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Himachal Pradesh High Court · body

2013 DIGILAW 513 (HP)

Dev Raj v. State of H. P.

2013-06-10

DHARAM CHAND CHAUDHARY

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JUDGMENT Dharam Chand Chaudhary, Judge (Oral) Challenge herein is to the judgment dated 1.10.2010 passed by learned Special Judge-II, Solan, District Solan, in Sessions Trial No. 6-S/7 of 2010, convicting and sentencing thereby the appellant (hereinafter referred to as the ‘accused’) to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 70,000/- for the commission of offence punishable under Section 20 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘NDPS Act’ in short) and to undergo rigorous imprisonment for two years and to pay a fine of Rs. 20,000/- for the commission of offence punishable under Section 18 of the Act. 2.The accused, right from the day of his arrest i.e. night intervening 28/29th December, 2009 is in custody initially in judicial and after his conviction serving out the sentence, as imposed upon him. 3.The challenge to the impugned judgment is on the grounds inter-alia that the prosecution has failed to prove its case beyond all reasonable doubts against the accused and on the basis of the evidence available on record, no findings of conviction could have been recorded against him. Besides, various irregularities committed by the investigating agency during the course of search and seizure, have also been highlighted. It is submitted that same has vitiated the entire proceedings against the accused, hence impugned judgment is stated to be not legally sustainable. The prosecution witnesses being interested one could have not been relied upon. 4.The prosecution case, as disclosed from the record, in a nut-shell, is that the accused was travelling in a H.R.T.C bus bearing registration No. HP-03B-6030 from Shimla to Chandigarh during the night intervening 28/29th December, 2009. The police of police station, Dharampur had laid a ‘Nakka’ on the national highway outside the gate of the police station. The police party consisting of PW-4, PW-5 and also other police officials was headed by PW-12 ASI Ram Pal. The bus was stopped at the place of ‘Nakka’. While PW-12 boarded the bus from the rear door, the other police officials accompanying him boarded the same through its front door. They started checking the luggage of the passengers traveling in the bus. The accused allegedly was occupying seat No. 34 in the row behind the driver and in window side. On the seats to his left, two more persons were also sitting. They started checking the luggage of the passengers traveling in the bus. The accused allegedly was occupying seat No. 34 in the row behind the driver and in window side. On the seats to his left, two more persons were also sitting. The bag Ext, P-2 black and blue in colour allegedly was found to be kept by the accused below seat near his feet. He was asked to check his bag. On opening the zip of the bag, beneath a red strips woolen shawl and one yellow colour bag was found kept therein. In that yellow colour bag black colour substance in the shape of balls was recovered in the presence of Shri Sanjiv Kumar, the driver of the bus and Shri Hari Ram, its conductor. The substance so found and kept was identified as ‘charas’. On opening the front zip of the bag, the same was found having contained a polythene bag and on opening the same, a brown colour substance, which on identification was found to be ‘opium’ was recovered. Memo Ext. PW1/B regarding identification of the substance allegedly charas and opium recovered from the bag was prepared and besides the accused witnesses namely Sanjeev Kumar, driver of the bus and Shri Hari Ram, conductor of the bus also had signed the same. The accused along with bag and witnesses was taken to the compound of the police station. The contraband allegedly charas and opium recovered from the bag was thereafter weighed and found to be 2.50 Kilograms and 150 grams respectively. Photographs Ext. PW1/D and Ext. PW1/E were taken by the IO, PW-12 from his digital camera. It is thereafter seizure memo Ext. PW1 /C was prepared and the recovered contraband was taken into possession. The seal was handed over to the driver of the bus Shri Sanjiv Kumar. It is on the basis of rukka Ext. PW5/A prepared thereafter by PW-1 2 that FIR Ext. PW7/A came to be registered against the accused. 5. The Investigating Officer allegedly completed the required documentation i.e. preparing of NCB forms in triplicate, spot map Ext. PW12/B and arrest memos etc. On the receipt of the report of chemical examiner Ext. PW1 1/E and completion of the investigation, final report under Section 173 Cr.P.C was filed against the accused. PW7/A came to be registered against the accused. 5. The Investigating Officer allegedly completed the required documentation i.e. preparing of NCB forms in triplicate, spot map Ext. PW12/B and arrest memos etc. On the receipt of the report of chemical examiner Ext. PW1 1/E and completion of the investigation, final report under Section 173 Cr.P.C was filed against the accused. Learned Special Judge, on hearing the accused and taking into consideration the report accompanied by the documents produced in evidence by the prosecution has found the accused having committed the offence punishable under Sections 20 and 18 of the Act and has accordingly framed the charge against him. The accused, however, pleaded not guilty to the charge. The prosecution was thus called upon to produce the evidence in order to sustain the charge against the accused. The witnesses examined by the prosecution, besides independent i.e. Shri Sanjiv Kumar PW-1, the driver of the bus and Shri Hari Ram PW-2, the conductor of the bus, ASI Brestu Ram PW­4, Head Constable Nirmal Kumar PW-5 and Head Constable Hem Raj PW-6, who were also present on the spot, being member of the police patrol party. The remaining witnesses namely PW-3 Lokender Chauhan, PW-7 Head Constable Praveen Kumar, PW-8 Constable Vijay Kumar, PW-9 Lady Constable Pratima Devi, PW-10 Head Constable Yadav Chand and PW-1 1 SHO Jagdish Kanwar are formal and their evidence can at the most said to be link evidence. 6.It is seen that the independent witnesses i.e. PW-1 and PW-2, no doubt, have supported the prosecution case to the extent of they were present on the spot being driver and conductor of the bus enroute from Shimla to Chandigarh and that the bus was intercepted by the police outside the gate of the police station, Dharampur. It is also proved from their testimonies that the police party entered into the bus and checked the luggage of the passengers. Also that one passenger i.e. the accused was made to alight from the bus along with a bag. They, however, did not support the prosecution case so as to bag was found kept by the accused near his feet or he made available the same to the police for search. They have also admitted the recovery of some contraband from that bag, however, denied that the bag was that of the accused alone and none else. 7. They, however, did not support the prosecution case so as to bag was found kept by the accused near his feet or he made available the same to the police for search. They have also admitted the recovery of some contraband from that bag, however, denied that the bag was that of the accused alone and none else. 7. On the other hand, official witnesses i.e. PW 12, IO ASI Ram Pal, PW-4 ASI Barestu Ram, PW-5 Head Constable Nirmal Kumar and PW-6 Head Constable Hem Raj, no doubt, in their examination-in-chief have supported the prosecution case, as find mentioned in the police report and also the manner in which search and seizure have taken place, however, learned defence counsel during the course of arguments while inviting the attention of this Court to various contradictions in their statements and also the irregularities committed by the investigating agency during the course of search and seizure has forcefully contended that no findings of conviction could have been recorded on the basis of the statements made by the official witnesses alone. Learned defence counsel has also referred to the report of the chemical examiner Ext. PW1 1/E and pointed out that for want of specific opinion that resin found to be available in the exhibit was that of cannabis plant alone and also as the percentage of morphine being find mention in the report, as such, no reliance can be placed on the record to record findings of conviction against the accused on the basis thereof. In the alternative, percentage of morphine only to 1.71% and presence of ‘Tetrahydrocannabional’ in the exhibits sent for analysis, the present at the most can be said to be a case of small quantity punishable under Section 22 of the Act. 8.On the other hand, leaned Additional Advocate General has placed reliance on the evidence, as has come on record by way of testimonies of PW4 to PW6 and that of PW-1 2 and has submitted that prosecution has been able to prove its case against the accused beyond all reasonable doubts that the accused has rightly been convicted and sentenced for the commission of the aforesaid offence. 9.The sine qua non for recording findings of conviction in a case of this nature is the proof of the recovery of the contraband from the exclusive and conscious possession of the accused alone. 9.The sine qua non for recording findings of conviction in a case of this nature is the proof of the recovery of the contraband from the exclusive and conscious possession of the accused alone. It is again well settled that testimony of official witnesses is sufficient to bring home the guilt to an accused if otherwise inspiring confidence. It is relevant to note that the prosecution in the case in hand has failed to prove the recovery of the contraband allegedly charas and opium from the conscious and exclusive possession of the accused. No doubt, the prosecution has placed reliance not only on the statements of independent witnesses but also on that of the statements of official witnesses. The close scrutiny of the evidence, as has come on record by way of the testimonies of PWs 1 & 2 make it crystal clear that the H.R.T.C bus bearing registration No. HP-03B-6030 enroute Shimla to Chandigarh was intercepted by the police of police station, Dharampur. The luggage of the passengers inside the bus was searched. The accused was made to alight from the bus along with a bag. PW1 & PW-2 have not supported the prosecution case so as to bag was lying below seat No. 34 near the feet of the accused or that it is the accused who alone offered the same for being searched by the police. They rather stated in one voice that the luggage used to be kept in the racks meant for the same in both sides of the bus. The IO, no doubt, has stated that the bag was lying below seat No. 34 near the feet of the accused. Interestingly, this fact even found corroboration from the testimonies of PWs 4, 5 & 6 also. The close scrutiny of the statements of PW-4 & PW-5 reveal that if not specifically at least in an unambiguous words they have admitted that bags of the passengers were lying in the racks on both sides. Also that it was not known as to which of the bag was of which of the passenger. They rather were enquiring as to whom which of the bag belongs. Also that it was not known as to which of the bag was of which of the passenger. They rather were enquiring as to whom which of the bag belongs. No doubt, they denied the suggestions that bag was not lying near the feet of the accused, however, their testimony, as referred to hereinabove, lead to the only conclusion that their statements in their examination-in-chief that the bag belongs to the accused and was kept by him near his feet hardly inspires any confidence. Not only this, but PW-4 and PW-5 had claimed that bag to be their bag in the presence of PW-1 and PW-2. Some memo to this effect was also stated to be prepared by the ID. No such memo, however, is brought on record and the only memo Ext. PW1/B pertains to the alleged identification of the contraband i.e. charas and opium allegedly recovered from the accused. Admittedly, the accused was one of the occupants of the sofa seat in the row behind the driver, having three seats. He was sitting in the window side seat. Seats in his extreme left were occupied by two passengers. Who were the said passengers, no efforts have been made to find out and produce evidence in that regard during the course of investigation. True it is that ticket Ext. PW2/A has been produced in evidence, however, not sufficient to arrive at a conclusion that it is the same ticket which was purchased by the accused and none else because his name is not there on this ticket. The fact, however, remains that accused was traveling in the bus in question, being one of the passengers. The evidence as has come on record by way of testimony of PW-1 and PW-2 has rendered the prosecution case doubtful that the contraband allegedly charas and opium was recovered from the exclusive and conscious possession of the accused alone, as they have not supported this part of the prosecution case at all. The accused belongs to Village Lamb, Post Office Jagejat, Police Station and Tehsil Anni, District Kullu, whereas, PW-1 Sanjiv Kumar is the resident of Village Pandogara, District Una and Shri Hari Ram is the resident of Village and Post Office, Jukhala, Distt. Bilaspur. The accused and these witnesses cannot be said to be related to each other or having friendly relations or previously known to each other. Bilaspur. The accused and these witnesses cannot be said to be related to each other or having friendly relations or previously known to each other. Not only this, but the accused after his arrest is in the custody and on that score also had no occasion to meet the witnesses. Nothing has come on record that the aforesaid witnesses have deposed falsely to help the accused. Otherwise also they have supported the prosecution story to the extent of search of the bus and recovery of bag by the police and the fact that accused got alighted from the bus along with a bag. Their further statements that neither the accused handed over the bag for search to the police nor it was lying below his seat near the feet should not be disbelieved. Learned trial Judge seems to have got swayed merely by the recovery of the contraband from the bag allegedly charas and opium from the accused and recorded the findings of conviction against the accused. On this score, without meticulously examining the prosecution case qua the fact that bag belonged to the accused alone and none else, the evidence as has come on the record by way of testimony of the police witnesses has been given due weight age and the discrepancies glaring in nature in their over all testimonies, which go to the root of the case, have been erroneously ignored. 10. An effort has also been made to convince this Court that from the report of chemical examiner Ext. PW1 1/E, it is not proved that the seized contraband is charas and opium alone, however, unsuccessfully because during the chemical test and chromatographic analysis carried out in the Laboratory, in the exhibit of charas presence of cannabinols including the presence of tetrahydrocannabinol has been noticed and the microscopic examination of this exhibit indicate the presence of Cystolithic hair. The chemical examiner has further pointed out that the charas is a resinous mass, which on testing was found present in the exhibit. On the basis of the quantity of resin found in the exhibit, the chemical examiner has stated that the same contains charas to the extent of 28.23%w/w. The final opinion of the chemical examiner reads as follows: The exhibit marked in the laboratory as A is extract of cannabis and sample of CHARAS. On the basis of the quantity of resin found in the exhibit, the chemical examiner has stated that the same contains charas to the extent of 28.23%w/w. The final opinion of the chemical examiner reads as follows: The exhibit marked in the laboratory as A is extract of cannabis and sample of CHARAS. Similarly, the exhibit containing opium during the course of chemical test and chromatographic analysis was found having contents of morphine, codeine, Thebaine, Papaverine and Meconic acid which as per report are the constituents of opium. The percentage of morphine in this exhibit has been found to the extent of 1.71% w/w. The opinion of the chemical examiner in this behalf reads as follows: The exhibit marked in laboratory as B is a sample of opium. 11.In view of the report of the chemical examiner, it is proved that exhibits sent for analysis were that of charas and opium. Not only this but its quantity has also been indicated in the exhibits and it is on the basis thereof, the present has been taken as a case of the recovery of charas lesser than commercial quantity but greater than small quantity, whereas, that of opium small quantity. However, as noticed from the reasons recorded hereinabove in this judgment, the recovery thereof from the exclusive and conscious possession of the accused has not been proved and as such the report being only a piece of evidence and at the most could have been used as a link evidence has to be ignored. 12. Be it stated that the offence, the accused allegedly committed is heinous in nature and it is for this reason stringent provisions of punishment have been made under the Act. It is well settled that if harsh is the sentence, the greater is the degree of evidence required to prove the alleged offence against the offender. In the case in hand, as noticed hereinabove, the prosecution has failed to prove its case against the accused beyond reasonable doubt. He is thus entitled to the benefit of doubt. 13. In view of the aforesaid discussion, the appeal is accepted. The judgment of the trial court is set aside. In the case in hand, as noticed hereinabove, the prosecution has failed to prove its case against the accused beyond reasonable doubt. He is thus entitled to the benefit of doubt. 13. In view of the aforesaid discussion, the appeal is accepted. The judgment of the trial court is set aside. As a result of the acceptance of the appeal and setting aside of the judgment of the trial Court and also in view of the aforesaid findings, conviction and sentence of the appellant are also set aside and he is acquitted of the charge under Sections 18 & 20 of the Narcotics Drugs and Psychotropic Substances Act, 1985. The appellant, being in custody, is ordered to be released forthwith, in case his detention is not required in connection with any other case.