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Himachal Pradesh High Court · body

2015 DIGILAW 1975 (HP)

Jawahar Singh v. State of H. P.

2015-12-28

SANJAY KAROL

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JUDGMENT : Sanjay Karol, J. Appellant-convict Jawahar Singh, hereinafter referred to as the accused, has assailed the judgment dated 19.11.2014, passed by Special Judge (III), Mandi, District Mandi, Himachal Pradesh, in Sessions Trial No.39/2013/2011, titled as State of Himachal Pradesh v. Jawahar Singh, whereby he stands convicted of the offence punishable under the provisions of Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) and sentenced to undergo rigorous imprisonment for a period of seven years and pay fine of Rs. 1,00,000/-, and in default thereof to further undergo simple imprisonment for a period of one year. 2. It is the case of prosecution that on 26.2.2011, a police party, comprising of ASI Satpal (PW-14), HC Thakur Singh (PW-2), HHC Amar Singh (PW-3), HHC Raj Kumar (not examined) and HHC Jawala Ram (PW-1), was on patrol duty at a place known as Ghatta. At about 10 a.m., police party saw the accused come from Baijnath side. Observing the movement of the accused to be suspicious, police party nabbed him. They suspected him of carrying some contraband substance. After apprising him of his statutory rights and obtaining consent, vide Memo (Ex.PW-1/A), and associating police officials HHC Jawala Ram and HC Thakur Singh as witnesses, accused was searched. On search, it was found that he had concealed a bag under his armpit, which contained charas. HHC Amar Singh brought the weights and scale from Shri Vishal Mahant (PW-4). The recovered contraband substance was weighed and found to be of 850 grams. The same was sealed in a parcel with six seals of seal impression ‘T’. NCB form (Ex. PW-11/C) was filled up in triplicate. Ruka (Ex. PW-14/B), carried by HHC Amar Singh, led to registration of FIR No.36, dated 26.2.2011 (Ex.PW-11/A), for commission of offence punishable under the provisions of Section 20 of the Act, at Police Station, Jogindernagar, District Mandi, Himachal Pradesh. Special Report (Ex. PW-13/A) was sent to the Superior Officer. The contraband substance and the accused were produced before the SHO Shakuntla (PW-11), who resealed the contraband substance with three seals of seal impression ‘H’ and handed it over to MHC Chander Shekhar (PW-10). Thereafter, the contraband substance was produced before the Judicial Magistrate 1st Class, where samples were drawn and the contraband substance and the parcels were resealed. The contraband substance and the accused were produced before the SHO Shakuntla (PW-11), who resealed the contraband substance with three seals of seal impression ‘H’ and handed it over to MHC Chander Shekhar (PW-10). Thereafter, the contraband substance was produced before the Judicial Magistrate 1st Class, where samples were drawn and the contraband substance and the parcels were resealed. The sample was carried by Constable Rakesh Kumar (PW-5) to the Laboratory for analysis and report (Ex.PB) obtained. On completion of investigation, which prima facie revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial. 3. Accused was charged for having committed an offence punishable under the provisions of Section 20 of the Act, to which he did not plead guilty and claimed trial. 4. In order to establish its case, prosecution examined as many as 14 witnesses and statement of the accused, under the provisions of Section 313 of the Code of Criminal Procedure, was also recorded, in which he took defence of innocence and false implication. In defence, he examined two witnesses. 5. Appreciating the testimonies of the witnesses, trial Court found the accused not to have probablized his defence and finding the contradictions not to be material, convicted and sentenced him, as aforesaid. Hence, the present appeal by the accused. 6. I have heard Mr. G.R. Palsara, learned counsel for the accused, Mr. J.S. Guleria, learned Assistant Advocate General, for the respondent-State and also minutely examined the testimonies of the witnesses and other documentary evidence so placed on record by the parties. 7. The apex Court in Lal Mandi v. State of W.B., (1995) 3 SCC 603 , has held that in an appeal against conviction, the appellate Court is duty bound to appreciate the evidence on record and if two views are possible on the appraisal of evidence, benefit of reasonable doubt has to be given to the accused. 8. As per the version of the defence witnesses, Shri Suresh Kumar (DW-1) and Shri Ravi Kant (DW-2), on the date of the occurrence of the incident, accused was travelling in a Government vehicle (Bus No.HP-37A-9681, which was stopped by the police party at Ghatta Chowk and searched. Accused was also searched. 9. From the testimony of Shri Suresh Kumar, it is evident that on 26.2.2011, Shri Ravi Kant (DW-2) was deputed to ply Bus No.HP-37A-9681 from Shimla to Palampur. Accused was also searched. 9. From the testimony of Shri Suresh Kumar, it is evident that on 26.2.2011, Shri Ravi Kant (DW-2) was deputed to ply Bus No.HP-37A-9681 from Shimla to Palampur. Further, Shri Ravi Kant states that on the said date, at Ghatta Chowk, police stopped and searched the Bus in which accused was also travelling. Police informed the witness of recovery of the contraband substance from the accused. The witness further deposed that “thereafter we visited the chowki and police asked us to go from there”. The witness has denied having falsely deposed in favour of the accused. 10. One is of the considered view that findings returned in Para-11 of the judgment, to the effect that the evidence led by the accused is weak, cannot be said to be correct. The witness is a Government employee. Testimony of the Driver remains unshattered on record. The genesis of the prosecution story of recovery of the contraband substance, in the manner police want the Court to believe, is rendered doubtful. 11. Be that as it may, independently and uninfluenced by the aforesaid observations, this Court proceeds to examine the testimony of the prosecution witnesses. After all, the burden of establishing its case, beyond reasonable doubt, initially rests upon the prosecution. Statutory presumption, under Section 35 of the Act, would arise only thereafter. 12. On the question of recovery of the contraband substance, prosecution seeks reliance upon the testimonies of HHC Jawala Ram (PW-1), HC Thakur Singh (PW-2), HHC Amar Singh (PW-3) and ASI Satpal (PW-14). 13. As per the version of ASI Satpal, on 26.2.2011, police party had left Police Post, Ghatta, on a patrol duty. At about 10 am, just ahead of Ghatta, they saw the accused, who, on seeing the police party, got scared and started running towards the jungle. On suspicion, he was apprehended. The place was secluded and isolated and as such no independent witness could be associated. On suspicion that the accused may be possessed of “narcotic drugs”, he was informed of his statutory rights (in terms of Section 50 of the Act), vide Memo (Ex.PW-1/A). Accused consented to be searched by the police party present on the spot. The place was secluded and isolated and as such no independent witness could be associated. On suspicion that the accused may be possessed of “narcotic drugs”, he was informed of his statutory rights (in terms of Section 50 of the Act), vide Memo (Ex.PW-1/A). Accused consented to be searched by the police party present on the spot. On search, accused was found to have concealed a bag under his left arm, which was opened, from where one polythene packet (light green in colour) was recovered, which contained charas in the shape of sticks. On asking, HHC Amar Singh brought the scales. The contraband substance was weighed and found to be 850 grams. It was packed in a white cloth and sealed with six seals of seal impression ‘T’. Impression of the seal was taken on a piece of cloth (Ex.PW-1/C). Original seal was handed over to HC Thakur Singh. NCB form (Ex.PW-11/C) was filled up in triplicate. Photographs (Ex.PW-14/A1 to A4) of the proceedings were also got snapped. Ruka (Ex.PW-14/B) was carried by HHC Amar Singh to the Police Station. He recorded statements of the witnesses and completed other formalities. Accused was arrested and alongwith the case property produced before SHO Shakuntla, who resealed the case property with three seals of seal impression ‘H’. Special Report (Ex. PW-13/A) was also sent to the Superior Officer through HHC Jawala Ram. Accused alongwith the case property was also produced before the Judicial Magistrate 1st Class, Jogindernagar, in compliance of the provisions of subsection (3) of Section 52A of the Act. Upon receipt of the report of Chemical Examiner (Ex.PB), contraband substance was again produced before Judicial Magistrate 1st Class and certificate taken on record. Two samples, each weighing 25 grams, were drawn by the said Magistrate. The said proceedings were also got photographed and photographs in this regard are Ex.PW- 7/A1 to 7/A5. Contraband substance was then again deposited with the MHC and on completion of investigation, file was handed over to SHO Virender Jaswal. 14. Examination-in-chief part of the testimony of this witness materially stands corroborated by HHC Jawala Ram, HC Thakur Singh and HHC Amar Singh, but however close scrutiny of the cross-examination part of their testimonies not only reveals the defence of the accused to have been probablized but also witnesses to have contradicted themselves on material points, rendering the genesis of the prosecution story to be doubtful. 15. 15. The genesis of the prosecution story of the police officials being on patrol duty at Ghatta itself appears to be in doubt. ASI Satpal does not remember as to whether he had laid any Naka at Ghatta or not. Significantly, he does not deny suggestion of the accused of having searched the HRTC Bus. He feigns ignorance and states “I do not remember that HRTC bus was searched by us at Ghatta”, though he denies having recovered the Charas from the rack of the said Bus. Witness admits that no attempt was made by the accused to throw away the bag, who was apprehended after a distance of about 20 metres. His conduct was thus not suspicious. 16. Version of HHC Jawala Ram, ASI Satpal and HHC Amar Singh, regarding presence of HHC Amar Singh on the spot, when the accused was searched, stands materially contradicted by HC Thakur Singh, according to whom HHC Amar Singh had not reached the spot when personal search of the accused was conducted. It is not the case of prosecution that the accused was searched twice. There is only one search memo on record, which bears the signatures of only HC Thakur Singh and HHC Jawala Ram. 17. Version of ASI Satpal that he had associated HHC Jawala Ram and HC Thakur Singh, as witnesses, while carrying out search and seizure operations, no doubt is supported by HHC Jawala Ram and HC Thakur Singh, but stands contradicted through the uncontroverted testimony of HHC Amar Singh, who states that “I and HHC Jawla Ram cited as witnesses thereafter all the police officials gave their personal search to the accused vide memo Ext. PW.1/B on which I also put my signatures” Further, HHC Amar Singh states that after the contraband substance was sealed, original seal was handed over to him, which fact is contradicted by HC Thakur Singh, who admits it to have been handed over to him, which in any event has not been produced in Court, without any justifiable reason. 18. Contradictions and improbabilities do not end here. Undisputedly, HHC Amar Singh carried the rukka to the Police Station. 18. Contradictions and improbabilities do not end here. Undisputedly, HHC Amar Singh carried the rukka to the Police Station. In his examination-in-chief, he states that he left the spot alongwith the ruka at 12.15, but in the cross-examination part of his testimony, he states that it was so done at 10.15 p.m. It be only observed that typographical mistake can be only with regard to the word ‘p’ instead of ‘A’, but not the time. 19. Assuming it not to be there, even then there is further contradiction. HHC Amar Singh states that he reached the Police Station at 1.15 p.m. and arrived on the spot alongwith the file at 2.30 p.m, whereafter the police party left for the Police Station. He states that the distance between the spot and the Police Post is 500 metres. Now, SHO Shakuntla, who registered the FIR, states that after registration of the FIR, case file was sent to the spot at 1.45 p.m. ASI Satpal states that HHC Amar Singh left the spot with the ruka at 11.15 a.m. and returned sometime between 2.30-2.45 p.m and it took about four hours for completing the investigation on the spot and only thereafter police party reached the Police Station at about 4 p.m. But, according to HC Thakur Singh, police party left the spot at 2-2.30 p.m. and according to HHC Jawala Ram, police party left the spot at about 3-4 p.m. Contradiction with regard to time, when the ruka was taken; the file brought back to the spot; the time which the police party took to complete the proceedings on the spot and left the spot only renders the prosecution case to be doubtful, more so in the light of the statement of HC Thakur Singh to the effect that HHC Amar Singh was not present at the time when the accused was searched. 20. It may also be observed that the police party was not carrying the I.O. Kit. Wherefrom cloth, needle and the thread were brought, for packing the contraband substance, remains unexplained on record, for it is the case of Shri Vishal Mahant (PW-4) that only scales were brought from his shop. 21. Significantly, prosecution did not associate any independent person for carrying out the search and seizure operations. After all, ASI Satpal does state that on suspicion of carrying “narcotic drugs”, accused was searched. 21. Significantly, prosecution did not associate any independent person for carrying out the search and seizure operations. After all, ASI Satpal does state that on suspicion of carrying “narcotic drugs”, accused was searched. Now, if he had some suspicion, he could have taken the accused to the nearest village, which was just at a distance of half a kilometre or to the Police Post, which was also at an equi- distance, as has come in the testimony of the witnesses. After all, HHC Amar Singh brought the scales from the shopkeeper (PW-4) at Mohan Ghati, which was just at a distance of half a kilometre from the spot of crime. It emerges from the uncontroverted testimony of Shri Vishal Mahant (PW-4) that there is Gram Panchayat, office of IPH Department at Mohanghati and at Ghatta, there are 2-3 shops. Accused was nabbed at a place just ahead of Ghatta, as has emerged from the testimony of ASI Satpal. He could have been taken anywhere for carrying out the search and seizure operations. 22. But what is crucial is the contradiction in the testimony of police officials, with regard to association of independent witnesses. Whereas according to ASI Satpal, no police official was sent to search for independent witness, for shops were located at a distance of 1 km, which version, to a limited extent, stands materially contradicted by Shri Vishal Mahant, but according to HHC Amar Singh “I/O had sent police official to call the independent witnesses but they were not available”. It has also emerged in the testimony of this witness that the police party had a motorcycle with themselves. Accused could have been conveniently taken to the nearby inhabited place. 23. All these contradictions, which are material, stand ignored by the Court below. 24. Thus, findings of conviction and sentence, returned by the Court below, cannot be said to be on the basis of any clear, cogent, convincing, legal and material piece of evidence, leading to an irresistible conclusion of guilt of the accused. 25. Hence, for all the aforesaid reasons, the appeal is allowed and the judgment of conviction and sentence, dated 19.11.2014, passed by Special Judge (III), Mandi, District Mandi, Himachal Pradesh, in Sessions Trial No.39/2013/2011, titled as State of Himachal Pradesh v. Jawahar Singh, is set aside and the accused is acquitted of the charged offence. 25. Hence, for all the aforesaid reasons, the appeal is allowed and the judgment of conviction and sentence, dated 19.11.2014, passed by Special Judge (III), Mandi, District Mandi, Himachal Pradesh, in Sessions Trial No.39/2013/2011, titled as State of Himachal Pradesh v. Jawahar Singh, is set aside and the accused is acquitted of the charged offence. He be released from jail, if not required in any other case. Amount of fine, if deposited by the accused, be refunded to him. Release warrants be immediately prepared. Appeal stands disposed of, so also pending application(s), if any.