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Himachal Pradesh High Court · body

2015 DIGILAW 1507 (HP)

Gulshan Kumar v. State of H. P.

2015-10-14

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT : Sureshwar Thakur, J. This appeal is directed against the judgment rendered on 18.03.2015 by the learned Special Judge, Mandi, in Sessions trial No. 25/2010 whereby the latter convicted and sentenced the accused for his having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act. 2. The accused/convict is aggrieved by the renditions of the learned Special Judge, Mandi. Being aggrieved, he has by instituting the instant appeal before this Court assailed the findings recorded therein. A prayer has been made therein that his appeal be accepted and the findings of conviction recorded against him by the learned trial Court qua his having committed an offence punishable under Section 20 of the NDPS Act be reversed and set-aside in the exercise of appellate jurisdiction by this Court. 3. The prosecution story, in brief, is that ASI Amar Nath, Constable Ajit Singh, ASI Ramesh Prashar, Constable Ganesh Dass, HHG Parshotam Dass and HHG Mitter Dev had gone for patrolling in an official vehicle after lodging rapat. The police party started search of the vehicles on 1.1.2010 and at about 3.15 p.m on national highway 21 accused was found sitting on the parapet of the road. On seeing the police party he became perplexed and tried to escape. He was apprehended. On search of the bag carried by the accused charas was found in a polythene packet. On weighment, the charas was found to be 1 kilogram 800 grams. The charas and polythene packet were kept in a cloth parcel and were sealed with 8 seals of impression ‘Y’ in presence of independent witness Bholu Ram. Sample seal was drawn and facsimile of seal was obtained on NCB form filled in triplicate on the spot. Thereafter the Investigating Officer prepared rukka and sent the same to police station through constable Ajit Singh on which basis F.I.R was registered by SHO Shreshta Thakur. The Investigating Officer prepared spot map and recorded the statements of the witnesses. The case property was resealed by SHO Shreshta Thakur with seals of impression ‘A’ and thereafter the case property alongwith relevant documents were deposited with Kashmir Singh the then MHC. On 3.1.2010 the parcel containing contraband alongwith sample seals, NCB forms and seizure memo etc. were sent to Forensic Science Laboratory, Junga through constable Narender Kumar who deposited the same at FSL, Junga. On 3.1.2010 the parcel containing contraband alongwith sample seals, NCB forms and seizure memo etc. were sent to Forensic Science Laboratory, Junga through constable Narender Kumar who deposited the same at FSL, Junga. Thereafter, FSL’s report was obtained which proved that the parcel containing extract of cannabis and sample of charas. 4. After completion of the investigation, challan, under Section 173 of the Cr.P.C. was prepared and filed in the Court. The trial Court charged the accused for his having committed an offence punishable under Section 20 of the NDPS Act to which he pleaded not guilty and claimed trial. 5. In order to prove its case, the prosecution examined as many as 10 witnesses. On closure of the prosecution evidence, the statement of the accused under Section 313 Cr.P.C. was recorded, in which he pleaded innocence. On closure of proceedings under Section 313 Cr.P.C. the accused person was given an opportunity to adduce evidence, in defence, and he chose to adduce evidence in defence. 6. The accused/appellant is aggrieved by the judgment of conviction recorded by the learned trial Court. Shri Anuj Nag, Advocate, 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. 7. On the other hand, the learned Assistant Advocate General appearing for the 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. Recovery of charas weighing 1 kilogram & 800 grams was effected from a carry bag held by the accused. 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. Recovery of charas weighing 1 kilogram & 800 grams was effected from a carry bag held by the accused. The carry bag wherefrom charas weighing 1.800 kilograms was recovered was taken into possession under memo Ext.PW-1/A. 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 stand established, it would be legally unwise for this Court to acquit the accused. 10. Besides when the testimonies of the official witnesses, unravel the fact of theirs being bereft of any interse or intra-se contradictions hence, they too enjoy credibility for sustaining thereupon the findings of conviction recorded against the accused by the learned trial Court. Apparently, proof of the prosecution case is endeavoured to be sustained on the strength of the unblemished testimonies of the police witnesses. Apparently, proof of the prosecution case is endeavoured to be sustained on the strength of the unblemished testimonies of the police witnesses. A close and studied perusal of the depositions of the police witnesses underscores the factum that they have therein neither given a version qua the factum of recovery of contraband from the exclusive and conscious possession of the accused inconsistent with the manner thereof as recited in the F.I.R. Ext.PW-9/C, for begetting a conclusion that hence their testimonies in their respective examinations in chief are ridden with the vice of embellishments and improvements vis-a-vis their previous statements recorded in writing nor also when the versions qua the alleged occurrence deposed by the prosecution witnesses in their respective examinations in chief stand not contradicted by the versions thereof comprised in their respective cross examinations, necessarily when their testimonies are not ridden with any vice of inter se contradictions so as to render them to be blemished and unworthy of credence besides when their respective depositions are not afflicted with any vice of intra se contradictions rather when they have respectively deposed qua the manner of recovery of charas from the alleged conscious and exclusive possession of the accused bereft of any disharmony or inconsistency, gives leverage to the inference that hence the prosecution has been able to sustain the charge against the accused of charas weighing 1.800 Kgs. having been recovered from his conscious and exclusive possession while his carrying it in a carry bag held by him and which was seized under memo Ext.PW-1/A. 11. Be that as it may, given the manner of recovery of charas from the conscious and exclusive possession of the accused inasmuch as it having come to be recovered from a bag held by him in his right hand necessarily hence, when it was not recovered from either his pocket or its being inextricably strapped with any part of his body in event whereof compliance by the Investigating Officer with the mandatory provisions of Section 50 of the NDPS Act was imperative, inasmuch as his being then enjoined to under an apposite consent memo elicit from the accused his consent of search of his person being carried out either by the Executive Magistrate or a Gazetted Officer or by the police official eliciting his consent. Contrarily when it was recovered from a bag held by him necessarily the said manner of the accused carrying it when did not constitute its being strapped inextricably with any portion of his body necessarily then compliance by the Investigating Officer with the provisions of Section 50 of the NDPS Act was not enjoined to be meted out by him. Nor also when it was not a case of prior information rather was a chance recovery concomitantly also then compliance with the mandate of Section 42 of the NDPS Act was not enjoined to be meted out by the Investigating Officer. 12. However, even though the official witnesses through their recorded depositions on oath have proven the factum of recovery of charas under memo Ext.PW-1/A from the alleged conscious and exclusive possession of the accused while his carrying it in a bag held by him besides when their testimonies comprised in their respective examinations in chief are bereft of any taint of inter se contradictions vis-à-vis their depositions comprised in their respective cross-examinations nor also when their testimonies are not ingrained with the vice of intra se contradictions necessarily then when their testimonies inspire confidence and are credible obviously reliance is to be imputed to them while concluding qua the guilt of the accused. Nonetheless before proceeding to place implicit reliance upon their testimonies, it is also imperative for this Court to gauge or discern from the available evidence on record whether independent witnesses were available in the immediate vicinity of the locality where the proceedings relating to search, seizure and recovery of contraband from the alleged conscious and exclusive possession of the accused in the manner as deposed by the official witnesses, were launched and concluded. The Investigating Officer, is not obliged to associate independent witnesses while initiating proceedings qua search and recovery of contraband from the alleged conscious and exclusive possession of the accused nor also the non association of independent witnesses by the investigating officer in the proceedings relating to search and recovery of contraband from the alleged conscious and exclusive possession of the accused would oust or discount the probative worth of the testimonies of the official witnesses. However, when independent witnesses despite proven evidence of theirs being available in close proximity to the location where the proceedings relating to search and recovery of contraband from the conscious and exclusive possession of the accused were launched or carried out, are not associated, such non association of independent witnesses by the Investigating Officer despite their availability would nurse an inference that their non association was deliberate or intentional. Concomitantly also it would give succor to an inference that the Investigating Officer, despite availability of the independent witnesses in the vicinity of the location where the proceedings relating to search and recovery of contraband from the conscious and exclusive possession of the accused were launched or concluded, omitted to join them, as he intended to smother the truth qua the genesis of the prosecution version. The genesis of the prosecution version would gain credence with this Court only when it is free from the taint of it having been reared by a partisan or a slanted investigation having been carried out by the investigating officer. The investigation carried out by the Investigating Officer would garner an element of slantedness or distortion when the investigating officer despite availability of independent witnesses deliberately omits to join them in the proceedings relating to search and recovery of contraband from the purported exclusive and conscious possession of the accused. Consequently, a slanted or distorted investigation by the Investigating Officer would erode the genesis of the prosecution story. 13. Furthermore, when the depositions of the official witnesses stand corroborated by the deposition of an independent witness comprised in the testimony of PW-2 necessarily then the genesis of the prosecution case acquires reinforced vigour and sustenance. However, the acceptance of the genesis of the prosecution case anvilled upon the testimonies of the prosecution witnesses besides its standing succor from the deposition of PW-2, would only be with trepidation or extreme wariness on the part of this Court, as the factum of whether PW-2 was an invented witness, is to be discerned from the testimonies rendered on oath both by PW- 2 and PW-9 the Investigating Officer. In the event of this Court fathoming therefrom the fact that PW-2 is an invented witness necessarily then the introduction of an invented witness by the Investigating Officer in the apposite proceedings would cast a blur upon the fairness as also the transparency of investigation. In the event of this Court fathoming therefrom the fact that PW-2 is an invented witness necessarily then the introduction of an invented witness by the Investigating Officer in the apposite proceedings would cast a blur upon the fairness as also the transparency of investigation. Obviously then the investigation carried out by the investigating Officer would be rendered flawed besides skewed facilitating an inference of it being amenable to a concomitant deduction hence being drawable by this Court of its not inspiring its trust and confidence. Apart therefrom the evidence as existing on record has to be closely gauged for disinterring therefrom whether independent witnesses other than PW-2 were available for theirs being associated in the apposite proceedings carried out by the Investigating Officer, who yet were omitted to be associated despite theirs availability, spurring a concomitant inference from this Court that such an omission on the part of the Investigating Officer was both deliberate as well as intentional merely to smother the truth qua the genesis of the prosecution case. Sequelly then a smothered and tainted investigation would not gain credence from this Court. Initially for gauging whether PW-2 is an invented witness, the occurrence of the fact in his testimony of the apt proceedings having stood commenced/launched at the site of occurrence at about 2.15 p.m. is material, in as much as it is in blatant contradiction to the testimony of the investigating officer who while deposing as PW-9 has therein recorded on oath the fact that the apposite proceedings at the site of occurrence stood commenced at about 3.15 p.m. The open rife contradiction intra se PW-2 and PW-9 qua the aforesaid material fact about the timing of the commencement of the apposite proceedings at the site of occurrence on the relevant date obviously constrains a deduction from this Court that, PW-2 is an invented witness. In other words, if the testimony of the Investigating Officer of the apt proceedings having stood commenced at 3.15 p.m. on the relevant date is to be believed, then the testimony of PW-2 of the apt proceedings at the relevant date having commenced at about 2.15 p.m. is rendered oustable besides unworthy of credit. The ensuing inference which is garnerable therefrom is that PW-2 is an invented witness. The ensuing inference which is garnerable therefrom is that PW-2 is an invented witness. The conclusion as drawn by this Court of PW-2 being an invented witness renders any reliance upon his testimony by the prosecution to lend corroborative strength to the genesis of its case, to be both misconceived as well as legally ill-founded. With the Investigating Officer having invented an independent witness to the apposite proceedings besides fillips the sequel of his intending to smother the truth qua the genesis of the prosecution version, naturally a smothered version qua the genesis of the prosecution case cannot be foisted with any veracity. Moreover, the inference of PW-2 being unavailable at the site of occurrence at the time contemporaneous to the initiation of the apposite proceedings thereto is garnered by (a) the existence of an admission in his deposition comprised in his cross-examination of his photo figuring in photograph Ext. D-4 having been clicked on the day subsequent to the initiation of the apposite proceedings (b) his having in his deposition comprised in his cross-examination conceded qua his having not signed the recovery memo contemporaneously with the official witnesses. 14. Be that as it may, it is now to be ferreted from the evidence on record whether on the relevant date at the time contemporaneous to the commencement of the apposite proceedings by the Investigating Officer independent witnesses were available in proximity to the site of occurrence for theirs being associated in the apposite proceedings by the Investigating Officer. In case the evidence on record on its rummaging unravels the fact that independent witnesses were available at the site of occurrence the omission on the part of the Investigating Officer to associate them in the apposite proceedings would be construable to be an intentional and deliberate omission on his part, casting aspersions upon the transparency of the investigation carried out by him, rendering amenable to disbelief the genesis of the prosecution version. The apt evidence which underscores the factum of independent witness being available in proximity to the site of occurrence at the time contemporaneous to the launching of the apposite proceedings by the Investigating Officer, is encompassed in the testimony comprised in the cross-examination of PW-9 wherein he has deposed that he did not count the vehicles which crossed the site of occurrence. The aforesaid deposition of the Investigating Officer existing in his cross-examination underscores the factum of vehicles having at a stage contemporaneous to the initiation of apposite proceedings by him at the site of occurrence, crossed therefrom. The Investigating Officer was peremptorily enjoined to hence facilitate an aura of transparency besides impartisanship gather around the investigation carried out by him, stop the vehicles which crossed the site of occurrence at the time contemporaneous to the commencement of the apposite proceedings therein at his instance for hence soliciting the participation of theirs drivers, conductors besides their occupants as witnesses in the apposite proceedings. However, the Investigating Officer neither stopped the vehicles which crossed the site of occurrence at the time contemporaneous to the commencement of the apposite proceedings at his instance at the site of occurrence nor obviously he solicited their association as witnesses in the apposite proceedings, necessarily then when independent witnesses were available to be joined in the apposite proceedings, the non joining of independent witnesses by the Investigating Officer despite their availability, is to be construed to be both deliberate as well as intentional. Consequently, the deliberate as well as an intentional omission on the part of the Investigating Officer to solicit the association of independent witnesses in the apposite proceedings at the time contemporaneous to their initiation at the site of occurrence at his instance, cannot but foster a conclusion from this Court, that such omission was begotten by his intending to carry out a slanted and skewed investigation into the offence allegedly attributed by him to have been committed by the accused. In aftermath a slanted investigation cannot garner any credence from this Court. Conjunctively, the factum of the Investigating Officer having introduced an invented witness in the apposite proceedings besides his having not joined any independent witness in the apposite proceedings at the time contemporaneous to their commencement at the purported site of occurrence renders the factum of non joining of independent witnesses by the Investigating Officer in the apposite proceedings despite their availability, to in its entirety engulf the entire prosecution case with a shroud of doubt. Therefore, this Court is constrained to disbelieve the prosecution version as propounded by the prosecution. 15. The summum bonum of the above discussion is that the prosecution has not been able to adduce cogent and emphatic evidence in proving the guilt of the accused. Therefore, this Court is constrained to disbelieve the prosecution version as propounded by the prosecution. 15. The summum bonum of the above discussion is that the prosecution has not been able to adduce cogent and emphatic evidence in proving the guilt of the accused. The appreciation of the evidence as done by the learned trial Court suffers from an infirmity as well as perversity. Consequently, reinforcingly, it can be formidably concluded, that, the findings of the learned trial Court merit interference. 16. In view of above discussion, the instant appeal is allowed and the impugned judgment of 18.03.2015 rendered by the learned Special Judge, Mandi, is set-aside. The appellant/accused is acquitted of the offence charged. The fine amount, if any, deposited by the accused is ordered to be refunded to him. Since the accused is in jail, he be released forthwith, if not required in any other case. 17. The Registry is directed to prepare the release warrants of the accused and send the same to the Superintendent of the jail concerned, in conformity with the judgment forthwith. Records be sent back forthwith.