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Himachal Pradesh High Court · body

2014 DIGILAW 755 (HP)

Layak Ram v. State of H. P.

2014-06-18

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT Sureshwar Thakur, Judge. This appeal is directed against the judgment rendered on 31.3.2008, by the learned Additional Sessions Judge (Special Judge II), Mandi, H.P, in Sessions trial No. 14 of 2006, whereby the appellant/accused has been convicted and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. One lac, for the commission of offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, and, in default of payment of fine, he has further been sentenced to undergo rigorous imprisonment for six months. 2. The prosecution case, is, that on 10.8.2006, Head Constable Ram Lal alongwith LHC Kishori Lal and LC Rakesh Kumar, was present at New Bus Stand, Sundernagar. At about 4.30 p.m., they sighted the accused running towards the gate of the bus stand, with a polythene bag, in, his hand. On chase, they overpowered the accused. On inquiry, HC Ram Lal recovered a polythene bag Ex. P-2 from the accused and on its checking, it, was found containing two other polythene bags Ex. P-3 and P-4, which were found to be containing charas Ex. P-5 in the shape of sticks. The charas was weighed and was found to be 1 kg. 870 grams in weight. Out of charas recovered, two samples of 25 grams each were separated and the remaining charas was packed in separate parcels and were sealed with seal impression ‘R’. HC Ram Lal filled in the NCB form. The case property was taken into possession and the recovery memo was prepared. The accused was arrested by H.C Ram Lal. H.C Ram Lal sent rukka through LHC Rakesh Kumar to police Station, Sundernagar, where FIR was registered against the accused. The case was investigated by HC Ram Lal who prepared spot map and also recorded the statement of witnesses. 3. On completion of the investigation into the offence, allegedly committed by the accused, challan under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, came to be filed against the accused. 4. The accused did not plead guilty to the charge and claimed to be tried. 5. In proof of the prosecution case, the prosecution examined as many as 14 witnesses. On closure of the prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded by the Court, in which he claimed innocence and pleaded false implication. 5. In proof of the prosecution case, the prosecution examined as many as 14 witnesses. On closure of the prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded by the Court, in which he claimed innocence and pleaded false implication. 6. On closure of proceedings under Section 313 of the Code of Criminal Procedure, the accused was given an opportunity to adduce evidence in defence, however, he did not adduce any evidence in defence. 7. Consequently, on hearing the learned Public Prosecutor, as well as, the learned defence counsel, the learned trial Court, on the strength of the material laid before it, convicted and sentenced the accused, for his having committed an offence punishable under Section 20 of Narcotic Drugs and Psychotropic Substances Act. 8. The first witness, who stepped into the witness box, in proof of the prosecution case, is, PW-1 Shri Manohar Lal. He deposed that he was posted at Police Station, Sunderngar. He further deposed that on 10.8.2006, he was on duty, in, the bus stand, Sundernagar. At about 4.30 p.m., on the date aforesaid, one person identified to be the accused, present in the Court, was chased by him, while running from inside the bus stand with a polythene bag in his hand. One shopkeeper was also accompanying the police at the time. On inquiry, the accused disclosed his name to be Layak Ram alias Lucky. On checking, the polythene bag recovered from the accused, charas in the shape of sticks, was found kept in another bag inside the polythene bag. The polythene bag as carried by the accused has been deposed to be, of green colour. Weights and scales were procured, and, the recovered charas was weighed and the same was found to be 1 Kg. 870 grams in weight. Subsequently, two samples of 25 grams each were separated, out of, the recovered charas, and, the samples were packed and sealed in separate four square cigarette packets. The cigarette packets were sealed, in, a separate piece of cloth. However, he, feigned ignorance qua the seal impression. The remaining charas was separately sealed in another parcel. Subsequently, the accused was arrested. The relevant documents were scribed and signed by the witnesses. The documents have also been deposed to have been signed by the accused, as well, as, by the witnesses. Search and seizure form Ex. However, he, feigned ignorance qua the seal impression. The remaining charas was separately sealed in another parcel. Subsequently, the accused was arrested. The relevant documents were scribed and signed by the witnesses. The documents have also been deposed to have been signed by the accused, as well, as, by the witnesses. Search and seizure form Ex. PW-1/A has been deposed to be bearing his signatures. Sealed parcel Ex. P-1 has been deposed to be sealed on the spot. Hans Raj has been deposed to be a witness of the spot. Ex.P-1 has been deposed to have also been signed by the accused. Polythene packet which was recovered from the accused has been deposed to be Ex. P-2 and another Bag, in, it, has been deposed to be Ex.P-4 and charas has been deposed to be Ex.P-5. Sample has been deposed to be sealed in parcel Ex.P-6. One part of the sample charas has been deposed to be sealed in parcel Ex.P-7 and to be bearing his signatures. In his cross-examination, he has admitted the suggestion put to him by the learned defence counsel, that several persons were inside the bus stand. He deposed, that except him and Hans Raj, the police did not take any steps to associate any other person, to, join in the proceedings relating to search, seizure and recovery. 9. PW-2, LHC Rakesh Kumar has also corroborated the testimony of PW-1. He deposed, in, tandem and in corroboration to the testimony of PW-1. He, too, in his cross-examination, like PW-1 has admitted the suggestion put to him by the learned defence counsel, that, there were about 100 to 150 persons, at, the bus stand, besides it, he has lent corroboration, to, the testimony of PW-1, that, except Hans Raj and Manohar Lal, no other person was concerted by the Investigating Officer, to be associated, in, the proceedings relating to search, seizure and recovery. 10. PW-3 Constable Kishori Lal, likewise, has corroborated the testimonies of the preceding witnesses. He, too, corroborates the testimonies of PW-1 and PW-2 qua the fact of there being 100 to 150 persons present in the bus stand, at, the relevant time. 10. PW-3 Constable Kishori Lal, likewise, has corroborated the testimonies of the preceding witnesses. He, too, corroborates the testimonies of PW-1 and PW-2 qua the fact of there being 100 to 150 persons present in the bus stand, at, the relevant time. Even though, he deposed that the Investigating Officer had requested other persons, present in the bus stand, to join as witness, nonetheless he has omitted to depose that, on, such request having been made by the investigating Officer, they, had refused to join in the proceedings relating to search, seizure and recovery of the contraband, hence, were not cited. 11. PW-4 Naresh Kumar deposed, that, on 10.8.2006, Constable Kishori Lal came to his shop and took electronic scales from his shop and after half an hour, he, returned the electronic scales to him. 12. PW-5 HC Rameshwar Dass deposed that, on 10.8.2006, Constable Rakesh Kumar brought rukka to the police Station, Sundernagar, on the basis of which, FIR Ex.PW-5/A came to be registered and signed by him. He appended his endorsement on Ex. PW-5/B. On the same day, SHO N.K Sharma deposited with him three sealed parcels, bearing seal impressions ‘N’ & ‘R’, NCB form in triplicate and on 14.8.2006, he sent one parcel containing sample vide RC No. 78 of 2006, through Constable Suresh Kumar, to, the chemical examiner Kandaghat. He has deposed, to, have also sent NCB form , copy of FIR and docket alongwith sample to the Chemical Examiner. The sample was not received by the Chemical examiner, CTL Kandaghat and Constable Suresh Kumar brought back the parcel containing sample and other articles, and, deposited the same with him, whereupon, he then deposited them in the Malakhana. So long the case property remained in his custody, he did not tamper with the seal on the parcel. He had entered the case property, in, the Malkhana register at Sr. No. 1157/2006, copy of which is Ex. PW-5/C, which has been deposed to be correct as per the original register brought by him in Court. Copy of RC Ex. PW-5/D has been deposed to be correct as per the original. He had entered the case property, in, the Malkhana register at Sr. No. 1157/2006, copy of which is Ex. PW-5/C, which has been deposed to be correct as per the original register brought by him in Court. Copy of RC Ex. PW-5/D has been deposed to be correct as per the original. In his cross-examination by the learned defence counsel, he, deposed that the malkhana register shown to him in the Court, is, a subsequent register, whereas, qua the initial deposit of the case property, an entry was made in the earlier register, which he has deposed to have not been shown to him in the Court. He further deposed that sample was sent back by CTL Kandaghat with an oral communication that the sample be sent, to, CFSL Chandigarh. He has also admitted the fact that Constable Suresh Kumar, after returning from CTL, Kandaghat, deposited the parcel containing sample with him. He had entered the same in the Malkhana Register. He further deposed that the said register has not been shown to him in the Court. He further deposed that the Malkhana Register which was brought by him in Court, does not contain the entry regarding deposit of the sample parcel by Constable Suresh Kumar. 13. PW-8 Constable Suresh Kumar deposed, that, on 14.8.2006, MHC Rameshwar Dass, handed over to him one parcel containing sample, specimen seal impression ‘R’ and ‘N’, NCB form, copy of FIR, seizure memo vide RC No. 78/2006, to, deposit with CTL, Kandaghat. He took the aforesaid articles to CTL, Kandaghat and officials of the CTL Kandaghat verbally told him to send the sample for analysis to CFSL, Chandigarh. He brought back the aforesaid case property, and deposited the same, with MHC Rameswhar Dass. He has deposed that so long the case property remained with him, it was not tampered with. 14. PW-9 HC Vinod Kumar deposed that on 11.8.2006, Shri M Chandershekar, S.P Mandi, handed over to him Special Report Ex. PW-9/A with a direction to enter the same in Special Report Register. He entered the report at Sr. No. 23 of the register maintained in the Office. He has deposed that he has brought the original register today. He further deposed that the SP made endorsement in circle ‘B’, being conversant with his signatures. 15. PW-9/A with a direction to enter the same in Special Report Register. He entered the report at Sr. No. 23 of the register maintained in the Office. He has deposed that he has brought the original register today. He further deposed that the SP made endorsement in circle ‘B’, being conversant with his signatures. 15. PW-10 Naresh Kumar, Dy.S.P. deposed that on 10.8.2006, HC Ram Lal handed over to him case property of this case i.e. two samples sealed with seal impression ‘R’, 1/3rd parcel also sealed with seal impression ‘R’, NCB form, specimen seal impression ’R’ alongwith file and the accused to him. He resealed the three parcels with his own seal having impression ‘N’ and he had also embossed seal impression ‘N’ on the NCB form comprised in Ex. PW-10/A. He had also taken specimen seal impression ‘N’ on a piece of cloth Ex. PW-10/B and thereafter he deposited the case property, NCB form, specimen seal impression R and N, with the MHC of the Police Station. He further deposed that on completion of the investigation, challan was prepared and presented before the court. He had re-sealed the case property in parcel Ex. P-8, which bears his signatures. One parcel containing sample was resealed by him in parcel Ex.P-9. He further deposed that he had mentioned in his report Ex.PW-9/A that NCB form and specimen seal impression were deposited with him by the Investigating Officer. He has not specifically written in Ex.PW-9/A as to with which seal impression, he resealed the case property. On his cross-examination, by learned defence counsel, he feigned ignorance qua the parcel containing sample, having been returned by Chemical examiner CTL, Kandaghat. 16. PW-11 HC Lalit Kumar corroborates the testimony of PW-1. He further deposed that on 11.8.2006, SHO Naresh Kumar handed over to him special report, for, depositing the same, in, the office of SP Mandi and he brought the same in the Court. 17. PW-12 HC Ram Lal further corroborates the testimonies of PW-1 and PW-2. He has further deposed that he handed over the case file, case property, NCB form, specimen seal impression ‘R’ and also the accused to SHO Naresh Kumar for re-sealing the case property and for further investigation. He further deposed that he had sealed the remaining 1 kg. 820 grams charas alongwith the polythene bags in parcel Ex. He has further deposed that he handed over the case file, case property, NCB form, specimen seal impression ‘R’ and also the accused to SHO Naresh Kumar for re-sealing the case property and for further investigation. He further deposed that he had sealed the remaining 1 kg. 820 grams charas alongwith the polythene bags in parcel Ex. P-1, which bears his signature, as, well as the signatures of witnesses Manohar Lal and Hans Raj. 18. PW-13 SI Subhash Chand, Police Station, Nahan has deposed that he had conducted part investigation, of the case. 19. PW-14 Inspector Dilshaad Mohammad has deposed that on 19.1.2007, SI Prem Dass inadvertently attached report of chemical examiner of case FIR No. 330/2006 with this challan. Thereafter, he had moved an application before the learned Addl. Sessions Judge, Mandi, with a request to return the report of chemical examiner pertaining to this case, which was allowed and the learned Sessions Judge, Mandi returned report of the chemical examiner of Case FIR No. 310/2006 and then he obtained NCB form of this case from CFSL, Chandigarh and prepared supplementary challan and presented the same before the court. Report of the Chemical examiner is Ex. PX and NCB form is Ex. PW-10/A. In his cross-examination he deposed that copy of NCB form was not present in the Court alongwith supplementary challan as the same was not available at that time. He omitted to recall the date when the report of the chemical examiner CFSL, Chandigarh was received in the police Station. He further deposed that he sent one constable to collect NCB form Ex. PW-10/A from CFSL, Chandigarh. However, he, feigned ignorance as to which date a Constable was sent to collect the NCB form. He further deposed that, it, is incorrect that NCB form was manufactured later on and was not sent to CFSL, Chandigarh. He had given in writing to CFSL, Chandigarh about NCB form. He feigned ignorance qua the fact whether the chemical examiner, sent NCB form alongwith his forwarding letter. 20. Learned counsel appearing for the accused-appellant has canvassed with force and vigor before this Court that the entire prosecution story is bedrocked upon discrepant evidence on record, hence, the findings of conviction anchored upon, it has occasioned substantial miscarriage of justice. Therefore, the learned defence counsel has canvassed, that, the findings of conviction, rendered against the accused, be reversed by this Court. 21. Therefore, the learned defence counsel has canvassed, that, the findings of conviction, rendered against the accused, be reversed by this Court. 21. On the other hand, the learned Deputy Advocate General contends before this Court, that, the findings of conviction, recorded against the accused/appellant, is, based on a mature and balanced appreciation of the evidence on record and necessitates no interference. 22. The testimonies of the official witnesses, as, discussed hereinabove, are, in tandem with each other and do corroborate the fact of the accused/appellant being on the fateful day, in, conscious and exclusive possession of the contraband. However, the testimonies of the official witnesses remained uncorroborated by the testimony of any independent witness. Even the sole independent witness Hans Raj, joined by the Investigating Officer, in, the proceedings relating to search, seizure and recovery has been given up by the prosecution, on the score of his having been won-over. Even though, nonassociation of independent witnesses, is, not fatal to the prosecution, however, it assumes significance when despite availability, the Investigating Officer omits to join independent witnesses, in the proceedings, relating to search, seizure and recovery of the contraband. Their association when available imbues the entire proceedings, with a hue of impartisanship and dis-interestedness. In the instant case, as deposed by PWs No. 1, 2 and 3, there was a crowd of 100 to 150, people available at the site, where the proceedings relating to search, seizure and recovery of contraband had come to commence and conclude. However, none other than Hans Raj, who was given up by the prosecution, was, associated by the police, in the proceedings relating to search, seizure and recovery. Given the sizeable number of witnesses at the site of occurrence, it is sheer enigmatic, that, the Investigating Officer only chose to associate one Hans Raj, as, a witness. He too was given up. It was the solemn duty of the Investigating Officer to have persevered, given the sizeable number of witnesses available at the site of occurrence, to associate, not, one but more than one as witnesses, so as to obviate the possibility or likelihood of the one as associated in the proceedings relating to search seizure and recovery turning hostile or hence, causing harm to the prosecution case, on his being won over. However, the investigating officer omitted to exercise any discerning caution. However, the investigating officer omitted to exercise any discerning caution. His omission to exercise any caution, in as much, as, his failing to perceive that the solitary independent witness, though joined, being, in all likelihood subjected to the vulnerability of his being won over by the accused, portrays, his negligence, in, not joining other independent witnesses, whose association despite availability would have aided the prosecution case by lending to it, an, impartisan colour, rather then torpedo it, as had happened. The impact of non-joining as well as non-association of independent witnesses, though, available at the relevant time, that, too in sizable number, has to be concluded by this Court, to be fatal to the prosecution case, in as much as rendering the version, conveyed by the prosecution, to be unbelievable. The further evidence on record which magnifies and compounds the discrepancy with which prosecution case is rife with rendering it unbelievable is :- (a) PW-5 has deposed, in, his cross-examination, that, the case property was initially sent for analysis to CTL, Kandaghat. However, it, was orally returned by the officials of the CTL, Kandaghat, with the request that the parcels be sent to CFSL, Chandigarh. This witness, has, though deposed, that, the police Constable Suresh Kumar, who was carrying the parcels to CTL, Kandaghat, and, who had returned carrying the same, and, had on return deposited the parcels with him, whereupon, he, made an entry in the apposite Malkhana register. Nonetheless, he has deposed, that, said register has not been shown to him in the Court. He deposed, that, the Malkhana register, brought by him, does not contain the entry regarding deposit of the sample parcels by Constable Suresh Kumar on return with them from CTL, Kandaghat. Consequently, even when this witness has deposed that when Constable Suresh Kumar returned with sealed parcels sent for analysis to CTL Kandaghat, he then deposited the same, in, the Malkhana and he had made an entry in the apposite register. Yet, when on the register having shown to him in the Court, he deposed that, no, apposite entry qua, its, deposit exists therein. Yet, when on the register having shown to him in the Court, he deposed that, no, apposite entry qua, its, deposit exists therein. Consequently, it was the solemn obligation and an onerous duty cast on the prosecution, to, produce the apposite register, reflecting the entry of, its, deposit by PW-5, or the register portraying the fact as deposed by PW-5 that, on return Constable Suresh Kumar, had handed over the case property, to, him and he had deposited, it, in the Malkhana register. Omission on the part of the prosecution to do so, spurs an inference, that, the oral testimony, of, PW-5 qua the fact of Constable Suresh Kumar, having deposited with him, on return from CTL, Kandaghat, the parcels, sent, through him to CTL Kandaghat, in, the absence of adduction of best evidence comprised in the production of the apposite register, is hence, incredible. The further inference which concomitantly arises, is, that the sample parcels as subsequently transmitted through the police official to CFSL, Chandigarh, was not retrieved from the Police Malkhana. As a sequel the inference which ensues is that some other parcels, than the one, which were recovered from the conscious and exclusive possession of the accused, at the site of occurrence, and, as, were earlier sent to CTL, Kandaghat, were not sent subsequently to Chandigarh, for, analysis and examination. Therefore, the opinion rendered on the parcels sent to CFSL, Chandigarh, is, to be concluded to be not connecting the accused in the commission of offence, it being on some other parcel. Accentuation to the inferences, aforesaid is lent, by the fact, that, the NCB form accompanying the parcels sent for chemical examination, to, CFSL, Chandigarh, contains eight columns, whereas, the columns which are required to be comprised, in, a standard NCB form are 12. It appears that, hence, the deficiency in the columns of NCB form, as, sent alongwith the parcels, purportedly recovered from the exclusive and conscious possession of the accused, unfolds the fact that, it, was not the one, as, was filled up on the spot by the Investigating Officer. It, appears that the NCB form as initially sent alongwith the parcels for examination of its contents to the CTL, Kandaghat, may well have been replaced by another NCB form, as, sent along with the parcels for examination to CFSL, Chandigarh. It, appears that the NCB form as initially sent alongwith the parcels for examination of its contents to the CTL, Kandaghat, may well have been replaced by another NCB form, as, sent along with the parcels for examination to CFSL, Chandigarh. Consequently, the NCB form as accompanying the parcels sent for examination or for rendition of an opinion by the CFSL, Chandigarh, is, to be concluded to be a substituted NCB form, whose contents were not filled up at the spot, rather, its contents were filled up subsequently. Therefore, it appears that, it, is a wholly manufactured and concocted document on which, no, reliance can be placed by this Court, in, concluding that, it, comprises evidence of probative worth, in, connecting the accused with the offence, in as much, as, it was prepared at the spot and at the time of proceedings relating, to, search seizure and recovery. 20. Accordingly, the appeal is allowed and the judgment of conviction and sentence dated 31.3.2008, rendered by the learned Additional Sessions Judge (Special Judge II), Mandi, H.P, under Section 20 of the NDPS Act, is, set aside. The accused is acquitted of the charge framed against him. The fine amount, if any, deposited by him, is ordered to be refunded to him. Since, the accused is in jail, he be released forthwith, if not required in any other case. 21. 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.