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Himachal Pradesh High Court · body

2014 DIGILAW 1282 (HP)

State of H. P. v. Gulsher Mohd.

2014-09-17

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT Per Sureshwar Thakur, Judge 1. The instant appeal is directed against the judgment of acquittal, rendered on 10.3.2008, by the learned Sessions Judge, Sirmaur District at Nahan, H.P., in Sessions trial No.07-ST/7 of 2005, whereby the respondent/accused has been acquitted for his having committed offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (herein-after referred to as ‘NDPS Act’). 2. The prosecution story, in brief, is that on 21.2.2004, at about 4:00 p.m., Incharge CIA Inspector N.S.Rathour (PW-11), along with HC Mujahir Khan, Constables Shamim Akhtar (PW-1), Hussain Singh (PW-4) and Kamal Khan (PW-9), was present at Miserwala, Tehsil Paonta Sahib in connection with detection of Excise and Narcotics cases when a secret information was received by PW-11 that accused Gulsher Mohammad has been dealing in narcotic drugs illegally at his Sweet Shop and used to sell Charas in small quantity to the customers, which he used to keep in the Sweets counter inside his shop. The reasons of belief comprised in Ext.PW-4/A, reduced into writing and were sent to SDPO, Paonta Sahib through Constable Hussan Singh. Accordingly, a raiding party was formed in which PW-11 had joined Ashish Kumar (PW-2) and Yusuf Ali being independent witnesses, besides the other police officials, named herein-above. The police party accordingly arrived at the Sweet Shop of accused, where the accused was found present in his shop. Thereafter, the accused was informed by PW-11 about the secret information, so received. The option of the accused, to be searched either by a Gazetted Officer or by a Magistrate, too, was recorded, for which the accused agreed to be searched by the Police Officer. The consent memo comprised in Ext.PW-1/A, in that regard, was reduced into writing. The policemen and independent witnesses also gave their search to the accused and nothing incriminating was recovered from them. Thereafter, the memos were prepared. The search of the shop of the accused was then conducted in presence of the witnesses, on which a polythene packet was recovered from the lower shelf of the sweet counter. On opening the said packet, it was found containing Charas in the shape of sticks. The Charas was weighed and was found to be 500 grams. The search of the shop of the accused was then conducted in presence of the witnesses, on which a polythene packet was recovered from the lower shelf of the sweet counter. On opening the said packet, it was found containing Charas in the shape of sticks. The Charas was weighed and was found to be 500 grams. The police also got it photographed and out of the Charas, so recovered, two samples of 25 grams each were drawn separately, which, along with the bulk part of the Charas, were taken into possession after being duly sealed with seal impression ‘T’. The seal, after use, was handed over to witness Yusuf Ali. The recovery memo comprised in Ext.PW-1/F was prepared accordingly. The FSL (NCB) forms were also filled in on the spot. Ruqua comprised in Ext.PW-11/A was sent through Constable Kamal Khan to the Police Station for registration of the case and on the basis of which FIR Ext.PW-8/B was registered. The case property was taken to Police Station, Paonta Sahib and was handed over to SHO along with NCB Form and specimen seal, who re-sealed the parcels with seal impression ‘H’ and issued certificate comprised in Ext.PW-8/C. The sample Charas was sent to CTL, Kandaghat with specimen seal and NCB Form vide RC No.26/2004. The special report Ext.PW-7/A was also sent to SDPO, Paonta Sahib. The police also prepared the site plan comprised in Ext.PW-11/B. Thereafter, on receipt of Chemical Examiner’s report Ext.PW-8/D and on completion of investigation by the police in the matter, the challan was presented in the Court of learned Judicial Magistrate 1st Class, Court No.1, Paonta Sahib, under Section 20 of the NDPS Act, who vide order dated 1.3.2005, committed the case to the Court of learned Sessions Judge, Sirmaur. 3. Accused was charged for his having committed offence punishable under Section 18 of the NDPS Act, by the learned trial Court, to which he pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined as many as 11 witnesses. On closure of the prosecution evidence, the statement of the accused under Section 313 Cr.P.C. was recorded in which he pleaded innocence. On closure of proceedings under Section 313 Cr.P.C., the accused was given an opportunity to adduce evidence, in, defence, and he chose not to adduce any evidence in defence. 5. On closure of the prosecution evidence, the statement of the accused under Section 313 Cr.P.C. was recorded in which he pleaded innocence. On closure of proceedings under Section 313 Cr.P.C., the accused was given an opportunity to adduce evidence, in, defence, and he chose not to adduce any evidence in defence. 5. On appraisal of the evidence on record, the learned trial Court, returned findings of acquittal in favour of the accused/respondent. 6. The State of H.P. is aggrieved by the judgment of acquittal recorded by the learned trial Court. The learned Assistant Advocate General has concertedly and vigorously contended that the findings of acquittal recorded by the learned trial Court are not based on a proper appreciation of the evidence on record, rather, they are sequelled by gross-mis-appreciation of the material on record. Hence, he contends that the findings of acquittal be reversed by this Court in the exercise of its appellate jurisdiction and be replaced by findings of conviction. 7. On the other hand, the learned counsel appearing for the respondent-accused has with considerable force and vigour contended that the findings of acquittal recorded by the Court below are based on a mature and balanced appreciation of evidence on record and do not necessitate interference, rather merit vindication. 8. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record. 9. The first witness, who, stepped into the witness box to prove the prosecution case, is, Shamim Akhtar (PW-1). He in his deposition has deposed a version which is in square tandem with the genesis of the prosecution version, as referred to hereinabove. During his cross-examination, this witness concedes that the shop of accused is on the National Highway which leads from Paonta to Nahan and there is a chowk near the shop and the said national Highway is being used for traffic during the day as well as night time. He feigns ignorance if 4-5 servants were working in the shop of the accused. He denies the fact that NCB Forms were not filled in on the spot and special report was not prepared on the spot nor the same was sent to Dy.S.P. Paonta Sahib. He feigns ignorance if 4-5 servants were working in the shop of the accused. He denies the fact that NCB Forms were not filled in on the spot and special report was not prepared on the spot nor the same was sent to Dy.S.P. Paonta Sahib. He also denied that he was not associated by Inspector Narbir during the investigation of this case nor any recovery of contraband (Charas) was made in his presence. 10. PW-2 (Ashish Kumar) since he, during his examination-in-chief, having not supported the prosecution version, he was declared hostile and was requested by the learned Public Prosecutor to be cross-examined. On his request, having come to be acceded to, he was cross examined by the learned Public Prosecutor but no incriminating material against the accused could be elicited from his cross-examination. In his cross-examination, PW-2 did not remember if copy of Ext.PW-1/F was handed over to the accused and he had signed the same in token of having received the copy. He denies the fact that at the time of search, seizure proceedings and weighment of Charas, photographs were taken by the photographer when the Charas was weiged, however, he deposes that the photographs were taken at Majra Chowki. He concedes to the fact that the seal on parcels was neither affixed in his presence nor it was handed over to some one. 11. PW-3 (Rajinder Kumar) deposes that he was associated by the police in the investigation on 21.2.2004 and was called at Missarwala, however, he feigns ignorance that he did not know the name of Shopkeeper. He further deposes that the shop was of halwai. Photographs comprised in Ext.P-1 to P-4 have been deposed to be seen by this witness and were deposed to be the same which were taken at the shop, when weighment of Charas was made. In his cross-examination, he admits that the search, seizure and sealing proceedings were neither made in his presence nor the seal was handed over to any witness in his presence. 12. In his cross-examination, he admits that the search, seizure and sealing proceedings were neither made in his presence nor the seal was handed over to any witness in his presence. 12. PW-4 (Constable Hussan Singh) has proved the information (grounds of belief) which was reduced to writing and he was directed to take the information to SDPO, Paonta Sahib and he took the information to SDPO, Paonta Sahib, the copy of the same is deposed to be comprised in Ext.PW-4/A. He further deposes that the information was given to SDPO, Paonta Sahib and Ext.PW-4/A bears his endorsement. During his cross-examination, this witness admits that it took one hour to reach Missarwala and he was not aware about the secret information received by the Investigating Officer, however, when grounds of belief were recorded, he was briefed about the information. 13. PW-5 (HHC Surat Singh) deposes that on 23.2.2004, HC Raj Kumar, In-charge Malkhana, Paonta Sahib, vide RC No.26/04 handed over him sample of Charas duly sealed in for depositing at CTL, Kandaghat and deposited the sample along with necessary papers the same day and after his return, the receipt was handed over to HC Raj Kumar. During his cross-examination, this witness concedes that neither he was handed over any sample nor he deposited the same at CTL, Kandaghat. 14. PW-6 (HC Raj Kumar) deposes that on 23.2.2004, he sent one sample along with specimen seals and FSL Forms to CTL, Kandaghat through HHC Surat Singh, who deposited them the same day and the receipt was handed over to him. He proceeds to depose that the sample and necessary papers were handed over to HHC Surat Singh vide RC No.26/2004. He has also proved the Malkhana Register and Road Certificate Register. During his cross-examination, he deposes that he did not remember the time when the case property was deposited in the malkhana by Inspector Khajana Ram. 15. PW-7 (Dy.S.P. BS Thakur) deposes that on 21.2.2004, reasons of belief were received in his office at 5.00 p.m. which are Ext.PW-4/A and bearing his signatures. He further deposes that on 22.2.2004, at about 10:45 a.m., a special report comprised in Ext.PW-7/A was received in his office and the same is deposed be bearing his endorsement. He continues to depose that the special report was received in Dak and reasons of belief were brought by a Constable. He further deposes that on 22.2.2004, at about 10:45 a.m., a special report comprised in Ext.PW-7/A was received in his office and the same is deposed be bearing his endorsement. He continues to depose that the special report was received in Dak and reasons of belief were brought by a Constable. During his cross-examination, he denies to the suggestion, put to him, that Ext.PW-4/A was not sent by the Investigating Officer through Constable to him and the same was not received by him. 16. PW-8 is Inspector/SHO Khajana Ram, who, in his deposition, has deposed a version, which is in square tandem with the genesis of the prosecution version, as referred to hereinabove. During his cross-examination, this witness denied the suggestion, put to him, that the Investigating Officer did not deposit the samples with him nor they were bearing the seal impression ‘T’. He denies the suggestion put to him that he did not hand over the case property to HC Raj Kumar for depositing the same in the Malkhana. 17. PW-9 is Constable Kamal Khan, who, in his deposition, has deposed a version, which is also in square tandem with the genesis of the prosecution version, as referred to hereinabove. During his cross-examination, this witness deposes that PW Ashish Kumar and Yusuf Ali were called by HC Mujahid Khan. After receipt of secret information, it took 15 minutes to record the grounds of belief and the raiding party was formed near the bridge. 18. PW-10 (Constable Suresh Kumar) deposes that on 21.2.2004, a rapat was recorded in Roznamcha about the departure of Inspector CIA, along with Mujahid Khan, HC Shamim Akhtar and C.Kamal Khan and C.Hussan Singh. In his cross-examination, he denies the suggestion, put to him, that on 21.2.2004, Mujahid Khan, Shamim Akhtar, Kamal Khan had not gone for patrolling. 19. PW-11 is the statement of Inspector Narveer Singh Rathore, who, in his deposition, has deposed a version, which is also in square tandem with the genesis of the prosecution version, as referred to herein-above. During his crossexamination, this witness deposes that a special report was prepared at the Police Station. He denies the suggestion that except special report, no other report was sent to SDPO, however, he stated that the grounds of belief had already been sent by him to the SDPO. During his crossexamination, this witness deposes that a special report was prepared at the Police Station. He denies the suggestion that except special report, no other report was sent to SDPO, however, he stated that the grounds of belief had already been sent by him to the SDPO. He concedes the fact that if the report is not addressed, it cannot be ascertained to whom it was addressed. Ext.PW-4/A was not scribed by him, however, the same is deposed to be dictated by him to the police personnel, present in the team. 20. The prosecution witnesses have deposed in tandem and harmony with each other qua each of the links in the chain of circumstances which connect the accused in the commission of alleged offence, hence, consequently when the testimonies of prosecution witnesses are bereft of any inter-se or intra-se contradictions, in sequel, implicit reliance ought to have been placed on the testimonies of the official witnesses by the learned trial Court. In aftermath, when this Court concludes that the testimonies of the official witnesses, while being shorn of any inter-se or intra-se contradictions, hence, rendered their testimonies to be constituting a credible piece of evidence qua the offence alleged against the accused, it was unwarranted and legally insagacious or unwise for the learned trial Court to have emphasized upon the factum of PW-2 having turned hostile and the other witnesses having not come to be examined on behalf of the prosecution. For reiteration, when the testimonies of the official witnesses constituted inspiring as well as a credible piece of evidence qua the offence alleged against the accused, any insistence made by the learned trial Court upon the non-examination of other independent witness was wholly unnecessary. It may have been necessary in case the prosecution evidence was denuded of its efficacy as well as truth given the existence of inter-se or intra-se contradictions in the testimonies of official witnesses, whereas, when it was not, insistence upon the examination of the other independent witness was uncalled for. Moreso, for the selfsame reason of the testimonies of the official witnesses inspiring confidence rendered insignificant even the factum of one of the independent witnesses PW-2 having turned hostile. Moreso, for the selfsame reason of the testimonies of the official witnesses inspiring confidence rendered insignificant even the factum of one of the independent witnesses PW-2 having turned hostile. Besides, pre-eminently, the reason for so concluding, is grooved in the preponderant factum of his having not denied the existence of his signatures on the memos, obviously then given the fact that he has omitted to depose in his respective testimony that he appended his signatures thereon under compulsion or duress. As a sequel, then he is bound by the recitals recorded therein. As a concomitant then his having reneged from the recitals recorded in the memo is of no consequence, as it comprises oral evidence in derogation to or in detraction to the recorded contents qua search, seizure and recovery comprised in Ext.PW-1/F, which oral evidence in detraction from or in derogation to the scribed contents admitted to be signatured by the aforesaid PW, is barred or interdicted by Section 91 and 92 of the Indian Evidence Act. As a corollary then, it has to be emphatically concluded that his turning hostile is of no consequence and ought not to have prevailed upon the learned trial Court to on the said anvil conclude that the prosecution case is permeated with doubt, more so when a reading of the testimonies of the official witnesses omits to convey existence of any inter-se or intra-se contradictions in their respective testimonies, as such, when theirs testimonies are both credible or inspiring, theirs being ousted from appreciation or theirs being discarded, was unwarranted. 21. The ensuing conclusion, which invincibly flows is that the learned trial Court in recording findings of acquittal in favour of the accused on the score, aforesaid, has committed a legal mis-demeanor, inasmuch, as, of having both mis-appraised the probative value of the deposition of the official witnesses as well as not appreciated the import of the non-examination of one independent witness and also the import of the other independent witness (PW-2) having turned hostile, in, a proper legal perspective, in entwinement and in conjunction with the entirety of the prosecution evidence portraying proof of each of the links in the chain of prosecution evidence. 22. 22. Another major and preeminent reason, which untenably prevailed upon the learned trial Court to record findings of acquittal in favour of the accused/respondent was of samples of Charas weighing 25 grams each having been drawn up from the bulk, yet, with the report of the Chemical Analyst, comprised in Ext.PW-2/A, divulging the fact of the weight of the samples of Charas, sent to it for analysis, hence, being deficient in weight vis-à-vis its weight at the stage contemporaneous to its extraction from the bulk, at the site of occurrence, constrained it to conclude that, hence, the opinion rendered by the Chemical Analyst, comprised in Ext.PW-8/D was on the stuff / item of contraband, other than recovered at the site of occurrence. Also, then, a conclusion that the consummate link, comprised in the report of the Chemical Analyst existing in Ext.PW-2/B did not forcefully connect the accused/respondent in the commission of the offence, was drawn. However, the said deficiency was minimal as well as negligible, rather it is attributable to desiccation or evaporation. Moreover, when it has been cogently and forcefully displayed by the report of the Chemical Analyst that the seal impression existing on NCB Form and on the sample parcel on comparison revealed theirs tallying with each other, in sequel, when, hence, the sample parcels, as extracted from the bulk at the site of occurrence, at the apposite stage, remained intact and un-tampered with qua which, too, proof comprised in apposite suggestions, projected to the Investigating Officer, during his cross-examination, has remained un-earthed, prods this Court to conclude that the rendition of opinion by the Chemical Analyst comprised in Ext.PW-2/D, was on the sample of Charas extracted from the bulk at the site of occurrence at the apposite stage. Therefore, this Court is driven to derive a conclusion that the opinion rendered by the Chemical Analyst comprised in Ext.PW- 8/D was on the very same parcel, as extracted from the bulk at the apposite stage, at the site of occurrence. As a natural corollary then, the consummate link in the chain of circumstances, remains convincingly established. For the reasons afforded herein-above, the learned trial Court having committed a legal mis-demeneour in not mis-appreciating the material pieces of evidence and as such necessitates interference by this Court. As a natural corollary then, the consummate link in the chain of circumstances, remains convincingly established. For the reasons afforded herein-above, the learned trial Court having committed a legal mis-demeneour in not mis-appreciating the material pieces of evidence and as such necessitates interference by this Court. Consequently, the appeal, preferred by the State, is allowed and the judgment, rendered on 10.3.2008, by the learned Sessions Judge, Sirmaur District at Nahan, H.P., is set aside and the accused is convicted for his having committed an offence under Section 20 of the NDPS Act. 23. To be heard on quantum of sentence on 26.9.2014, on which date, the convict be produced before this Court.