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2014 DIGILAW 1355 (HP)

State of H. P. v. Vikram Kuthiala

2014-09-26

RAJIV SHARMA, SURESHWAR THAKUR

body2014
Judgment : Per Sureshwar Thakur, Judge 1. The instant appeal is directed against the judgement of acquittal, rendered on 25.3.2008, by the learned Special Judge, Shimla, H.P., in Sessions Trial No.1-S/7 of 2007, whereby the respondent has been acquitted for his having committed offence punishable under Sections 20 and 22 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (herein-after referred to as ‘NDPS Act’). 2. The prosecution story, in brief, is that on 29.3.2006, at about 8.30 p.m., HC Kuldeep Singh, along with Constables Naresh Kumar and Manmohan Singh, was on patrolling and traffic checking and on reaching near Durga Gas Agency, he noticed one Santro Car coming from Sanjauli to Chhota Shimla side. The said vehicle was signaled to stop, however, the vehicle was stopped 15-20 feet ahead. PW-11 HC Kuldeep Singh, along with other police officials, asked the driver to produce the documents of the vehicle. The driver of the vehicle omitted to produce the documents and got afraid on seeing the police. PW-11 had noticed one gathri, on the floor of the car, in front of front seat. Along with the Ghatri, one handkerchief and one packet of nitrosun tablets 10 mg. were also found. On smelling the handkerchief, Charas was found to be kept in it. During the process of checking the Santro Car, one vehicle bearing registration No.HP-02-6307 came from Sanjauli side, in which Jagdish and Surat Chauhan, were traveling and they were associated by PW-11 in the investigation. On asking the name of the driver of the Santro Car, he disclosed his name Vikram Kuthiala (the accused). On weighing the Charas, in the presence of the witnesses, the same was found to be 800 grams. Out of the recovered Charas, two samples of 25 grams each were separated and the samples were sealed in two different parcels and the remaining Charas was packed in a separate parcel. On weighing the Charas, in the presence of the witnesses, the same was found to be 800 grams. Out of the recovered Charas, two samples of 25 grams each were separated and the samples were sealed in two different parcels and the remaining Charas was packed in a separate parcel. The samples and the bulk Charas were sealed with seal impression M. Out of the nine strips of Nitrosun, two strips containing 10 tablets were separated as samples and were sealed in one parcel, which was sealed with seal M. the remaining seven strips were also put in a separate parcel which was also sealed with seal impression M. Seal impression of seal M was taken on a piece of cloth comprised in Ext.PW-1/A. All the five parcels were taken into possession vide recovery memo Ext.PW-1/B, bears the signatures of witnesses, namely, Jagdish Chand and Surat Chauhan and Constable Manmohan Singh, which was also got signed from accused. Three cloth pieces were prepared on the spot on which the seal impression M was affixed. NCB Form, comprised in Ext.PW-1/C was filled in by PW-11 HC Kuldeep Singh on the spot. PW-11 HC Kuldeep Singh sent Ruqua Ext.PW-1/E for registration of case to SHO, Police Station, Dhalli through Constable Naresh Kumar, upon which formal F.I.R. Ext.PW-1/F was registered. 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 his having committed offence punishable under Section 20 and 22 of the NDPS Act, 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 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. 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 and concomitantly, an appropriate sentence be imposed upon the accused/respondent. 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, PW-1 (Naresh Kumar). He deposes that on 29.3.2006, he, along with HC Kuldeep and Constable Manmohan Singh, was on patrol duty at Kali Dhank near Durga Gas Godown, when a Santro Car came there from Sanjauli side and it was signaled to stop. He further deposes tht the vehicle was stopped at a distance of 15-20 feet ahead and the driver of the said vehicle was asked to show the documents of the vehicle, however, he could not produce any such documents. He continues to depose that on checking the vehicle from inside, under the front seat, a Ghatri of cloth and one box was also kept aside. On smelling the Ghatri, it was found to be containing Charas and the box was found to be containing Nitrosun tablets of 10 mg each. The accused disclosed his name as Vikram Kuthiala. He proceeds to depose that in the meanwhile, another vehicle came from Sanjauli side bearing registration No.HP-02-6307 and stopped the same. On smelling the Ghatri, it was found to be containing Charas and the box was found to be containing Nitrosun tablets of 10 mg each. The accused disclosed his name as Vikram Kuthiala. He proceeds to depose that in the meanwhile, another vehicle came from Sanjauli side bearing registration No.HP-02-6307 and stopped the same. Two persons, namely, Jagdish and Surat Chauhan were sitting inside that vehicle and they were associated with the police party and the Ghatri and the box were shown to them. On weighment of the incriminating articles, Charas was found to be 800 grams and the tablets were 90 in number. He continues to depose that two samples of 25 grams each were separated from the Charas and sealed in separate parcels. The remaining Charas was sealed in a separate parcel. Seal impressions were taken on a piece of cloth comprised in Ext.PW-1/A. He further deposes that the Charas was taken into possession vide memo Ext.PW-1/B. Two strips of tablets were sealed in one separate parcel with seal M and the remaining strips were sealed in a separate parcel with the same seal and taken in possession vide memo Ext.PW-1/B. The accused and the witnesses have been deposed to have signed the memo along with Constable Manmohan and this witness identified his signatures. NCB Form comprised in Ext.PW-1/C was filled in on the spot and the grounds of arrest were disclosed to the accused comprised in memo Ext.PW-1/D and the accused was arrested. This witness proceeds to depose that the Investigating Officer handed over the Ruqua Ext.PW-11/C to him which he took to the police station and FIR comprised in Ext.PW- 1/F came to be registered. During his cross-examination, he deposes that the Police Station, Dhalli is about 2 ½ Kilometers from the spot and he went to the Police Station on foot. However, he again stated that he took a free lift in a taxi from near the police post. He denied the suggestion put to him that the accused has been involved in a false case because of a quarrel between the accused and Kuldip Singh earlier. 10. However, he again stated that he took a free lift in a taxi from near the police post. He denied the suggestion put to him that the accused has been involved in a false case because of a quarrel between the accused and Kuldip Singh earlier. 10. PW-2 (ASI Tej Ram) deposes that on 30.6.2006, HHC Parkash Chand brought special report of the present case to him at about 11.30 a.m. along with a carbon copy and produced the same before the S.P., Shimla immediately, who, after perusing the same, appended report and signed the same. He further deposes that the original was kept by him in the office record and the carbon copy was handed over to HHC Parkash Chand. 11. PW-3 (MHC Parkash Chand) deposes that on 30.6.2006, special report, along with carbon copy, was handed over to me from Police Station to be taken to the S.P. Office, Shimla. He further deposes that he produced the same before the Reader to the S.P.Shimla, who produced original and carbon copy before the S.P.Shimla and after that, the carbon copy comprised in Ext.PW-2/A was delivered to him, which he handed over to MHC P.S.Dhalli and original was retained by the Reader to S.P. 12. PW-4 (C.Shiv Ram) deposes that on 1.4.2006, Ashwani Kuthiala produced registration certificate and insurance of Santro Car No.HP-03A-2304, which is deposed to have been taken into possession vide memo Ext.PW-4/A in his presence and Constable Balvinder Singh, which is deposed to be bearing his signatures. 13. PW-5 (C.Shyam Lal) proved the original Raznamcha of 29.3.2006 and Rapat No.21, copy of which is comprised in Ext.PW-5/A. The same is deposed to be in his hand and the copy of Ext.PW-5/A was prepared by him. During his crossexamination, he denies the suggestion put to him that the entry Ext.PW-5/A is falsely prepared by him to implicate the accused. 14. PW-6 (C.Roop Lal) deposes that on 30.3.2006, MHC PS Dhalli Tek Ram handed over him two sample sealed parcels, out of which, one is stated to be containing 25 grams of Charas and the other 20 tablets of some medicine along with documents, sample of seals, NCB Form vide RC No.42/06. He further deposes that he carried the same to CFSL, Kandaghat and deposited the same in the Laboratory and handed over the receipt of the same on the RC to the MHC on the same day. He further deposes that he carried the same to CFSL, Kandaghat and deposited the same in the Laboratory and handed over the receipt of the same on the RC to the MHC on the same day. He continues to depose that so far the case property remained with him, the same remained intact and un-tampered and the parcels were sealed with seal impression ‘I’. 15. PW-7 (HC Tek Ram) deposes that on 29.3.2006, at about 11.30 p.m., SI Raj Kumar deposited with him five parcels duly sealed with seal ‘I’ along with NCB Forms in triplicate and sample seals ‘I’ and ‘M’. He further deposes that he entered the same in the Malkhana Register and the abstract of which is comprised in Ext.PW-7/A. He continues to depose that he sent one sample part duly sealed containing Charas and another sample duly sealed containing tablets along with seal impression, seizure memo, NCB Form etc. on 30.3.2006 through Constable Roop Lal vide RC No.42/2006 to CTL Kandaghat. Constable Roop Lal deposited the same at the Laboratory on the same day and brought back the RC copy of which is comprised in PW-7/B. During his cross examination, he concedes to the suggestion put to him that in the Malkhana Register there is no entry of deposit of sample seals and NCB Forms. 16. PW-8 (SI Raj Kumar) deposes that on 29.3.2006, Ruqua comprised in Ext.PW-1/E was received through Constable Naresh Kumar on the basis of which FIR Ext.PW-1/F was came to be registered which is deposed to be bearing his signatures. He continues to depose that on the same day at about 11.15 p.m., HC Kuldip Singh produced before him five sealed parcels of case property sealed with seal M along with NCB Forms and sample seal impressions and he re-sealed the parcels with seal I and took the seal impressions on a piece of cloth comprised in Ext.PW-8/A. He proceeds to depose that he also took seal impression on the NCB Form and deposited the case property along with the NCB Forms immediately. He deposes to have issued the certificate about re-sealing comprised in Ext.PW-8/A. On receipt of the report of the Chemical Examiner comprised in Ext.PW-8/C, SHO Vijay Kumar prepared the challan. He deposes to have issued the certificate about re-sealing comprised in Ext.PW-8/A. On receipt of the report of the Chemical Examiner comprised in Ext.PW-8/C, SHO Vijay Kumar prepared the challan. During his cross-examination, he deposes that his statement was recorded by the Investigating Officer in the present case and he has mentioned in that statement that HC Kuldeep produced the case property before this witness at 11.30 p.m. He further deposes that after reading his statement comprised in Ext.DD, there was no mention of seal impression having been handed over to him by Kuldeep. 17. PW-9 (Jagdish Chand) and PW-10 (Surat Chauhan), since they, during their examination-in-chief, having not supported the prosecution version, they were declared hostile and was requested by the learned Public Prosecutor to be cross- examined. On his request, having come to be acceded to, they were cross examined by the learned Public Prosecutor but no incriminating material against the accused could be elicited from their cross-examination. 18. PW-11 (HC Kuldeep Singh), in his deposition, has deposed a version which is in square tandem with the genesis of the prosecution version, as referred to herein-above. During his cross-examination, he concedes to the fact that there was no mention in the Fard comprised in Ext.PW-1/B and the statements of witnesses regarding filling of NCB Form on the spot. The brief facts of the challan were prepared by ShO Vijay Kumar Sharma. He feigns ignorance that the platform of the Santro Car is deep and one cannot see anything from outside. 19. Even though the prosecution witnesses have deposed in tandem and in harmony qua each of the links in the chain of circumstances commencing from the proceedings relating to search, seizure and recovery till the consummate link comprised in the rendition of an opinion by the FSL, Junga, on the specimen parcels sent to it for analysis, portrays proof of unbroken and un-severed links, in the entire chain of the circumstances, hence it is argued that when the prosecution case stood established, it was legally unwise for the learned trial Court to have acquitted the accused. 20. Besides the testimonies of the official witnesses, though unravel the fact of theirs being bereft of any inter-se or intra-se contradictions hence, consequently when they enjoy credibility. 20. Besides the testimonies of the official witnesses, though unravel the fact of theirs being bereft of any inter-se or intra-se contradictions hence, consequently when they enjoy credibility. Therefore, when, hence, the learned trial Court ought to have been constrained to record findings of conviction against the accused, nonetheless it appears that despite lack of any inter-se or intra-se contradictions in the testimonies of the prosecution witnesses, certain pervasive discrepancies as well as infirmities in the prosecution evidence that, too, of an immense propensity tenably led the learned trial Court to record findings of acquittal against the accused. The infirmities, imbuing the prosecution version, which have been tenably concluded by the learned trial Court to be smearing the prosecution case with the vice of prevarication, as such, rendering the prosecution case un-reliable are, (a) of Ext.PZ, the NCB Form qua tablets having not been deposed by PW-11 to have been filled in on the spot, besides PW- 1 omits to depose that Ext.PZ qua tablets was filled on the spot, rather, when PW-1 deposes that only the NCB Forms Ext.PW-1/C relating to Charas was filled on the spot, the obvious conclusion, which ensues is that Ext.PZ was not filled on the spot, rather, was filled elsewhere. Consequently, the prosecution case of the entire proceedings qua both Charas and tablets having been completed at the site of occurrence staggers and falls apart. (b) Seal impressions of M, N and I, existing on Ext.PW-1/C and Ext.PZ, have been scribed thereon by the Investigating Officer, however, seal ‘I’ has been projected by the prosecution to have been used by S.I. Raj Kumar for re-sealing the sample parcels in the Police Station as well as the parcels containing the bulk quantity, obviously then, in the face of both seal impressions ‘M’ and ‘I’ having been previously scribed by the Investigating Officer, as also the aforesaid seal impressions having been embossed therein on re-sealing by the Investigating Officer, hence portrays the fact of re-sealing though enjoined to be done by the SHO of the Police Station concerned, was not done by the later, sequelling transgression of the mandate of law contemplating the act of resealing to be performed by the SHO of the Police Station, concerned. Moreover, it also conveys when embossed by the Investigating Officer initially and on re-sealing, the factum of the entire proceedings relating to search the contraband being carried out at a place other than the place of occurrence. Consequently, on the strength of a concocted and invented prosecution version qua the entire proceedings relating to search, seizure and recovery having been purportedly made at the site of occurrence, whereas, it was not made, this Court would remain un-attracted to it. 21. The personal search of the accused has been portrayed by the prosecution to have been made on the spot before arresting him under Memo comprised in Ext.PW-11/D. Both Constables Shiv Kumar and Mohinder Singh are marginal witnesses to it, however, when both were not members of the police party, hence, when they are to be construed to be not present on the spot conveys that Ext.PW-11/D was not either scribed nor completed on the spot, rather, elsewhere. Consequently, the subsequent proceedings relating to search, seizure and recovery of items from the alleged conscious and exclusive possession are to be held to have commenced and completed elsewhere than at the site of occurrence. Consequently, the genesis of the prosecution story is eroded of its truth. The aforesaid discrepancies and infirmities, which existed in the prosecution story, are grave and pervasive and take with their fold the genuineness of or the veracity of the prosecution story. Given the existence of the aforesaid infirmities, the prosecution story receives a jolt inasmuch as the prosecution version is to be construed to be incredible. 22. 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.