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Himachal Pradesh High Court · body

2015 DIGILAW 349 (HP)

Chuni Lal v. State of H. P.

2015-04-17

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT : Sureshwar Thakur, J. The instant appeal is directed against the impugned judgment rendered on 26.11.2011, by the learned Special Judge, Mandi Himachal Pradesh in Sessions trial No. 34 of 2010, whereby, the learned trial Court convicted and sentenced the accused/appellant to undergo rigorous imprisonment for a period of fifteen years and to pay a fine in a sum of Rs.1,50,000/- (One Lac Fifty Thousand) and in default to further undergo imprisonment for a period of six months for commission of offence under Section 20(b) (ii) (C) of Narcotic Drugs and Psychotropic Substances Act, 1985. 2. Brief facts of the case are that on 23.2.2010 at about 9.30 a.m., PW-10 SHO Pratap Singh alongwith PW-1 Constable Nand Lal, PW-3 Puran Chand, PW-6 HC Leeladhar, HC Prakash Chand , HC Ram Singh and HHC Prittam Lal were present at Dadour near Saini Petrol Pump. A bus bearing registration No. HR-68-4369 came from Manali was signaled to stop. As soon as the bus stopped, the accused opened the door of bus and ran towards the fields with black coloured bag (Ex.P-2). On chase by the police, the accused disclosed his name to be Chunni Lal. The accused was told by the police that they suspected the possession of Narcotics in the bag being carried by him and he could give his search to the Magistrate or Gazetted officer or the police. The accused opted to be searched by the police Officials. Police gave their personal search to the accused, no contraband was found in their possession. On search of the bag, it was found to be containing blue coloured pant Ex.P-7, one white shirt Ex.P-6, one muffler Ex.P-4, one shawl Ex.P-5 and carton wrapped with cello tape. Carton was opened and it was found to be containing stick like pancake like black coloured substance Ex.P-8 wrapped in polythene, it was burnt and smelled and it was found to be cannabis. One packet wrapped with cello tape Ex.P-9 was recovered, which was found to be opium. Memo Ex. PW-1/C was prepared. On weighing, weight of cannabis was found to be 5 kg and weight of opium was found to be 250 grams. All the articles aforesaid were again put in the bag and the bag was wrapped in a piece of cloth. Memo Ex. PW-1/C was prepared. On weighing, weight of cannabis was found to be 5 kg and weight of opium was found to be 250 grams. All the articles aforesaid were again put in the bag and the bag was wrapped in a piece of cloth. Parcel Ex.P-1 was prepared and sealed with ten impressions of seal H. Sample seal was taken on separate piece of cloth and one such impression is Ex. PW-1/D. Form NCB-1 in triplicate was filled in. Seal impression was taken on NCB-1 form. Parcel was seized vide seizure memo comprised in Ex.PW-1/E. Rukka Ex.PW-10/B was prepared and through Constable Puran Chand the same was handed over to ASI Braham Dass in the police station. ASI Braham Dass made an endorsement on the rukka and sent the case file to the spot through same constable. Investigation was conducted by PW-10 SI Partap Singh. Site plan comprised in Ex.PW- 10/C was prepared. Photographs Ex. PW-10/D-1 to Ex. PW-10/D-5, negative whereof are Ex. PW-10/D-6 to Ex.PW-10/D-10 were taken. The statements of the witnesses were recorded. Accused was arrested and memo of arrest is comprised in Ex.PW-1/F. Memo regarding personal search of the accused Ex. PW-1/G was prepared. Ticekts (Ex. PW10/H-1 to Ex. PW/10-H-3) were recovered. Case property was handed over to HC Leeladhar. PW-6 HC Leeladhar deposited the parcel, NCB-1 form, sample seal in the Malkhana and made an entry in the register of Malkhana at Serial No. 1112, copy of which is Ex.PW- 6/A. He thereafter handed over all the articles to C Vijay Kumar with the directions to carry these to FSL Junga vide RC No. 48/10, copy of which is Ex.PW-6/B. PW-13 deposited all the articles at FSL and handed over the receipt to MHC on his return. Special report, copy of which is Ex.PW-8/A was handed over to Dy SP Narender Kumar on 24.2.2010. After making an endorsement by Dy.S.P the same was handed over to his Reader. The reader made an entry in the register of special report at Sr. No. 50 and filed it in the record. Dy.S.P Narender Kumar executed an affidavit comprised in Ex.PW-8/B regarding the receipt of special report. Result of analysis is comprised in Ex. PW- 10/I showing therein that the sample was of charas which was containing 34.63% w/w resin in it and of opium which was containing 3.04% morphine in it. No. 50 and filed it in the record. Dy.S.P Narender Kumar executed an affidavit comprised in Ex.PW-8/B regarding the receipt of special report. Result of analysis is comprised in Ex. PW- 10/I showing therein that the sample was of charas which was containing 34.63% w/w resin in it and of opium which was containing 3.04% morphine in it. On conclusion of the investigation, into the offence, allegedly committed by the accused, final report under Section 173 of the Code of Criminal Procedure was prepared and filed in the Court. 3. The accused/appellant was charged for his having committed offences punishable under Sections 20(b) (ii) (C) of NDPS Act and Section 18(b) of NDPS Act, by the learned trial Court to which he pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined 13 witnesses. On closure of prosecution evidence, the statement of the accused, under Section 313 of the Code of Criminal Procedure, was recorded in which he pleaded innocence and claimed false implication. He chose to lead evidence in defence and examined one witness in defence. 5. On appraisal of the evidence on record, the learned trial Court, returned findings of conviction against the appellant/accused for his having committed offence punishable under Section 20(b) (ii) (C) ND&PS Act. 6. The learned counsel appearing for the appellant has concertedly, and, vigorously contended, that, the findings of conviction, recorded by the learned trial Court, are, not based on a proper appreciation of 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, exercise of its appellate jurisdiction, and, be replaced by findings of acquittal. 7. The learned Assistant Advocate General 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. The factum of charas weighing 5 kg and opium weighing 250 grams recovered from a black coloured bag Ex. P-2 from the conscious and exclusive possession of the accused has been proved by the deposition of PW-1. 9. The factum of charas weighing 5 kg and opium weighing 250 grams recovered from a black coloured bag Ex. P-2 from the conscious and exclusive possession of the accused has been proved by the deposition of PW-1. The deposition of PW-1 Constable Nand Lal qua the fact aforesaid as deposed by him has been corroborated by the testimonies of PW-2 Subhas, PW-3 Constable Puran Chand, PW-6 HC Leeladhar and PW-10 SI SHO Pratap Singh. Amongst the aforesaid PWs, PW-2 is an independent witness. Apparently, the prosecution version hence appears to be imbued with veracity , obviously then it gives formidable succor to the genesis of the prosecution case of Charas weighing 5 kg. and opium weighing 250 grams having been recovered from the conscious and exclusive possession of the accused. Nonetheless, a circumspect, deep and incisive scanning of the deposition of PW-1 comprised in his cross-examination wherein he has deposed qua the factum of the accused having alighted from the bus on which he was aboard whereafter he fled towards the fields, hence rearing/arousing suspicion of the police officials who after chase, nabbed him and on search of bag Ex. P-2, contraband aforesaid was recovered therefrom, whereafter the police having re-entered the bus, spurs an inference of the prosecution version as propounded by the prosecution witnesses in their respective depositions of the contraband having been recovered from the purported, conscious and exclusive possession of the accused, after his having alighted from the bus and on his having fled towards the fields nursing the suspicion of the police who after chase nabbed him, comes to be imbued with pervasive falsity. The concomitant effect of germination of the aforesaid inference is also hence that bag Ex.P-2 did not come to be purportedly exclusively possessed by the accused at the apt stage of it having come to be recovered by the police officials, rather it remained inside the bus. The concomitant effect of germination of the aforesaid inference is also hence that bag Ex.P-2 did not come to be purportedly exclusively possessed by the accused at the apt stage of it having come to be recovered by the police officials, rather it remained inside the bus. The reentry of the police officials in the bus after nabbing of the accused and theirs having recovered contraband from his purported exclusive and conscious possession, besides also conveys that the police had proceeded to obviously then, concoct a false story qua theirs recovering from the purported, conscious and exclusive possession of the accused, contraband in the manner as deposed by the police officials, rather it appears that even when it remained inside the bus and when there is lack of unflinching evidence, rather there is abysmal dearth of evidence portraying the factum of bag Ex. P2 being owned by the accused that even when it came to be recovered from inside the bus after the departure of the accused therefrom, the prosecution has nursed a wholly invented version qua it being owned by the accused while proceeding to impute its being consciously and exclusively possessed by the accused. The arousal of the aforesaid inference leaves this Court to derive a deduction that the prosecution version in its entirety is discrepant and infirm. Naturally, then any infirmity and discrepancy seeping into the prosecution version cannot constrain this Court to draw a formidable conclusion that the prosecution has been able to prove the guilt of the accused rather the pervasive infirmities and discrepancies arising from the aforesaid inferences and deductions upsurge a fervent conclusion that the bag Ex.P-2 has been without existence of cogent evidence connected with the accused. 10. 10. Further more, a grave and incisive scanning of the testimonies of the prosecution witnesses brings to the fore the factum of prior to and subsequent to his being nabbed by the police officials in the fields, after his departure from the bus on which he was aboard and preceding recovery of contraband from bag Ex.P-2, which he was purportedly carrying in his conscious and exclusive possession wherefrom recovery and seizure of contraband was effected, he was asked to give his personal search and preceding the carrying out of his personal search and of bag Ex.P-2 at the instance of the police officials, his option to get his personal search and of his bag Ex.P-2 being carried out by the police officials or both his personal search and of his bag Ex.P-2 being carried out before any Magistrate or Gazetted Officer was elicited under memo Ex. PW-1/A. Even though, the accused under memo Ex.PW-1/A conveyed his consent for his personal search as well as of bag Ex.P-2 being carried out by the police officials, nonetheless the exercise or endeavor concerted to by the police officials to elicit the option of the accused for search of his bag purportedly carried by him bearing Ex.P-2 was wholly needless as there being no legal obligation cast under Section 50 of the NDPS Act upon the police officials to before proceeding to carry out search of bag carried by the accused with him elicit his consent for it being searched either by the police officials or search thereof being carried out by a Magistrate or a Gazetted officer. The aforesaid factum perse is personificatory of the police having proceeded to elicit consent of the accused for carrying out search of bag Ex.P-2 alongwith search of his person, as bag Ex.P-2 was introduced by a sheer contrivance and machination on the part of the police officials for inventing a factum of its being in existence and at a time contemporaneous to the nabbing of the accused in the fields or it being carried by him at the apt and relevant stage, even when it for the reasons aforesaid remained inside the bus. Even otherwise, the fact as displayed in memo Ex.PW-1/A of the consent of the accused having come to be elicited for his personal search, nonetheless tears to shreds also the factum of bag Ex.P-2 being carried by the accused at the relevant stage, in as much as at the time of preparation of Ex.PW-1/A or at the time of its purported seizure on the spot qua which memo Ex.PW-1/E was prepared, when consent comprised in Ex.PW-1A was concerted to be elicited from the accused. Besides while hence having been concluded with vigour that bag Ex.P- 2 cumulatively for the reasons assigned by this Court was never in existence, the police officials having elicited option of the accused for being personally searched under memo Ex.PW-1/A by the police officials or by a Magistrate or a Gazetted Officer, rather conveys that the police had a suspicion qua the factum of the accused carrying contraband on his person and as such had concerted to search his body prior to which they had obtained consent comprised in Ex.PW- 1/A. Even if assuming that recovery of contraband in the manner as enunciated aforesaid was effected in pursuance to a personal search of the accused, nonetheless the phraseology in which his consent was elicited preceding his personal search is not cast in the apt legal phraseology in as much as, in it the accused has not been, as ordained by law awakened to or apprised of his having a more valuable legal right of his being liable to personal search before a Magistrate or a Gazetted officer vis-à-vis his being personally searched by the police officials. A keen discernment of the phraseology in which Ex. PW- 1/A is cast is rather communicative of the accused having been not awakened and apprised by the police officials while seeking his option to be searched either by them or by a Magistrate or a Gazetted Officer of his having a legal right to be searched before a Magistrate or a Gazetted Officer. PW- 1/A is cast is rather communicative of the accused having been not awakened and apprised by the police officials while seeking his option to be searched either by them or by a Magistrate or a Gazetted Officer of his having a legal right to be searched before a Magistrate or a Gazetted Officer. The lack of existence of a communication in Ex.PW- 1/A of the accused having been therein apprised of his legal right to be personally searched before a Magistrate or a Gazetted officer before his exercising his option to be searched by the police officials undermines the legal efficacy of Ex.PW-1/A. It appears that lack of articulation of the aforesaid fact in Ex.PW-1/A occurs as the police intended to preempt the accused to exercise his option to be searched before the Magistrate or a Gazetted officer as a manner of a machination to plant charas on his person by the police. Consequently, consent if any, accorded by the accused to the police for his personal search by them stands vitiated, it having been obtained in a mechanical and perfunctory manner with the accused having remained un-awakened of his legal right of his personal search before a Magistrate or a Gazetted Officer, which option in case he had chosen would have forestalled his personal search by the police besides would have precluded planting of charas on his person by the police. In sequel, the ready and apt inference/deduction is that even assuming that the contraband was recovered from the personal search of the accused it having been recovered in pursuance to a consent having been obtained from the accused without a communication to him of his legal right to be searched before a Magistrate or Gazetted Officer, leaves the recovery, if any, of the contraband in pursuance to his personal search by the police official to be having no legal effect. Consequently it is both tainted and a vitiated search to which no legal leverage can be accorded by this Court. 11. 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 learned trial Court merit interference. 12. 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 learned trial Court merit interference. 12. In view of above discussion, the appeal is allowed and the impugned judgment of 26.11.2011, rendered by the learned Special Judge, Mandi is set aside. The appellant/accused is acquitted of the offences 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. 13. The registry is directed to prepare the release warrant of the accused and send it to the Superintendent of the jail concerned, in conformity with this judgment forthwith. Records be sent down forthwith.