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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

Criminal Appeal  No(s).  2133-2134/2011

STATE OF HIMACHAL PRADESH                      Appellant(s)

                               VERSUS

TRILOK CHAND & ANR.                                  Respondent(s)

JUDGMENT

N.V. RAMANA, J.

1. These appeals are filed by the State having aggrieved by

the judgment and order dated 14th October,  2009 passed by the

High  Court  of  Himachal  Pradesh,  allowing  the  Criminal  Appeals

filed by the accused—respondents herein against their conviction

passed  by  the  trial  Court  under  the  Narcotic  Drugs  and

Psychotropic Substances Act (for short “the N.D.P.S. Act”). By the

said order,  the High Court set aside the order of  conviction and

sentence  passed  by  the  trial  Court  against  the  accused—

respondents herein.

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2. In order to appreciate the merits of these appeals, brief

facts as emerged from the prosecution case need to be noted at the

outset.  On 10th July, 2004, Anjani Kumar, Inspector, CID, Shimla

(PW12), upon receiving a secret information that some people are

pursuing  the  unlawful  business  of  charas,  proceeded  towards

Panarsa Bridge along with ASI Gian Chand (PW 9) and Constable

Rakesh  Kumar  (PW  8)  and  some  other  police  personnel.  Amar

Chand (PW 1) and Kuldeep Kumar (PW 2) who were going on that

route at that time, also joined them as witnesses. At around 11.30

p.m. in the night, the accused—respondents herein arrived at that

place carrying with them three gunny bags of contraband (Charas)

and upon seeing police, they tried to run away. Police overpowered

the  accused  and  seized  the  contraband  from  their  possession,

prepared samples, sealed and marked them and registered the case.

After investigation, charges were framed against the accused and

upon their denial, the case was committed for trial.

3. The  Trial  Court  convicted  the  accused  for  the  offence

punishable  under  Section 20  of  the  N.D.P.S.  Act  and sentenced

them to undergo rigorous imprisonment for a period of ten years

and to pay a fine of Rs.1,00,000/- each and in default of payment of

fine, to undergo further imprisonment for two years.

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4. Aggrieved by the order of conviction and sentence passed

by the trial Court, the accused filed appeals before the High Court

and  the  High  Court  after  analyzing  the  evidence  allowed  their

appeals and set aside the conviction. Dissatisfied with the acquittal

order passed by the High Court, the State is in appeal before us.

5. We  have  heard  learned  counsel  appearing  for  the

appellant  –  State  of  Himachal  Pradesh  and  the  learned  counsel

appearing for the respondents as well, and carefully gone through

the material on record.

6. It is submitted before us by the learned counsel for the

State that while dealing with the appeals of the accused, the High

Court has given greater importance to trivial discrepancies in the

prosecution case. Ignoring the cogent evidence advanced by official

witnesses,  the  High  Court  simply  held  that  there  were  material

contradictions  in  their  depositions  and  without  assigning  any

plausible reason allowed the appeals of  the accused and thereby

committed an error of law.

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7. Learned counsel appearing for the accused—respondents,

however, supported the view taken by the High Court in acquitting

the accused.

8. Having  given  our  thoughtful  consideration  to  the  rival

submissions  and  after  going  through  the  material  available  on

record,  we  notice  the  following  discrepancies  in  the  prosecution

case, which in our considered opinion, bear greater importance in

dealing with the case on hand :

(i) The evidence of Tulsi Ram (DW 2) makes it clear that on the

day of incident i.e. 10-7-2004, when he was going to his house

through Panarsa Bridge at about 4/5 p.m., police officials met

him on the way near Panarsa Bridge. They asked him to load

three gunny bags lying outside an abandoned house, into the

vehicle. Accordingly he carried two gunny bags while one bag

was  carried  by  the  police  officials  and  loaded  them in  the

vehicle. He has also deposed that the police officials told him

that the bags contained contraband material ‘charas’ and the

same was recovered from the abandoned house.

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(ii) PW 1 (Amar Chand) and PW 2 (Kuldip Kumar) who were said

to be the independent witnesses, did not support the case of

prosecution. They clearly stated that they were not present at

the  spot  when  the  incident  took  place  and  denied  the

detaining  of  accused—respondents  in  their  presence  and

alleged recovery of contraband from the accused. In categorical

terms, they deposed that they were called to the police station

and their  signatures were taken on some papers. Moreover,

they have  admitted that  earlier  also  they were used by the

police as prosecution witnesses in some other cases.

(iii) According  to  the  depositions  of  police  officials  PW 9  (Gian

Chand) was sent to shopkeeper Hem Raj (PW5) to borrow scale

and weights on the intervening night of 10th & 11th July, 2004,

and the seized material was sent to malkhana.  Contrary to

this, PW 5 (Hem Raj) stated that the scale and weights were

borrowed from him by the police officials in the morning 9 or

10 am on 11th July,  2004. The said PW5 was also declared

hostile.  Not  only  this,  according  to  Anjani  Kumar  (PW 12),

Gian Chand (PW 9) left the spot to get scale and weights at

11.30  p.m.  returned  to  the  spot  at  8.15  p.m.,  ante  time.

Whereas  another  witness  Constable  Rakesh  Kumar  (PW  8)

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deposed that Gian Chand (PW 9) left the spot to bring scale

and weights at 1 a.m.

(iv) According to Anjani Kumar (PW 12), he called Rajinder Kumar

(PW11)  on  his  cell  phone  and  asked  to  join  him  at  Kullu

whereas the record shows that Rajinder Kumar (PW 11) joined

PW 12 at Panarsa and he has clearly denied to have received

any call from PW 12.

(v) It is the case of the accused—respondents that while they were

taking tea at a Dhaba, police arrived there and taken them to

police station and falsely implicated them in the case. This fact

corroborates with the deposition of Bihari Lal (DW 3), a tea

vendor, who stated that police officials came to his shop and

took away the accused on 11-7-2004.  

9. Besides  the  above  noted  inadequacies,  there  are  also

certain other contradictory statements by the prosecution witnesses

relating to other aspects of the case,  per se,  according to Rakesh

Kumar (PW8), he carried the report (Ex.PH) to police station in a

truck, whereas PW-9 (Gaian Chand) states that PW8 travelled by a

scooter and the prime witness Anjani Kumar (PW12) says that PW8

went to police station and returned to the spot by foot.

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10.  One more important discrepancy in the prosecution case

that gives rise to suspicion of truthfulness of police officers is that,

as deposed by Anjani Kumar (PW 12) the entire seized case property

together with six sample parcels was deposited by him with Gandhi

Ram  (PW 6).  Whereas  Dabe  Ram,  SHO (PW4)  says  that  Anjani

Kumar (PW12) produced three bags and three sample parcels before

him at 8.30 pm. On the other hand, the material on record proves

the same wrong as at the relevant time, PW12 was present at Sadar

Police Station, Mandi and sent special report to Superintendent of

Police (Ext. PW 11/A).

11. It also appears from the record that in order to satisfy the

requirement of Section 55 of N.D.P.S. Act, the case property was

accordingly tampered by the police.  It is also relevant to mention

here that in the prescribed form, the place of seizure was mentioned

as  Nagwain  and  not  Panarsa  Bridge  and  the  name  of  only  one

accused i.e. Santosh Kumar was shown from whom the contraband

was said to have been seized while he was carrying three gunny

bags. As rightly observed by the High Court,  it  appears that the

name of other accused was added afterwards to justify the fact that

one person could not have carried three bags of contraband at a

time.

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12. Going by the number of discrepancies in the prosecution

case  coupled  with  the  contradictory  statements  by  prosecution

witnesses,  the  entire  prosecution  story  vitiates  and  leads  for

discrediting  its  version.  Contradictions  in  the  statement  of  the

witnesses  are  fatal  for  the  case,  though  minor  discrepancies  or

variance in their evidence will not disfavour [See: State of H.P. Vs.

Lekh Raj (2000) 1 SCC 247]. Considering the circumstances of the

case  on  hand,  it  can  be  said  that  the  discrepancies  are

comparatively  of  a  major  character  and  go  to  the  root  of  the

prosecution story. We cannot therefore ignore them to give undue

importance to the prosecution case. It is well settled that the Court

can sift the chaff from the grain and find out the truth from the

testimony of the witnesses. The evidence is to be considered from

the  point  of  view  of  trustworthiness  and  once  the  same  stands

satisfied, it ought to inspire confidence in the mind of the Court to

accept the stated evidence [See: Sukhdev Yadav v. State of Bihar,

(2001) 8 SCC 86].

13. In the light of  the above discussion,  in our considered

opinion, the prosecution has failed to establish the commission of

alleged  offence  by  the  accused—respondents  beyond  reasonable

doubt. The evidence is scanty and lacking support to establish that

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the  contraband  was  really  recovered  from the  possession  of  the

respondents in the manner alleged by the prosecution on the said

date and time. It is imperative that the law the Court should follow

for  awarding  conviction  under  the  provisions  of  N.D.P.S.  Act  is

“stringent the punishment stricter the proof.”  In such cases,  the

prosecution evidence has to be examined very zealously so as to

exclude every chance of false implication. But, in the case on hand,

under  the  above  explained  circumstances,  the  prosecution  story

cannot  be  believed  to  award  conviction  to  the  accused—

respondents. They deserve benefit  of doubt. We are, therefore, in

complete agreement with the view taken by the High Court and see

no reason to interfere with the order impugned herein.

14. Accordingly, the Criminal Appeals stand dismissed.

………………..............J.                                                         (N.V. RAMANA)

...............................J.                                                                (S. ABDUL NAZEER)

NEW DELHI, JANUARY 17, 2018.