Material contradictions in key witness testimonies on contraband possession vitiate NDPS prosecution case, entitling accused to acquittal on benefit of doubt despite recovery.

JUDGMENT :

Romesh Verma, J.

The present appeal arises out of judgment of conviction, as passed by the learned Special Judge-II, Kinnaur at Rampur Bushahr, District Shimla, dated 27.4.2023, in case FIR No.2/2022, dated 2.1.2022, registered at Police Station Brow, District Kullu, whereby the convict/appellant has been convicted and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to further undergo simple imprisonment for a period of six months for the commission of an offence punishable under Section 29(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

2 The story, as projected by the prosecution, is that on 2.1.2022 PW15 HC Anupam along with HC Jagdish Kumar, PW5 Constable Avinash Badal, Head Constable Sandeep Kumar, HC Kesar, Constable Ajay Kumar and Constable Hukam Chand proceeded on patrolling and traffic checking duty in their private vehicles vide rapat No. Ext.P1/PW5 in the areas of Kullu, Bhuntar, Banjar, Anni, Nirmand etc. They were having IO kit, search light, laptop with them. When the police party was present at place Bazirbowli, at about 5.20 P.M., an HRTC bus bearing No. HP-06A-8283 came from Nirmand side. The police party gave signal to the driver to stop the bus and thereafter, the police party entered the bus. PW15 Investigating Officer enquired names of driver and conductor of the bus, who disclosed their names as Ravinder Singh and Med Ram respectively. The Investigating Officer told the passengers of bus, who were about 13-14 in number, to get their luggage searched. Both conductor and driver were associated as independent witnesses. The I.O. started checking the luggage of the passengers from front side and when he reached near seat No.5, which was just behind seat of the driver, a person, sitting on the same and carrying a rucksack in his lap tried to hide the same after seeing police officials. He tried to get up from the seat and leave the bus. When the I.O. asked as to why he tried to hide the bag and flee from the bus, he became perplexed. The I.O. asked him to sit on his seat and enquired about his name. The said person disclosed his name to be Rakesh Kumar (convict/appellant herein). The ‘pithu’ bag of the convict was blue coloured having two zips, two side pockets and two strips, on which 'TOO YOUNG TOO SIMPLE' was embossed. The bag was searched in presence of driver, conductor and other police personnel. Upon opening the knots of the bag, two transparent polythene packets were found therein in which one packet was stated to be containing black coloured substance in the shape of sticks and in other packet it was found in round shape, which after smelling and on the basis of experience, was found to be charas. On weighing, substance was found to be 3.228 kgs charas. The recovered charas was packed in the same manner in the carry bag and the same was put in a cloth parcel and sealed with six seals of ‘SIUY-4’. Sample seal, Ex.P2/PW1, was drawn on separate piece of cloth. The I.O. filled the NCB form Ex.P3/PW11. Apart from it, the passengers list Ex.P3/PW1 was handed over to the police by the conductor. Constable Avinash Badal clicked the photographs Ex.P4 to P11/PW1 at the instance of I.O. Thereafter, the I.O. prepared rukka Ex.P2/PW5 and sent the same to Police Station, Brow through Constable Avinash Badal for registration of an FIR. Upon arrival of the second IO HC Randhir Saklani, the appellant, case file, case property, documents were handed over to him and HC Randhir Saklani recorded the statements of witnesses and interrogated the appellant before arresting him vide memo Ex.P1/PW16. HC Randhir Saklani also prepared spot map Ex.P2/PW16. He handed over the appellant to SHO Chaman Negi at Police Station Brow along with case property for resealing, who resealed the parcel with three seals of impression 'T'. The relevant columns of NCB form were filled by the SHO. The report under Section