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Himachal Pradesh High Court · body

2014 DIGILAW 1178 (HP)

Bal Raj Singh v. State of H. P.

2014-09-02

RAJIV SHARMA, SURESHWAR THAKUR

body2014
Judgment Sureshwar Thakur, J. The instant appeal is directed against the judgment, rendered on 18th December, 2008, by the learned Sessions Judge, Kinnaur, Sessions Division at Rampur Bushahr, H.P., in NDPS Case No.14 of 2007, whereby, the appellant/accused has been convicted and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.one lakh under Section 20(C) of the Narcotic Drugs & Psychotropic Substances Act, 1985 (herein-after referred to as ‘the NDPS Act’). In default of payment of fine, the appellant/accused was sentenced to undergo further rigorous imprisonment for two years. 2. The facts, in brief, are that on 7.1.2007, at about 3.30 p.m., PW-9, HC Pushap Dev, Police Station, Ani, along with Constables Bal Mukand and Bhup Singh, was on patrolling and traffic checking duty at Banighad when they noticed a person, identified later as accused, with a bag in his hand, coming from Kandugad towards Shamshar. On seeing the police, the accused got nervous and tried to retrace. On suspicion, the police apprehended the accused. The accused was apprised of his right whether he would like to be searched before a Gazetted Officer, Magistrate or the police, however, the accused consented to his being searched by the police, vide endorsement comprised in Ext.PW-9/A, on memo comprised in Ext.PW-3/A. HC Pushap Dev, after affording his own search to the accused comprised in Ext.PW-3/B, conducted search of the bag, being carried by the accused. On checking the same, he recovered coloured polythene, which contained Charas in the shape of sticks and balls. On weighment, it was found one kilogram and two hundred grams. Two samples of 25 grams each were separated and sealed in two separate parcels with seal ‘X’. The remaining Charas was also sealed in a separate parcel with seal ‘X’ and specimen seal impression, comprised in Ext.PW-9/B, was drawn and NCB Forms, in triplicate, were filled in and the seal was handed over to Constable Bal Mukand. Two samples of 25 grams each were separated and sealed in two separate parcels with seal ‘X’. The remaining Charas was also sealed in a separate parcel with seal ‘X’ and specimen seal impression, comprised in Ext.PW-9/B, was drawn and NCB Forms, in triplicate, were filled in and the seal was handed over to Constable Bal Mukand. The Charas and the specimen seal impressions were taken into possession by the police vide memo, comprised in Ext.PW-3/C. Ruqua, comprised in Ext.PW-9/C, was prepared and forwarded through Constable Bal Mukand to the Police Station for registration of F.I.R., comprised in Ext.PW-5/A. Site map, comprised in Ext.PW-9/D, was prepared and the accused came to be arrested vide memo Ext.PW-4/A. The case property was given to SHO Rajinder Kumar and he re-sealed the same with seal ‘H’ and deposited it with the MHC at Police Station, Ani. Special Report, copy of which is Ext.PW-2/A, was delivered to Sub Divisional Police Officer, Ani by Constable Chet Ram on 8th January, 2007. The sample was sent to Central Forensic Science Laboratory, Chandigarh for analysis and vide report comprised in Ext.PA, it was certified to be Charas. 3. On conclusion of investigation into the offences, allegedly committed by the appellant/accused, challan was filed under Section 173 of the Code of Criminal Procedure. 4. The accused was charged for his having committed offences punishable under Section 20(C) of the NDPS Act by the learned trial Court, to which he pleaded not guilty and claimed trial. 5. In proof of the prosecution case, the prosecution examined as many as 9 witnesses. On closure of the prosecution evidence, the statement of appellant/accused under Section 313 Cr.P.C. was recorded by the Court, in which the accused claimed false implication and pleaded innocence. In defence, the appellants/accused examined one witness. 6. On appraisal of evidence on record, the learned trial Court convicted and sentenced the accused for his having committed the offence, aforesaid. 7. The first witness, who stepped into the witness box, in support of the prosecution case, is, Head Constable Tain Singh (PW-1). He deposes that on 7.1.2007, he was working as MHC in Police Station, Ani. On that day, he deposes that, HC Pushap Dev, handed over to him three parcels along with sample seal and all parcels were sealed with seals ‘H’ and ‘X’. He deposes that on 7.1.2007, he was working as MHC in Police Station, Ani. On that day, he deposes that, HC Pushap Dev, handed over to him three parcels along with sample seal and all parcels were sealed with seals ‘H’ and ‘X’. He further deposes that entries were recorded by him in the Malkhana Register at Sr.No.104, copy of which is comprised in Ext.PW1/A. He continues to depose that on 10.1.2007, he handed over the parcel, along with sample seal and form NCB-I in triplicate, to Constable Sunder Singh vide RC No.85/07 comprised in Ext.PW1/B for sending the same to CFSL, Chandigarh and on return, Constable Sunder Singh handed over to him the receipt comprised in Ext.PW-1/C. 8. PW-2 (ASI Om Prakash) deposes that on 8th January, 2007, he received special report comprised in Ext.PW2/A which had been signed by Dy. S.P. Ani and the same was entered by this witness in the Register, copy of abstract of Register is comprised in Ext.PW2/B. 9. PW-3 (Constable Bal Mukand) deposes that on 7.1.2007, at about 3.30 p.m., he was on patrolling and traffic checking duty with HC Pushap Dev and Constable Bhup Ram at Banigad. He continues to depose that they noticed a person coming with a bag from Kandugad side towards Shamsher. The said person, on seeing the police, has been deposed to have retraced his steps and fled. The police party apprehended him and this witness had identified the said person in the Court to be the same person. Head Constable Pushap Dev, on suspicion, asked him that he maintains a suspicion about his carrying contraband and asked him whether he wants to be searched by any Gazetted Officer or by a Magistrate, for which he had right. The accused gave his consent to be searched by the police. Memo of consent is deposed to be comprised in Ext.PW3/A, which has been deposed to be signed by him, Constable Bhup Singh and by the accused, as no other person was present on the spot. PW-3 proceeds to depose that before carrying out the personal search of accused, the Investigating Officer gave his personal search to the accused. Memo to this effect is deposed to be comprised in Ext.PW3/B which has been deposed to be signed by him and Constable Bhup Singh. PW-3 proceeds to depose that before carrying out the personal search of accused, the Investigating Officer gave his personal search to the accused. Memo to this effect is deposed to be comprised in Ext.PW3/B which has been deposed to be signed by him and Constable Bhup Singh. Thereafter, the Investigating Officer HC Pushap Dev carried out the personal search of accused and also checked the bag carried by him and during search of the bag, one polythene envelope was recovered from the pink coloured bag of the accused, in which Charas in the shape of balls and candles was recovered from the possession of the accused. He deposes that the recovered Charas was weighed by the Investigating Officer with the help of weighing scale which was available with the Investigating Officer in his IO bag and it was found to be 1.200 Kgs. Out of the recovered Charas, two samples of 25 grams each were separated and were sealed in a parcel with seal impression ‘X’ three times each and sample of seal was also prepared and remaining 1.150 Kgs. Charas was wrapped and packed in the same bag and the bag was sealed with white cloth and sealed with six seals and sample seals were prepared on separate white cloth and the seal after its use was handed over to this witness by the Investigating Officer. He proceeds to depose that NCB-I Form in triplicate were also filled on the spot and seal ‘X’ was affixed over it and thereafter all the three sealed parcels, along with sample seals, were taken into possession vide seizure memo Ext.PW3/C, which was signed by this witness, Constable Bhup Singh as witnesses and accused also signed the same and one copy of the same was handed over to accused. Subsequently, the Investigating Officer has been deposed to have prepared Ruqua Mark X and handed over the same to this witness for carrying the same to Police Station, Ani, which he further handed over to ASI Rajinder Singh in Police Station, Ani. Thereafter, ASI Rajinder Singh, has been deposed by this witness to have lodged an F.I.R. and handed over the case file to him for its being handed over to Investigating Officer, which he took and handed over to HC Pushap Dev on the spot. Thereafter, ASI Rajinder Singh, has been deposed by this witness to have lodged an F.I.R. and handed over the case file to him for its being handed over to Investigating Officer, which he took and handed over to HC Pushap Dev on the spot. During the course of his cross-examination, he concedes to the fact that the Police Station, Ani is five kilometers away from the site of occurrence. 10. PW-4 (Constable Bhup Singh) has corroborated the deposition of PW-3. In his cross-examination, he deposes that the Police Station, Ani is located at the distance of 5 kilometers from the place of occurrence. He continues to depose that they went to the spot in a private vehicle up to Shamshar and beyond it traveled the distance on foot. He concedes to the fact of his possessing a mobile at the relevant time. He also concedes to the fact the he did not make any effort to call any witness from other areas to join investigation. 11. PW-5 (ASI Rajinder Kumar) deposes that on 7.1.2007, he was functioning as officiating SHO at Police Station, Ani and Ruqua Mark X was received by him at Police Station through Constable Bal Mukand, on the basis of which F.I.R. comprised in Ext.PW-5/A was registered which has been deposed to bear his signatures. He further deposes that on the same day, HC Pushap Dev produced before him case property along with NCB Forms and he re-sealed the case property and samples and completed the NCB Forms and affixed sample seal ‘H’ on samples and parcels of the case property. Thereafter, the case property, along with samples and seal samples and NCB Forms, was handed over to MHC of the Police Station, Ani for safe custody. In his cross-examination, he denies the fact that the whole investigation formalities of the case were completed in the Police Station. He also denies the fact that the accused was brought by Constable Balwant Singh, Constable Krishan and Constable Naresh from Police Post, Luhri to Police Station, Ani. 12. In his cross-examination, he denies the fact that the whole investigation formalities of the case were completed in the Police Station. He also denies the fact that the accused was brought by Constable Balwant Singh, Constable Krishan and Constable Naresh from Police Post, Luhri to Police Station, Ani. 12. PW-6 (Constable Sunder Singh) deposes that on 10.1.2007, MHC Tain Singh delivered one parcel sealed with three seals bearing impression X and three seals bearing impression H, one sample parcel also sealed with three seals bearing impression X and another sample parcel having three seals bearing impression H, along with NCB Forms in triplicate and copy of F.I.R. vide RC No.85 of 2007 which were deposited by him on 11.1.2007 at FSL, Chandigarh and the receipt was handed over by him to the MHC on 14.1.2007. 13. PW-7 (Constable Chet Ram) deposes that on 8.1.2007, HC Pushap Dev handed over Special Report Ext.PW2/A of the case to him which he delivered to Om Parkash, Reader in the office of the SDPO, Ani on 10.40 a.m. and obtained receipt on the carbon copy. 14. PW-8 (S.I. Om Parkash) deposes that on 22.3.2007, he received the analysis report from FSL, Chandigarh and prepared the challan. The FSL report is comprised in Ext.PA. He further deposes that he filed the challan in the Court and the same is deposed to have been signed by him. 15. PW-9 (HC Pushap Dev) corroborates the testimonies of PW-3 and PW-4. In his cross-examination, he deposes that he had made efforts to locate local witnesses, however, none was available as there was no habitation. He also deposes that during the course of recovery proceedings no vehicle passed through the road. 16. We have heard the learned defence counsel, as well, as, the learned Additional Advocate General at length. 17. The learned trial Court had come to record findings of conviction, against the accused person, while construing the deposition of the official witnesses to be imbued with credibility. It was not a legally unwarranted course for the learned trial Court to anvil its findings solely on the testimonies of the official witnesses, as it did, as even if there is no legal interdiction, against the testimonies of official witnesses, being admissible as well as relevant. It was not a legally unwarranted course for the learned trial Court to anvil its findings solely on the testimonies of the official witnesses, as it did, as even if there is no legal interdiction, against the testimonies of official witnesses, being admissible as well as relevant. Besides, there being also no legal interdiction against their testimonies being construable to be credible, unless their testimonies are replete with inter se or intra se contradictions. While applying the above test, prima facie their testimonies do not unravel rampant inter se or intra se contradictions, so as to discard their testimonies. However, yet when the non association of independent witnesses is not fatal to the prosecution case, nonetheless, omission to join independent witnesses would undermine the efficacy of the prosecution case, in case their non joining, is, sequelled by proven traces of deliberateness, on the part of the Investigating Officer to do so. For testing, whether the prosecution case, is, to be construed to be anvilled upon fair and impartisan investigation, it is necessary to determine whether the non-joining of independent witnesses, despite availability has made inroads into the veracity of the prosecution case. For initially determining whether the independent witnesses, were, available so as to consequently conclude that hence despite their availability they were omitted to be joined, which omission, in the face of their proven availability would whittle or dilute the efficacy of the prosecution case. For making the aforesaid determination, it is necessary to advert to the testimony of PW-3, who, in his cross-examination, has, deposed that vehicles were plying on Ani - Banigad road, which is the site of occurrence, besides with PW-4 also in his examination-in-chief having deposed that he, alongwith other police officials, was, on patrolling and traffic checking, which fact has been corroborated by PW-9, the Investigating Officer, stems the inference of availability of independent witnesses for theirs being joined in the apposite proceedings, more especially when given the nature of the duty, which they were performing at the relevant time, enjoined them to inspect and check the vehicles crossing, Ani - Banigad road, in proximity to the site of occurrence for ensuring the participation of the passengers traveling in the vehicles crossing the road by signaling them to stop. However, the Investigating Officer, omitted to do so, as deposed by PW-4, in his cross-examination. However, the Investigating Officer, omitted to do so, as deposed by PW-4, in his cross-examination. The effect of the Investigating Officer, omitting to make efforts to join independent witnesses, in the apposite proceedings, spurs a conclusion that he did so as he wanted to clandestinely carry out the search, seizure and recovery of contraband from the alleged conscious and exclusive possession of the accused, in sequel, it loses its aura of impartisanship. It appears that when an inference ensues from the herein-above discussion, qua, availability of independent witnesses, at the relevant time, for theirs being joined in the proceedings relating to search, seizure and recovery of contraband from the alleged conscious and exclusive possession of the accused, yet, with no efforts having been made by the Investigating Officer to join them, which fact is controverted by the Investigating Officer, in his deposition, inasmuch, as, he deposes that he had concerted to join local witnesses, yet, they were unavailable. In aftermath, it sequels the conclusion that contradictions, inter se the testimonies of PW-4 and PW-9, qua, the fact of efforts having been made or not having been made by PW-9, to join independent witnesses, in the apposite proceedings, underscore the fact of the Investigating Officer having taken to in his cross-examination invent a version qua his having made efforts to join independent witnesses yet theirs being unavailable. With the forming of the above conclusion, arising from the inter se contradictions in the testimonies, of, PW-4 and PW-9, qua, the aforesaid fact, it constrains this Court to conclude that despite availability of independent witnesses, no efforts were made by the Investigating Officer and that hence he deliberately omitted to join independent witnesses as he wanted to smother the truth, qua the genesis of the prosecution case, which when, built upon tainted and impartisan investigation cannot be construed to be acquiring any grain of truth. 18. The learned trial Court has also slighted the fact occurring in the cross-examination of PW-4 as well as of PW-3 and PW-9 of theirs being on traffic/patrolling duty on Ani - Banigad road. Hence, if they were on traffic duty, it is enigmatic, as to what constrained them to travel on foot beyond the place where they were performing duties of traffic checking as well as patrolling. Hence, if they were on traffic duty, it is enigmatic, as to what constrained them to travel on foot beyond the place where they were performing duties of traffic checking as well as patrolling. The enigma, gets, resolved by attributing to it, the reason of theirs proceeding on foot up to the site of occurrence, on theirs having prior information of the accused carrying contraband. If the said inference, is, ensueable, then it was all the more incumbent upon the Investigating Officer to have associated independent witnesses in the apposite proceedings, which, however, he has omitted to do so. Consequently, his omission to do so, renders the prosecution case to be engulfed in a shroud of doubt, which makes it lose its truth. This Court, cannot, hence, rely upon a prevaricated version, qua the incident. The learned trial Court in concluding that omission to join independent witnesses has not lent any fatality to the prosecution case, has omitted to appreciate the crucial piece of evidence, which tenaciously as well as loudly communicate the factum of such omission being both deliberate as well as intentional. As a corollary, then, the slanted version qua the incident, divulged by the police officials even though bereft of inter se or intra se contradictions when spurred by thoughtful pre-meditation, cannot gain credence with this Court. 19. In view of the above discussion, the appeal is allowed and the impugned judgment rendered on 18th December, 2008, by the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, H.P., in NDPS Act case No. 14 of 2007, is set aside. The appellant/accused is acquitted of the offence charged. He be set at liberty forthwith, if not required in any other case. The fine amount, if any, deposited by the accused/appellant be refunded to him. 20. The Registry is directed to prepare the release warrant of the appellant and send it to the Superintendent of the Jail concerned, in conformity with this judgment forthwith. Records of the trial Court be sent down forthwith.