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Himachal Pradesh High Court · body

2014 DIGILAW 1761 (HP)

Karam Singh v. State of H. P.

2014-11-26

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT : Sureshwar Thakur, J.. The instant appeal is directed against the judgment, rendered on 10th June, 2011, by the learned Special Judge, Mandi, District Mandi, H.P., in Sessions Trial No.55 of 2010, whereby, the accused/appellant has been convicted and sentenced to undergo rigorous imprisonment for twelve years and to pay a fine of Rs.1,20,000/- under Section 20 (b) (ii) (c) of the Narcotic Drugs & Psychotropic Substances Act, 1985 (herein-after referred to as the =NDPS Act') and in default of payment of fine, he has been sentenced to further undergo simple imprisonment for a period of two years. 2. The brief facts of the case are that on 28th July, 2010, Head Constables Laxman Dass, Tek Chand, Constables Vinod Kumar and Jitender Kumar were going towards Karsog to Kotlu. The accused was found coming from Teban when they reached Teban. He was carrying a polythene bag Ext.P-2 in his hand. He got frightened on seeing the police and tried to return. He was apprehended by the police. He revealed his name as Karam Chand son of Budhi Singh on inquiry. The polythene bag smelled of charas and the police became suspicious about the presence of Charas in the polythene bag. HC Laxman Dass informed the accused in writing that he was suspecting the possession of charas by the accused and the search of the accused was conducted. The accused also informed about his legal right to be searched before a Magistrate or a Gazetted Officer. The accused consented to be searched by the police at the spot. Memo Ext.PW-1/A was prepared. It was signed by HC Tek Chand, constable Vinod Kumar and the accused. HC Laxman Dass gave his personal search to the accused in presence of the witnesses. Memo Ext.PW-1/B was prepared. Polythene bag Ext.P-2 was checked and it was found to be containing black coloured substance in the shape of spheres and sticks. The substance was found to be charas on smelling. It was weighed and its weight was found to be 4.850 kilograms. Charas was put in the polythene bag and the bag was wrapped in a piece of cloth. The parcel was sealed with six impressions of seal =D'. Sample seal was taken on separate pieces of cloths and one such impression is Ext.PW-1/C. NCB-1 form Ext.PW-8/A was filled in triplicate and seal impression was taken on NCB-1 form. Charas was put in the polythene bag and the bag was wrapped in a piece of cloth. The parcel was sealed with six impressions of seal =D'. Sample seal was taken on separate pieces of cloths and one such impression is Ext.PW-1/C. NCB-1 form Ext.PW-8/A was filled in triplicate and seal impression was taken on NCB-1 form. The seal was handed over to witness Tek Chand after the use. Charas was seized vide seizure memo Ext.PW-1/D, which was signed by Tek Chand and C.Vinod Kumar. Copy of seizure memo was supplied to the accused and his signatures were also obtained. Ruka Ext.PW-14/A was prepared and it was sent to police station through constable Vinod Kumar. C. Vinod Kumar carried it to P.S.Karsog and handed it over to H.C. Gian Chand PW-3. Gian Chand recorded F.I.R. Ext.PW- 3/A and handed over the case file to C. Vinod Kumar with the direction to carry it to the spot. Investigation was carried out by HC. Laxman Dass who prepared site plan Ext.PW-1/B and recorded the statements of witnesses as per their version. The accused was arrested and memo of his arrest Ext.PW-1/E was prepared. The police party went towards P.S.Karsog in the vehicle of H.C. Laxman Dass. C.Vinod Kumar met the police party at Kelo Dhar and handed over the case file to H.C. Laxman Dass. H.C. Laxman Dass recorded his statement and proceeded to police station. The case property, case file and accused were produced before ASI Mohan Lal PW-8 who was working as SHO on that day. ASI Mohan Lal resealed the parcel with three impressions of seal C. He prepared memo of resealing Ext.PW-1/F. Sample seal was taken separately on separate pieces of cloths and one such impression is Ext.PW-1/G. NCB-1 form Ext.PW-8/A was filled in triplicate and seal impression was put on NCB-1 form. Seal was handed over to HC Tek Chand after the use. The case property sealed with three impressions of seal C and six impressions of seal D, NCB-1 form in triplicate, seal impressions C and D were handed over to MHC Gian Chand for depositing these in Malkhana. MHC Gian Chand made an entry in the register of malkhana, the copy of which is Ext.PW-3/B and deposited all these articles in Malkhana. MHC Gian Chand made an entry in the register of malkhana, the copy of which is Ext.PW-3/B and deposited all these articles in Malkhana. He handed over all these articles to PW-4 C. Bhaskar Bhanu alongwith docket on 29.07.2010 with the direction to carry these to FSL Junga vide RC No. 119/10, the copy of which is Ext.PW-3/C. C. Bhaskar Bhanu deposited all these articles at FSL Junga and handed over the receipt to MHC on his return. Special report, the copy of which is Ext.PW7/A was handed over to Raj Kumar SDPO, who handed it over to his Reader PW-7 HC Ram Lal on the same day. HC Ram Lal made an entry in the register of special report, copy of which is Ext.PW-7/A and filed the special report in the record. Result of chemical analysis Ext.PW-5/A was issued in which it was shown that the sample was of charas, which was containing 27.62% of resin in it. Affidavit of Raj Kumar Ext.PW-6/A was taken into possession. On conclusion of investigation into the offences, allegedly committed by the appellant/accused, challan was filed under Section 173 of the Code of Criminal Procedure. 3. The accused was charged for his having committed offences punishable under Section 20 of the NDPS Act by the learned trial Court, to which he pleaded not guilty and claimed trial. 4. In proof of the prosecution case, the prosecution examined as many as 14 witnesses. On closure of the prosecution evidence, statement of appellant/accused under Section 313 Cr.P.C. was recorded by the Court in which the accused claimed false implication and pleaded innocence. In defence, the appellant/accused examined two witnesses. 5. On appraisal of evidence on record, the learned trial Court convicted and sentenced the accused for his having committed the offence, aforesaid. 6. The appellant/accused is aggrieved by the judgment of conviction, recorded by the learned trial Court. The learned counsel for the appellant/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 misappreciation 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 Deputy 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. 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, in support of the prosecution case, is, PW-1 Tek Chand. He, in his deposition, deposes a version in square tandem to the prosecution story, referred to herein-above. In his cross-examination he deposes that HC Lachhman Dass had recorded his statement on 28.7.2010. He further deposes that C. Vinod Kumar met the police party at Kelodhar. He continues to depose that HC Lachhman Das was posted in S.I.U on 28.7.2010. Constable Jitender Kumar and C. Vinod Kumar were probably posted in Police Line Mandi at that time. He further deposes that C.Vinod Kumar, H.C. Lachman and C. Jitender Kumar met him in P.S. Sundernagar. He further deposes that they proceeded in a private vehicle of H.C.Lachhman Dass and stayed in Kumar Hotel during the night at Karsog. He further deposes that people were going from that place after the completion of investigation but no person went to during the investigation. I.O. had not sent any police official to call independent person. 10. Constable Vinod Kumar (PW-2), in his deposition, deposes a version in square tandem to the prosecution story, referred to herein-above and as also in corroboration to the testimony of PW-1. In his cross-examination, he deposes that his statement was recorded at Kelodhar on 28.7.2010 in a private vehicle of HC Lachhman Dass. He further deposes that MHC of PL Mandi asked him to accompany H.C. Lachhman Dass towards Karsog and Sundernagar. He further deposes that they stayed in a hotel at Sundernagard during the night and did not remember the name of the hotel. He further deposes that he had not report his arrival at P.S.Karsog. He further deposes that he do not know the name of the hotel in which they stayed at Karsog. He further deposes that they stayed in a hotel at Sundernagard during the night and did not remember the name of the hotel. He further deposes that he had not report his arrival at P.S.Karsog. He further deposes that he do not know the name of the hotel in which they stayed at Karsog. He proceeds to depose that there is a market at Kotlu. He feigns ignorance about the name of the place where the accused was apprehended. He goes on to depose that the search of polythene bag was conducted first. Ext.PW-1/A was prepared after the search was conducted by the Investigating Officer and Ext.PW-1/D was prepared by the Investigating Officer at the spot while he was sitting. NCB-I form is stated to be filled at the spot in the presence of this witness. He feigns ignorance that which columns were filled in by Investigating Officer. Investigating Officer had taken the seal impression only on one piece of cloth. He denies the suggestion, put to him, that H.C. Laxman Dass and Constable Jitender Kumar were present at Kotlu on 27.7.2010 and he was never associated with the raiding party. He proceeds to depose that ASI was discharging the duties of S.H.O. at that time and did not remember his name. 11. PW-3 (HC Gian Chand) deposes that Constable Vinod Kumar brought one Ruqua (Mark A) to Police station on 28.7.2010 on which this witness recorded the F.I.R. Ext.PW-3/A in the official computer of the Police Station, print out of which is deposed to have been signed by ASI Mohan Lal. He further deposes that the case file was prepared and handed over to Constable Vinod Kumar with a direction to carry it to the spot. ASI/SHO Mohan Lal handed over one parcel sealed with six impressions of seal =D' and three impressions of seal =E'. This witnesses further deposes that he made an entry at Sr.No.403 in the register of Malkhana, the copy of which is Ext.PW-3/B and deposited these articles in the Malkhana. ASI/SHO Mohan Lal handed over one parcel sealed with six impressions of seal =D' and three impressions of seal =E'. This witnesses further deposes that he made an entry at Sr.No.403 in the register of Malkhana, the copy of which is Ext.PW-3/B and deposited these articles in the Malkhana. He proceeds to depose that he took all these articles from Malkhana on 29.7.2010 and handed over to Constable Bhaskar Bhanu with a direction to deposit the same at FSL Junga vide RC No.119/10, copy of which is Ext.PW-3/C. He admits the suggestion that he had not made an engtry regarding the time of deposit in the Malkhana register and the NCB-1 Form in triplicate was written subsequently. 12. PW-4 (Constable Bhaskar Bhanu) deposes that MHC Gian Chand handed over one parcel sealed with six impressions of seal =D' and three impressions of seal =C' along with NCB-1 Form in triplicate, docket number 5516, sample seals on 29.7.2010 with a direction to carry these to FSL, Junga vide RC No.119/10. He further deposes that he deposited all the articles at FSL, Junga and handed over the receipt to MHC on his return. 13. PW-5 (Constable Devu Ram) deposes that he brought the result Ext.PW-5/A and a parcel sealed with seal impressions of FSL-II from FSL, Junga on 21.8.2010 and deposited all these articles with MHC on 22.8.2010. 14. PW-6 (Constable Vijay Kumar) deposes that Constable Devu Ram handed over one sealed parcel sealed with seven impressions of FSL-II on 22.8.2010 along with one sealed envelope containing the result of Chemical analysis Ext.PW-5/A and NCB-I Form and handed over the result and NCB-I Form to Investigating Officer ASI Mohan Lal and deposited the parcel in Malkhana. He further deposes that an entry was made at Sr.No.403, the copy of which is stated to be Ext.PW-3/B. He proceeds to depose that he conducted the investigation in this F.I.R. and took the copy of special report from the Reader to SDPO, Sundernagar and the copy of the register regarding special report. In his cross-examination, he deposes that ASI Mohan Lal was discharging the duties of SHO on 27.7.2010 to 28.7.2010. He denies the suggestion, put to him, that Amar Chand Sharma was discharging the duties of SHO during those days. 15. In his cross-examination, he deposes that ASI Mohan Lal was discharging the duties of SHO on 27.7.2010 to 28.7.2010. He denies the suggestion, put to him, that Amar Chand Sharma was discharging the duties of SHO during those days. 15. PW-7 (HC Ram Lal) deposes that Raj Kumar Chandel, SDPO Sundernagar handed over the special report, copy of which is stated to be Ext.PW-7/A, to him on 29.7.2010 at 12.40 p.m. and made an entry in the register of special report at Sr.No.115. The endorsement and signatures of SDPO are stated by this witness to be inside the red circle of Ext.PW-7/A. 16. PW-8 (ASI Mohan Lal) deposes that Constable Vinod Kumar brought one ruqua Mark-K on 28.7.2010 at 10:25 a.m. to Police Station and F.I.R. Ext.PW-3/A was recorded on the basis of said ruqua which is stated by this witness to be signed by him. He further deposes that HC Laxman Dass brought one parcel sealed with six impressions of seal =D' in the Police Station at 2 p.m. on the same day along with the sample seal =D'. NCB-I Form in triplicate, case file and the accused were produced before him. He further deposes that he re-sealed the parcel with three impressions of seal =C' in the presence of HC Tek Chand, MHC Gian Chand and HC Laxman Dass and the sample seal was taken separately on a piece of cloth and one such impression is Ext.PW-1/G. Seal was handed over to HC Tek Chand after its use. He proceeds to depose that the specimen of seal was taken on the NCB-I Form Ext.PW-8/A. He further deposes that he handed over all these three articles to MHC Gian Chand for depositing the same in the Malkhana. He proceeds to depose that he prepared the re-sealing memo Ex.PW1/F and also recorded the statements of Constable Devu Ram, H.C. Vijay Kumar, Constable Virender Kumar, MHC Gian Chand and Constable Bhaskar Bhanu. 17. PW-9, (SHO Amar Chand Sharma), prepared the challan in this case and presented it before the learned trial Court. PW-10 Constable Virender Kumar carried the special report to SDPO Sunder Nagar and handed over it to SDPO on the same day at 12.30 P.M. PW-11 H.C. Kamal Deep deposes that Ex.PW-11/A is the true copy of the original register brought by him in Court. PW-10 Constable Virender Kumar carried the special report to SDPO Sunder Nagar and handed over it to SDPO on the same day at 12.30 P.M. PW-11 H.C. Kamal Deep deposes that Ex.PW-11/A is the true copy of the original register brought by him in Court. PW-12 HHC Manoj Kumar, proved the report No.10 of 26.7.2010, Ex.PW12/A. PW-13 H.C. Tak Chand deposes that the name of the Court in entry No.11 (A) of 27.7.2010 was wrongly mentioned as Addl. Sessions Court whereas he had proceeded to the Court of Ld. JMIC, Karsog, vide DD No.12 dated 25.7.2010. 18. PW-14 H.C. Laxman Dass, in his deposition deposes a version in square tandem to the prosecution story, as referred to hereinabove, as also in corroboration to the testimonies of PW-1 and PW-2. In cross-examination he deposes that he cannot tell the distance between Kotlu and Teban is eight kilometers. He admitted the suggestion that he was having any authority letter to carry out the search. He denied the suggestion that he was having sufficient time to intimate his superior. He deposes that there were chances of escape of the accused. He further deposes that he has not sent any police official to call any independent witness. He has denied the suggestion that father of the accused had visited the police station at 10.00 a.m. He further deposes that he had not sent the information under Section 57 to his superior officer because he had handed over the case file and case property to the SHO and left the Police Station. He has denied the suggestion that he had not visited the spot. He has denied the suggestion that Tek Chand was not accompanying them. 19. The proceedings, relating to search, seizure and recovery of contraband from the alleged conscious and exclusive possession of the accused, were purportedly concluded at place Kotlu falling under Police Station, Karsog. However, the police party, comprising Head Constable Tek Chand, Head Constable Laxman Dass, Constables Vinod Kumar and Jitender Kumar, all are police officials not of Police Station, Karsog, rather PW-1 Head Constable Tek Chand was posted at Police Station, Sundernagar, whereas, Head Constable Laxman Dass and Constable Jitender Kumar were posted in Police Line, Mandi at the relevant time. Head Constable Laxman Dass, Constable Vinod Kumar and Constable Jitender Kumar of Police Line, Mandi had met Head Constable Tek Chand at Sundernagar. Head Constable Laxman Dass, Constable Vinod Kumar and Constable Jitender Kumar of Police Line, Mandi had met Head Constable Tek Chand at Sundernagar. They stayed overnight in a Hotel at Sundernagar. They proceeded for Karsog in a private vehicle of Head Constable Laxman Dass along with the latter. On 28.7.2010, when they were performing patrolling duty, then at some distance ahead of Kotlu at about 6.15 a.m. the alleged occurrence took place. However, preceding theirs having allegedly recovered contraband from the purported exclusive and conscious possession of the accused as is apparent on a reading of the cross-examination of PW-1, they stayed overnight at Kumar Hotel, Karsog. The prosecution has not placed on record potent material comprised in the adduction into evidence of Hotel Registers of the Hotel at Sundernagar where the police officials other than Head Constable Tek Chand stayed overnight before proceeding there-from to Karsog nor also there is adduction into evidence of the Hotel Register of Kumar Hotel Karsog where on the arrival of the police officials there, they had stayed there overnight before on the succeeding day, proceeding to the place of occurrence. The absence of adduction into evidence of the Hotel Registers of the Hotels situated both at Sundernagar and Kumar Hotel, Karsog with their concomitantly displaying therein entries of the factum of the police officials having stayed respectively at both the places spurs a conclusion that the prosecution has been unable to unfailingly and convincingly bring forth unflinching evidence conveying the fact of stay overnight of the police officials other than PW-1 at Sundernagar before their departure to Karsog or also qua the fact of theirs having subsequent to their departure from Sundernagar to Karsog theirs having stayed overnight at the latter destination. Absence of the above evidence rids the prosecution version qua the aforesaid factum of departure of police officials from Sundernagar to Karsog as also qua their stay overnight at Karsog with the malady of prevarication. Furthermore, the police officials had purportedly traveled in a private vehicle of Head Constable Laxman Dass. The defence has put suggestions to the prosecution witnesses of Laxman Dass being unavailable at the site of occurrence. Furthermore, the police officials had purportedly traveled in a private vehicle of Head Constable Laxman Dass. The defence has put suggestions to the prosecution witnesses of Laxman Dass being unavailable at the site of occurrence. The factum of absence of HC Laxman Dass at the site of occurrence gains succor in the face of non adduction into evidence of Hotel Registers of Hotels at Sundernagar and at Karsog with entries therein marking and portraying the factum of Head Constable Laxman Dass, then while accompanying the police officials having stayed there overnight along with them at Sundernagar and at Karsog wherefrom the latter place, they departed for the site of occurrence. Consequently, it has to be invincibly concluded, even if the police officials, other than Head Constable Laxman Dass, had travelled from Sundernagar to Karsog in a mode other than the vehicle of Head Constable Laxman Dass of the latter being unavailable with them at the site of occurrence, besides as a corollary, the aforesaid discussion marking the absence of HC Laxman Dass at the site of occurrence along with the other police officials ingrains with doubt the prosecution version, of the entire proceedings at the site of occurrence having taken place in his presence. However, with the prosecution pressing the fact of HC Laxman Dass being present along with other police officials at the site of occurrence stands to, hence render its version bereft of veracity. In aftermath, the genesis of the prosecution version of Head Constable Laxman Dass having accompanied the other police officials to the site of occurrence when suffering from prevarication, also concomitantly erodes the genesis of the prosecution version. 20. Furthermore, a perusal of the NCB Form, as existing on record, displays that Columns No.1 to 8 were filled in by the Investigating Officer, SIU Mandi. He being the Investigating Officer, Special Investigation Unit, Mandi, was competent to fill Columns No.1 to 8, the columns existing at Sr.Nos.9, 10, 11 and 12 of the NCB Form, pertaining to re-sealing, have, however, been signatured by PW-8 ASI Mohan Lal of Police Station, Karsog. A legal obligation, however, was cast upon the SHO of the police station concerned for rendering legal sacrosanct the filling of Columns existing at Sr.Nos.9, 10, 11 and 12 of the NCB form that they be filled up and signatured by him. A legal obligation, however, was cast upon the SHO of the police station concerned for rendering legal sacrosanct the filling of Columns existing at Sr.Nos.9, 10, 11 and 12 of the NCB form that they be filled up and signatured by him. PW-8 being not the S.H.O. did not enjoy the legal competence to signature the Columns existing at Sr.Nos.9, 10, 11 and 12 of the NCB Form. His being dis-empowered to signature the entries in Columns No.9, 10, 11 and 12 of the NCB Form renders the factum of entries recorded against Columns No.9, 10, 11 and 12 to be hence enjoying no legal sanctity besides belying the authenticity of the portrayals against Column Nos.9, 10, 11 and 12 of the NCB form. The effect thereof, is, that the factum of re-sealing of the seized contraband from the purported conscious and exclusive possession of the accused comes to be smeared with a taint of suspicion and spuriousness devolving upon its authenticity. Even though, the prosecution contends that since the S.H.O. was not present at the relevant date, hence, PW-8 was discharging the duties in his absence, as such, the entries in Column Nos.9, 10, 11 and 12 of the NCB Form signatured by PW- 8 are not deprived of their authenticity. However, in the face of omission of adduction of cogent evidence comprised in the Roznamcha of the Police Station concerned and its manifesting the fact of PW-9 the S.H.O. of Police Station, Karsog having departed there from on the relevant date on account of leave or his being busy elsewhere, leaves scope for an inference that PW-9 was not either on leave nor had proceeded elsewhere for performing public duty on the relevant date, rather was in the Police Station, as such, he alone when competent to signature the entries in Column Nos.9, 10, 11 and 12 of the NCB Form, his having omitted to do so, rather PW-8 having proceeded to do so, displays that the recovered contraband was not as portrayed by the prosecution brought to the Police Station, Karsog for carrying out the exercise of re-sealing or its being deposited in the Malkhana, rather the exercise was completed at a place other than Police Station, Karsog rendering suspect, hence, the factum of re-sealing of the contraband. Cumulatively the conclusion with aplomb which can be formed is that the entries in Column Nos.9, 10, 11 and 12 are suspect and do not carry forth the prosecution case that the contraband allegedly recovered from the conscious and exclusive possession of the accused was seized in the legally ordained manner. The formation of the above conclusion leads to a further apt conclusion that the property as allegedly recovered from the conscious and exclusive possession of the accused and sent for examination to FSL, Junga was not the property as recovered from the conscious and exclusive possession of the accused, rather when may have been tampered with, hence, was not the property recovered from the alleged conscious and exclusive possession of the accused, besides, abundant space is left open for an inference that the opinion rendered on the case property as sent to FSL, Junga was not an opinion rendered on the case property recovered from the conscious and exclusive possession of the accused, rather was qua some other case property. In aftermath, the opinion as rendered by the FSL comprised in Ext.PW-5/A is to be concluded to be not linkable to the accused. In other words, the consummate link in the chain of circumstances comprised in the opinion of the FSL gets unerringly broken and severed, prodding this Court to give the benefit of doubt to the accused. 21. The infirmities, aforesaid, noticed by this Court erode the substratum and bed-rock of the prosecution version as the infirmities are pervasive and major. Furthermore, even though the testimonies of the prosecution witnesses would not lose their veracity on the solitary score of non association of independent witnesses, if otherwise they are credible. However, when for reasons afforded herein-above, their testimonies are bereft of truth, therefore, when entwined with the fact of non association of independent witnesses by the Investigating officer in the proceedings relating to search, seizure and recovery despite availability, as pronounced in the testimony comprised in the cross examination of PW-2 of a small market being available at Kotlu inhabitants whereof/residents whereof could well have been joined as witnesses to lend a hue of impartisanship as well as transparency to the prosecution case. In sequel, omission of concerted efforts on the part of the Investigating Officer to join them in the proceedings relating to search, seizure and recovery of contraband despite availability constrains this Court to conclude that such omission was prompted by no reason other than the Investigating Officer carrying out a slanted and tainted investigation, besides smothering the truth of the investigation. Obviously, then a smothered, slanted and tainted investigation is not to be imputed credibility. 22. In view of the above discussion, the appeal is allowed and the impugned judgment, rendered on 10th June, 2011, by the learned Special Judge, Mandi, H.P., in Sessions Trial No.55 of 2010, is set aside. The appellant is acquitted of the offence charged. He be set at liberty forthwith, if not required in any other case. The fine amount, if any, deposited by the accused/appellant be refunded to him. 23. The Registry is directed to prepare the release warrant of the appellant and send it to the Superintendent of the Jail concerned, in conformity with this judgment forthwith. Records of the trial Court be sent down forthwith.