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2014 DIGILAW 1477 (HP)

Mukesh Kumar v. State of Himachal Pradesh

2014-10-18

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT : Sureshwar Thakur, J. 1. Both these appeals are being disposed of by a common judgment as they arise out of the common judgment. Cr. Appeal No. 493 of 2012 has been preferred by the appellant/ accused Mukesh Kumar, against the judgment rendered on 24.11.2012, by the learned Special Court (II) (Additional Sessions Judge), Sirmaur District at Nahan, H.P. in Sessions trial No. 8-N/7 of 2012, whereby he has been convicted and sentenced to ten years rigorous imprisonment and to pay a fine of Rs. 1,00,000/- for his having committed offence punishable under Section 20(ii)(c) of the Narcotic Drugs & Psychotropic Substances Act, 1985 (herein-after referred to as NDPS Act). In default of payment of fine, he has been sentenced to further undergo simple imprisonment for one year. Cr. Appeal No. 143 of 2013 has been preferred by the State of H.P. against the recording of findings of acquittal qua accused Lalita Devi in the impugned judgment. 2. The prosecution story, in brief, is that on 17.11.2011 at about 4:45 a.m. Head Constable Ranjeet Singh, along with PSI Dinesh Kumar and HHC Jeet Singh, was on VVIP duty at Kala Amb. They were checking the vehicles from security point of view as VVIP had to come. In the meantime, one Volvo bus bearing registration No. UK-07PA-1235 of Uttrakhand Roadways had entered the Himachal area and in presence of Rakesh, Peon of Excise Tax Barrier and Rohtash employee of the Toll Barrier, bus was checked. At seats No. 3 and 4 accused Mukesh and Lalita Devi were found sitting and accused Mukesh had kept one black coloured bag on his lap above the legs and one attachi case by his side. On checking of the bag, the gents clothes i.e. shirt, jacket, underwear and vest were recovered. Beneath it, substance of black round shape sticks, on which cello tape was affixed found. In the attachi case, one pant jacket, shirt etc. were found and in that currency notes of denomination of 100 x 100 (5 bundles) were recovered. In the bag charas like substance was recovered. Accused persons could not produce the licence of the recovered charas and on inquiry, they disclosed their name as such. The scale for weighing the charas was brought from Raj Kumar along with weights of 4 KG, 2 Kg, 400 grams, 200 grams, 100 grams and 50 grams. In the bag charas like substance was recovered. Accused persons could not produce the licence of the recovered charas and on inquiry, they disclosed their name as such. The scale for weighing the charas was brought from Raj Kumar along with weights of 4 KG, 2 Kg, 400 grams, 200 grams, 100 grams and 50 grams. Total weight of charas recovered was 10 kg and 500 grams. On counting the currency notes, total amount of Rs. 45,000/- from the attachi were found. Charas was put in same bag with shirt, jacket, underwear and vest and put in parcel and sealed with seal 'T' at 12 places. Rs. 45,000/- were put in attachi and then in cloth parcel and seal 'T' was affixed at 12 places. Rs. 45,000/- were put in attachi and then in cloth parcel and seal 'T' was affixed on parcel at 12 places. Sample of seals were separate drawn. The NCB forms were filled in. Charas weighing 10.5 Kgs, bag, shirt, jacket, underwear and vest were taken into possession in presence of witnesses Rakesh and Rohtash vide recover memo prepared on the spot. Lady police official was not present and was called later on and she carried out search of accused Lalita Devi. From her personal search, one traveling coupon dated 16.11.2011 issued in the name of accused Mukesh from Jammu to Haridwar of bus No. 1235, seat Nos. 7-8 along with currency notes worth Rs. 1175/- x 2, total Rs. 2350/- one voter card of accused Mukesh, Pan Card, artificial ear rings, Mangal Sutra, one golden chain, one pair pajeb silver, on ladies watch, two mobile phones were recovered. These were taken into possession in presence of the witnesses Rajesh Kumar and Rohtash vide seizure memo prepared on the spot. Later on, on the same day i.e. 17.11.2011 per mandate of law the said parcels were produced before ASI Daulat Ram, the then Officer In Charge of Police Station, Nahan, who had resealed the parcels with his seal 'A' and to this effect had issued the certificate. NCB forms were filled on the spot and the case property was deposited with MHC, Police Station, Nahan in the Malkhana. After recovery of contraband intimation was sent to the Superintendent of Police, Sirmaur District at Nahan. Site plan of the spot was prepared. NCB forms were filled on the spot and the case property was deposited with MHC, Police Station, Nahan in the Malkhana. After recovery of contraband intimation was sent to the Superintendent of Police, Sirmaur District at Nahan. Site plan of the spot was prepared. The parcels were safely sent to State Forensic Science Laboratory, Junga and as per the report of FSL, Junga it was found charas containing 26.49% resin in it. 3. On completion of the investigation, into the offences, allegedly committed by the accused, report under Section 173 Cr.P.C. was prepared and filed in the Court. 4. Accused Mukesh Kumar and Lalita Devi were charged for theirs having committed offence punishable under Section 20(ii)(c) of the NDPS Act by the learned trial Court, to which they pleaded not guilty and claimed trial. 5. In order to prove its case, the prosecution examined as many as 16 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, however, they chose not to adduce any evidence in defence. 6. On appraisal of the evidence on record, the learned trial Court, returned findings of conviction against accused Mukesh Kumar, whereas it acquitted accused Lalita Devi. 7. The appellant/accused Mukesh Kumar is aggrieved by the judgment of conviction recorded against him by the learned trial Court, whereas, the State of H.P. is aggrieved by the findings of acquittal recorded in favour of accused Lalita Devi by the learned trial Court. The learned counsel appearing for accused/appellant Mukesh Kumar 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 se-quelled 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. 8. On the other hand, the learned Additional Advocate General, appearing for the respondent/State, has, with considerable force and vigour, contended that the findings of conviction, recorded against accused Mukesh Kumar 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. On the other hand, the learned Additional Advocate General, appearing for the respondent/State, has, with considerable force and vigour, contended that the findings of conviction, recorded against accused Mukesh Kumar by the Court below, are based on a mature and balanced appreciation of evidence on record and do not necessitate interference, rather merit vindication. However, the findings of acquittal, recorded in favour of accused/ respondent Lalita Devi, are contended to be not based on a proper appreciation of the evidence on record, rather, they are contended to be se-quelled by gross mis-appreciation of the material on record. Hence, he contends that the findings of acquittal recorded in favour of accused/respondent Lalita Devi by the learned trial Court be reversed by this Court in the exercise of its appellate jurisdiction and be replaced by findings of conviction. 9. 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. 10. Independent witnesses PW-1 (Rohtash) and PW-2 (Rajesh Kumar), have been contended by the counsel for the accused/appellant to have in their respective testimonies repulsed as well as denuded the effect of the projection by the prosecution voiced through the testimonies of the official witnesses, of the contraband having been recovered from the exclusive and conscious possession of accused Mukesh Kumar from his black coloured bag while it was kept on his lap above the legs. With both PW-1 and PW-2 have deposed that no luggage from inside the bus was found in their presence, hence appear to have discounted as well as belied the prosecution version communicated through the testimonies of the official witnesses of recovery of contraband having been effected in the manner as deposed in tandem by them. For reiteration, with the imminent fact of both PW-1 and PW-2 having in their respective oral depositions overwhelmed the effect and efficacy of the depositions of the official witnesses qua the manner recovery of contraband from the conscious and exclusive possession of the accused, boosts the learned counsel for the accused/appellant, to contend that it hence, strips the prosecution version of its vigour and vitality. However, even though both PW-1 and PW-2 have turned hostile and have reneged/resiled from their previous statements recorded in writing, however, the preponderant and pre-eminent factum of theirs having admitted their signatures on memos Exts.PW-1/A to D renders insignificant as well as inconsequential the effect of their turning hostile as well as theirs having reneged from their previous statements recorded in writing. Rather, in the face of the embargo contemplated/envisaged by Sections 91 and 92 of the Indian Evidence Act against their deposing in variance to the recorded recitals in memos Exts.PW-1/A to D admitted by both to be bearing their signatures, renders their oral depositions in variance to the recorded recitals in memos aforesaid, to be having no effect so as to overwhelm the import and effect of the recorded recitals which, rather, convey proof qua the prosecution case, as deposed unanimously by each of the official witnesses of recovery of contraband having been recovered in the manner as deposed by them. With a wholesome reading of the depositions of the official witnesses portraying their testimonies being bereft of any inter-se or intra-se contradictions, hence, their testimonies acquire the virtue of credibility. In aftermath, when the effect of the turning hostile of the independent witnesses aforesaid has been for the reasons afforded herein-above construed to be gathering no momentum. Consequently, the depositions of the official witnesses while, hence being credible lead to the apt conclusion as appropriately drawn by the learned trial Court, that hence, the prosecution has been able to prove the factum of the accused Mukesh Kumar having committed an offence under Section 20(ii)(c) of the Act. 11. Even though, co-accused Lalita Devi was occupying the seat adjoining to the seat occupied by co-accused Mukesh Kumar, yet when this Court has imputed credibility to the prosecution case of Charas having been recovered from the conscious and exclusive possession of the co-accused Mukesh Kumar while his carrying it in a black coloured bag kept on his lap above the legs, as such, when he alone has been found to be in conscious and exclusive possession thereof, unless co-accused Lalita Devi was portrayed by substantial and weighty evidence to be sharing a mens rea so as to garner the conclusion of hers hence sharing a vicarious criminal liability along with co-accused Mukesh Kumar, which evidence, however, is amiss. Consequently, the findings of acquittal, hence, recorded by the learned trial Court, qua accused Lalita Devi, merit no interference, rather are vindicable. 12. The learned trial Court has appreciated the evidence in a mature and balanced manner and its findings, hence, do not necessitate interference. Both the appeals being Criminal Appeal No. 493 of 2012, preferred by accused Mukesh Kumar against his conviction and Criminal Appeal No. 143 of 2013, preferred by the State against the acquittal of Lalita Devi, are 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. Appeal dismissed.