Chander Bhusan Barowalia JUDGMENT
Chander Bhusan Barowalia, J.
1. The present appeal is preferred by the appellant/State under Section 378 of the Code of Criminal Procedure assailing the judgment of acquittal, dated 06.01.2011, passed by the learned Additional Sessions Judge, Fast Track Court, Kullu, District Kullu, H.P., in Sessions Trial No. 32 of 2010, whereby the accused has been acquitted of the charge framed against him under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act').
2. Briefly stating, as per prosecution story, facts giving rise to the present appeal are that on 22.01.2010, ASI Man Singh, alongwith other police officials, was on patrol duty in official vehicle No. HP-34A-0213. When the police party reached at Bharthidhar, at about 6.00 A.M., they saw one person coming on foot from upper Bharthidhar side holding a gunny sack in his hand and on seeing the vehicle of the police, he got perplexed and tried to turn back. The police officials, on suspicion, got down from the vehicle and nabbed the accused. The accused person disclosed his name as Prem Singh. There was suspicion in the mind of ASI Man Singh that the accused was carrying contraband, so he sent Constable Vijay Kumar to the nearby village to arrange independent witnesses, but he returned empty handed. Thereafter, ASI Man Singh associated HC Ramesh Chand and Constable Vijay Kumar, as witnesses of the spot and informed the accused that the police have suspicion regarding some narcotic substance in his possession, for which his search is necessary. The accused was also apprised about his legal right to be searched before a Gazetted Officer or a Magistrate. It has been averred that the accused consented in writing that he wanted to be searched by the police officials on the spot. First of all, ASI Man Singh gave his personal search to the accused in presence of witnesses, and, thereafter, the search of the accused was conducted. The gunny bag, which was tied with a jute thread, was opened by the police which contained stick, pancake and sphere shaped Charas. The Charas, on weighment with the official balance and weights, was found 4.5 kgs, which was again put in the same gunny bag and tied with jute thread. Thereafter, the jute bag was wrapped in 'PULINDA' and sealed with seal impression 'D'. The seal after its use and having the specimen of seal was entrusted to HC Ramesh Chand. The parcel was taken into possession by the Investigating Officer. Recovery-cum-seizure memo was prepared to this effect. The Investigating Officer also filled in NCB-I Form. It is further alleged that copy of recovery-cum-seizure memo was supplied to the accused and the accused was apprised that he was found in possession of 4.5 kgs of Charas, which is an offence punishable under Section 20 of the NDPS Act. Thereafter, ruka was sent to the Police Station, on the basis of which, F.I.R. was registered. During the investigation, the Investigating Officer prepared the site plan and also recorded the statements of the witnesses under Section 161 Cr.P.C. The case property was sent to F.S.L., Junga, for chemical analysis and after receiving the report from Chemical Examiner, the Investigating Officer found sufficient evidence against the accused.
3. Accused was charged with the commission of offence under Section 20(b)(ii)(C) of the NDPS Act, wherein he pleaded not guilty and claimed to be tried. To prove its case, the prosecution examined eight witnesses.
4. The accused, in his statement under Section 313 Cr.P.C. denied the prosecution case in its entirety and had not led any evidence in defence. After the completion of the trial, the learned trial Court acquitted the accused of the charge.
5. Heard. The learned Additional Advocate General has argued that the prosecution has proved the guilt of the accused conclusively and beyond the shadow of all reasonable doubts. The Court below just on the basis of conjectures and surmises has acquitted the accused. He has further argued that the recovery stands proved and all the formalities required under the Act were also completed by the prosecution. He has argued that taking into consideration the facts that the quantity of the Charas was 4.5 kgs. and the prosecution has proved the guilt of the accused beyond reasonable doubts, the accused may be convicted after setting aside the judgment of the Court below.
6. On the other hand, the learned counsel appearing for the accused has argued that there are major contradictions with regard to personal search of the accused, as the personal search of the accused was conducted prior to his bag's search. He has further argued that nothing was recovered from the accused on the spot and he was brought from his house, which is clear from the fact that the prosecution did not associate any independent witnesses. He has referred to the statement of PW 1, Constable Vijay Kumar, to show that no efforts were made to associate independent witnesses. He has further argued that from the place of occurrence, there are nearby villages at a distance of 1-2 furlongs. Had the recovery been affected from the spot, the police should have arranged the independent witnesses? He has also argued that the case property was not re-sealed by the S.H.O.
7. To appreciate the arguments of the learned counsel for the parties, we have gone through the record of the case in detail.
8. PW-1, Constable Vijay Kumar, who was one of the member of the patrolling party on the fateful day, has fully supported the prosecution story in his examination-in-chief. This witness has specifically stated that ASI Man Singh sent him from the spot to bring independent witnesses, but the local persons refused to become witnesses. He further stated that the ruka was handed over to him by ASI Man Singh with a direction to carry the same to the Police Station. After his return from the Police Station, he handed over the case file to ASI Man Singh at the spot, who identified gunny bag Ex. P2, Charas Ex. P3, which was recovered from the possession of the accused. PW-1 was also the witness to the recovery memo, Ex. PW1/D, and he also signed the seal impression, Ex. PW1/C. During his cross-examination, he has failed to testify whether he was present at Police Station on 21.1.2010 or not. He also stated that distance between Banjar and Jibhi was 10 kilometres and Bharthidhar was at a distance of 2 kilometres from Jibhi, but he did not testify whether police party had set a nakka on the way to Bharthidhar or not. He has further deposed that police party stopped at Bharthidhar for about half an hour prior to the apprehension of the accused. He also stated that 1-2 persons met him in the middle of the village, but they declined to become witnesses to the search and admitted that the Charas sticks were broken and their number was between 10 to 15. The Charas was weighed inside the vehicle, but he failed to disclose that how many lots of Charas were weighed. He has further stated that the personal search of the accused was not carried out in his presence. He also stated that he went to the Police Station at 8.30 a.m. and came back on the spot at about 11.00 a.m. PW 1 also admitted that the gunny bag produced in the Court was tied with ordinary thread and not with the jute thread.
9. PW-2, ASI Man Singh, was the Investigating Officer, who has supported the prosecution story and also completed various legal formalities during the course of the investigation. This witness has specifically stated that he along with other Police officials and the accused arrived at the Police Station and handed over the case property to HC Chaman Lal. He has further deposed that he was discharging the duties of Station House Officer on the fateful day, due to which the case property was not resealed. Special report, Ex. PW 2/F, was sent by him and presented to the Deputy Superintendent of Police, Headquarters, namely Nihal Singh, on 23.1.2010 at 2.00 p.m. He also identified the parcel, Ex. P1, gunny bag, Ex. P2, Charas, Ex. P3, and thread, Ex. P4. He further stated that all the articles were the same which were recovered from the accused at the time of the occurrence. In his cross-examination, he has admitted that Inspector, Prem Dass, was posted as Station House Officer at that relevant time. He has further deposed that two Assistant Sub Inspectors and one Sub Inspector were also posted in the Police Station. When the Police party departed, SHO was present in the morning at the Police Station, thereafter, he went to the Court. PW 2 further stated that police party had not set up any nakka and they did not conduct traffic checking on the way to Bharthidhar and that the police party was on the spot 30-35 minutes prior to spotting the accused. He has feigned ignorance about the fact that the houses were scattered in whole of the area of Bharthidhar. He deposed that he had no knowledge that some houses were situated on Jibi-Bahu road. He admitted that he did mention in the ruka and report under Section 57 of the Act, that no independent witnesses met Vijay Kumar (PW-1), who stated that no independent witnesses were available. He has denied that no investigation was carried out at the spot and documents were prepared at the Police Station. He has further denied that he was making false statement regarding the presence of SHO at the Police Station and the accused was brought from the village in the morning and false case has been foisted upon him.
10. PW-3, Inspector Bishan Dass, who remained posted at Police Station, Banjar, recorded the statements of MHC Chaman Lal, HC Harbans Lal and HHC Sobha Ram. He had also received the result of analysis, Ex. PW 3/A, from F.S.L. and, thereafter, he handed over the file to SHO Prem Dass, (PW 7).
11. PW-4, HC Chaman Lal, who was posted as MHC in Police Station, Banjar since July, 2006, has stated that he received ruka, Ex. PW 2/B, at 9.15 a.m. on 22.1.2010 and on the basis of which registered FIR, Ex. PW 4/A. He has further deposed that he also received case property from ASI Man Singh and made entry at Sr. No. 119 in Malkhana register, extract of which is Ex. PW 4/B. He also sent the case property through HHC Sobha Ram to FSL, Junga, vide RC No. 18 of 2010, Ex. PW 4/C. In his cross-examination, he deposed that he was discharging the duties of Station House Officer on that date after ASI Man Singh left to the spot. He further deposed that Man Singh was discharging the duties of Station House Officer and Man Singh could not disclose whether any Sub Inspector, posted in Police Station, was present at that time or not. He also identified the signatures of the person, who deposited the case property and he on receipt of the property entered the same in Col. No. 7 of Malkhana Register. He further admitted his signatures appearing in the remarks column about the entry for sending and receiving the case property to and from F.S.L.
12. PW-5, MHC Sobha Ram, stated that he had taken the case property along with the relevant documents to F.S.L., Junga on 22.1.2010.
13. PW-6, HC Harbans Lal has stated that he had received special report from Deputy Superintendent of Police, Nihal Chand, on 23.1.2010 at 2.00 p.m. and he made necessary entry at Sr. No. 6 in the relevant register and proved the extract of the register, Ex. PW 6/A.
14. PW-7, SHO Prem Dass was posted at Police Station, Banjar w.e.f. 30.12.2009 to 31.7.2010, has prepared the challan.
15. PW-8, Constable Sunil Kumar, has entered daily diary report at Sr. No. 6 in the official Computer and has also proved the printout of rapat No. 6, Ex. PW 8/A.
16. The learned Trial Court had relied upon the judgment of this Hon'ble Court rendered in Sunil & Ors. Vs. State, MANU/HP/0424/2009 : 2010 (1) Cur. L.J. (H.P.) 222. Relevant text whereof was also extracted by the learned Trial Court, which is also reproduced as under:-
"29. As noticed hereinabove, the only tests, which were conducted by the experts were to find out tetrahydrocannabinol or cystolithic hair. They found tetrahydrocannabinol but did not indicate in their reports the percentage thereof. While in the witness-box also, the experts did not say what was the percentage of tetrahydrocannabinol in the samples. Specific category of a cannabis product, like charas, ganja or mixture, as defined in Section 2(iii) of the Act, or anything else, like bhang etc., can also be determined with reference to the percentage of tetrahydrocannabinol in the stuff. As noticed hereinabove, percentage of tetrahydrocannabinol varies from one produce to other product of cannabis.
30. According to Parikh's Textbook of Medical Jurisprudence, Forensic Medicine and Texiocology, in the case of bhang it is 15 percent, in the case of ganja it is about 25 and 40 percent. When the percentage of tetrahydrocannabinol in the sample stuff is not indicated in the report nor had any test been conducted to ascertain whether the stuff was charas, that is to say resin, or some other preparation of cannabis, it cannot be said that the stuff was in fact Charas. As regards, cystolithic hair, these being the fibre of cannabis plant, are bound to be present in all the products of cannabis. It is quite likely that the samples were only of bhang i.e., the dried leaves of cannabis plant, which is also supposed to contain 15 percent concentration of tetrahydrocannabinol. Possession of only the leaves or the seeds of cannabis plant is no offence, because it is only the charas, ganja or mixture, as defined in Section 2(iii) of the Act which is an offence under Section 20 of the Act. Leaves and seeds of cannabis plant are not included either in the definition of charas of ganja and are rather specifically excludes from the definition of ganja, unless accompany the flowering and fruiting tops of the plant.
31. In view of the above stated position, we hold that experts' report in none of these six cases prove that the stuff recovered from the appellants/accused was charas. The possibility of the stuff recovered from them being only bhang i.e. the dried leaves of cannabis plant, possession of which is no offence, cannot be ruled out."
17. However, judgment relied upon by the learned trial Court in Sunil vs. State (supra) has now been overruled by this Court in the case of State of H.P. vs. Mehboon Khan and analogous matters, reported in Latest MANU/HP/0719/2013 : HLJ 2014 (HP) (FB) 900. The Full Bench of this Court has categorically held that there is no legal requirement of the presence of particular percentage of resin to be there in the sample and the presence of the resin in purified or crude form is sufficient to hold that the sample was that of Charas. It has been held as follows:
".............. The separated resin is cannabis resin not only when it is in 'purified' form, but also when in 'crude' form or still mixed with other parts of the plant. Therefore, the resin mixed with other parts of the plant i.e. in 'crude' form is also charas within the meaning of the Convention and the Legislature in its wisdom has never intended to exclude the weight of the mixture i.e. other parts of the plant in the resin unless or until such mixture proves to be some other neutral substance and not that of other parts of the cannabis plant. Once the expert expressed the opinion that after conducting the required tests, he found the resin present in the stuff and as charas is a resinous mass and after conducting tests if in the opinion of the expert, the entire mass is a sample of charas, no fault can be found with the opinion so expressed by the expert nor would it be appropriate to embark upon the admissibility of the report on any ground, including non-mentioning of the percentage of tetrahydrocannabinol or resin contents in the sample..............
f. We are also not in agreement with the findings recorded by the Division Bench in Sunil's case that "mere presence of tetrahydrocannabinol and cystolithic hair without there being any mention of the percentage of tetrahydrocannabinol in a sample of charas is not an indicator of the entire stuff analyzed to be charas" for the reason that the statute does not insist for the presence of percentage in the stuff of charas and mere presence of tetrahydrocannabinol along with cystolithic hair in a sample stuff is an indicator of the same being the resin of cannabis plant because the cystolithic hair are present only in the cannabis plant. When after observing the presence of tetrahydrocannabinol and cystolithic hair, the expert arrives at a conclusion that the sample contains the resin contents, it is more than sufficient to hold that the sample is of charas and the view so expressed by the expert normally should be honoured and not called into question. Of course, neutral material which is not obtained from cannabis plant cannot be treated as resin of the cannabis plants. The resin rather must have been obtained from the cannabis plants may be in 'crude' form or 'purified' form. In common parlance charas is a handmade drug made from extract of cannabis plant. Therefore, any mixture with or without any neutral material of any of the forms of cannabis is to be considered as a contraband article. No concentration and percentage of resin is prescribed for 'charas' under the Act"
18. It was also not necessary to indicate the percentage of the Tetrahydrocannabinol in the report. Prosecution has proved beyond reasonable doubts that the contraband was recovered from the conscious and exclusive possession of the accused.
19. Now, coming to the independent witnesses. When the Investigating Officer had suspicion about the fact that the accused might be carrying some contraband, he sent PW 1 to bring the independent witnesses before searching the accused. PW 1 in spite of best efforts, could not bring independent witnesses, as no person was willing to join the investigation. It is worthwhile to note that it was early morning when the accused was nabbed. Non-joining of independent witnesses in the circumstance when the statement of the official witnesses inspire confidence, cannot be said to be fatal to the prosecution case. The Apex Court in Girija Prasad Vs. State of M.P., MANU/SC/7862/2007 : (2007) 7 SCC 625, has held that the testimony of official witnesses is as good as that of independent witnesses, however, the same is required to be examined with all circumspection and caution. Similar is the ratio of the judgment of the Apex Court in Makhan Singh vs. State of Haryana, MANU/SC/0479/2015 : (2015) 12 SCC 247. Being so and the findings recorded by learned trial Judge that it was not possible for the Investigating Officer to have associated independent persons, as witnesses, in this case, the testimony of official witnesses, who are PW-1 Constable Vijay Kumar and PW-2 ASI Man Singh, is worth credence, reliable and beyond suspicion.
20. As discussed hereinabove, Constable Vijay Kumar (PW 1) has specifically stated that A.S.I. Man Singh sent him to fetch independent person(s). He further stated that local persons refused to become witnesses and he disclosed this fact to the Investigating Officer and, thereafter, PW1 and HC Ramesh Chand had been associated, as witnesses. Memo under Section 50 of the Act, Ex. PW 1/A, was prepared, which bears his signatures. ASI Man Singh gave his personal search to the accused. Said ASI was found in possession of Identity Card and mobile phone and thereafter Ex. PW 1/B was prepared. He further stated that on opening the gunny bag, it was found containing sphere, stick and pancake shaped like charas and on weighing Charas, it was found 4.5 kgs. He has further deposed that gunny sack was tied with a jute thread and was wrapped in a piece of cloth, which was resealed with nine impressions of seal 'D'. Form NCB-I was filled in triplicate. He has further stated that they signed the parcel. When the parcel was produced in the Court, it was containing nine impressions of seal 'D' and seven impressions of seal of the F.S.L. and he identified the parcels, as the same. He also identified the gunny sack, Ex. P2, and Charas, Ex. P3, as the same. In his cross-examination, PW-1 has deposed that he did not go inside the houses to bring the independent witnesses. In his cross-examination, he has stated that the scale was traditional and they were having the weights of 1 kg, 500 grams, 200 grams, 100 grams and 50 grams respectively and Charas was weighed inside the vehicle. He has also stated that the personal search of the accused was not conducted before he left the place with ruka. As far as the consent of the accused is concerned, the accused was duly informed by the Investigating Officer that he has right to be searched before a Magistrate or the Gazetted Officer and the accused has given his consent, in writing, to be got searched before the Police. As per defence, the Police had brought the accused from his home and falsely implicated in this case, as suggested to PW 1 in his cross-examination, but there is no cross-examination to any of the witnesses that the police was having any enmity with the prosecution nor there is any suggestion that the Charas was not recovered from him and it was brought from some other place. Similarly, ASI Man Singh (PW 2), who was the Investigating Officer, has categorically stated with regard to the recovery of the Charas from the exclusive and conscious possession of the accused from the gunny sack, as stated hereinabove. He has also stated that it was tied with jute thread and was sealed with nine seals of seal impression 'D'. He has also stated that it was not resealed because he was the S.H.O.
21. Now, the defence counsel has tried to explain that it was not re-sealed and so there is a tampering with the case property. When the Investigating Officer was himself S.H.O., it was not required to be re-sealed. Further, while cross-examining the SHO concerned, who appeared as PW 7, no question was put to him to prove the defence case that the S.H.O. was present in the Police Station on that date. Though, opportunity was given, but there is 'nil' cross-examination. From this, it is clear that it was the Investigating Officer (PW 2), only who was the S.H.O. on that particular date, as per the prosecution story, S.H.O. (PW 7) had left for the Court after the team headed by the Investigating Officer, ASI Man Singh (PW 2), left the Police Station. So, as the Investigating Officer was S.H.O., we find no force in the argument of the learned defence counsel that as the property was not re-sealed so the provisions of the Act were not complied with. Further, NCB-I Form was filled in at the spot by the Investigating Officer and we find that provisions of the Act have been properly complied with by the Investing Officer. Inspector Bishan Dass (PW 3), SIU, Mandi, has recorded the statements of MHC Chaman Lal, HC Harbans Lal and HHC Sobha Ram, as per their versions. After receipt of the result of analysis, Ex. PW 3/A, from the F.S.L., he handed over the file to SHO Prem Dass, for preparation of challan. As far as the deposit of the case property in the Malkhana is concerned, Head Constable Chaman Lal, while appearing as PW 4, has stated that he had made entry at Sr. No. 119 of the Malkhana Register, copy of which is Ext. PW 4/B and deposited the case property in Malkhana and he sent the parcel, sample seal, NCB-I Form, after filling its column No. 12 on the same day, to HHC Sobha Ram with the direction to carry these to F.S.L. vide RC No. 18/10, copy of which is Ex. PW 4/C. After depositing the same in the F.S.L., HHC Sobha Ram handed over the receipt to him on his return. In cross-examination, he has stated that he had put his signatures in the remarks column. He specifically denied that no property was received in the Malkhana.
22. In this case, the property was received by PW 4 at 12.30 p.m. and he, on the same day, sent the case property to F.S.L. on next day, it was received in F.S.L., Junga. We find that there is no question of tampering with the recovered contraband. HHC Sobha Ram (PW 5) has stated that he was posted in Police Station, Banjar. MHC Chaman Lal handed over him one sealed parcel with nine impressions of seal 'D', sample seal A, NCB-I Form (in triplicate) and other documents to FSL on 22.1.2010, vide RC No. 18/10, which he deposited in F.S.L. on 23.1.2010. In these circumstances, we are not in agreement with the arguments of the learned Counsel for the respondent-accused that the case property was tampered with.
23. Now coming to the statement of PW-1, Constable Vijay Kumar, to the effect that when the case property was produced in the Court, it was tied with an ordinary thread. This is a minor contradiction and also when the property was brought back from the FSL, the thread might have been changed in the FSL and the case property was resealed again by the FSL.
24. The prosecution successfully proved the recovery of the contraband from the exclusive and conscious possession of the accused. The joining of independent witnesses to search and seizure is always in the interest of trial, but the non-joining of independent witnesses as come on record, not possible as no independent witness was available in spite of best efforts.
25. Be it stated that the recovery of the contraband from the exclusive and conscious possession of the accused is sine qua non to bring home the guilt. This aspect needs cogent and reliable evidence. The joining of independent persons to witness the search and seizure is always in the interest of fair trial. The official witnesses had made the statements, which is inspiring confidence and reliable. Taking into consideration the fact that their statements are inspiring confidence we hold that the prosecution has proved the guilt of the accused beyond reasonable doubt. The Hon'ble Apex Court in Girija Prasad vs. State of M.P., MANU/SC/7862/2007 : (2007) 7 SCC 625, has held that the testimony of official witnesses is as good as that of independent person.
26. This Court is oblivious to the legal principle that in a case of this nature, where there is stringent provision qua punishment of offenders, if held guilty, the Court must look forward for cogent and reliable evidence and the prosecution is under obligation to prove its case beyond reasonable doubt. This Court is also alive to the legal principle that more serious is the offence, the stricter degree of proof is required to hold the offender guilty. However, in view of the evidence discussed hereinabove, we find the present is a case where the prosecution has proved its case against the accused beyond all reasonable doubt. The findings hereinabove recorded by us on re-appraisal of the evidence available on record, brings this case out of the purview of the judgment of the Hon'ble Apex Court in Noor Aga vs. State of Punjab, MANU/SC/2913/2008 : (2008) 16 SCC 417, to form an opinion that the evidence produced by the prosecution is not cogent and reliable and that the same rather suffers from discrepancies as well as contradictions. We rather find that the present is a case where the prosecution has been able to bring home the guilt against the accused with the help of cogent and reliable evidence. The testimonies of both the witnesses, i.e. PW 1, Constable Vijay Kumar and the Investigating Officer, ASI Man Singh, PW-4 are consistent and corroborate the entire prosecution case.
27. The prosecution has been able to prove the recovery of Charas weighing 4.5 kgs from the exclusive and conscious possession of the accused. Therefore, it was for the accused person to have explained his innocence, as envisaged under Sections 35 and 54 of the Act. The present, as such, is a case where presumption, as envisaged under Sections 35 and 54 of the Act, has to be drawn against accused, as the accused failed to explain his innocence, hence on this score also, it would not be improper to conclude that the Charas weighing 4.5 kgs. has been recovered from his exclusive and conscious possession. The findings to the contrary, as recorded by learned trial Judge, are neither legally nor factually sustainable.
28. A perusal of the evidence available on record and also given facts and circumstances, as well as, law cited make it crystal clear that the present is not a case where it can be said that the prosecution has failed to prove its case against the accused beyond all reasonable doubts. No doubt, the witnesses are police officials, but it was not possible to associate independent person, as witness, despite best efforts. The evidence as has come on record by way of testimony of official witnesses is consistent, categoric, cogent as well as reliable. The prosecution, as such, has discharged the onus to prove that 4.5 kgs. charas has been recovered from the exclusive and conscious possession of the accused. As already observed, the present is a fit case where the presumption, as envisaged under Sections 35 and 54 of the Act, can also be drawn against the accused, as there is no evidence to the contrary.
29. When the recovery was proved from the exclusive and conscious possession of the accused to the extent of 4.5 kgs of Charas, we find no merit in the arguments of the learned counsel for the accused that accused was called from home and falsely implicated in this case, as to this effect, nothing has come on record while cross-examining the official witnesses. Thus, at this stage, this plea is not available to the accused. As the prosecution has proved the guilt of the accused conclusively beyond all reasonable doubts, we find that the findings, as recorded by the learned Court below, are perverse and liable to be set aside to meet the ends of justice. Accordingly, the findings of acquittal, as recorded by the learned Court below, are set aside and the accused is convicted under Section 20 of the N.D.P.S. Act.
30. The Hon'ble Supreme Court in Criminal Appeal No. 1482 of 2013, titled Yogesh Singh vs. Mahabeer Singh and others, decided on 20.10.2016, has held as under:-
"29. It is well settled in law that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the Court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions which materially affect the case of the prosecution but not every contradiction or omission. (See Rammi @ Rameshwar Vs. State of M.P., MANU/SC/0596/1999 : (1999) 8 SCC 649; Leela Ram (dead) through Duli Chand Vs. State of Haryana and Another, MANU/SC/1168/1999 : (1999) 9 SCC 525; Bihari Nath Goswami Vs. Shiv Kumar Singh & Ors., MANU/SC/0158/2004 : (2004) 9 SCC 186; Vijay @ Chinee Vs. State of Madhya Pradesh, MANU/SC/0522/2010 : (2010) 8 SCC 191; Sampath Kumar Vs. Inspector of Police, Krishnagiri, MANU/SC/0188/2012 : (2012) 4 SCC 124; Shyamal Ghosh Vs. State of West Bengal, MANU/SC/0544/2012 : (2012) 7 SCC 646 and Mritunjoy Biswas Vs. Pranab @ Kuti Biswas and Anr., MANU/SC/0812/2013 : (2013) 12 SCC 796).
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44. In the present case, we do not find any major contradiction either in the evidence of the witnesses or any conflict in medical or ocular evidence which would tilt the balance in favour of the respondents. The minor improvements, embellishments etc., apart from being far yield of human faculties are insignificant and ought to be ignored since the evidence of the witnesses otherwise overwhelmingly corroborate each other in material particulars."
31. In view of the law, as discussed hereinabove and the appraisal of the evidence on record, we find that the findings arrived at by the learned trial Court are perverse and being so, we set-aside impugned judgment and convict the accused for the commission of offence punishable under Section 20 of the N.D.P.S. Act.
32. The convict to surrender to his bail bonds and appear before this Court on 01.12.2016 at 10.00 A.M. for being heard on the quantum of sentence.
33. Learned counsel submits that she may not be able to contact the convict and ensure his presence in this Court on the next date. Being so, issue production warrants against the convict for the date fixed and the Superintendent of Police, Kullu is directed to get the warrants executed upon the convict and ensure that he is produced in this Court on the date fixed. Judgment to continue.
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