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2014 DIGILAW 1382 (HP)

Shyam Singh v. State of H. P.

2014-10-09

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT Sureshwar Thakur, J. This appeal is directed against the judgment, rendered on 1st October, 2010, by the learned Special Judge, Fast Track Court, Kullu, H.P., in Sessions Trial No. 18 of 2010, whereby the accused Shyam Singh has been convicted for the commission of offence punishable under Section 20(b)(ii)(C) of the Narcotic Drugs & Psychotropic Substances Act, 1985 and sentenced to undergo rigorous imprisonment for a period of fifteen years and to pay a fine of Rs.1,50,000/- and in default of payment of fine to further undergo simple imprisonment for a period of three years. 2. Prosecution case, in brief, is that ASI Man Singh, along with Constables Vijay Kumar and Varun Mahant, had gone to Naglari on 27.08.2009 in vehicle bearing registration No.HP-34A-0213, which was being driven by Constable Narian Singh. A vehicle bearing registration No. HP-34A-6902 came from Gushani at about 5 a.m. ASI Man Singh signaled the vehicle to stop. When the vehicle stopped, one person got down from the rear seat of the vehicle and ran away. The driver of the vehicle was apprehended by ASI Man Singh and on being enquired, he revealed his name as Shyam Singh, the accused. The driver Shyam Singh revealed the name of the absconding person as Mahinder. On suspicion of possession of some contraband, ASI Man Singh made inquiry in presence of Constable Vijay Kumar and Constable Varun, as to whether the accused wanted to be searched by the Magistrate or a Gazetted Officer. The accused consented to be searched by the police. ASI Man Singh also gave his personal search to the accused. The search of the vehicle was conducted and during which, two bags were found on the front seat located beside the driver. One bag was found to be containing 10 Kgs charas and the other was found to be containing 9 Kgs charas, after weighing. The bag containing 10 kgs of charas was having ten packets, out of which 9 packets were having stick like charas and the tenth packet was having stick like and spheres like charas. The other bag was containing 9 packets, out of which 8 were having stick like charas and 9th packet was having stick like and cub like charas. Each bag was wrapped in a separate piece of cloth. The other bag was containing 9 packets, out of which 8 were having stick like charas and 9th packet was having stick like and cub like charas. Each bag was wrapped in a separate piece of cloth. Each bag was sealed with 12 impressions of seal T. Seal impressions were taken separately on five pieces of cloth and NCB-I form was filled in triplicate and the seal was handed over to Constable Vijay Kumar. The vehicle, along with parcels, was taken into possession vide seizure memo and signatures of Constable Vijay Kumar and Constable Varun Mahant and also of the accused were also taken on the seizure memo. Photographs of the site of occurrence were taken by Constable Varun Mahant from official camera. 3. On conclusion of the investigation, into the offence, allegedly committed by the accused, report under Section 173 Cr.P.C. was prepared and filed in the Court. 4. The accused was charged for his having committed an offence punishable under Section 20(b)(ii)(C) and under Section 29 of the NDPS Act by the learned trial Court to which he pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined 14 witnesses. On closure of the prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure, was recorded in which he pleaded innocence and claimed false implication. In defence, the accused examined two witnesses. 5. On appraisal of evidence on record, the learned trial Court convicted and sentenced the accused for his having committed an offence under Section 20(b)(ii)(C) of the NDPS Act. 6. The appellant Shyam Singh is aggrieved by the judgment of conviction, recorded by the learned trial Court. Shri Anup Chitkara, learned counsel for the accused, has concertedly and vigorously contended that the findings of conviction, 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 conviction be reversed by this Court, in the exercise of its appellate jurisdiction and be replaced by findings of acquittal. 7. Hence, he contends that the findings of conviction be reversed by this Court, in the exercise of its appellate jurisdiction and be replaced by findings of acquittal. 7. On the other hand, the learned Assistant Advocate General, appearing for the respondent-State, has, with considerable force and vigour, contended that the findings of conviction, 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. With the able assistance of the counsel appearing on either side, this Court, in, a threadbare manner scrutinized the entire evidence on record. 9. The first witness who stepped into the witness box to prove the prosecution case is PW-1 (Vijay Kumar). He in his deposition has deposed a version which is in square tandem with the genesis of the prosecution version, as referred to herein-above, however, in his cross-examination, he admitted that there are no residential houses near the bridge on both the sides and there is a village Gushaini which is at a distance of 1-1½ Km. He further deposes that Constable Varun Mahant was sent towards Gushaini to call independent witness but he returned after about 10 minutes as he did not find any person in village Gushaini. He denied the suggestion that there are residential houses near the bridge and admitted the suggestion that the houses are visible adjacent to the bridge in photograph Mark D1. He further admitted the suggestion that houses are visible in Mark D2 adjacent to Naglari bridge towards Banjar side. 10. PW-2 Varun Mahant deposes that he, along with Constable Vijay Kumar and ASI Man Singh, was present at Naglari bridge in vehicle bearing registration No. HP-34A-0213 which was being driven by C.Narian Singh on 27.8.2009. At about 5 a.m., a vehicle, bearing registration No.HP-34A-6902, came from Gushaini side. ASI got down from the official vehicle and signaled to stop the said vehicle. When that vehicle was stopped, one person got down from the left rear side of the vehicle and ran away. Driver was apprehended in the vehicle. On inquiry, he revealed his name Shyam Singh. He further deposes that ASI told the accused Shyam Singh that he was suspecting the possession of some contraband and search of the accused and his vehicle was to be conducted. Driver was apprehended in the vehicle. On inquiry, he revealed his name Shyam Singh. He further deposes that ASI told the accused Shyam Singh that he was suspecting the possession of some contraband and search of the accused and his vehicle was to be conducted. He continues to depose that accused was informed that he could give his personal search and the search of the vehicle in the presence of a Magistrate or a Gazetted Officer. Accused consented to be searched by the police vide memo Ext.PW-1/A. He continues to depose that search of the vehicle was conducted and two bags were recovered from the front seat located besides the driver which was checked by ASI Man Singh. He further deposes that first bag was having ten polythene bags containing charas and the other bag was found to be containing 9 packets of charas. Each polythene bag was weighing one kilogram charas. Each bag was wrapped in a piece of cloth and sealed with 12 impressions of seal T. NCB I form was filled in triplicate. Seal impression was taken separately on five pieces of cloth. Seal was handed over to witness Vijay Kumar. He further deposes that the photographs Ext.PW2/A1 to Ext.PW2/A9 was taken during various stages of investigation. He continues to depose that constable Vijay Kumar was sent alongwith the rukka to the police station. 11. PW-3 Harish 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-3 deposes that 12. PW-4 Constable Ramesh Kumar deposes that accused Satinder Kumar handed over a mobile phone to ASI Man Singh on 31.08.2009. This mobile was seized by the police vide memo Ext.PW- 3/A, which is signed by him and Harish Kumar. 13. PW-5 Lok Raj, 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. PW-5 Lok Raj, 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- 5 deposes that the police called telephonically him on 27.8.2009 in Police Station, Banjar and he reached in the Police Station at about 9 – 10 a.m. He further deposes that the police obtained his signatures on some documents which were written, however, he deposes that the same was not read over and explained to him. 14. PW-6 Rajesh Suman deposes that he was posted as JBT in Govt. Primary School, Pekhari-II. The police had filed an application Ext.PW-6/A for obtaining the school leaving certificate of Satinder Kumar. He further deposes that he issued certificate Ext.PW-6/B which is deposed to be in his hand and bearing his signatures. 15. PW-7, ASI Man 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, however, in his cross-examination, he deposes he had not mentioned in the ruqua or documents prepared by him that he had made efforts to associate independent witnesses or to apprehend the absconder. He feigns ignorance that there is adequate light and visibility between the months of May and September. This witness further deposes that he do not remember the time taken to apprehend the accused or to prepare the notice under Section 50 or to give the personal search. He further deposes that it takes 10-15 minutes to prepare the consent memo and the memo of personal search. He proceeds to depose that he do not remember whether he had made an inquiry about the bags from the accused or not. He denies the suggestion, put to him, that no case property was sealed at Naglari. The key of the vehicle was in the ignition switch and when the vehicle was seized, the key also came in his possession. He feigns ignorance that accused Shyam Singh had a cell phone numbers of various orchardists in connection with his business. 16. PW-8 Davender Verma, PW-9 Prem Thakur, PW-12 Constable Sunil Kumar and PW-13 HC Harbans Kumar are formal in nature. 17. He feigns ignorance that accused Shyam Singh had a cell phone numbers of various orchardists in connection with his business. 16. PW-8 Davender Verma, PW-9 Prem Thakur, PW-12 Constable Sunil Kumar and PW-13 HC Harbans Kumar are formal in nature. 17. PW-10 Uttam Chand deposes that SHO Lal Singh handed over two parcels, each of which was sealed with 12 impressions of seal T and six impressions of seal H alongwith sample seals T and H, form NCB I in triplicate on 27.08.2009 at 1.25 p.m. He further deposes that he made entry in register No. 19 at Sr. No.131 and case property was deposited in Malkhana. He continues to depose that he handed over both these parcels, copy of F.I.R, copy of seizure memo, sample seals T and H, NCB form in triplicate to HHC Noor Din on 28.08.2009 with the directions to carry these to FSL. During his cross-examination, he denies the suggestion that no case property was deposited with him and he had not sent the same to FSL vide RC No.109/09 on 28.8.2009 through HHC Noor Din. 18. PW-11 Noor Din, 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-11 admits the suggestion, put to him, that NCB-I form in triplicate and sample seals T and H along with other documents were handed over to him and he had deposited all these articles at FSL. 19. PW-14 S.I. Lal Singh deposes that on 27.08.2009, one Rukka comprised in Ext.PW-7/B was received in the police station written by ASI Man Singh and he recorded an F.I.R. Ext.PW-14/A on the basis of Rukka, which is deposed to be signed by him. 19. PW-14 S.I. Lal Singh deposes that on 27.08.2009, one Rukka comprised in Ext.PW-7/B was received in the police station written by ASI Man Singh and he recorded an F.I.R. Ext.PW-14/A on the basis of Rukka, which is deposed to be signed by him. He further deposes that on the same day, ASI Man Singh handed over two parcels each of them was sealed with 12 impressions of seal T and he re-sealed each parcel with six impressions of seal H. He continues to depose that he filled in column Nos.9 to 11 of NCB I form Ext.PW-7/A and he handed over the parcels, sample seals T & H, NCB I form to MHC for depositing these in Malkhana and when the result of analysis was received, he prepared the challan and presented the same before the Court. During his cross-examination, he denies the suggestion that the case property did not remain in safe custody or there was tampering with the same. 20. 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, portraying proof of unbroken and unsevered links, in the entire chain of the circumstances, hence it is argued that when the prosecution case stood established, it would be legally unwise for this Court to acquit the accused. 21. Besides the testimonies of the official witnesses, when unravel the fact of theirs being bereft of any inter-se or intra-se contradictions hence, consequently they too enjoy credibility. 22. Nonetheless, even if all the vital links in the chain of circumstances which connect the accused in the alleged commission of the offence stand convincingly established yet a vital flaw which ingrains the prosecution version with a vice of infirmity, is the lack of association of independent witnesses despite their availability by the Investigating Officer in the proceedings relating to search, seizure and recovery of contraband from the alleged exclusive and conscious possession of the accused. The said flaw would not have acquired accentuation so as to concomitantly render the prosecution version to be smeared, unless evidence portrays that the omission on the part of the Investigating Officer to associate independent witness in the proceedings relating to search, seizure and recovery of contraband from the exclusive and conscious possession of the accused, was both deliberate and intentional. However, a keen and circumspect analysis of the depositions of PW-1 and PW-2 does not only portray the factum of the said omission being not only intentional but being also deliberate with the obvious purpose of smothering the truth of the prosecution version. The inference aforesaid is anvilled upon the factum of PW-1 having in his deposition, comprised in his cross-examination, deposed qua the factum of village Gushaini being located at a distance of 1-1½ kilometer from the site of occurrence wherein a residential habitation was located. Obviously, his deposition underscores the factum of availability of independent witnesses in close proximity to the site of occurrence. Now, when he deposes that PW-2 went towards Gushaini to elicit the association of independent witnesses there-from and his having returned there-from after 10 minutes with the information that none could be found, if construed in conjunction with the fact that he further belies the suggestion put to him that residential houses are located on either side of Naglari bridge. Therefore, when he belies the factum of existence of houses on either side of Naglari bridge, inasmuch, as, of no houses existing either towards Banjar or towards Gushaini, which factum when is rather benumbed and overwhelmed by the existence of Mark D-2, which comprises photographic evidence, hence, attains sanctity, constrains this Court to conclude that even, if, assuming PW-2 had proceeded to village Gushaini to locate independent witness and had been unsuccessful in his concert to secure them for theirs being associated in the apposite proceedings, yet his having deposed to have not visited the village on the other side of Naglari bridge inasmuch, as, towards Banjar side, on the prevaricated score of, no houses existing therein, portrays that the Investigating Officer as well as both PW-1 and PW-2, the official witnesses, were unaware of the topography of the place as well as qua the factum of existence of houses on both sides of Naglari bridge. As a natural concomitant given their ignorance qua the topography of the area where the occurrence took place, as also, as a natural corollary qua the factum of existence of houses in close proximity to the site of occurrence. Therefore, PW-1 appears to have feigned a pretextual extenuation for lack of availability of independent witness towards Banjar side of Naglari bridge. Moreover, the further deposition of PW-2 having visited village Gushaini to locate independent witness too appears to be a mere pretext or a mere prevarication qua his purported visit to there to locate independent witness, whereas PW-2 never went even upto village Gushaini to locate independent witness. Furthermore, the deposition of PW-2, who had purportedly proceeded to village Gushaini portrays utter and blatant prevarication inherently imbuing it, comprised in the fact of his feigning ignorance qua the fact of any habitation existing towards Banjar side of Naglari bridge which factum is proclaimed to be benumbed by photographic evidence comprised in Mark-D-2. Consequently, proclamation of non availability of houses towards Banjar side of Naglari bridge, when too, hence is rendered to be imbued with falsity, in sequel his purported visit to village Gushaini to locate independent witnesses and which visit was fruitless, too appears to be a mere sham especially in the face of his being unaware of the topography of the vicinity of the place where the occurrence took place arising from his ignorance qua lack of availability of houses towards Banjar side of Naglari bridge. Consequently, it has to be concluded that both PW-1 and PW-2 are inventing and concocting a version qua efforts having been made at their instance to locate independent witness and such efforts being unyielding. Furthermore, as a natural corollary, it appears that when they have indulged in blatant lies as well as prevarications to project purported efforts having been made to locate independent witness, such illusory efforts only convey the factum of theirs rather taking to clothe the apposite proceedings with purported truthfulness arising from purportedly concerted genuine efforts having been as such made. Furthermore, as a natural corollary, it appears that when they have indulged in blatant lies as well as prevarications to project purported efforts having been made to locate independent witness, such illusory efforts only convey the factum of theirs rather taking to clothe the apposite proceedings with purported truthfulness arising from purportedly concerted genuine efforts having been as such made. However, when despite availability of independent witness in close vicinity to the site of occurrence for reasons aforesaid, neither the Investigating Officer nor PW-1 and PW-2 made any concerted efforts to associate independent witness so as to clothe the apposite proceedings with the hue of impartisanship, as also, to obviate any inference, of the Investigating Officer having conducted a tainted investigation, rather when such non association arises on account of deliberateness, it, hence appears that such deliberateness on the part of the Investigating Officer to omit to associate independent witnesses was occasioned for no reason than that of his proceeding to conduct a slanted, tainted and partisan investigation, which obviously does not acquire any truth and credibility. 23. In view of the above discussion, the appeal is allowed and the impugned judgment of 1st October, 2010, rendered by the learned Special Judge, Fast Track Court, Kullu, is set aside qua accused Shyam Singh. The appellant/accused is acquitted of the offence charged. The fine amount, if any, deposited by the accused, is ordered to be refunded to him. Since, the accused is in jail, he be released forthwith, if not required in any other case. 24. The Registry is directed to prepare the release warrant of the accused and send it to the Superintendent of the Jail concerned, in conformity with this judgment, forthwith. Record of the trial Court be sent down forthwith.