Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 1347 (HP)

State of H. P. v. Lal Chand

2014-09-25

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT Per Sureshwar Thakur, Judge 1. The instant appeal is directed against the judgment of acquittal, rendered on 4.12.2007, by the learned Additional Sessions Judge, Fast Track Court, Dharamshala, District Kangra, H.P., in Sessions Trial No.31/07, whereby the respondents have been acquitted for theirs 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 3.6.2007, a police party, headed by SI Gulzari Lal, proceeded on patrol duty and laid Naka near Chamunda, at place known as Eco Khad. While conducting checking of the vehicles, passing from there at about 3.10 a.m., they noticed one motor-cycle coming from the side of Chamunda, which was being plied by Lal Chand and Ghambir Chand was the pillion rider. On being signaled, the motor-cycle was stopped and thereafter checking of the same was conducted. On checking the dickey of the motorcycle, two plastic bags were found, which were suspected to be containing Charas. On weighment, one bag was found containing three Kilograms and the other bag, two Kilograms of Charas, respectively. Out of the aforesaid bags, two samples of 25 grams each were taken. The samples as well as the bulk of the Charas were packed separately. In total, six parcels were prepared and sealed on the spot. Seizure memo, as well as NCB Forms, were prepared. Thereafter, the accused as well as the case property, along with motor-cycle, were taken to the Police Station, Dharamshala, where the case property, along with motor-cycle, was deposited with the MHC. The MHC sent two samples for test to be chemically analyzed at FSL, Junga, which were reported to be containing Charas. 3. After completion of the investigation, challan, under Section 173 of the Cr.P.C., was prepared and filed in the Court. The trial court charged the accused for theirs having committed offence punishable under Section 20 of the NDPS Act, to which they pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined as many as 10 witnesses. On closure of the prosecution evidence, the statements of the accused under Section 313 Cr.P.C. were recorded, in which they pleaded innocence. On closure of proceedings under Section 313 Cr.P.C., the accused were given an opportunity to adduce evidence, in, defence, and they chose not to adduce any evidence in defence. On closure of the prosecution evidence, the statements of the accused under Section 313 Cr.P.C. were recorded, in which they pleaded innocence. On closure of proceedings under Section 313 Cr.P.C., the accused were given an opportunity to adduce evidence, in, defence, and they 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/respondents. 6. The State of H.P. is aggrieved by the judgment of acquittal, recorded by the learned trial Court. Shri Ramesh Thakur, 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 and concomitantly, an appropriate sentence be imposed upon the accused/respondent. 7. On the other hand, the learned counsel, appearing for the respondents-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, PW-1 (Joginder Singh), who deposes that on 25.6.2007, two parcels were handed over to him by MHC Anil Kumar, which were duly sealed and he deposited the same with FSL, Junga, along with seal impressions of T and A on cloth pieces and three NCB forms on 26.6.2007. He continues to depose that he handed over the receipt to MHC on return. 10. PW-2 (HHC Shyam Lal) deposes that on 5.6.2007, one sealed envelope was handed over to him by SI Gulzari, which he deposited in the office of SP with Reader to S.P. 11. PW-3 (MHC Anil Kumar) deposes that on 3.6.2007, SHO R.P.Jaswal handed over to him six parcels, out of which four parcels were containing samples of 25 grams each and the remaining two were carrying the remaining bulk Charas. PW-3 (MHC Anil Kumar) deposes that on 3.6.2007, SHO R.P.Jaswal handed over to him six parcels, out of which four parcels were containing samples of 25 grams each and the remaining two were carrying the remaining bulk Charas. All these parcels were sealed with seal A at four places each and resealed with seal T at three places each. He further deposes that seal impressions of A and T on cloth pieces as well as NCB form in triplicate were deposited with him and entry in this regard was made in the Malkhana Register. He continues to depose that two parcels of samples were sent to FSL along with NCB forms and docat through Constable Joginder Singh and he handed over the receipt to him. 12. PW-4 (HC Vinod Singh) deposes that on 3.6.2007, he was accompanying S.I. Gulzari Lal, along with other Police officials, in connection with traffic checking at Ghurlu Pul. He further clarified that they had laid Naka at Ikku Pul. He further deposes that at about 3.10 a.m., a motor-cycle came from Chamunda side, which was being driven by Lal Chand and Gambir Chand was the pillion rider. He continues to depose that on search of the dickeys of the motor-cycle, two polythene bags containing Charas were found. Two samples, 25 grams each, were drawn from both the recovered packets. All the samples and remaining bulk of charas were packed and sealed with seal A at four places. He further deposes that Ruka comprised in Ext.PW-4/A was handed over to him, which he took to Police Station and on the basis of which, F.I.R. Ext.PW-4/B was registered by R.P.Jaswal. 13. PW-5 (ASI Ashwani Kumar Sharma) proved the F.I.R No. 109/2007. 14. PW-6 (HC Kuldeep Chand) deposes that on 3.6.2007, he, along with HC Amarik Singh, HC Vinod, was accompanying S.I. Gulzari Lal. Naka was laid at Ikku Pul from 2.00 a.m. onwards and at about 3.00 a.m., two persons were noticed riding the Motor Cycle which was stopped by SI Gulzari Lal. Search of the Motor-cycle was conducted by SI Gulzari Lal. He further deposes that in two dickeys, Charas was found in two polythene bags, out of which two samples, 25 grams each, were drawn from each packet. All the four samples and bulk Charas of two bags were packed and sealed with seal Mark-A at four places. NCB forms, in triplicate, were also prepared. He further deposes that in two dickeys, Charas was found in two polythene bags, out of which two samples, 25 grams each, were drawn from each packet. All the four samples and bulk Charas of two bags were packed and sealed with seal Mark-A at four places. NCB forms, in triplicate, were also prepared. All the six parcels, duly sealed and packed with seal ‘A’, were taken into possession vide seizure memo Ext.PW-6/C. He deposes that a copy of seizure memo was supplied to the accused, who is deposed to have appended his signatures on it. He proceeds to depose that the motor-cycle bearing R.C. No.HP-39-3208 was also taken into possession vide seizure memo Ext.PW-6/D on which he, along with HC Amrik Singh, appended their signatures being without documents. He further deposes that Gulzari Lal prepared Rukka Ext.PW-4/A in his presence and the same was sent to Police Station through HC Vinod Kumar for registration of the case. 15. PW-7 Constable Gopal Dass and PW-8 SI Om Parkash are formal witnesses. PW-9 S.I. Gulzari Lal, deposes that he alongwith other police officials proceeded on Patrol and laid a Naka, etc. at Chamunda, near Ikku Khad. He continues to depose that while checking the vehicles at about 3.10 a.m on 3.6.2007 one motor cycle came from Chamunda side which was being driven by accused Lal Chand and Gambhir Chand was the pillion rider. Dickeys of the vehicle were checked by him and during search, two polythene bags Ext.P-2 and Ex.P-6 were found containing some black object. Out of the two bags, two samples each of 25 grams each were taken out. NCB form in triplicate was filled in. He further deposes that motor-cycle, along with its keys, was taken into possession vide seizure memo Ext.PW-6/D in the presence of Kuldeep and Amrik Singh. He further deposes that no documents of motor-cycle were produced by accused persons. He further deposes that he had carried out the further investigation in the case. 16. PW-10 (Inspector R.P.Jaswal) deposes that on 3.6.2007, Rukka comprised in Ext.PW-4/A, written by S.I. Gulzari Lal, was received through HC Vinod Singh in police station and FIR was written as per his instructions. He deposes to have signed the F.I.R. He further deposes that copy of the F.I.R was sent to Special Judge, SP Kangra and also to ASP Kangra. PW-10 (Inspector R.P.Jaswal) deposes that on 3.6.2007, Rukka comprised in Ext.PW-4/A, written by S.I. Gulzari Lal, was received through HC Vinod Singh in police station and FIR was written as per his instructions. He deposes to have signed the F.I.R. He further deposes that copy of the F.I.R was sent to Special Judge, SP Kangra and also to ASP Kangra. He further deposes that he has resealed the case property with seal impression T and thereafter he deposited the same alongwith NCB forms in triplicate with MHC. 17. On 3.6.2007, at 3.10 a.m., when accused Lal Chand was allegedly plying motor-cycle and accused Ghambir Chand was atop it as pillion rider, then on their arrival near Chamunda, at place known as Eco Khad, on theirs being stopped by the police party headed by S.I. Gulzari Lal and on consequent checking of the dickey of the motor-cycle, Charas comprised in Ext.P-2 and Ext.P-6 was allegedly recovered there-from. In proof of the prosecution case, it has relied upon the testimonies of the official witnesses. The testimonies of the official witnesses do not suffer from the taint of theirs being imbued with any inter-se or intra-se contradictions. Obviously, when they do not acquire any blemish, they do attain credibility. Nonetheless, the prosecution case is susceptible to skepticism arising from (a) the omission on the part of the Investigating Officer to obtain or collect documents revealing the ownership of the motor-cycle on which both the accused were atop respectively as driver and pillion rider, omission thereof, has constrained the Investigating Officer to locate its owner. Lack of ascertainment of ownership of the motor-cycle would have upsurged an inference qua the valid possession of the motor cycle at the instance of both the accused. Consequently, for lack of ascertainment by the Investigating Officer of the ownership of the motor-cycle as also it not having been hence established by the prosecution that the accused had ever acquired possession of the motor-cycle, concomitantly spurs the conclusion that the Investigating Officer carried out a tainted and slanted investigation, which hence stains the prosecution version of the accused occupying the motorcycle, at the apposite stage with the blemish of untruthfulness. In aftermath, it has to be invincibly concluded that the respondents/accused were never occupying the motorcycle at the apposite stage and they have been falsely implicated by the Investigating Officer. In aftermath, it has to be invincibly concluded that the respondents/accused were never occupying the motorcycle at the apposite stage and they have been falsely implicated by the Investigating Officer. (b) It is the case of the prosecution that a Naka was laid by a team headed by SI Gulzari Lal near Eco Khad commenced at 2 a.m. and that the Naka party had prior to the purported arrival of the motorcycle had carried out checking of the vehicles which passed there-from. If it be so, then the prosecution sustains the projection that even at that time, there was a flow of traffic at the site of occurrence, hence given the factum of flow of traffic at the site of occurrence then any of the passengers, occupying the vehicles, which passed through the Naka point, could have been associated by the Investigating Officer in the proceedings relating to search, seizure and recovery of contraband from the purported conscious and exclusive possession of the accused so as to imbue the proceedings with the virtue of fairness and impartisanship, omission thereof by the Investigating Officer leads to no other inference than that of his taking to carry out a biased as well as a tainted investigation for smothering the truth qua the occurrence. As such, then the version as propounded by the prosecution cannot acquire credence. Also, then the version as propounded by the prosecution of a Naka having been laid at 2.00 a.m. near Eco Khad by the police party headed by ASI Gulzari Lal, does not also acquire any truth. In sequel, it has to be also concluded that the proceedings relating to search, seizure and recovery of contraband from the exclusive and conscious possession of the accused were carried out at a place other than the place as projected by the prosecution. As a corollary, then the genesis of the prosecution case of the proceedings having been carried out at Eco Khad staggers. 18. The learned trial Court has appreciated the evidence in a mature and balanced manner and its findings, hence, do not necessitate interference. The appeal is dismissed being devoid of any merit and the findings rendered by the learned trial Court are affirmed and maintained. Records of the learned trial Court be sent down forthwith.