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Himachal Pradesh High Court · body

2015 DIGILAW 366 (HP)

Narender Singh v. State of H. P.

2015-04-17

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT : SURESHWAR THAKUR, J. 1. Both these appeals arise from a common judgment hence are being disposed of by a common judgment. The aforesaid appeals have been preferred by the appellants/accused against the judgment, rendered on 15.12.2011 by the learned Special Judge, Mandi, District Mandi, H.P. in Sessions Trial No. 60/2010, whereby appellant/accused Murari Lal has been convicted and sentenced to undergo 10 years rigorous imprisonment and to pay a fine of Rs.1,00,000/- for his having committed offence punishable under Section 20 (ii) (c) of the Narcotic Drugs & Psychotropic Substances Act, 1985 (herein-after referred to as “NDPS Act'). In default of payment of fine, he has been sentenced to further undergo rigorous imprisonment for one year. Whereas, accused/appellant Narender Singh has been convicted and sentenced to undergo 3 years rigorous imprisonment and to pay a fine of Rs.50,000/- for his having committed offence punishable under Section 18 (c) of the Narcotic Drugs & Psychotropic Substances Act, 1985. In default of payment of fine, he has been sentenced to further undergo rigorous imprisonment for one year. 2. Brief facts of the case are that on 28.5.2010 Sub Inspector Minakshi along with other police officials, in official vehicle bearing registration No.HP-07B-0406 started from Shimla towards Mandi and Kullu etc. At about 6.45 P.M. on the said date, the said police party was present at place Known as Hanogi in District Mandi. At that place, S.I. Minakshi received the secret information regarding the fact that two persons, one of whom had worn a white and orange coloured T-shirt and blue pant aged about 21/22 years having rucksack on his back and second one, who had worn blue coloured check shirt and kargo pant aged about 20/21 years, having white colour envelope in his hand are on their way on foot from Thalout to Hanogi side. Both of them had started from Thalout side in order to sell the opium and charas. The said information was considered to be reliable by the I.O., as such, she sent information under Section 42 (2) of the NDPS Act to her superior officials. Thereafter, she along with other police officials started towards Thalout side. At about 7.00 p.m., when the police party reached at a distance of about 500 meters short of Rains Nallah, then they stopped there, in order to wait for the aforesaid persons. Thereafter, she along with other police officials started towards Thalout side. At about 7.00 p.m., when the police party reached at a distance of about 500 meters short of Rains Nallah, then they stopped there, in order to wait for the aforesaid persons. Meanwhile a vehicle Bolero Camper jeep bearing No. HP-33-2827 came there from Thalout side, which was signaled to stop. Two persons were found traveling in it. On inquiry, one disclosed his name Deepak and second disclosed his name as Sanjeet Sah. The I.O. apprised said two persons regarding the secret information, which she had received. Thereafter, both of them were associated in the raiding party. The polie party had given their personal search to the said two witnesses. It is further case of the prosecution that at about 7.15 P.M., the Investigating Officer noticed two persons coming from Thalout side and their physical description including the cloth etc., tallied with the description which she received from the informer. Hence, the said persons were nabbed and their names and addresses were ascertained. On inquiry, one disclosed his name as Maurari Lal son of Sh. Atma Ram and second disclosed his name as Narender Kumar son of Sh. Ghanshyam. Thereafter the Investigating Officer apprised them about the information, which she had received and gave the options to them to give their personal search as well as search of the rucksack to some Gazetted officer or Magistrate. These options have been given to them as their legal right. Both of them had given their consent to be searched by the police. The dark green rucksack was found on the right shoulder of the accused Murari Lal having two compartments and when the bigger one was opened, it was found containing a transparent polythene envelope containing tablet shaped and stick shaped black substance, which on smelling and experience was found to be charas. Similarly, the white coloured polythene, which the accused Narender was having in his hand, was searched. On opening, the same was also found containing another transparent envelope containing soft black substance, which on smelling and tasting was found to be opium. On weighment, the charas was found to be 4 kg and the opium was found to be 1 kg. The said recovered contraband was put in the separate parcels and was sealed with seal “M'. Specimens of seal impression “M” were separately obtained. On weighment, the charas was found to be 4 kg and the opium was found to be 1 kg. The said recovered contraband was put in the separate parcels and was sealed with seal “M'. Specimens of seal impression “M” were separately obtained. Ruqua was sent to police station C.I.D., Shimla and the accused were arrested. Other codal formalities were completed on the spot. 3. After completion of the necessary investigation, into the offences, allegedly committed by the accused/appellants, challan was filed under Section 173 of the Code of Criminal Procedure. 4. The accused/appellant Murari Lal was charged for his having committed offences punishable under Sections 20 and 29 of the NDPS Act and accused/appellant Narender Singh was charged for his having committed offences punishable under Sections 18 and 29 of the NDPS Act, by the learned trial Court, to which they pleaded not guilty and claimed trial. 5. In proof of the prosecution case, the prosecution examined as many as 11 witnesses. On closure of the prosecution evidence, the statements of the accused under Section 313 Cr.P.C., were recorded by the learned trial Court, in which they claimed false implication and pleaded innocence. In defence, the appellants/accused have examined one witness. 6. On appraisal of the evidence on record, the learned trial Court convicted the accused for the offences charged. 7. The appellants/accused are aggrieved by the judgment of conviction, recorded by the learned trial Court. The learned counsel for the accused, have concertedly and vigorously contended that the findings of conviction, recorded by the learned trial Court, are not based on a proper appreciation of the evidence on record, rather, they are sequelled by gross mis-appreciation of the material on record. Hence, they contend that the findings of conviction be reversed by this Court, in the exercise of its appellate jurisdiction and be replaced by findings of acquittal. 8. On the other hand, the learned Assistant Advocate General, appearing for the respondent-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 do not necessitate interference, rather merit vindication. 9. 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. 10. The factum of charas, Ex. 9. 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. 10. The factum of charas, Ex. P-7, weighing 4 Kgs recovered from a rucksack, Ex.P6 under memo Ex.PW1/F while it being consciously held and possessed by accused Murari Lal, inasmuch as his carrying it on his right shoulder besides, the factum of recovery of opium Ex.P-5 from polythene bag, Ex.P-3 under memo Ex.PW1/F which polythene bag was consciously held and possessed by accused Narender Singh, inasmuch as he holding it in his hand, has been proved by the depositions of the police officials, who have deposed in tandem, harmony and unison qua the apposite proceedings relating to search, recovery and seizure having commenced and concluded at the site of occurrence. Even though the prosecution witnesses have deposed in tandem and 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, hence, portraying proof of unbroken and unsevered links, in the entire chain of the circumstances, therefore, it is argued that when the prosecution case stands established, it would be legally unwise for this Court to acquit the accused. Besides, it is canvassed that when the testimonies of the official witnesses, unravel the fact of theirs being bereft of any inter-se or intra-se contradictions hence, consequently they too enjoy credibility. 11. Besides, it is canvassed that when the testimonies of the official witnesses, unravel the fact of theirs being bereft of any inter-se or intra-se contradictions hence, consequently they too enjoy credibility. 11. Even though, the independent witnesses, namely, PW-1 Deepak and PW-2 Sanjeet Sah, to the proceedings relating to search, seizure and recovery of contraband under memos aforesaid have not come to support the prosecution case, nonetheless, the factum of theirs turning hostile and theirs having not supported the genesis of the prosecution version does not assume any significance nor throws overboard the consistent and harmonious testimonies of the official witnesses, especially in the face of both having admitted their signatures on memos Ex.PW1/A to Ex.PW1/F as well as on Ex.PW1/G. The factum aforesaid of theirs having admitted their signatures on the memos aforesaid, renders them estopped by the rule engrafted under Sections 91 and 92 of the Indian Evidence Act which while interdicting and prohibiting them from deposing orally in variance to their recorded contents to also hence resile or renege from their recorded contents. Consequently, then with a legal bar envisaged under Sections 91 and 92 of the Indian Evidence Act against their deposing orally in digression from or at variance from the recorded recitals of the memos on which they admit their signatures, obviously renders unworthwhile the effect, if any, of theirs having reneged or resiled from the factum of their having not witnessed the proceedings at the site of occurrence, especially when the fact thereof stands recorded in the recitals of the memos on which they admit their signatures. 12. Even though, this Court would be preempted from rendering unworthwhile the testimonies of the official witnesses, who have deposed bereft of intra se or inter se contradictions qua the factum of the recovery of opium and charas from the exclusive and conscious possession of each of the accused respectively. Nonetheless, the prosecution also was enjoined to bring forth evidence that the seizure of opium Ex.P-5 recovered from the exclusive and conscious possession of accused Narender Singh under memo Ex.PW1/F and seizure of charas, Ex.P-7 recovered from the exclusive and conscious possession of accused Murari Lal under memo Ex.PW1/F, was the one as had come to be produced in Court. Nonetheless, the prosecution also was enjoined to bring forth evidence that the seizure of opium Ex.P-5 recovered from the exclusive and conscious possession of accused Narender Singh under memo Ex.PW1/F and seizure of charas, Ex.P-7 recovered from the exclusive and conscious possession of accused Murari Lal under memo Ex.PW1/F, was the one as had come to be produced in Court. If there occurs or exists on record discrepant evidence projecting the fact that the case property as attributed to each of the accused or to have been recovered from them at the site of occurrence, is not linkable or connected with the case property as produced in Court obviously then the sequelling inference would be of the case property attributed to have been recovered at the site of occurrence from the purported exclusive and conscious possession of the accused, being not hence the one recovered from them at the site of occurrence. The evidentiary fact which underscores the fact that the case property as produced in Court is unlinkable or not connected with the case property as purportedly recovered from the exclusive and conscious possession of each of the accused at the site of occurrence is comprised in the fact of (a) on 21.06.2011 the case property having been produced before the Court during the course of recording of depositions of independent witnesses, namely, PW-1 Deepak and PW-2 Sanjeet Sah. However, it on 21.06.2011 being produced in Court remained un-opened. (b) On 22.6.2011, the case property kept in parcels Ex.P-1 and Ex.P-2 was produced in Court during the course of the recording of deposition of PW-3 SI Balbir Singh. However, during the course of the recording of deposition of PW-3, the learned trial Court on the request of the learned Public Prosecutor ordered the contents of parcels Ex.P-1 and Ex.P-2 being retrieved there from. On the opening of parcel Ex.P-1, opium (Ex.P-5) was found in the transparent envelope (Ex.P-4) kept inside the polythene bag in parcel Ex.P-1. Moreover, also on the request of the learned Public Prosecutor for the opening of parcel Ex.P-2 having come to be acceded to by the learned trial Court, parcel, Ex.P-2 on its opening was found containing rucksack, Ex.P-6 wherein charas Ex.P-7 was found. Moreover, also on the request of the learned Public Prosecutor for the opening of parcel Ex.P-2 having come to be acceded to by the learned trial Court, parcel, Ex.P-2 on its opening was found containing rucksack, Ex.P-6 wherein charas Ex.P-7 was found. Even when both parcels Ex.P-1 and Ex.P-2 were ordered to be opened wherefrom their contents were respectively retrieved therefrom, nonetheless there is no order rendered by the learned trial Court for the parcels being resealed with the seal of the Court nor any order of theirs having been returned to the appropriate custody of the malkhana In-charge. The fact of non rendition of orders by the learned trial Court qua resealing of both parcels Ex.P-1 and P-2 after theirs having come to be opened and contents thereof having come to be produced before the Court for theirs being shown to the witness aforesaid has its repercussions upon the efficacy of the testimony of PW-6 Inspector Minakshi, who was subsequently examined on oath on 16.07.2011, especially qua the pre-eminent fact of whether the case property as put to PW-3 and PW-6 being the very same case property. With fortifying vigour, it can be aptly concluded that the parcels Ex.P-1 and P-2, containing the respective items of contraband recovered from the exclusive and conscious possession of each of the accused are vulnerable to skepticism or being construable to be not recovered at the site of occurrence from the exclusive and conscious possession of the accused, rather what sprouts an inference of contradistinct items of contraband having been retrieved therefrom during the course of opening of parcels Ex.P-1 and P-2 and theirs being put to PW-3 and PW-6 during the course of theirs being examined on oath on different dates, is the fact that there is no apposite corresponding entry portrayed in the malkhana register, for succoring an inference that the case property after its being produced in Court on 22.06.2011 at the time of the recording of deposition of PW-3 was kept in the Malkhana nor also there is an apposite entry in the Malkhana Register depicting the fact that after its having come to be detained in the police Malkhana, it was retrieved there from at the time of the recording of the deposition of PW-6 subsequently on 16.07.2011. The lack of or omission of portrayal in the apposite columns of the Malkhana Register apposite to the case property recovered respectively from the exclusive and conscious possession of the accused is enunciative of and loudly bespeaks the fact that since the date of the recording of the deposition of PW-3 on 22.6.2011 till the date of the recording of deposition of PW-6 on 16.07.2011, both the parcels remained opened and unsealed, hence, both parcels had come to be tampered with or opened. Consequently, a scope was left for introduction of contraband items therein though respectively attributed to each of the accused. Accentuated fervour is lent to the inference aforesaid from the fact as apparent on a reading of the testimony of PW-3, during the course of the recording of whose deposition the parcels aforesaid were opened, inasmuch as a reading of his testimony in its entirety omits to portray that even when parcels Ex.P-1 and Ex.P-2 were opened and items of contraband were retrieved therefrom for being shown to this witness, the Court had merely ordered that the contents thereof be put inside Ex.P-1 and P-2. However, it had not ordered theirs being resealed with the seal of the Court and thereafter theirs being handed over to the appropriate custody of the Malkhana In-charge. Obviously, then it has to be concomitantly concluded that the parcels remained not sealed with seal of the Court rather came to be sealed in the police malkhana, the sequeling inference is that at the time of their resealing it appears that the items of contraband purportedly attributed to each of the accused respectively may have found their place inside both the parcels Ex.P-1 and Ex.P-2. Consequently, when subsequently PW-6 came to be examined on oath to whom the contents of Ex.P-1 and Ex.P-2 attributed to each of the accused of theirs purportedly having been recovered from their exclusive and conscious possession at the site of occurrence respectively, were shown or put to this witness in Court they may have been planted inside Ex.P-1 and Ex.P-2. In aftermath, the contents of parcels, Ex.P-1 and P-2 attributed to each of the accused, cannot hence be concluded to be ones recovered from the site of occurrence from the exclusive and conscious possession of each of the accused. In aftermath, the contents of parcels, Ex.P-1 and P-2 attributed to each of the accused, cannot hence be concluded to be ones recovered from the site of occurrence from the exclusive and conscious possession of each of the accused. As a sequitur, then the invincible conclusion is that the case property as proven by PW-6 on it being shown to her in Court remains not connected with each of the accused, especially when an aura of doubt for the reasons aforesaid arising from lack of Court orders for theirs being resealed with the seal of Court and thereupon being handed over to the appropriate custody of the Malkhana Incharge, even who has not proven by production of the Malkhana Register of his having received them in his custody since the examination of PW-3 and contemporaneous to the examination of PW-6. 13. The aforesaid discrepancies marks the factum that the case property attributed to each of the accused is not linkable to the accused, inasmuch as it having not been proved by the prosecution that the case property as proven by PW-6 was the case property as recovered from the site of occurrence from the exclusive and conscious possession of the accused. The aforesaid discrepancies having escaped from the notice of the learned trial Court has resulted in erroneous findings of conviction against the accused. As such, conviction necessitates interference. 14. On a formation of the aforesaid conclusion, the concomitant deduction is that the prosecution has been unable to prove the guilt of both the accused. 15. In view of above, we find that the findings of conviction, recorded by the learned trial Court below, are not based on a mature and balanced appreciation of evidence on record. Hence, the findings necessitate irreverence. Accordingly, both the appeals are allowed and the judgment rendered by the learned trial Court is set aside. Both the accused are acquitted of the offences charged. Fine amount, if any, deposited by the accused/appellants be refunded to them. Since accused/appellant Murari Lal is in jail, he be set at liberty forthwith, if not required in any other offence. Records of the learned trial Court be sent down forthwith.