Research › Search › Judgment

Himachal Pradesh High Court · body

2015 DIGILAW 1731 (HP)

Yash Pal v. State of H. P.

2015-11-27

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT : Sureshwar Thakur, J. This appeal is directed against the judgment rendered on 2.6.2015 by the learned Special Judge, Solan, in Sessions trial No. 14-S/7 of 2012 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, for short “the Act”. 2. The accused/convict is aggrieved by the judgment of the learned Special Judge, Solan. 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 Act be reversed and set-aside in the exercise of its appellate jurisdiction by this Court. 2. Brief facts of the case are that on 27.7.2012, S.I Maheshender Singh , PW-9 along with HHC Laiq Ram, Constable Kewal Krishan, PW-6 and Bir Singh came to Solan from Police Station, State CID Bharari, Shimla after getting entered the rapat in the daily diary Ext.PW.2/E in an official vehicle, which was being driven by HHG Saroj Kumar and on reaching Solan, they associated with them SI Jai Gopal, PW-5 and proceeded towards Ochghat side on Rajgarh road on patrolling as well as to collect secret information. At about 12.15 A.M. during night when the aforesaid police officials were proceeding on the road then ahead of Kali Mata, Temple Shamti at a lonely place, they found one vehicle No.HP-12C-2962 to be parked there and on seeing the said vehicle the police officials alighted from their official vehicle and proceeded towards the vehicle and accused was found sitting alone in the said vehicle on the driver seat. On inquiry, the accused told that the vehicle had heated up and due to this reason he has parked the vehicle on the side of the road. S.I. Maheshender Singh, PW- 9 asked the accused to produce the driving licence, but he could not produce the same and had shown the registration certificate, which was in the name of Rakesh Kumar Jamwal, resident of Lower Bazar, Solan, Bye pass. S.I. Maheshender Singh, PW- 9 asked the accused to produce the driving licence, but he could not produce the same and had shown the registration certificate, which was in the name of Rakesh Kumar Jamwal, resident of Lower Bazar, Solan, Bye pass. Thereafter the search of the vehicle was conducted by the police party and one POP bag with two strings was recovered from underneath the seat of the driver and on checking one transparent polythene pack was recovered from inside the polythene pack and on opening of the polythene pack another small carry bag light yellow in colour was recovered, which was containing Charas in the shape of wicks and balls. The charas so recovered was weighed and found to be 2 Kg 240 gms. After weighing the charas, it was placed in the same light yellow coloured carry bag, which was put into the polythene pack and was thereafter put inside the POP carry bag, which was sealed in a cloth parcel by affixing five seals of seal impression ‘P’, specimen of seal Ext.PW.5/A was taken separately and seal impression was also affixed over NCB form Ext.PW.9/A, which was filled in triplicate by the Investigating Officer. Thereafter, Ruka Ext.PW.9/B was prepared by the S.I. Maheshender Singh, PW-9, which was forwarded to the Police Station, State CID, Bharari, Shimla, through constable Kewal Krishan, PW-6 along with the parcel containing charas, sample seal, copy of seizure memo, NCB form in triplicate and on receipt of which FIR Ext.PW.2/A came to registered. The case property was deposited with the then MHC of the said Police Station, who made entry in the malkhana register, the abstract of which is Ext.PW.2/C. Site Plan Ext.Pw.9/C was prepared by S.I. Maheshender Singh, PW-9, Investigating Officer and the accused was arrested vide memo Ext.PW.9/D. The parcel containing contraband along with sample seals, seizure memo, NCB form etc. was forwarded to FSL, Junga by HC Parkash Chand on 28.7.2012, through Constable Kewal Krishan, PW.6. The parcel on analysis was found to be containing extract of cannabis and sample of Charas. After completion of the investigation, challan, under Section 173 of the Cr.P.C. was prepared and filed in the Court. 3. The trial Court charged the accused for his having committed an offence punishable under Section 20 of the Act to which he pleaded not guilty and claimed trial. 4. After completion of the investigation, challan, under Section 173 of the Cr.P.C. was prepared and filed in the Court. 3. The trial Court charged the accused for his having committed an offence punishable under Section 20 of the Act to which he pleaded not guilty and claimed trial. 4. 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 was given an opportunity to adduce evidence in defence which he chose to adduce, however, later refused to adduce the same. 5. The accused/appellant is aggrieved by the judgment of conviction recorded by the learned trial Court. Shri N.S Chandel, learned Advocate, has concerted to vigorously contend before this Court qua the findings of conviction, recorded by the learned trial Court, being not based on a proper appreciation of evidence on record, rather, theirs being sequelled by gross mis-appreciation of 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. 6. On the other hand, the learned Deputy 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 they do not necessitate interference, rather merit vindication. 7. 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. 8. Recovery of charas weighing 2 kilograms & 240 grams was effected from the alleged conscious and exclusive possession of the accused while its being kept by him in vehicle No. HP-12C-2962 underneath its driver’s seat whereupon he was atop at the apposite stage under memo Ex. 8. Recovery of charas weighing 2 kilograms & 240 grams was effected from the alleged conscious and exclusive possession of the accused while its being kept by him in vehicle No. HP-12C-2962 underneath its driver’s seat whereupon he was atop at the apposite stage under memo Ex. Pw-5/B. Even though the prosecution witnesses have deposed in tandem besides 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 circumstances, hence it is argued that when the prosecution case stand established, it would be legally unwise for this Court to acquit the accused. 9. 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 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 police witnesses. A close and studied perusal of the deposition of the police witnesses underscores the factum of theirs having 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-2/A for begetting a conclusion of hence their testimonies comprised in their respective examinations in chief are ridden with a vice of inter se contradictions vis-à-vis their testimonies comprised in their respective cross-examinations nor when their depositions are afflicted with any vice of intra se contradictions rather when they have rendered a deposition 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 an inference of hence the prosecution succeeding in sustaining its charge against the accused of charas weighing 2 kgs. 240 grams having stood recovered from his conscious and exclusive possession while its being kept by him in a vehicle underneath its driver seat whereupon he was atop at the apposite stage. 10. 240 grams having stood recovered from his conscious and exclusive possession while its being kept by him in a vehicle underneath its driver seat whereupon he was atop at the apposite stage. 10. Even the factum of non-association of independent witnesses by the Investigating Officer would not dilute the efficacy of the depositions of the official witnesses unveiling therein with intra-se harmony the factum of recovery of charas weighing 2 kg 240 grams having stood effectuated from the purported conscious and exclusive possession of the accused. Now this court would not strip the efficacy of their testimonies underscoring the factum probandum deposed with intra-se consistency by each of them, even if despite availability of habitations in somewhat close proximity to the site of occurrence no concerted efforts were purportedly made by the Investigating Officer, to solicit participation of their inhabitants in the apposite proceedings especially given the factum of the apposite proceedings purportedly having stood initiated in the wee hours of 27.7.2012 in as much as at 12.15 a.m. whereat even if habitations existed in somewhat close proximity to the site of occurrence the concert, if any, of the Investigating Officer to solicit participation of their inhabitants in the apposite proceedings, would have not borne any fruition. Even if this court has taken to not disimpute sanctity to the depositions of the official witnesses nonetheless the genesis of the prosecution case of charas weighing 2kg. 240 grams having stood recovered in a manner espoused by the prosecution witnesses gets capsized in the face of (a) Ex. PW-9/E a memo reflective of the Investigating Officer having conducted a personal search of the accused palpably besides explicitly manifesting therein at column No. 8 qua a memo whereunder charas stood recovered on his personal search alongwith other articles depicted therein, begets an inference of its carrying an implication of the accused at the time of the Investigating Officer holding his personal search his having been found in possession of a copy of memo whereunder charas stood recovered. Since the preparation of PW-9/E preceded the recovery of charas weighing 2 Kg. 240 grams from vehicle No. HP-12C-2962 occupied by the accused, the reflection in column No. 8 of Ex. Since the preparation of PW-9/E preceded the recovery of charas weighing 2 Kg. 240 grams from vehicle No. HP-12C-2962 occupied by the accused, the reflection in column No. 8 of Ex. PW-9/E of the Investigating Officer having on holding a personal search of the accused recovered a copy of recovery memo connotative of effectuation of recovery of charas, foments a conclusion of the Investigating Officer prior to the effectuation of recovery of charas in the manner propounded by the official witnesses having effectuated its recovery on his purportedly holding a personal search of the accused. Even no valid explanation emanates from the Investigating Officer qua the reflection in column No. 8 of Annexure PW-9/E of his on holding a personal search of the accused having effectuated recovery of a memo displaying effectuation of recovery of charas. With no explanation having emanated from the Investigating Officer qua the aforesaid reflection at column No. 8 in Ex. PW-9/E, the further factum of the memo existing in PW-9/E portraying the factum of recovery of charas having stood effectuated thereunder having remained unadduced in evidence, has its implication in begetting the sequel of the reflection at column No. 8 in Ex. PW-9/E with its unfolding the effectuation of recovery of a memo with a portrayal therein of recovery of charas having stood effectuated thereunder rendering contrived besides camouflaged the manner of its recovery under Ext.PW-5/B from the alleged conscious and exclusive possession of the accused. Moreover, the stark distinctivity inter se the manner of recovery of Charas denoted in a memo cited in Column No.8 of Ext.PW-9/E vis-à-vis the effectuation of its recovery under Ext.PW-5/B naturally renders the genesis of the prosecution case of its recovery having stood effectuated under Ext.PW-5/B to falter, it being an invention. As a corollary, the reflections in Ex. PW-5/.B are vulnerable to skepticism. Be that as it may, if assumingly, effectuation of recovery of charas from the alleged conscious and exclusive possession of the accused is construable to be at a stage contemporaneous to the Investigating Officer conducting a personal search of the accused where before Ex. As a corollary, the reflections in Ex. PW-5/.B are vulnerable to skepticism. Be that as it may, if assumingly, effectuation of recovery of charas from the alleged conscious and exclusive possession of the accused is construable to be at a stage contemporaneous to the Investigating Officer conducting a personal search of the accused where before Ex. PW-9/E stood prepared, imperatively given its recovery by the Investigating Officer on his holding a personal search of the accused, enjoined him for validating its recovery therefrom, to mete compliance with the statutory/mandatory provisions engrafted in Section 50 of the Act, warranting his preparing a consent memo communicative of the accused having a legal right to be searched before a gazetted officer or a magistrate which options in case forgone by the accused in favour of the Investigating Officer would render the Investigating Officer empowered to conduct his personal search. However there is no forthcoming evidence of the investigating Officer having meted compliance to the enjoined mandatory statutory requirements of section 50 of the Act in as much as, his before proceeding to carry out a personal search of the accused his having communicated to the latter his having a legal right of his being personally searched before a gazetted officer or a magistrate which option in case waived by him in favour of the Investigating Officer would have validated the act of the latter holding the personal search of the accused. Absence of the aforesaid apposite evidence personficiatory of adherence by the Investigating Officer with the statutory requirement of Section 50 of the Act renders suspicious the personal search of the accused by the Investigating Officer wherefrom apart from the other articles depicted therein a memo whereunder charas stood recovered was un-earthed/detected. Recovery whereof rather galvanizes an inference of the Investigating Officer having after effectuation of recovery of contraband in infraction in the manner aforesaid of the mandatory provisions of section 50 of the Act planted it in the car occupied by the accused. Consequently, for reiteration, the aforesaid inference renders ridden with grave skepticism the prosecution version of its recovery having stood effectuated from the car occupied by the accused. In aftermath the depositions of the official witnesses though bereft of any taint or embellishment are discardable besides construable to be not acquiring any probative tenacity for founding thereupon the guilt of the accused. 11. In aftermath the depositions of the official witnesses though bereft of any taint or embellishment are discardable besides construable to be not acquiring any probative tenacity for founding thereupon the guilt of the accused. 11. Be that as it may, it was also incumbent upon the prosecution to fortifyingly establish the factum probandum in as much as the case property produced before the trial Court being linkable to its recovery standing effectuation from the alleged conscious and exclusive possession of the accused in the manner espoused by the prosecution. The germane besides apt material for forming a conclusion qua the case property as produced in Court being linkable to the apposite stage of its recovery from the alleged conscious and exclusive possession of the accused in the manner propagated by the prosecution, stood embedded in the apposite descriptive entries qua it, recorded in the Malkhana register of the police station concerned. Imperatively at the stage contemporaneous to its production in Court by the learned PP for its being shown to the PWs (a) the former was enjoined to produce in Court either the abstract of the malkhana register personificatory of narrations or descriptions compatible or congruous to the one borne on Ex.PW-5/B as shown to the prosecution witnesses (b) or he was obliged to elicit from the PWs to whom the case property stood shown in Court by him communications portraying the factum of it being carried by them on its being handed over to them by an authorized official after its retrieval by the latter from the Malkhana concerned whereupon it stood handed over by them to the learned PP for facilitating on its production by him in Court emanation of apposite elicitations from them unveiling the factum of it being the case property as attributed by the prosecution to the accused (c) even in the face of the aforesaid omission the learned PP at the time of production of case property Ex.P-5 in Court, for its being shown to the PWs for theirs deposing qua it being the very same property as was recovered from the alleged conscious and exclusive possession of the accused in the manner as propagated by the prosecution to yet gain muscle was obliged to on its production in Court by him besides prior to its being shown to the PWs communicate before it the factum of his having received it from an empowered official after its retrieval by the latter from the Malkhana concerned. 12. 12. However, a close and circumspect reading of the testimonies of PW-5 and PW-9 to whom the case property on its production in Court by the learned PP was shown omits to unfold (a) the factum of either at the stage contemporaneous to its production in Court by the learned PP for its being shown to the PWs aforesaid he divulged to the trial Court the factum of his having received it from an authorized officer on its retrieval by the latter from the Malkhana concerned (b) nor is there any emanation in the deposition of both PWs aforesaid of theirs having received it from an authorized official on it retrieval by the latter from the malkhana concerned, (c) besides there is no communication by both in their recorded depositions on oath of theirs carrying with them at the time of recording their depositions in court during course whereof the learned PP showed them case property Ex.P-5, the relevant abstract of the malkhana register wherefrom compatibility intra-se descriptions or narrations borne thereon on its comparison with the abstract of the malkhana register could stand either disinterred or fathomed, for as a corollary rendering a conclusion of the case property as produced in the Court being the one as stood recovered from the conscious and exclusive possession of the accused. 13. The summom bonum of the above discussion is of the omissions aforesaid countervailing the propagation of the prosecution of case property Ex.P-5 produced in Court by the learned PP for its being shown to PWs being relatable to the contraband recovered from the alleged conscious and exclusive possession of the accused under memo Ex. PW-5/B. The crux of the above discussion is of the prosecution having not adduced 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. 14. In view of above discussion, the instant appeal is allowed and the impugned judgment of 2.6.2015 rendered by the learned Special Judge, Solan 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. 14. In view of above discussion, the instant appeal is allowed and the impugned judgment of 2.6.2015 rendered by the learned Special Judge, Solan 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. 15. 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.