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Himachal Pradesh High Court · body

2005 DIGILAW 55 (HP)

GANGA RAM v. STATE OF H. P.

2005-03-18

M.R.VERMA

body2005
JUDGMENT M.R. Verma, J. :- This appeal has been preferred by the appellant-accused (hereinafter referred to as the accused) against the judgment dated 9.6.2004, passed by the learned Sessions Judge, Kullu whereby he has been convicted under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, (hereinafter referred to as the Act) and has been sentenced to rigorous imprisonment for four years and fine of Rs.40,000/- and in default of payment of fine, to undergo imprisonment for one year. 2. The case of prosecution, in brief, is that on 29.8.2003 Inspector Jagdish Chand (PW-6), the then SHO Police Station. Manali along with a few other police officials including ASI Bhagat Ram (PW-4) and Constable Uttam Singh (PW-5), left the Police Station in his own Car and proceeded on patrol duty and traffic checking towards Behnu Jhula. At 4.00 p.m. when the police party had reached Behnu Jhula, they noticed the accused coming towards Manali side and on seeing the police party, the accused got perplexed and tried to run away. Getting suspicions, the police party apprehended the accused and inquired about his particulars. Since there was no house or locality nearby, therefore, PW-6 associated the accompanying police officials in the investigation. PW-6 enquired about the option of the accused as to whether he wanted his personal search and search of his bag before a Magistrate or a Gazetted Officer. The accused vide memo Ext.PW-4/A opted for search by the police party present on the spot. PW-6 then gave his personal search to PW-4 in the presence of the accused vide memo Ext. PW-4/P. Thereafter the bag which the accused was carrying on his back was searched and it was found to contain Charas weighing 425 grams. PW-6 separated two samples each of 25vgrams»from the recovered Charas and made the samples and the bulk. Charas into separate parcels and sealed them with seal T” and took them in possession vide memo. Ext-PW-4/C. The Investigating Officer filled in NCB Form EXt^PW-6/B in triplicate and also took the seal sample on a piece of cloth Ext. PW-6/A. The seal after use was handed over to HC Hari Singh. The accused was apprised of the ground of his arrest and the punishment for the offence committed by him vide memo. Ext. PW-4/D. Ruka Ext. Ext-PW-4/C. The Investigating Officer filled in NCB Form EXt^PW-6/B in triplicate and also took the seal sample on a piece of cloth Ext. PW-6/A. The seal after use was handed over to HC Hari Singh. The accused was apprised of the ground of his arrest and the punishment for the offence committed by him vide memo. Ext. PW-4/D. Ruka Ext. PW-6/C was then drawn up by PW-6 and was sent to Police Station Manali through PW-5 on the basis of which HC Kham Chand (PW-1) recorded formal FIR Ext. PW-1/A. The case property along with the NCB Form and sample seal were deposited by the Investigating Officer with PW-1 for safe custody who made entries Ext. PW-1/C in the Malkhana register. Subsequently, one of the sealed samples along with the sample seal and NCB Form was sent by PW-1 to CTL Kandaghat vide RC Ext. PW-1/D through HHC Bir Singh (PW-2). Special report Ext. PW-3/P was prepared by PW-6 and sent to S.P. Kullu through PW-5. On receipt of the report from the Chemical Examiner Ext. PA, a charge-sheet was submitted against the accused who came to be tried by the learned Sessions Judge, Kullu on a charge under Section 20 of the Act. 3. To prove the charge against the accused, prosecution examined six witnesses. Statement of the accused was recorded under Section 313 of the Code of Criminal Procedure wherein he denied the prosecution case and pleaded to be innocent and having been falsely implicated in the case. However, the accused did not lead any defence evidence. 4. On consideration of the evidence on record, the learned Sessions Judge convicted and sentenced the accused as aforesaid. Aggrieved by the conviction and sentence, the accused has preferred the present appeal. 5. I have heard the learned Counsel for the accused and the learned Deputy Advocate General for the respondent-State and have also gone through the records. 6. It may be pointed out here that during the course of the arguments in this appeal before a learned Single Judge of this Court, who was then seized of the matter, some submissions were made which led the Court to order production of the relevant Roznamcha. 6. It may be pointed out here that during the course of the arguments in this appeal before a learned Single Judge of this Court, who was then seized of the matter, some submissions were made which led the Court to order production of the relevant Roznamcha. At the stage of arguments before me, pursuant to the order dated 7.3.2005, the relevant Roznamcha was again produced, photocopies of the relevant entries were taken on record and, on consideration of the matter it was found proper in the interest of justice that the statement of the police official who had made the relevant entries in the Roznamcha is examined. Thus, PW-1 LHC Hoshiar Singh was examined as a Court witness. 7. The learned Counsel for the accused assailed the impugned conviction and sentence on the following grounds:- (I) that there is not cogent and reliable evidence to prove that the Police party, in fact, was on the spot at the time of alleged recovery; (II) that no effort was made by the Investigating Officer to join independent witnesses to witness the alleged search etc. and the conviction is entirely based on the evidence of police officials whose contradictory evidence is not reliable; (III) that it is evident-from the facts and circumstances of the case that some of the documents relied upon by the prosecution are fake and forged and have been prepared as per the convenience of the Investigating Officer; (IV) that there is no evidence to prove that the requisite material for proper identity of the sample sent to the Public Analyst was delivered in the CTL; (V) that the accused was Mukhbar of the Police, and has been falsely implicated in the case for not toeing the line of the police; and (VI) that in any case the sentence imposed is excessive and disproportionate. Ground No. I: 8. Ground No. I: 8. It was contended by the learned Counsel for the accused that in fact the Police was not present on the spot nor the accused was apprehended there and to conceal this factual position the Police did not produce the Daily Diary report about the departure of the Police Party from the Police Station to the place of alleged detection of the crime and to prove the presence of the Police Party on the spot relied on the oral evidence of the Police Officials which is unbelievable more so because of the adverse inference which may be drawn form non-production of the daily dairy of concern police station. 9. On the other hand the learned Deputy Advocate General contended that the presence of the police on the spot, there noticing the accused, his attempting to bolt away, his consequential apprehension search and recovery of the contraband are duly proved in view of the evidence led by the prosecution and such evidence cannot be discarded for the sole reason that it consists of the statements of the police officials. 10. CW-1 had stated that the original entries in the Roznamcha dated 29.8.2003 had been made by him and are in his hand writing and Ext.CA is the true copy of the reports No. 14 to report No.44 of the Daily Diary of 29.8.2003. He has further stated that such entries have been made by him correctly and as per the factual position. The witness, who has been examined as a Court witness, has not been cross-examined by either of the parties despite opportunity. Thus his statement about the correctness of the entries in the Daily Diary photocopy whereof is Ext.CA remains unchallenged. 11. A perusal of report No. 19 in Ext.CA reveals that the Investigating Officer (PW-6) alongwith ASI Bhagat Ram (PW-4), constable Uttam Singh (PW-5) and HC Hari Singh left Police Station, Manali at 3.35 p.m. for patrolling and traffic checking towards Atharameel. In view of the contents of Ext.CA and the unchallenged statement of CW-1, these entries are proved to be factually correct thus, these entries firmly prove that the Police party which claims to have apprehended the accused left the Police Station at 3.35 p.m. However, contrary to the aforesaid position, as per the evidence of PW-4, the Police party left Police Station, Manali, at 1.45 p.m. So is stated by PW-5 and PW-6. Thus, ail the aforesaid witnesses have stated that the Police party which apprehended and searched the accused had left Police Station, Manali, at 1.45 p.m. Their Statements are belied by the entries in the police report i.e. the entries in the Daily Diary Ext.CA whereby their departure from the Police Station is shown as 3.35 p.m. Evidently, these witnesses are making false statements presumably to reconcile the time of apprehension of the accused and the alleged search and seizure with the time of their denature from the Police Station. Once, it is found that the Police party left Police Station at 3.35 p.m. they could not have been on the spot at 4 p.m. when they allegedly noticed the accused at an admitted distance of 2!4 kms from the Police Station. The police partly allegedly traveled in the car of PW-6, therefore, in the ordinary course could be expected on the spot even if they had started from the Police Station at 3.35 p.m. and had driven straight to the spot. However, as is admittedly by the material witnesses they stopped on the way for a considerable time, PW-5, one of the police officials constituting the Police party,, has clearly and unambiguously admitted in his-cross-examination that after having proceeded from Police Station, Manali, they had stopped near Harrison Petrol Pump for about two hours for checking of vehicles. He has further stated that he is not aware of the time when they started from the Petrol Pump towards the spot. PW-6, the Investigating Officer, also admits that after departure from Police Station, Manali, they stopped at Harrison Petrol Pump for about 3/4 hours and thereafter went straight to the spot. In view of the proved time of their departure from the Police Station being 3-35 p.m., having stopped on the way, as aforesaid, the Police party could by no stretch of imagination be on the spot at 4 p.m. Thus, the prosecution version that the Police party had started from the Police Station at 1.45 p.m., reached on the spot and noticed the accused at 4 p.m., is believed by the record maintained by the Police itself. The Police officials having made false statements about the time of their departure from Police Station which can lead to the only conclusion that they are not truthful witnesses, their evidence regarding the alleged apprehensions "search of the accused-and recovery of contraband from his possession is rendered highly suspicious and as a consequences, the prosecution case is entered not only highly suspicious but improbable. Ground No. II: 12. It was also contended by the learned Counsel for the accused that the prosecution case rests entirely on the statements of the Police officials which are unreliable and untrustworthy. It was further contended that the omission to join independent witnesses was intentional and with a view to concoct a case against the accused. 13. No doubt, there is no proposition of law that statements of the officials witnesses cannot be relied upon to record conviction, however, to record conviction on the statements of the officials witnesses, their statements must be cogent, consistent, reliable and confidence inspiring. The statements of all the three material witnesses about the alleged apprehension an search of the accused and alleged recovery of Charas from his possession have already been found false and unreliable and no conviction on these statements could be recorded. 14. It may also be pointed out that no independent witness had been associated in the investigation. According to the learned Deputy Advocate General, it was a case of chance recovery therefore, independent witness could not be associated more so because none was available on the spot as specifically mentioned in Ruka Ext. PW-6/A. It is not doubt so mentioned in Ext. PW-6/A but not so stated by any of the witnesses produced by the prosecution. On the contrary, it is clearly and unambiguously admitted by PW-4 and PW-5 whom PW-6 associated to witness the process of search and seizure that the Investigating Officer (PW-6) did not try to procure the presence of independent witnesses. This lapse on the part of the Investigating Officer renders the search and seizure highly suspicious. Ground No. III: 15. It was contended by the learned Counsel for the accused that some of the documents prepared by the police are fake and forged which not only suggest that the investigation in the case was not fair but also render the documentary evidence highly suspicious. The learned Counsel has specifically referred to Ext. Ground No. III: 15. It was contended by the learned Counsel for the accused that some of the documents prepared by the police are fake and forged which not only suggest that the investigation in the case was not fair but also render the documentary evidence highly suspicious. The learned Counsel has specifically referred to Ext. PW-4/D and a few other documents containing FIR number whereas these documents were admittedly prepared before sending the Ruka to the Police Station and, thus, before coming into being of the FIR. 16. It may be pointed out here that a document cannot be said to be fake merely because it was prepared before the registration of the case and contains the FIR number. The documents prepared by the Investigating Officer during investigation as of necessity are required to contain the FIR number and other particulars of the case so that it is shown relatable to the case. It is also a matter of common sense that while preparing the documents on the spot before the FIR number is available with the Investigating Officer, he can leave blank space in the document to ultimately record the particulars of the case at the top of the document for the purpose of identity of the document. In this case, it appears even to a naked eye that the space for giving FIR number in the documents allegedly prepared on the spot has been filled-in in the ink different from the ink used for writing the other contents leading to the conclusion that the FIR number had been inserted at its place at a later stage when it was available with the Investigating Officer. His doing so cannot be said to be a case of fabrication of the document nor can be looked upon as a suspicious circumstance of which the accused may be given any benefit. However, a bare perusal of Ext. PW-4/D lends credence to the submission of the learned Counsel for the accused that least this document if prepared on the spot is incorrectly prepared or has been prepared at a stage later than the stage at which it purports to have been prepared and in either case it suggests that the investigation in the case was not fair. 17. Ext. PW-4/A is the Memo, of information regarding arrest of the accused and the consequences of the crime allegedly committed by the accused. 17. Ext. PW-4/A is the Memo, of information regarding arrest of the accused and the consequences of the crime allegedly committed by the accused. According to the Investigating Officer this document has been prepared on the spot at the time of arrest of the accused. As is the admitted case of the prosecution it contains a noting dated 29.8.2003 at the foot in the handwriting of the accused that he had been informed of his arrest and that the information about his arrest be given to his wife Dassi telephonically. At the same time this document is signed by said Dassi with the endorsement "main suchit hui". It is nobodys case that said Dassi was either present on the spot or was called to the spot which enabled her to make the aforesaid endorsement on Ext. PW-4/D and sign it. It, thus, remains a mystery for want of any explanation in this regard as to how the aforesaid endorsement and signatures of Dassi have been obtained on this document. It is also doubtful whether this endorsement and the signatures thereunder are in fact of said Dassi. This unexplained act on the part of the Investigating Officer lends credence to the submission made by the learned Counsel for the accused that the investigation in the case has not been fairly conducted. Ground No. IV: 18. It was contended by the learned Counsel for the accused that the requisite material to co-relate the sample of Charas sent to the laboratory with the alleged bulk case property was not sent to the CTL, therefore, the link evidence to connect the sample with the Charas is missing. 19. On the other hand, learned Deputy Advocate General has contended that there is evidence on record in the form of statement of HC Khem Chand (PW-1), who sent the case property to CTL, HHC Bir Singh (PW-2) who carried the sample to and deposited it in the CTL, the contents of NCB form Ext. PW-6/B and the certificates of the Chemical Examiner on Ext. PA that the seals of the sample were intact and tallied with the sample seals, therefore, it cannot be said that the link evidence is missing. 20. In this regard, PW-1 has stated that all the requisite documents including sample seal, NCB form, copy of FIR and seizure Memo. PW-6/B and the certificates of the Chemical Examiner on Ext. PA that the seals of the sample were intact and tallied with the sample seals, therefore, it cannot be said that the link evidence is missing. 20. In this regard, PW-1 has stated that all the requisite documents including sample seal, NCB form, copy of FIR and seizure Memo. Were sent to the laboratory through PW-2 and it is also mentioned in the road certificate Ext. PW-1/D and PW-2, by and large, supports this version. Ext. PA also contains the certificates of the Chemical Examiner that the seals on the sample were intact and tallied with the sample seal. However, there are factors which lend credence to the contention of the learned Counsel for the accused. 21. In his cross-examination, PW-1 was confronted with his statement under Section 161, Cr.P.C. wherein admittedly neither it is recorded that sample seal was deposited with him on 29.3.2003 by PW-6 nor it is recorded therein that sample seal(s) were sent by him to CTL, Kandaghat through PW-2. Similarly, PW-2 was also confronted with his statement under Section 161, Cr.P.C. wherein it was not stated by PW-2 that the sample seal was handed over to him for being delivered in CTL. Both these witnesses have specifically admitted that their statements under Section 161, Cr.P.C. were recorded by the Investigating Officer (PW-6) as per their version and correctly. It is not their claim that they have from any reason omitted to state about the depositing and sending of the sample as claimed by them in their evidence for any reason whatsoever. In these circumstances, their statements about the depositing of the sample seal in the Malkhana by PW-6 and subsequently its having been sent to CTL are rendered highly suspicious. What adds to the injury is that the articles allegedly sent to CTL by PW-1 through PW-2 vide Ext. PW-1/D bears a receipt of the CTL dated 1.9.2003 which mentions only about the receipt of a sealed Charas sample and does not contain any reference to the accompanying documents i.e. copies of NCB form, FIR recovery Memo, and the sample seal. PW-1/D bears a receipt of the CTL dated 1.9.2003 which mentions only about the receipt of a sealed Charas sample and does not contain any reference to the accompanying documents i.e. copies of NCB form, FIR recovery Memo, and the sample seal. In these circumstances, it cannot be readily believed that the sample was sent to the CTL alongwith the requisite documents and the sample seal to enable establishing the identity of the sample No doubt, the Chemical Examiner has affixed two seals of certificates on Ext PA, one of which is apparently not signed by the Chemical Examiner and these receipts are in the form of stamped version to which conclusive presumption of correctness cannot be attached. 22. In view of the above discussion, there is no cogent and reliable evidence to prove that the requisite material for proper identity of the sample was sent to the Public Analyst and was delivered in the CTL. Ground No. V: 23. It has been the constant case of the accused that at one point of time he had been a Mukhbar of the Police and has also been appearing as a witness for the Police as is evident from the contents of the copies of judgments Exts. D-1 and D-2 and when he did not tow the suggested lines of the Police, he has been falsely implicated in the case. This version of the accused does not seem to be improbable. A perusal of Exts. D-1 and D-2 reveals that in these two cases under the Act, the accused was a prosecution witness but has not supported the prosecution version meaning thereby that he resiled from making such statements as he was expected by the Investigating Agency to make. Therefore, the defence of the accused that he being a Mukhbar or a stock witness of the police had not supported the police, therefore, he had been falsely implicated in the case stands probabilised. Ground No. VI 24. In view of the findings recorded on Ground No. I to V (supra), the impugned conviction and sentence cannot be sustained. Therefore, this ground does not survive for consideration and decision. 25. The above discussion leads me to the conclusion that the case against the accused has come into being in highly shady and suspicious circumstances and there is no cogent, reliable and trustworthy evidence to connect him with the commission of the offence. Therefore, this ground does not survive for consideration and decision. 25. The above discussion leads me to the conclusion that the case against the accused has come into being in highly shady and suspicious circumstances and there is no cogent, reliable and trustworthy evidence to connect him with the commission of the offence. Therefore, the impugned conviction and sentence cannot be maintained. 26. As a result, this appeal is allowed and the conviction and sentence awarded to the accused are set aside and he is acquitted of the charge against him. The accused, who is presently in jail undergoing the sentence of imprisonment awarded to him, be set at liberty forthwith unless required to be detained under any other process of law. Fine, if recovered, be refunded to him.