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2014 DIGILAW 581 (HP)

Pappu v. State of H. P.

2014-05-16

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT Sureshwar Thakur, Judge. This appeal is directed against the judgment rendered on 17th May, 2008, by the learned Special Judge, Fast Track Court, Chamba, District Chamba, H.P., in Sessions Trial No.28/2008/07, whereby the appellant has been convicted and sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.1,00,000/- for the commission of offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as ‘NDPS Act’) and in default of payment of fine, he has been sentenced to undergo rigorous imprisonment for one year. 2. The facts, leading to the case, are that on 6th January, 2007 at about 5:30 p.m., ASI Santosh Kumar (PW-11), along with Constable Dinesh Kumar (PW-1), Ravinder Kumar and SPO Subhash Kumar, was present at Forest Barrier, Salooni in connection with distribution of pamphlets of traffic awareness. At the time aforesaid, one person was noticed by them to be coming from Salooni side carrying a rexine bag on his shoulder. He, on his seeing the police party, tried to retrace. He, however, was over-powered. His rexine bag Ext.P-4 was inspected, which was found to be containing two polythene bags Ext.P-6 and Ext.P-7 and on opening the same, they were found to contain ‘Charas’ Ext.P-8 and Ext.P-9 and another polythene envelope Ext.P-10 contained a blue coloured pants and white shirt. The pocket of the rexine bag contained one cake of lux soap, one tooth paste, brush and Amwla oil qua which a reference was made in the ruqua. Thereafter, Constable Dinesh Kumar was deputed by ASI Santosh Kumar to arrange for weights and scales from the shop of Kuldip Kumar and on weighment, the recovered ‘Charas’ was found to be 2 Kgs and 50 grams, from which two samples of 25 grams each were separated. Such two samples were placed in two match boxes by affixing two seals on each parcel. The remaining bulk ‘Charas’ was sealed in the same condition in parcel Ext.P-1 by putting four seals of impression ‘T’. The sample parcels are Ext.P-2 and Ext.P­3. Ruqua Ext.PW-11/A was prepared and given to Constable Ravinder Kumar for registration of the case. Accused was arrested vide memo Ext.PW-11/B and grounds of arrest were communicated to him. Site Plan Ext.PW-11/C was prepared by ASI Santosh Kumar (PW-11), the Investigating Officer. PW-11 also prepared the seizure memo and NCB Forms were filled on the spot. Ruqua Ext.PW-11/A was prepared and given to Constable Ravinder Kumar for registration of the case. Accused was arrested vide memo Ext.PW-11/B and grounds of arrest were communicated to him. Site Plan Ext.PW-11/C was prepared by ASI Santosh Kumar (PW-11), the Investigating Officer. PW-11 also prepared the seizure memo and NCB Forms were filled on the spot. PW-11 also recorded the statements of witnesses. Case property was produced before SHO Sanjiv Kumar Bhatia vide inventory Ext.PW-9/C. Specimen seal impression was retained on a separate piece of cloth Ext.PW-11/D. PW-11/E is the report of CFSL, Chandigarh. Copy of Special Report is Ext.PW-11/F and copy of ruqua is Ext.PW-7/A. PW-11/G is the Jama Talashi of the accused. 3.On conclusion of the investigation into the offence, allegedly committed by the accused, challan was filed under Section 173 of the Code of Criminal Procedure. The accused pleaded not guilty to the charge and claimed to be tried. 4.In proof of the prosecution case, the prosecution examined 11 witnesses. On closure of the prosecution evidence, statement of accused under Section 313 Cr.P.C. was recorded by the Court in which the accused claimed false implication and pleaded innocence. 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 of the NDPS Act. 6.With the able assistance of the counsel appearing on either side, this Court, in, a threadbare manner scrutinized the entire evidence on record. 7.The learned trial Court had imputed insignificance to the following facets of the prosecution case (a) non-association of independent witnesses by the Investigating Officer, though available; (b) absence of examination of Kuldip Kumar and Subhash Kumar; (c) The absence of signatures of PW-1 on the sample seal, taken on a piece of cloth, though, PW-1 had deposed that he had signatured the sample seal, taken on a piece of cloth; and (d) PW-1 and PW-11, though, in their examinations-in-chief having deposed of ‘Charas’ being packed in two polythene bags, yet they have omitted to unanimously and categorically depose that the seized bulk ‘Charas’ was homogeneously mixed and two samples were drawn from it. Rather, in cross-examination PW-2 (Constable Ravinder Kumar) denies the fact that the bulk ‘Charas’ packed in two polythene bags and as purportedly consciously and exclusively carried in a rexine bag by the accused and recovered from his conscious possession, was after weighing, homogeneously mixed. Rather, in cross-examination PW-2 (Constable Ravinder Kumar) denies the fact that the bulk ‘Charas’ packed in two polythene bags and as purportedly consciously and exclusively carried in a rexine bag by the accused and recovered from his conscious possession, was after weighing, homogeneously mixed. The learned Court below had repulsed the contention of the learned defence counsel qua the fact that, hence, in the absence of the bulk ‘Charas’ contained, in, each of the two polythene bags having come to be homogenously mixed, thereupon sample parcels having come to be drawn, no, foundation or good ground, is, laid for the inference that the entire bulk, hence, was not recovered from the purported exclusive and conscious possession of the accused, on the simple score that (i) each of the prosecution witnesses, PW-1 (Constable Dinesh Kumar ), PW-2 Constable Ravinder Kumar and PW-11 (ASI Santosh Kumar) having in their examination­in-chief deposed that samples were drawn from the bulk ‘Charas’ they were to be believed even when they had omitted to categorically depose that samples were not drawn from the homogeneously mixed bulk ‘Charas’ carried not in one, rather, in two polythene bags. Therefore, it is contended that slighting of or making short shrift of the above testimonies has sequelled erroneous findings. 8. The learned Court below in having repulsed and ousted the contentions on the aforesaid material facets canvassed before it, by the learned defence counsel, to the considered mind of this Court has indulged in a gross mis-appreciation of evidence on record, sequelling perverse and absurd findings on the point to be decided. As an aftermath, for the reasons to be recorded herein-after the judgment of conviction, recorded against the accused warrants interference and is not liable to be countenanced in the instant appeal before this Court. (a) Even though law is well settled, that the non-association of independent witnesses, is, not fatal to the prosecution case, unless their non-association is both intentional and deliberate, however, the above canon of law cannot be applied in an omnibus manner. The facts and circumstances of each case have to be incisively scrutinized for determining whether such non-association of independent witnesses, is deliberate or intentional. The facts and circumstances of each case have to be incisively scrutinized for determining whether such non-association of independent witnesses, is deliberate or intentional. The acid test for, determining such non-joining of independent witnesses on the part of the Investigating Officer search, seizure and recovery of contraband being deliberate and intentional, is, whether they have given their immediate availability in the proximate vicinity, were omitted to be joined. On a circumspect reading of the record, it, emerges that independent witnesses were available in the immediate vicinity, yet were omitted to be joined, as, obviously the Investigating Officer intended, to both smother the truth or to carry out the entire proceedings, in a manner bereft of transparency and impartisanship. In the instant case, Constable Dinesh Kumar (PW-1), in his cross-examination, has deposed that a Chowkidar is on 24 hours duty at the Forest Barrier, where the proceedings commenced and had concluded. He, also conceded to the fact that during the day time there is movement of traffic. He conceded to the fact that many shops and residential houses are available in the close vicinity of the Forest Barrier at Salooni. The Investigating Officer (PW-11) in his cross-examination, not only corroborates the testimony of PW-1 qua the availability of independent witnesses immediately contemporaneous to the carrying out proceedings of search and seizure of contraband from the alleged conscious and exclusive possession of the accused, rather, he proceeded further, in as much, as he deposes that 4-5 shops adjoin the Forest Barrier and, people remain present in these shops. The inference, which flows from the fact, as deposed by PW-1 and PW-11 in their respective cross-examinations of availability of independent witnesses in the close vicinity and at a stage immediately contemporaneous to the carrying out the proceedings of search and seizure and recovery of contraband from the purported exclusive and conscious possession of the accused, is, that, hence, they were immediately available to be joined in such proceedings. Their non-joining, is, deliberate and intentional. It is obvious that the Investigating Officer omitted to join them as he intended to smother the truth, of the prosecution case. A firm and inflexible conclusion also can be drawn that, hence, the proceedings carried out at the site of occurrence assume a hue of partisanship. Besides the proceedings can be dubbed to be inventive as well, as, a mere sham. 9. A firm and inflexible conclusion also can be drawn that, hence, the proceedings carried out at the site of occurrence assume a hue of partisanship. Besides the proceedings can be dubbed to be inventive as well, as, a mere sham. 9. The learned Court below has brushed aside the contention of the learned defence counsel qua the non-examination of Kuldip Kumar and Subhash Kumar, in, an ultra- perfunctory manner. ASI Santosh Kumar (PW-11), in his cross-examination, admits the fact of PW-Kuldip Kumar having been called at the spot after the accused had been nabbed. The presence of SPO Subhash Kumar at the spot at the time when the entire proceedings were conducted at the site of occurrence, remains uncontroverted. Their testimonies would have unraveled the truth qua the occurrence. It is worthwhile that the Investigating Officer not only omits to depose the availability of independent witnesses in the immediate vicinity at the site of occurrence, though, immediately available at the stage contemporaneous, to, the conclusion of the proceedings with a pre-concluded obvious intention, to smother the truth. Obviously, the prosecution, concerts, to, also smother the truth by omitting to examine both Kuldip Kumar and Subhash Kumar. The testimonies of police witnesses, when there has been a deliberate and intentional omission on the part of the Investigating Officer to associate independent witnesses, concomitantly acquire no hue of veracity or impartisanship. As a natural corollary, then the omission on the part of the prosecution to associate and examine Kuldip Kumar and SPO Subhash Kumar or to cite and examine them, appears to be an exercise on the part of the Investigating Officer to smother the truth qua entire occurrence. As a sequel then it has to be firmly held that the prosecution case, is, wholly incredible. 10.It is an imperative duty as well as a statutory obligation, cast upon the Investigating Officer after his having homogeneously mixed the bulk contraband, to draw samples from it. However, in the instant case, the learned Court omitted to accord relevance to the fact that both Constable Dinesh Kumar (PW-1) and ASI Santosh Kumar (PW-11) omitted in their respective examination­in-chief pointedly to depose qua the fact of ‘Charas’ recovered from the purported conscious and exclusive possession of the accused while being carried by the accused in two polythene bags, came to be homogeneously mixed and two samples, of equal quantum drawn there-from. Besides when Constable Ravinder Kumar (PW-2) in his cross-examination has denied the suggestion that the entire bulk ‘Charas’ contained in two polythene bags was homogeneously mixed and two samples were drawn from it, hence, an inference can be drawn that there was an omission on the part of Investigating Officer to carry out the statutory mandate. The learned Court below ought to have hence adversely concluded against the prosecution, rather than erroneously relieve the Investigating Officer of the statutory obligation cast upon him and consequently convict him. In case the said obligation remained un-complied with, the obvious sequel was of the samples being not drawn from the homogeneously mixed ‘Charas’ carried in two polythene bags, rather, it rendered open an inference, that samples may have been drawn only from the ‘Charas’ carried, in one polythene bag, though, it was required to be drawn from the homogeneous mixture of ‘Charas’ carried in two polythene bags. The further, concomitant, is, that the sample as sent for analysis to the FSL and on which opinion was returned to purportedly link or connect the accused was only qua one bulk ‘Charas’ carried in one polythene bag and not with the bulk ‘Charas’, if any, carried at the relevant time in the other polythene bag. Naturally, then, a, deduction also ensues that the prosecution story of the accused having carried ‘Charas’ in two polythene bags comes to be smothered and benumbed and, hence, the entire prosecution story, is, permeated with doubt. 11.Lastly, insignificance ought not to have been untenably attributed to the fact of absence of signatures of the PW-1 (Constable Dinesh Kumar) on the sample seal taken on a piece of cloth, especially when he deposes to that effect. The above facet devolved upon the factum of presence of the aforesaid at the time of commencement of proceedings, as also, upon the fact of the case property as recovered having remained intact from the stage of its recovery till its transmission, to the FSL for analysis. Hence, this Court, holds, that the absence of signatures, in contradiction to the testimony of PW-1 (Constable Dinesh Kumar) on sample seal taken on a piece of cloth, renders open an inference of not only the case property having come to be tampered with, but also of PW-1 deposing qua a case other than the instant one. 12. Hence, this Court, holds, that the absence of signatures, in contradiction to the testimony of PW-1 (Constable Dinesh Kumar) on sample seal taken on a piece of cloth, renders open an inference of not only the case property having come to be tampered with, but also of PW-1 deposing qua a case other than the instant one. 12. In view of the above discussion, the appeal is allowed and the impugned judgment rendered on 17th May, 2008, by the learned Special Judge, Fast Track Court, Chamba, District Chamba, H.P., in Sessions Trial No.28/2008/07, is set aside. The appellant/accused is acquitted of the offence charged. The appellant be set at liberty forthwith, if not required in any other case. 13.Record of the trial Court be sent down forthwith.