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Himachal Pradesh High Court · body

2015 DIGILAW 1799 (HP)

Mohinder Singh v. State of H. P

2015-12-04

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT : Sureshwar Thakur, J. The instant appeal is directed against the impugned judgment rendered on 4.7.2015, by the learned Special Judge, solan, District Solan, H.P. in Sessions Trial No. 4-S/7 of 2013, 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 punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, for short “the Act”. 2. Brief facts of the case are that on 23.2.2013, HC Ram Pal, PW-12 along with HC Ambi Lal, Constables Ajay Kumar, Pawan Kumar, PW-1, Rohit Kumar and Bhupender Singh had gone for traffic checking and patrolling from the Office of SIU, Solan towards Kotla Nala, Shamti, Oachghat etc. after getting entered rapat in the daily diary Ext.PW-7/A and at about 11.45 AM, all the members of the police party were present at Zonal Hospital, Chowk near Police Assistance booth at Kotla Nala when a private bus bearing registration No.HP-16-2185 came from Rajgarh side. The said bus was stopped for checking. HC Ram Pal along with Constable Pawan Kumar entered into the bus from front door, whereas HC Ambi Lal and Constable Ajay entered the bus from its rear door and they started checking the luggage of the passengers travelling in the bus. The accused was sitting on seat No.15 and on seeing the police party, the accused became perplexed. The accused at that time was carrying a bag on his lap. The bag of the accused was searched from which one jacket was recovered and on checking of the jacket one transparent polythene pack was recovered from inside the jacket, which on opening was found to be having charas in the form of wicks. The accused on enquiry also disclosed that recovered substance was charas which was also found to be so by HC Ram Pal, PW-12. Gian Chand, PW-4, Narender Sharma, PW-5, who were sitting on seats No.16 and 17 and Sandeep Kumar, PW-2, conductor of the bus and Virender Kumar, PW-3, driver of the bus were associated in the search and charas so recovered was weighed and found to be 2 kgs. Gian Chand, PW-4, Narender Sharma, PW-5, who were sitting on seats No.16 and 17 and Sandeep Kumar, PW-2, conductor of the bus and Virender Kumar, PW-3, driver of the bus were associated in the search and charas so recovered was weighed and found to be 2 kgs. The charas so recovered was put back in the same transparent polythene bag, which was put in a cloth parcel and the parcel was sealed with five seals of impression ‘A’. The specimen seal Ext.PW-1/A was taken separately and seal impression was affixed over the NCB form Ext.PW- 11/D, which was filled in triplicate at the spot by the Investigating Officer and parcel containing contraband along with pithu bag and jacket were taken into possession vide memo Ext.PW-1/B. Photographs Ext.P.9 to Ext.P.11 were taken and the videography of the spot proceedings was also done. Rukka Ext.PW-11/A was prepared by HC Ram Pal,PW-12 and was forwarded to the police station, Sadar Solan through Constable Pawan Kumar, PW-1, on receipt of which FIR Ext.PW-10/A came to be recorded at the Police Station, Sadar Solan by Inspector Chaman Lal, PW-11. Site Plan Ext.PW-12/A was prepared by HC Ram Pal and the accused was arrested vide memo Ext.PW-12/F. The case property alongwith sample seals, seizure memo, NCB form were deposited with HHC Narender Parkash, PW-8, Incharge Malkhana, Police Station, Sadar Solan, who made entry in the Malkhana register, the abstract whereof is Ext.PW- 8/A. On 26.2.2013, the parcel containing contraband alongwith sample seals, copy of seizure memo, NCB form etc. were forwarded to FSL, Junga through Constable Om Prakash,PW-6 vide RC Ext.PW-6/A, who had deposited the same at FSL, Junga in a safe condition and as per the report of Chemical Examiner Ext.PW-11/F, the parcel of analysis was found to be containing extract of cannabis and sample of charas. On 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 12 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. 4. In order to prove its case, the prosecution examined as many as 12 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 2 kg was effected under memo Ex. PW-1/B from the alleged conscious and exclusive possession of the accused while its being kept by him in a pithu bag Ex. P-4 which stood carried by him on his lap while his occupying seat No. 15 of bus bearing Registration No. HP-16-2185. 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 deposition 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-10/A 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 2 kg having stood recovered from his conscious and exclusive possession while its being kept by him in a bag Ex. P-4 carried on his lap while his occupying seat No. 15 of the bus aforesaid. 10. The Investigating Officer had associated two independent witnesses PW-4 Gian Chand and PW-5 Narender Sharma in the apposite proceedings qua effectuation of recovery of charas weighing 2 Kg. under memo Ex. PW-1/B from Pithu Bag Ex. P-4 carried by the accused on his lap while his occupying seat No. 15 of bus bearing No. HP-16-2185. However, both the independent witnesses aforesaid associated by the Investigating Officer in the apposite proceedings held by him at the site of occurrence have not lent any muscle to the propagation by the prosecution of the accused while occupying seat No.15 of the bus aforesaid his holding or carrying pithu bag Ex. P-4 on his lap wherefrom recovery of charas weighing 2Kg. stood effectuated. On the contrary, they have in their respective depositions on oath unequivocally deposed qua the factum of recovery of pithu bag Ex. P-4 standing effectuated from the rack of the bus. P-4 on his lap wherefrom recovery of charas weighing 2Kg. stood effectuated. On the contrary, they have in their respective depositions on oath unequivocally deposed qua the factum of recovery of pithu bag Ex. P-4 standing effectuated from the rack of the bus. As a corollary, with the independent witnesses associated by the investigating Officer in the apposite proceedings held by him at the site of occurrence having repulsed or repelled the prosecution case qua the accused while occupying seat No. 15 of bus bearing registration No. HP-16-2185 his holding Pithu on his lap wherefrom charas stood recovered concomitantly dismantles as well rips apart the edifice of the genesis of the prosecution case cast in the depositions of the official witnesses. In aftermath, the prosecution version is gripped with an aura of doubt benefit whereof ought to go to 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 effectuated 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/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-8 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 C. Pawan Kumar and PW-12 HC Ram Pal 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-8, 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-8 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/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 4.7.2015 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 4.7.2015 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.