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Himachal Pradesh High Court · body

2014 DIGILAW 1332 (HP)

Joban Dass v. State of Himachal Pradesh

2014-09-24

P.S.RANA, SANJAY KAROL

body2014
JUDGMENT Sanjay Karol, J. Since both these appeals arise out of common judgment, rendered by the trial Court, they are being decided as such. 2. Appellants-convicts Joban Dass and Kumbh, hereinafter referred to as the accused, have assailed the judgment dated 28.6.2008/30.6.2008, passed by Special Judge, Shimla, Himachal Pradesh, in Sessions Trial No.1-S/7 of 2008, titled as State of H.P. v. Joban Dass and another, whereby they stand convicted of the an offence punishable under the provisions of Section 20 read with Section 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) and sentenced to undergo rigorous imprisonment for a period of ten years each and pay fine of Rs. 1,00,000/- each, and in default therefore to further undergo rigorous imprisonment for a period of two years. 3. It is the case of prosecution that on 21.10.2007 at about 10.30 p.m., police party, comprising of ASI Narinder Singh (PW-10), HHC Kulbhushan (PW-9) and HHG Ranu Ram (not examined), left Police Station, Nerwa, in Vehicle No.HP-01-3346 (Taxi), driven by Jatinder Negi (PW-8), for patrol/Nakabandi duty, towards Minus side. To this effect, Narinder Kumar recorded entry (Ex.PW-10/A) in the Daily Diary Register. At 12.30-1.00 a.m., police party set up Naka, at a place known as Rohana and checked vehicles for about 4-5 hours. On 22.10.2007, while the police party was on its way back, midway, at 5.30 a.m., near Durga Mandir, they noticed a motorcycle coming from the opposite direction. Accused Joban Dass, who was driving the motorcycle, tried to flee away, but however, police party apprehended him. Accused Khumb Dass, who was sitting as a pillion rider, was holding a black coloured bag in his lap. On suspicion that the accused might be possessing some contraband substance, Narinder Singh, after informing Khumb Dass of his legal right, obtained consent, vide Memo (Ex.PW-8/A), for being searched. After giving his personal search, Narinder Singh conducted search of accused Khumb Dass. From the bag, police recovered Charas, which was packed in two blue coloured polythene bags. The contraband substance was weighed and found to be 4 kgs. Two samples of 25 grams each were drawn. Samples as also the remaining bulk parcel were packed and sealed with seal impression ‘N’, three in number. From the bag, police recovered Charas, which was packed in two blue coloured polythene bags. The contraband substance was weighed and found to be 4 kgs. Two samples of 25 grams each were drawn. Samples as also the remaining bulk parcel were packed and sealed with seal impression ‘N’, three in number. Memo of seal impression (Ex.PW-8/F) was prepared; NCB form (Ex.PW- 10/B) was filled up in triplicate; contraband substance was taken into possession vide memo (Ex.PW-8/D) alongwith the motorcycle. Original seal was handed over to Jatinder Negi (PW-8). Kulbhushan drove the motorcycle and carried Ruka as also the seized contraband substance to the Police Station, for being kept in a safe custody. FIR No.60/07, dated 22.10.2007 (Ex.PW-1/B), under the provisions of Section 20 of the NDPS Act was recorded by Narveer Singh (PW-1), who handed over the file to Kulbhuhan (Pw-9). Information to superior Officer was also sent. Sealed sample was taken by Sadhu Ram (PW-4) for being deposited at the FSL, Junga. Report (Ex.PZ) was obtained by the police, which certified the contraband substance to be Charas. As such, with the completion of investigation, Narinder Kumar handed over the case file to SHO Prem Chand (PW-7), who presented the challan in the Court for trial. 4. Both the accused persons were charged for having committed an offence punishable under the provisions of Section 20 read with Section 29 of the NDPS Act, to which they did not plead guilty and claimed trial. 5. In order to establish its case, prosecution examined as many as 11 witnesses and statements of the accused under provisions of Section 313 of the Code of Criminal Procedure were also recorded, in which they took up defence of denial and false implication. 6. Based on the testimonies of the witnesses and the material on record, trial Court convicted the accused of the charged offence and sentenced them as aforesaid. Hence, the present appeal by the accused. 7. We have heard learned counsel for the parties and minutely examined the record. 8. The apex Court in Lal Mandi v. State of W.B., (1995) 3 SCC 603 , has held that in an appeal against conviction, the appellate Court is duty bound to appreciate the evidence on record and if two views are possible on the appraisal of evidence, benefit of reasonable doubt has to be given to an accused. 9. 8. The apex Court in Lal Mandi v. State of W.B., (1995) 3 SCC 603 , has held that in an appeal against conviction, the appellate Court is duty bound to appreciate the evidence on record and if two views are possible on the appraisal of evidence, benefit of reasonable doubt has to be given to an accused. 9. For proving recovery of the contraband substance from the conscious possession of the accused, prosecution heavily relies upon the testimonies of Jitender Negi (PW-8), Narinder Singh (PW-10), Kulbhushan (PW-9) and on the question of link evidence, reliance is sought on the testimony of Narvir Singh (Pw-1) and Sadhu Ram (PW-4). 10. To us, genesis of the prosecution story of having left Police Station, Nerwa, on 21.10.2007, in a vehicle, for the purpose of Nakabandi, appears to be false. Narinder Singh in Memo (Ex. PW-10/A) records that he left the Police Station in a private vehicle. The document does not disclose either the type or the number. Also, name of the driver of the said vehicle is not disclosed. The document also does not record that police had prior intimation of any illegal trafficking of the contraband substance in and around the area and/or that police party left the police Station for detection of such crime. These facts were not necessary, but absence thereof, in view of contradictions, major in nature, which have emerged on record, acquires significance. 11. In Court, Narinder Singh states that before proceeding from the Police Station, vehicle driven by Jitender Negi already stood hired and in the same, police party left the Police Station for Rohana. This witness admits that no fare was paid to Jatinder Negi. He tries to explain that Jatinder Negi used to go to Rohana daily, for carrying the passengers. Thus, police party boarded his vehicle. Suggestion is that they took lift. We do not find such version of his to be correct, for he forgets that search and seizure operations were not carried out at the time when the vehicle was being driven towards Rohana, but on way back. Why would police party, comprising of three police officials, one of whom is an ASI, seek obligation of a private party and that too a taxi driver, has not been explained. It is nobody’s case that at Rohana, Jitender Negi did not find any passengers, hence returned to Nerwa with the police party. Why would police party, comprising of three police officials, one of whom is an ASI, seek obligation of a private party and that too a taxi driver, has not been explained. It is nobody’s case that at Rohana, Jitender Negi did not find any passengers, hence returned to Nerwa with the police party. 12. Version of Narinder Singh, we find to have been contradicted by other witnesses. In fact, Kulbhushan (PW-9) has a totally different version to narrate. He states that police party left Police Station, Nerwa on foot and after spending about 20-25 minutes in the Bazaar, vehicle was hired from there. In fact, he goes on to state that at the time when police party left the Police Station, there were no plans of hiring any vehicle, hence no entry in that regard was made in the record. He is categorical that vehicle hired was a taxi. Jatinder Negi clarifies that he was called to the Police Station, where police obtained his signatures on the documents. He was neither aware nor made known of contents thereof. Thus, this witness contradicts the version of not only Narinder Singh, but also lends credence to the suggestion put by the accused that all documents were prepared by the police party, as an afterthought, in the Police Station. 13. On this issue, when we examine the testimony of Jatinder Negi, we find that a totally different version, with regard to engagement of the vehicle in question has come on record. Significantly, unambiguously and uncontrovertedly, he states that Yudhvir Singh, a wine contractor, had hired his taxi. At about 9.30 p.m., Yudhvir Singh alongwith his partner Bhimta, ASI Narinder Singh and Kulbhushan went in the vehicle to Rohana. Also, it is the admitted case of Kulbhushan and Nareinder Singh that at the relevant time Yudhvir Singh was a wine contractor at Nerwa. 14. Thus two views have emerged on record, with regard to the police party having left Nerwa, rendering the genesis of the prosecution story to be doubtful. 15. We further find that on the issue of search and seizure operations, two views have emerged on record. 14. Thus two views have emerged on record, with regard to the police party having left Nerwa, rendering the genesis of the prosecution story to be doubtful. 15. We further find that on the issue of search and seizure operations, two views have emerged on record. Independent witness Jatinder Negi was declared hostile and despite extensive cross-examination, he has stuck to his original version that on their return, near the Mandir, Narinder Singh and Yudhvir Singh asked him to stop the vehicle, as they saw a bag lying abandoned and none was present there. Also, he clarifies that police party reached Nerwa at about 6 a.m. He went home and was called to the Police Station at 11 a.m., where he signed certain papers. Crucially, with regard to presence of Yudhvir Singh, testimony of this witness remains uncontroverted. Now, why would police seek obligation of a wine contractor, has not been explained. The very genesis of the prosecution story stands knocked down. 16. Further, when we examine the testimonies of Kulbhushan and Narinder Singh, we find them not to be inspiring in confidence and witnesses to be reliable and trustworthy. It is in this backdrop, more so, after Jatinder Negi resiled from his original statement, examination of Ranu Ram, a police official, who allegedly accompanied the police party, became necessary, which was not so done. 17. Narinder Singh (PW-10) states that on way back, at about 5.45 a.m., when the police party reached Durga Mandir, they saw one motorcycle coming from the opposite side. Seeing the police party, the motorcyclists tried to flee away, but was apprehended. Accused Joban Dass was driving the motorcycle and accused Khumb Dass, who was setting as a pillion rider, was holding a black coloured bag in his lap. On enquiry, accused told that it contained clothes. He got suspicious of the accused possessing some contraband substance, hence apprised Khumb Dass of his legal right; got his consent vide memo (Ex.PW-8/A); and conducted the search operation. Prior thereto, he also gave his search. From the person of Khumb Dass, nothing incriminating was found, but however, from the bag two blue coloured polythene bags containing Charas were recovered. The same were weighed and found to be 4 kgs. Two samples of 25 grams each, were drawn. Samples as also bulk parcel were sealed with seal impression ‘N’. Sample impression (Ex. From the person of Khumb Dass, nothing incriminating was found, but however, from the bag two blue coloured polythene bags containing Charas were recovered. The same were weighed and found to be 4 kgs. Two samples of 25 grams each, were drawn. Samples as also bulk parcel were sealed with seal impression ‘N’. Sample impression (Ex. PW-8/D) of the seal was taken and the seal, after use, was handed over to Jatinder Negi. Ruka(Ex.PW-1/A), prepared by him, was taken by Kulbhushan alongwith the contraband substance to the Police Station on the motorcycle, which was also sized by the police. He prepared site plan (Ex. PW-10/C); arrested the accused after issuing Memos (Ex. PW-10/D and Ex.PW10/E). After registration of the FIR, Kulbhushan brought the file back to the spot. He prepared Special Report (Ex. PW-2/A), which was sent to the SDPO, Chopal. He recorded statements of the witnesses as per version so narrated by them. He tried to ascertain the ownership of the vehicle and got information vide Memo (Ex. PW-5/A). The vehicle, i.e. motorcycle No.UA-08G-7342, was registered in the name of one Parvesh resident of District Haridwar (UP). Case file was handed over by him to the SHO for presentation of challan. The examination-in-chief part of the statement of this witness, in a parrot-like manner, stands corroborated by Kulbhushan (PW-9), who adds that he handed over Ruka and the case property, alongwith samples of Charas to the MHC. 18. However, when we examine the cross-examination part of their testimonies, we find that there are various contradictions, which in our considered view are material, rendering the prosecution case of recovery of the contraband substance, from the conscious possession of the accused, to be further doubtful. Contradiction with regard to police party having left in a vehicle already stands dealt with. Narinder Singh states that from the Police Station, police party straightway proceeded towards Rohana and it did not halt anywhere on the way. Now, this version stands materially contradicted by Kulbhushan, according to whom police party stopped in the Bazaar at Nerwa for 20-25 minutes and thereafter also stopped at Gumma, a place before Rohana, where also checking was done in the Bazaar for more than 15-20 minutes. 19. Further, according to Narinder Singh, police party saw the motorcycle from a distance of 50 metres, whereas according to Kulbhushan, the distance was approximately 200 metres. 19. Further, according to Narinder Singh, police party saw the motorcycle from a distance of 50 metres, whereas according to Kulbhushan, the distance was approximately 200 metres. Contradiction when viewed with contemporaneous record, i.e. spot map (Ex. PW-10/C), acquires significance and belies the ocular version of the witnesses. Also, in the spot map, it be noticed, the place where Durga Mandir is situate, there is a blind curve and the vehicle coming from Gumma side is not visible to a person coming from Rohana side. Narinder Singh states that as per the spot, he correctly prepared the site plan. But then he contradicts the same by stating that on the spot, there was no curve and road was straight. Further, Narinder Singh states that there was no light near Durga Mandir and it was dark at the time when motorcycle was first noticed, and that police party stopped the vehicle after the motorcycle was seen. However, Kulbhushan states that at the time when motorcycle came, police party had alighted from the vehicle, which was stopped at Durga Mandir. 20. Intriguingly, we find that no consent of accused Joban Dass was sought prior to carrying out search and seizure operations. This fact stands admitted by the police officials present on the spot. But why so? it remains unexplained. Now, if police had apprehension of both the accused carrying the contraband substance, and in fact when both of them were searched, then why is it that the said accused was not informed of his legal right, in accordance with the provisions of Section 50 of the Act and consent obtained. In fact, when we look into the documents prepared on the spot, we find that in the Memos (Ex.PW-8/A, 8/B, 8/C & 8/F), there is no reference of accused Joban Dass at all. These are documents pertain to search and seizure operations. Signatures of Joban Dass are there only on seizure Memo (Ex. PW-8/D) and arrest Memo (Ex. PW-10/D), execution whereof on the spot, to our mind, appears to be doubtful. These omissions remain unexplained on record, probablizing the defence of false implication, and the accused being taken by the police from the Bus Stand to the Police Station, for if both the accused were present together, then their consent had to be obtained. PW-10/D), execution whereof on the spot, to our mind, appears to be doubtful. These omissions remain unexplained on record, probablizing the defence of false implication, and the accused being taken by the police from the Bus Stand to the Police Station, for if both the accused were present together, then their consent had to be obtained. After all, Joban Dass was driving the vehicle and police suspected both of them of being in possession of the contraband substance. Also, there is nothing on record to reveal complicity of accused Joban Dass in the crime. Hence, presumption of Section 29 of the Act cannot be drawn. 21. There is yet another mitigating circumstance in favour of the accused persons. Narinder Singh (PW-10) states that he handed over the case property to Kulbhushan (Pw-9). He admits that it had come in his investigation that the case property was produced before Dhaninder Singh (PW-6), who denies and states that the same was never presented before him but handed over to the MHC. Witness admits not to have resealed the case property in this case. When we examine the testimony of MHC Narveer Singh (PW-1), we find his admission to the effect that the case property was not resealed before it was deposited with him, which means that after Narinder Singh put his seal impression ‘N’, the same was not resealed at the Police Station either by the SHO or the MHC. We find that FIR (Ex.PW-1/B) is signed by the SHO. Now, if he was available there, then why is it that the case property was not resealed. We find there is major contradiction in the testimony of Narinder Singh and Dhaninder Singh, with regard to whom the case property was entrusted in the Police Station. Narinder Singh states that it had come in his investigation that the case property stood produced before Dhaninder Singh, who categorically states that “it was never presented to me and it was handed over to M.H.C.”. Possibility of the same being tampered with or mixed up cannot be ruled out. In our considered view, infraction of Section 57 of the NDPS Act, in the given facts and circumstances, is fatal. Possibility of the same being tampered with or mixed up cannot be ruled out. In our considered view, infraction of Section 57 of the NDPS Act, in the given facts and circumstances, is fatal. This we say so, for we have doubts as to whether sample analysed by the FSL [vide report (Ex.PZ)] pertains to the case in hand or not, for according to Narveer Singh, sample was handed over to Sadhu Ram on 23.10.2007 to be deposited at the FSL, Junga. Road Certificate (Ex. PW-1/D) reveals the same to have been deposited on 24.10.2007. Sadhu Ram is categorical that it was deposited by him in the laboratory, the very same day/date on which it was handed over to him, which means it was deposited by him on 23.10.2007 itself. Thus, which of the witnesses has stated the truth is not clear. Be that as it may, Narveer Singh admits that sealed sample (case property) of FIR No.54/2007 dated 26.9.2007 was also sealed with seal impression ‘N’. Thus, to our mind, even by way of link evidence, it cannot be said that the prosecution has been able to prove its case, beyond reasonable doubt. Possibility of the sample being mixed up cannot be ruled out and there is no explanation as to why the same was not resealed at the Police Station. On this issue, we must also observe that NCB form (Ex. PW-10/B) also does not bear the name or signatures of any police official/Officer official other than Narinder Singh. Simply because the form did not contain a column, where the SHO/Incharge was to append his signatures, that fact alone would not render the statutory provisions of Section 57 of the NDPS Act to be negatory. 22. It has also come in the testimony of Narveer Singh that there is no entry of NCB form being deposited alongwith the case property. Significantly, Sadhu Ram does not state NCB form, which was submitted in the laboratory pertained to the case in hand. 23. 22. It has also come in the testimony of Narveer Singh that there is no entry of NCB form being deposited alongwith the case property. Significantly, Sadhu Ram does not state NCB form, which was submitted in the laboratory pertained to the case in hand. 23. In the given facts, we also find that there was no compliance of Section 42 of the NDPS Act, for it is the case of Kulbhushan that “When ASI asked the accused Kumb Dass as to what is there in the bag on his reply that there is nothing in the bag except the clothes, the ASI told him that you take our search, we want to search you. Then Kumb Dass took search of the police party. Then the memo qua the same was prepared.” It has come in the uncorroborated testimony of Kulbhushan that “ASI told that he had information of the contraband being transported and that is why the kit was taken”. 24. We are also doubtful as to whether search and seizure memo (Ex. PW-8/D) was prepared prior to the police party having searched the accused. 25. There is nothing on record to show that the IO Kit containing weights and scale was issued in favour of any one of the police officials. The matter acquires significance, more so when both of them have deposed that the kit was having weights of 2 kgs, 1 kg and 50 grams. If that were so, then how is that police party drew two samples of 25 grams each, for it is not their case either that one sample of 50 grams was drawn, which was divided into two and then sealed as separate parcels. 26. In the uncorroborated testimony of Jatinder Negi, it has come on record that there are houses near the Durga Mandir. Thus, documents have not been prepared correctly. Also, police has not examined the wine contractor present on the spot. 27. Also, we find there is uncorroborated testimony of Jatinder Singh to the effect that police party, on return, reached Nerwa at 6 a.m., whereas according to Narinder Singh, it was at 1.30 p.m. Significantly, no document to such effect was either placed or proved on record. 28. Also, police has not examined the wine contractor present on the spot. 27. Also, we find there is uncorroborated testimony of Jatinder Singh to the effect that police party, on return, reached Nerwa at 6 a.m., whereas according to Narinder Singh, it was at 1.30 p.m. Significantly, no document to such effect was either placed or proved on record. 28. In view of the fact that two views have emerged on record, with the independent witnesses not supporting the prosecution and the testimonies of police officials being contradictory on material fact and are not supported by any corroborative (oral or documentary evidence), in our considered view, in the given facts and the circumstances, benefit of doubt has to be given to the accused persons. 29. Recovery of motorcycle, in view of the contradictions on record, cannot be said to have been conclusively established. In any case, no effort was made by the Investigating agency, after obtaining report (Ex. PW- 5/E), to prove that the same stood either entrusted to or sold to any one of the accused persons by the original owner. Testimony of Narinder Singh is evidently clear to the effect that none of the accused were owner of the vehicle. 30. We are not in agreement with the findings of the Court below that in the event of prosecution case having been proved through the testimonies of Kulbhushan and Narinder Singh, testimony of Jatinder Negi pales into significance, in view of our aforesaid discussion, wherein we have found major and material contradictions even in the testimonies of relevant police officials. 31. We are also of the view that police, in view of major contradictions on record, ought to have linked the accused to the vehicle. After all, through the testimony of Jatinder Negi, it has come on record that no motorcycle was found on the spot, in the manner the prosecution wants the Court to believe. 32. We are also not in agreement with findings returned by the Court below that contradictions in the testimonies of the police officials and the documentary evidence are not material, significant or relevant, for we have already discussed the genesis of the prosecution case to be doubtful, if not false. 33. 32. We are also not in agreement with findings returned by the Court below that contradictions in the testimonies of the police officials and the documentary evidence are not material, significant or relevant, for we have already discussed the genesis of the prosecution case to be doubtful, if not false. 33. Finding of the Court below that there was no requirement, in law or on fact, to comply with the provisions of Section 42, in the given facts and the circumstances, is also legally untenable, in view of our aforesaid discussion. 34. Thus, findings of conviction and sentence, returned by the Court below, cannot be said to be on the basis of any clear, cogent, convincing, legal and material piece of evidence, leading to an irresistible conclusion of guilt of the accused. 35. Hence, for all the aforesaid reasons, the appeal is allowed and the judgment of conviction and sentence, 28.6.2008/30.6.2008, passed by Special Judge, Shimla, Himachal Pradesh, in Sessions Trial No.1-S/7 of 2008, titled as State of H.P. v. Joban Dass and another, is set aside and both the accused persons are acquitted of the charged offences. They be released from jail, if not required in any other case. Amount of fine, if deposited by the accused, be refunded to them accordingly. Release warrants be immediately prepared. Appeal stands disposed of, so also pending application(s), if any.