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Himachal Pradesh High Court · body

2015 DIGILAW 1773 (HP)

Suresh Kumar v. State of H. P.

2015-12-03

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT : Sureshwar Thakur, J. The instant appeal is directed against the impugned judgment rendered on 25.5.2015, by the learned Special Judge, Kinnaur Sessions Division at Rampur Bushehar, H.P. in Sessions Trial No. 0000001/2014, whereby the learned trial Court convicted and sentenced the accused/appellant to undergo rigorous imprisonment for a period of ten years and to pay a fine in a sum of Rs.1,00,000/- (one lac) and in default of payment of fine to further undergo simple imprisonment for a period of one year for commission of offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, for short “the Act”. 2. Brief facts of the case are that on 7.10.2003, at about 4.15 PM, a police party headed by S.I. Gambhir Chand, SHO Police Station, Nirmand accompanied by ASI Mohan Singh, HC Sushil Kumar No.69, Constable Chand Mishra No.352 and Constable Diwan Chand No.93 left police Station, Nirmand, District Kullu, H.P. in a private vehicle equipped with alcohol sensor, drug kit and investigation kit for routine patrol duty towards Dev Dhank, Kedas etc. At about 5.30 PM, at Chambudhar Mod, the police officials spotted the accused coming on foot from Dev Dhank towards the main road carrying a backpack (Pithu) on his right shoulder. The accused on seeing the police party turned around and started running. He was chased, overpowered and apprehended by S.I. Gambhir Chand, after ascertaining the identity of the accused, disclosed his intention to conduct his personal search and search of the backpack (Pithu). Thereafter, the accused was apprised of his right to be searched either by a Gazetted Officer or a nearest Magistrate in terms of Section 50 of the Act and prepared consent memo. The accused exercised his option to be searched by the police officials present on the spot. S.I,. Gambhir Chand thereafter constituted a raiding party by associating two witnesses ASI Mohan Singh and HC Sushil Kumar No.69 and searched the backpack (pithu) being carried by the accused. On search of the backpack (Pithu) of the accused, it was found carrying one green carry bag tied with red ribbon on the top containing black coloured round shaped substance in the form of balls. Identification of the substance was conducted with the help of drug detection kit as Charas (cannabis). On search of the backpack (Pithu) of the accused, it was found carrying one green carry bag tied with red ribbon on the top containing black coloured round shaped substance in the form of balls. Identification of the substance was conducted with the help of drug detection kit as Charas (cannabis). The contraband recovered from the conscious and exclusive possession of the accused was weighed along with carry bag and was found 1.620 kg. The weight of the carry bag was found 10 grams and that of Charas 1.610 kg. The recovered contraband was put into same carry bag and thereafter it was put in the backpack (Pithu), which was stitched and sealed in white cloth parcel by affixing 9 seals bearing impression ‘H’. The sealed parcel thereafter was taken into possession vide seizure memo Ext.PW.1/D. Copy of seizure memo was also handed over to the accused free of costs. The sample of seal impression ‘H’ was taken on a separate piece of cloth for the purpose of record. S.I. Gambhir Chand thereafter filled NCB-I form in triplicate. Thereafter Rukka was sent through Constable Diwan Chand No.93 to police station, Nirmand and on the basis of which FIR No.81/2013, dated 7.10.2013 was registered against the accused under Section 20 of the Act. S.I. Ghambhir Chand thereafter prepared spot map and recorded the statements of witnesses under Section 161 Cr.P.C. The accused was arrested on 7.10.2013 at 7.30 PM on the spot. The sealed parcel along with other relevant documents were sent to State FSL, Junga through Constable Jiwa Chand No.216 for chemical examination. As per the FSL report, the exhibit under reference indicated the presence of cannabinoids including the presence of tetrahydrocannabinol. The microscopic examination indicated the presence of characteristic cytolithic hairs. The Charas is a resinous mass which on testing was found present in the exhibit. The exhibit was opined as 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. In order to prove its case, the prosecution examined as many as 9 witnesses. 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 9 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 refused to avail. 5. The accused/appellant is aggrieved by the judgment of conviction recorded by the learned trial Court. Shri H.S Rangra, 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 by it, rather, theirs being sequelled by gross mis-appreciation of material on record. Hence, he contends qua the findings of conviction being reversed by this Court, in the exercise of its appellate jurisdiction and theirs being 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 1.610 kg was effected under memo Ex. PW-1/D from the alleged conscious and exclusive possession of the accused while its being kept by him in a bag slung on his right shoulder. 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 stands argued qua when the prosecution case standing established, it would be legally unwise for this Court to acquit the accused. 9. 9. Besides when the testimonies of the official witnesses, unravel the factum of theirs being bereft of any inter-se or intra-se contradictions hence, theirs enjoying credibility for sustaining thereupon findings of conviction recorded against the accused by the learned trial Court. Apparently, proof of the prosecution case is endeavored to be sustained on the strength of the unblemished testimonies of police witnesses. A close and studied perusal of the depositions of the police witnesses underscores the factum of theirs having therein neither rendered a version qua the factum of recovery of contraband from the exclusive and conscious possession of the accused inconsistent with the manner thereof recited in the F.I.R. Ext.PW-8/B for begetting a conclusion of hence their testimonies comprised in their respective examinations in chief being 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 1.610 kg having stood recovered from his conscious and exclusive possession while its being kept by him in a bag Ex. P-2 slung on his right shoulder. 10. Even the factum of non-association of independent witnesses by the Investigating Officer in the apposite proceedings 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 1.610 kg having stood effectuated under memo Ex. PW-1/D from the purported conscious and exclusive possession of the accused while his carrying it in a bag Ex. P-2 slung on his right shoulder. Now this court would not strip the efficacy of their testimonies underscoring the factum probandum aforesaid deposed with intra-se consistency by each of them, even if despite availability of eye witnesses at the site of occurrence at a stage contemporaneous to the holding of apposite proceedings thereat by the Investigating Officer, no concerted efforts were purportedly made by the Investigating Officer for soliciting their participation therein. 11. In the face of Ex. 11. In the face of Ex. PW-1/A reflective of the Investigating Officer having concerted to elicit from the accused his consent for his personal search and of its carrying a communication to him of his having a legal right to be searched before a Magistrate or a gazetted Officer, whereas in his written consent therein purveyed to the Investigating Officer his not empowering the Investigating Officer to hold his personal search, rather his having purveyed an empowerment to the Investigating Officer only holding search of his bag Ex. P-2 wherefrom charas weighing 1.610 kg was recovered renders for the reasons recorded hereinafter the recovery of charas Ex.P-5 under memo Ex.PW-1/D from the bag slung by the accused on his right shoulder to be suspect, hence eroding the genesis of the prosecution version (a) even when the accused under his consent comprised in PW-1/A had authorized the investigating officer to hold search of his bag nonetheless the Investigating Officer having proceeded to, beyond the aforesaid authorization purveyed under Ex.PW-1/A by the accused to him, hold a personal search of the accused, renders the holding of the personal search of the accused by the Investigating Officer to be grossly unwarranted, (b) With the holding of a personal search of the accused by the Investigating Officer suffering legal impairment, the implication thereof is of the Investigating Officer in sequel to Ex. PW- 1/A on his holding a personal search of the accused his thereupon having effectuated recovery of charas weighing 1.610 kg whereafter he planted it in bag Ex. P-2 slung on the right shoulder of the accused. Amplifying impetus to the aforesaid inference is garnered by the factum of Ex. PW-9/A disclosing therein of besides items occurring at Sr. Nos. 1,2 and 4 of a recovery memo portraying effectuation of recovery of charas weighing 1.610 grams also having stood recovered by the Investigating Officer on the latter holding a personal search of the accused. As a corollary, the reflection in Ex. PW-9/A of a memo enunciative of the items recovered by the Investigating Officer on his holding a personal search of the accused especially of a recovery memo manifesting effectuation of recovery of charas weighing 1.610 kg is connotative of the investigating Officer having recovered charas weighing 1.610 kg in a manner distinct from the one as portrayed in recovery memo Ex. PW-1/D. Apart therefrom the inference which also stands galvanized is of the investigating officer even if assumingly having recovered charas weighing 1.610 kg on his holding a personal search of the accused nonetheless its recovery on his holding a personal search of the accused cannot render the accused to be penally liable, significantly in the face of memo of Ex.PW-1/A in pursuance whereof the investigating officer held a personal search of the accused suffering severe legal impairment besides invalidation aroused by the stark fact of the accused therein having permitted the investigating officer to only hold search of bag slung on his right shoulder preeminently when hence he forbade the investigating officer to hold his personal search any effectuation of recovery thereupon of recovery memo with a manifestation therein of effectuation of recovery of charas on the investigating officer holding his personal search is amenable to a deduction of its recovery being a well engineered invention on the part of the investigating officer rendering hence even if assumingly for reiteration any recovery of contraband by the investigating officer on his holding a personal search of the accused to be carrying no legal formidability nor any penal culpability against the accused being evincible therefrom. Necessarily when the investigating officer hence is to be construed to have prepared a recovery memo qua effectuation by him of recovery of charas and which effectuation of recovery of a memo aforesaid stood effectuated on his holding a personal search of the accused besides recovery whereof preceded the preparation of Ex. PW-1/D with a recital therein of contraband having stood recovered by the investigating officer from a bag Ex. P-2 slung by the accused on his right shoulder obviously renders the subsequent preparation of Ex.PW-1/D with recitals therein to acquire an ensuable taint of legal debility engendered by a natural stain of invention imbuing it hence constituting the prosecution story to stand capsized besides it being incredible. In aftermath a contrived prevaricated or an engineered prosecution version cannot gain credence from this Court. 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. 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-1/D 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-1 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-1/D. 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 the above discussion, the instant appeal is allowed and the impugned judgment of 25.5.2015 rendered by the learned Special Judge, Kinnaur 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 the above discussion, the instant appeal is allowed and the impugned judgment of 25.5.2015 rendered by the learned Special Judge, Kinnaur 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.