Hrishikesh Roy JUDGMENT
Surya Kant, J.
1. Heard over video conferencing.
2. These Criminal Appeals have been preferred against a common judgment of the High Court of Himachal Pradesh dated 28.08.2012, by which the Appellants' acquittal Under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ("NDPS Act") was reversed and a sentence of ten years rigorous imprisonment and fine of Rs. 1,00,000 each was awarded.
Facts
3. The facts giving rise to both the appeals are common. On 09.01.2002, at about 1.00 P.M., a police team led by ASI Purushottam Dutt (PW8) and also comprising Constable Sunder Singh (PW1), Constable Bhup Singh (PW2) and Constable Bhopal Singh (PW7) were checking traffic at Shamshar when a motorcycle without a number plate was spotted. Gulshan Rana (Appellant in Criminal Appeal No. 1126 of 2019) was driving the vehicle and Rajesh Dhiman (Appellant in Criminal Appeal No. 1032 of 2013) was seated on the pillion with a backpack slung over his shoulders. They were signalled to stop and documents of the motorcycle were demanded. Meanwhile, another vehicle was halted and its occupants Karam Chand (PW3) and Shiv Ram were included in the search. An attempt was made to associate local residents to witness the subsequent proceedings, but none agreed. Subsequently, the Appellants were given option to be searched in the presence of a Magistrate or Gazetted Officer but they consented to be searched by the police on the spot itself. The police then discovered polythene bags containing charas from the backpack carried by Rajesh Dhiman. The polythene bags were weighed and found to be 3kg 100gms. After separating some samples, the charas was duly sealed and handed over to Karam Chand (PW3) who later deposited it at the police station. After completion of personal search of the Appellants, they were formally arrested.
4. The prosecution examined nine witnesses to support their case of chance recovery, which included eight police officials and one independent witness, Karam Chand (PW3). Whereas the police witnesses strongly corroborated each other's testimony, PW3 was declared hostile for he claimed not to have witnessed the seizure of the narcotics. The spot map, arrest memo, search memos, consent memo, seizure memo, rukka seals, chemical analysis report and samples of charas were also adduced as evidence. In response, both Appellants asserted their innocence. Although the Appellants did not lead any defence evidence but they propounded an alternative version and claimed that while returning from a nearby temple, they had given a lift to an unidentified third person. The backpack containing the recovered narcotics was claimed to be owned by the said stranger, who allegedly escaped from the spot when the motorcycle was stopped by the police.
5. The learned Special Judge through judgment dated 28.12.2002 acquitted the Appellants holding that charges under the NDPS Act had not been proved beyond reasonable doubt. The trial Court viewed that the witnesses on the spot had either not been examined or turned hostile. Thus, each individual element of the prosecution case, namely, from preparation of personal search memo to consent memo to recovery memo to notifying Appellants' relatives about their arrest or handing over of seal ........