, having taken place at 7:15 AM cannot be ruled out. As per the statement made by PW-9 ASI Dinesh Kumar, the police party remained on the spot for about 3 hours. He has not given any specific time and the period about 3 hours he has given is as per his estimation. Therefore, even if the time of the arrest of the accused as per arrest memo Ext. PW-8/F is 10:30 AM, the same is also not a circumstance to be taken to render the prosecution story doubtful.

6. The accused has been arrested after PW-8 HHC Chet Ram returned to the spot from Police Station with case file at 10:30 AM as has been stated by him while in the witness-box. As a matter of fact, PW-8 HHC Chet Ram has produced the rukka in the Police Station at 9:15 AM. This timing reconcile with the time of receipt of information in the Police Station as per the entries in the FIR Ext. PW-4/A. The file was handed over to him by PW-4 Anil Kumar at 9:45 AM. As per further versi

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on of PW-8, he handed over the file to the I.O on the spot at 10:30 AM. Therefore, it is thereafter the accused has been arrested. The possibility of the police party was on the spot at that time cannot be ruled out. 7. It is the Public Prosecutor seized of the prosecution best person to adjudge desirability and suitability of the witness(s) to be examined in the Court or given up. It is not the quantity of the evidence collected by the Investigating Agency and produced during the course of trial in the Court, but its quality. Above all, it is the accused entitled to the benefit of doubt in case the evidence produced is not cogent and reliable and even there is also no legal requirement to examine each and every witness associated by the Investigating Officer during the course of search and seizure. 8. It is 5:15 AM, the time when the police apprehended the accused at the place of recovery and the time of writing rukka 8:30 AM as find recorded in the FIR Ext. PW-4/A. The time of receipt of rukka by PW-4 Anil Kumar is not 8:30 AM and rather 9:15 AM. As a matter of fact, 8:30 AM is the time of writing rukka Ext. PW-8/C. Ext. PW-4/B on the rukka is the endorsement made by PW-4 Anil Kumar qua registration of FIR No. 77/2015 on 28.3.2015, however, without mentioning any time of making such endorsement. 9. The defence of the accused that he was apprehended on 27.3.2015 at bus stop by the police while intoxicated and was not able to give reply qua the recovery of an unclaimed bag by the police is highly imaginary and germane of his mind as he never complained so before the Court below when produced at the time of obtaining his arrest. Anyhow, the plea raised by the accused in his defence is of no consequence in a criminal case as the onus to prove its case beyond all reasonable doubt is always on the prosecution. The prosecution, therefore, cannot take any benefit out of the plea even if falsely raised by the accused in his defence. 10. In the case in hand, non-joining of independent witnesses, though could have been easily associated, had the I.O. been interested to do so because the seizure has taken place around 7:15 AM and the place of recovery Raugi Nala situated on National Highway the movement of vehicles from both sides would have started by that time. The prosecution witnesses itself have also admitted so while in the witness box. Not only this, but village Kais is also situated nearby the place of recovery. I.O. PW-9 ASI Dinesh Kumar, therefore, to the reasons best known to him was not interested in associating the independent witnesses to witness the search and seizure. The photographs, as per the special report Ext. PW-6/A, have also not been produced in evidence. There was no occasion to have returned the cell phone and the currency notes recovered during the personal search of the accused at the time of his arrest. The investigation on the spot was complete with the arrest of the accused at 10:30 AM, therefore, it also remained unexplained as to how the I.O. had taken more than 3 hours to reach at the Police Station i.e. 2:05 PM from the spot. These are the circumstances which render the prosecution story as highly doubtful. Therefore, the findings of conviction recorded against the accused cannot be said to be legally and factually sustainable. The appeal, therefore, succeeds and the same is accordingly allowed. Consequently, the impugned judgment is quashed and set aside. The accused is acquitted of the charge framed against him. Personal bonds furnished by the accused stand cancelled and surety discharged.
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