Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 1480 (HP)

Sat Pal v. State of H. P.

2014-10-18

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT : Sureshwar Thakur, J. Both these appeals are being disposed of by a common judgment as they arise out of the common judgment. Cr.Appeal No.176 of 2011 has been preferred by the appellant-accused Sat Pal, against the judgment rendered on 11.4.2011, by the learned Special Judge, Mandi, District Mandi, H.P., in Sessions trial No.23 of 2010, whereby he has been convicted and sentenced to twelve years rigorous imprisonment and to pay a fine of Rs.1,20,000/- for his having committed offence punishable under Section 20(b)(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 two years. Cr.Appeal No.222 of 2011 has been preferred by the State of H.P. against the recording of findings of acquittal qua accused Rahul in the impugned judgment. 2. The prosecution story, in brief, is that on 10.01.2010, ASI Ram Lal, along with ASI Mohan Lal, Constable Inder Singh, LHC Narpat Ram, Constable Suresh Kumar, Constable Kashmir Singh and Constable Dhameshwar Singh, was present at Suki Bai and laid a Naka there. At about 3.40 p.m., a private bus Bharati bearing registration No.HP-66- 1146 came from Manali towards Mandi. It was signaled to stop. Police party boarded the bus and started checking the passengers. Accused Sat Pal and Rahul were occupying seats No.15 and 16 respectively. On seeing the police, they became fidgety. Police party became suspicious about their possessing some stolen articles. Driver Ajay Singh, H.C. Inder Singh and Conductor Gopal, PW-2, were associated as witnesses. Police party gave its search to the accused in the presence of witnesses. No contraband was found in their possession. Memo Ex.PW1/A was prepared which was signed by all members of the police party and by the accused. Accused Sat Pal was occupying seat No.15 and accused Rahul was occupying seat No.16. Accused Sat Pal had a backpack (Ex.P-2) in his lap. Search of the backpack was conducted. One bag (Ex.P-3) was found inside the backpack which was bearing the words the dress up Shoppee. When the backpack (Ex.P-3) was checked, it was found to be containing black coloured stick like and pancake like substance wrapped in polythene. Cannabis was weighed and its weight was found 5 kg. Substance was put in the bag and bag was put into backpack from which it was recovered. When the backpack (Ex.P-3) was checked, it was found to be containing black coloured stick like and pancake like substance wrapped in polythene. Cannabis was weighed and its weight was found 5 kg. Substance was put in the bag and bag was put into backpack from which it was recovered. Backpack was wrapped in a piece of cloth and parcel was sealed with 16 impressions of seal =R'. NCB-I form Ex.PW1/A was filed in triplicate and seal impression was taken on NCB-I form. Sample seals were taken separately on separate pieces of cloths Ex.PW1/D. Seal was handed over to Inder Singh after its use. Parcel was seized vide seizure memo Ex.PW1/C. Signatures of the witnesses Ajay Singh, Gopal Singh and H.C. Inder Singh were obtained on the memo. Copy of seizure memo was supplied to the accused and their signatures were obtained on the memo. Accused Rahul had knowledge about transportation of cannabis by accused Sat Pal as he was sitting with accused Sat Pal. Rahul and Sat Pal belonged to the same village and ticket fare of Rahul was paid by Sat Pal. Ruqua Ex.PW7/A was prepared and sent to Police Station through LHC Narpat Ram. LHC Narpat Ram handed over the ruqua to Inspector Hari Pal, who recorded the FIR and sent it to the spot through LHC Narpat. Investigation was conducted by ASI Ram Lal, who prepared site plan and recorded the statements of the witnesses as per their versions. Accused were arrested and memo of their arrest Ex.PW1/F and Ex.PW1/G were prepared. The case property, NCB form in triplicate, sample seal and accused were produced before SHO Hari Pal. SHO Hari Pal re-sealed the parcels with nine impressions of seal =S'. He filled the columns of NCB form. Sample impression was taken separately on separate pieces of cloth and one such impression is Ex.PW12/B. Inspector Hari Pal handed over the parcels, NCB-1 form and the sample seal to MHC Anil Kumar. He prepared memo of re-sealing Ex.PW1/E. Anil Kumar made an entry in the Malkhana register at serial No.959 and deposited the articles in the Malkhana. He handed over all the articles deposited with him to Krishan Lal (PW-9) with the direction to carry these to FLS, Junga vide R.C. No. 254/2010. Krishan Lal deposited all the articles at FSL, Junga in safe condition and handed over the receipt to MHC on his return. He handed over all the articles deposited with him to Krishan Lal (PW-9) with the direction to carry these to FLS, Junga vide R.C. No. 254/2010. Krishan Lal deposited all the articles at FSL, Junga in safe condition and handed over the receipt to MHC on his return. Special report, Ex.PW6/A was sent to Additional S.P., Mandi through HHC Dharam Pal. HHC Dharam Pal handed over the special report to ASP Abhishek Dullar on 11.1.2010 at 3.50 p.m. ASP Abhishek Dullar made the endorsement on the special report and handed it over to his Reader H.C. Sant Ram at about 4.00 p.m. H.C. Sant Ram made an entry at serial No.12 in his register and filed it on record. Accused made the statement that they could show the place and person, from where the Charas was purchased and also the person from whom the Charas was purchased. They took police to village Lihayani where they identified the house of Hem Singh alias Raju. Memo Ex.PW4/A was prepared regarding identification. Site plan Ex.PW11/F was prepared. Hem Singh was interrogated and arrested. Memo of arrest Ex.PW4/E was prepared. As per the report of Chemical analysis, the samples were found to be containing 30.20 % 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 Sat Pal was charged for his having committed offence punishable under Section 20(b)(ii)(c) of the NDPS Act and accused Rahul was charged for his having committed offence punishable under Section 29 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 12 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 Sat Pal, whereas it acquitted accused Rahul and Hem Singh. 7. 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 Sat Pal, whereas it acquitted accused Rahul and Hem Singh. 7. The appellant/accused Sat Pal 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 Rahul by the learned trial Court. The learned counsel appearing for accused/appellant Sat Pal 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. 8. 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 against accused Sat Pal 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 Rahul, are contended to be not based on a proper appreciation of the evidence on record, rather, they are contended to be sequelled by gross mis-appreciation of the material on record. Hence, he contends that the findings of acquittal recorded in favour of accused/respondent Rahul 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. 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. 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 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. 11. Besides when the testimonies of the official witnesses, unravel the fact of theirs being bereft of any inter-se or intra-se contradictions hence, consequently they too enjoy credibility insofar as accused Sat Pal is concerned. 12. Nonetheless, it is urged before this Court by the learned counsel appearing for accused Sat Pal that the learned trial Court in omitting to discard the fact of PW-2 (Gopal), an independent witness, having turned hostile ingrains the impugned judgment of conviction rendered against him with the vice of infirmity. He contends that when the independent witness aforesaid did not lend support to the prosecution case, the genesis of the prosecution version propounded by the official witnesses has been erroneously construed to be credible. He contends that when the independent witness aforesaid did not lend support to the prosecution case, the genesis of the prosecution version propounded by the official witnesses has been erroneously construed to be credible. The contention of the learned counsel for the accused/appellant Sat Pal is anvilled and anchored upon the factum of his having turned hostile, hence, not supporting the prosecution case and as such the prosecution version getting capsized or suffering erosion, even in the face of significance having been untenably imputed by the learned trial Court to the factum of his having admitted his signatures on memos Exts.PW-1/A to G. However, obviously, in the face of his admitting his signatures on memos Exts.PW-1/A to G, he is barred as well as estopped, as envisaged/contemplated by Sections 91 and 92 of the Indian Evidence Act, to depose orally, in variance to the recorded contents of Exts.PW- 1/A to G. Consequently, for reiteration, in the face of the bar, envisaged under Sections 91 and 92 of the Indian Evidence Act against the receipt of oral evidence in variance to or in contradiction to the recorded recitals of memos Exts.PW-1/A to G which memos stand admitted to be signed by independent witness PW-2 (Gopal), hence, dilutes and dwindles the effect of his having reneged from the recorded recitals of memos Exts.PW- 1/A to G. As a corollary then, the entire trend of his oral deposition in denial to the prosecution case does not garner or muster any strength so as to, as aptly concluded by the learned trial Court, jettison the prosecution version as propounded by the official witnesses. Even though, the independent witness PW-2 (Gopal) has deposed that his signatures were obtained on a blank piece of paper, on strength whereof, it is canvassed by the learned counsel appearing for accused/convict Sat Pal that hence the independent witness, aforesaid, being unaware or unacquainted with the recitals on memos Exts.PW-1/A to G signatured by him as blank, as such, the bar or interdiction envisaged by Sections 91 and 92 of the Indian Evidence Act against his deposing in variance to or in contradiction to the recorded recitals in the memos, aforesaid, gets waned as well as diluted or the embargo, envisaged therein, does not prohibit him from orally deposing in variance thereto nor interdicts his oral deposition being discardable. However, the above contention, too, loses its force in the face of it emanating on a reading of his testimony of his having studied up to 9th standard, which belies the factum of his having signatured it blank, besides, in case his signatures on memos were obtained blank in the face of his having not protested at the earliest to the superior officials in the higher echelons of the police hierarchy now estop him from orally espousing in his deposition that its recorded recitals are not binding against him, his having signatured memo Exts.PW-1/A to G, when they were blank. Consequently, the view, as adopted by the learned trial Court in overwhelming the effect of PW-2 turning hostile or reneging from the contents of memos, is a vindicable view and does not necessitate any interference. 13. That apart, besides the reasoning, as adopted by the learned trial Court in over-looking as well as construing discardable the minor contradictions or discrepancies in the testimonies of the official witnesses does not suffer from any perversity or absurdity, especially when it has been tenably reasoned by the learned trial Court that such trivial discrepancies or trifling contradictions occurring in the testimonies of the prosecution witnesses do not erode or detract from the substratum of the prosecution case. For reiteration, when on a wholesome and harmonious reading of the testimonies of the official witnesses and theirs portraying lack of any vital, potent and overwhelming contradictions either inter-se or intra-se severely pronouncing and impeaching upon their credibility, the effect of minor contradictions inter-se or intra-se in their testimonies when have been for a tenable and good reason over-looked by the learned trial Court, the said affording of tenable and sound reasoning by the learned trial Court in over-looking as well as discarding minor contradictions inter-se or intra-se in their respective testimonies, forestalls this Court to reverse the findings of conviction arrived against accused Sat Pal by the learned trial Court. Besides when on a wholesome and omnibus reading of the testimonies of the official witnesses do not unravel theirs having blatantly digressed or detracted from the genesis of the prosecution story, absence thereof renders the trivial discrepancies to hold no sway or command in boosting an inference that they erode the substratum of the genesis of the prosecution case. Besides when on a wholesome and omnibus reading of the testimonies of the official witnesses do not unravel theirs having blatantly digressed or detracted from the genesis of the prosecution story, absence thereof renders the trivial discrepancies to hold no sway or command in boosting an inference that they erode the substratum of the genesis of the prosecution case. Even the reason attributed by the learned trial Court in concluding that the legally enjoined substantial compliance was begotten by the Investigating Officer with the provisions of Section 42 of the NDPS Act comprised in the factum of the Investigating Officer having promptly sent the Ruqua and FIR to the superior officer, too, is a weighty and plausible reason afforded by the learned trial Court, in ousting the contention of the learned counsel appearing for the accused/convict Sat Pal that the mandate of Section 42 of the NDPS Act mandating the forthwith transmission of information to the immediate superior officer as well as his being enjoined to record reasons in writing before proceeding to search the public conveyance in which the accused/convict was traveling while consciously and exclusively carrying the contraband as recovered from his alleged possession, rather being mandatory in nature as well as necessitating strict compliance remained un-complied, inasmuch, as both Ruqua and F.I.R. did not constitute the enjoined reasons constraining the Investigating Officer to carry out between sunset and sunrise, the search of public conveyance in which the accused was traveling. The factum of enjoined substantial compliance having been tenably begotten by the Investigating Officer is comprised in his hence transmitting forthwith the copy of Ruqua and F.I.R. which both do impliedly comprise the inherent reasons which drove the Investigating Officer to between sunset and sunrise proceed to search the public conveyance in which the accused was traveling is supported by the judgments reported in Babubhai Odhavji Patel & Ors. versus State of Gujarat, (2005) 8 SCC 725 , Hamidbhai Azambhai Malik versus State of Gujarat, AIR 2009 SC 1378 and Karnail Singh versus State of Haryana, (2009) 8 SCC 539 , which judgments while portraying a commensurate apposite factual matrix to the instant case inasmuch as when the learned trial Court while applying the mandate envisaged in the judgments, referred to herein-above, while theirs envisaging substantial compliance, rather, than strict compliance with the mandate of Section 42 of the NDPS Act, which substantial compliance was begotten by the Investigating Officer in his dispatching with promptitude to his superior officers, both copy of Ruqua and the FIR, pronounces upon the factum of hence no infringement or transgression of the mandate of Section 42 of the NDPS Act having come to be begotten, at his instance. 14. The fact of the report of FSL comprised in Ext. PW11/H divulging that the seals on sample parcels received by it for rendition of an opinion were found intact or un-tampered belies the factum of the seals on sample parcels having been either tampered with or doctored at the time of theirs sealing/resealing/deposit in the Malkhana, till their transmission to the FSL for rendition of opinion on it. Consequently, when the seals on sample parcels have been divulged in Ext.PW11/H which comprises the report of the FSL to be intact or un-tampered, the effect of delay, if any, which has occurred in the dispatch of the sample parcel to the FSL for rendition of the opinion thereon by the latter, gets eroded as well as overcome. 15. Insofar as the reasons, as afforded by the learned trial Court in recording findings of acquittal in favour of accused Rahul, are concerned, they are anvilled upon his merely occupying the seat adjacent to accused Sat Pal, who was carrying and possessing a bag, from which the recovery was effected, yet, accused Rahul not having been proved by the prosecution by sufficient and adequate evidence to be carrying a mens rea with accused/convict Sat Pal so as to make him vicariously liable for the commission of offence for which the accused/convict Sat Pal was found to be guilty, is a sound and tenable reason, when has not been portrayed to be either displaceable or dislodgeable by any invincible or potent proof on record. Consequently, the findings of acquittal, recorded by the learned trial Court, do not deserve to be either reversed or set aside. 16. 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.176 of 2011, preferred by accused Sat Pal against his conviction and Criminal Appeal No.222 of 2011, preferred by the State against the acquittal of Rahul, 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.