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Himachal Pradesh High Court · body

2015 DIGILAW 379 (HP)

Bhupender Chauhan v. State of H. P.

2015-04-21

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT Sureshwar Thakur, J. 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 24.05.2012 by the learned Special Judge (FTC), Kullu, District Kullu, H.P. in Sessions Trial No. 62 of 2010, whereby appellant/accused Anil Kumar 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 (b) (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 Bhupender Chauhan 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 29 read with Section 20(b)(ii)(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 26.07.2010 at 6.00 PM, a police party consisting of SI Krishan Chand, LHC Hans Raj and C. Sohan Lal, PW-1 of PP, Sainj in Vehicle Tata Sumo No. HP-01K- 2095 driven by C. Bhushan Kumar proceeded towards Bihali, Lajri, Chor Nallah for patrolling vide rapat Ext. PW6/A. At about 7.15 P.M when the police party was present at Chor Nallah, the accused (Anil Kumar) was noticed coming from Banjar Side and on sighting the police party, he turned back and tried to escape, but he was nabbed on suspicion by the police. Name and address of the accused were ascertained. The site of occurrence was isolated, therefore, the investigating officer associated C. Sohan Lal and LHC Hans Raj as witnesses in the proceedings relating to search, seizure and recovery. SI Krishan Chand apprised accused Anil Kumar that he was possessing some narcotic substance and asked for his option qua search either before Magistrate or Gazetted Officer, upon which he consented to give search to the police. The Investigating Officer gave his personal search to accused Anil Kumar vide memo Ex.PW1/A but nothing incriminating was found. SI Krishan Chand apprised accused Anil Kumar that he was possessing some narcotic substance and asked for his option qua search either before Magistrate or Gazetted Officer, upon which he consented to give search to the police. The Investigating Officer gave his personal search to accused Anil Kumar vide memo Ex.PW1/A but nothing incriminating was found. Thereafter, the Investigating Officer conducted search of the dark-green rucksack, upon which word ‘SOVERS’ was written, which was found containing a shirt with sticker ZX and trousers with sticker “KHAN NEAR GAUSHALA SONIPAT”. The Investigating Officer also found one khaki carry bag in the rucksack upon which words “Raja Garments” were inscribed. On opening the khakhi carry bag two packets were found kept therein and in one packet charas in the shape of marble, sticks and pancake was found and in other packet opium in liquid form was found. The charas on weighment was found to be 4 Kg, 800 grams and opium was found to be 300 grams. The Investigating Officer packed the charas and the opium so recovered in the same manner and put the same in separate parcels and the shirt and trousers were also packed in separate parcel. All the three parcels were sealed with seal “H” at three places and sample of seal “H” was prepared. The NCB forms in triplicate Ex.PW10/D were filled by the Investigating Officer. The case property was taken into possession vide memo Ex.PW1/D and copy of the seizure memo was supplied to the accused free of costs. The Investigating Officer prepared ruqua Ex.PW14/A and the same was sent to Police Station, Banjar through PW-1 C. Sohan Lal for registration of FIR. PW-13, SI Surender Pathak on receipt of ruqua registered FIR Ex.PW13/A, and made endorsement. The Investigating Officer thereafter prepared spot map Ex.PW14/B and recorded the statements of witnesses as per their versions. The accused was arrested vide memo Ex.PW1/E. On receipt of the case file, the IO filled FIR number in the documents. Thereafter, the Investigating Officer, produced the case property before PW-13 SI/SHO Surender Pathak, who resealed the parcels with seal “A” at three places and facsimile of seal “A” was drawn on cloth pieces. He also filled columns of NCB-1 in triplicate Ex.PW10/D and deposited the case property with MHC, P.S. Banjar. Thereafter, the Investigating Officer, produced the case property before PW-13 SI/SHO Surender Pathak, who resealed the parcels with seal “A” at three places and facsimile of seal “A” was drawn on cloth pieces. He also filled columns of NCB-1 in triplicate Ex.PW10/D and deposited the case property with MHC, P.S. Banjar. PW-10 MHC Shesh Raj entered case property in Malkhana register, the abstract of which is Ex.PW10/A. The Investigating Officer prepared special report Ex.PW2/A and submitted the same before Dy. S.P., who after making endorsement thereon handed over it to PW-2 HC Harbans Kumar, who entered the same at Sr. No.50 in the relevant register, the abstract of which is Ex.PW2/B. 3. During the course of investigation, accused Anil Kumar made a disclosure statement Ex.PW1/G to the effect that he met Gopal alias Bangali on 25.7.2010, who arranged for his stay in house near Bus Stand Banjar. On 26.7.2010 opium and charas in a bag was given to him by said Gopal alias Bangali. Thereafter, accused Anil Kumar identified the house of Bhupender Chauhan and the Investigating Officer prepared identification memo Ex.PW13/C and site plan Ex.PW13/G. Accused Anil Kumar also identified the place where charas and opium were given to him. The Investigating Officer prepared identification memo Ex.PW1/H and spot map Ex.PW14/D. SHO Surender Pathak also took in to possession certificate Ex.PW13/D, learner’s licence Ex.PW13/E and a diary of Bhupender Chauhan from his house. During the personal search of accused Anil Kumar visiting card of accused Bhupender Chauhan was recovered and thereafter pursuant to E-Mail Ex.PW9/a CALL DETAILS Ex.PW9/B1 to Ex.PW9/B-13 of conversation between both the accused persons were taken in to possession by the police. The investigating officer also moved an application Ex.PW8/A to PNB, Banjar to verify the account details of accused Bhupender Chauhan and took in to possession details Ex.PW8/B and accused Anil Kumar also identified the shop of accused Bhupender Chauhan vide memo Ex.PW14/C. On 28.7.2010, PW-10 MHC Shesh Raj handed over parcels containing charas and opium along with NCB forms, sample seals “H” and “A”, reference letter Ex.PW10/C and other documents to C. Om Chand vide RC Ext. PW10/B with the direction to deposit the same in FSL, Junga for chemical analysis and before handing over the case property, the MHC filled relevant columns of NCB forms in triplicate. PW10/B with the direction to deposit the same in FSL, Junga for chemical analysis and before handing over the case property, the MHC filled relevant columns of NCB forms in triplicate. C. Om Chand after depositing the case property at FSL, Junga deposited the R.C. containing receipt of FSL, with PW- 10 HC Shesh Raj. On receipt of FSL report Ex.PW13/F, it was found that the contraband recovered from the accused were found to be charas and opium. 4. 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. 5. The accused/appellant Anil Kumar was charged for his having committed offences punishable under Section 20 (b)(ii)(C) and Section 18 of the NDPS Act and accused/appellant Bhupender Chauhan was charged for his having committed offences punishable under Section 29 read with Sections 20(b)(ii)(C) and 18 of the NDPS Act, by the learned trial Court, to which they pleaded not guilty and claimed trial. 6. In proof of the prosecution case, the prosecution examined as many as 14 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. 7. On appraisal of the evidence on record, the learned trial Court convicted the accused for the offences charged. 8. 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. 9. On the other hand, the learned Additional 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. 10. 9. On the other hand, the learned Additional 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. 10. 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. 11. 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 of the contraband 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. 12. The factum of parcel, Ex. P-1 containing charas, Ex.P6 and parcel, Ex.P-2 containing opium, Ex.P-9, weighing respectively 4 Kg, 800 grams and 300 grams having been recovered from the exclusive and conscious possession of the accused at the site of occurrence under recovery memo Ex.PW1/D has been clinchingly proved by the testimonies of the official witnesses. The testimonies of the official witnesses, when they have deposed in tandem, harmony and in unison qua the apposite proceedings relating to search, recovery and seizure of items of contraband having commenced and concluded at the site of occurrence besides when their testimonies are bereft of any intra se or inter se contradictions, as such inspire the confidence of this Court, to hence, prod it to record findings of conviction against the accused. Nonetheless, even when a clinching conclusion is sproutable from the testimonies of the official witnesses qua the factum probandum deposed in consistency by each of them, yet the firmness of the conclusion drawable by this Court qua the guilt of the accused gets weakened and shaky in the face of evidence existing on record portraying that despite availability, the Investigating Officer had omitted to associate independent witnesses in the proceedings relating to search, seizure and recovery of items of contraband under recovery memo Ex.PW1/D from the exclusive and conscious possession of the accused, at the site of occurrence. The non association of independent witnesses in the apposite proceedings by the Investigating Officer would not have either rendered flawed not would it have imbued the genesis of the prosecution case with fatality, yet when despite availability, the Investigating Officer omitted to or did not concert to make arduous efforts to mobilize or elicit their participation in the apposite proceedings at the site of occurrence, marshals an inference that his lack of concert to solicit the participation of the independent witnesses in the apposite proceedings at the site of occurrence, was prodded by an oblique motive on the part of the Investigation Officer to conceal the truth or also gives leeway to an inference that the proceedings as conducted at the site of occurrence are imbued with intransparency, hence, vitiated. 13. Now for discerning from the evidence on record, for rendering an apt conclusion that the Investigating Officer despite availability of independent witnesses had omitted to endeavour to elicit their participation in the apposite proceedings, at the site of occurrence, for hence rendering them to be flawed as well as vitiated, an advertence to the testimony of PW-1 is required to be made. The testimony of PW-1 C. Sohan Lal as existing in his cross-examination portrays an admission on the part of this witness that the house of Ex-President of Panchyat Kotla is located between Larji Mour and Village Thuari. Moreover, there also exists an admission in his cross-examination qua the existence of three houses near the house of Dola Singh, whose house is located at a distance of 100 meters from Chour Nallah (site of occurrence). Moreover, there also exists an admission in his cross-examination qua the existence of three houses near the house of Dola Singh, whose house is located at a distance of 100 meters from Chour Nallah (site of occurrence). Apart from the fact that this witness has deposed qua the existence of habitation in close proximity and vicinity of the site of occurrence, the association of whose inhabitants could have been, hence, elicited by the Investigating Officer in the apposite proceedings at the site of occurrence, this witness in his cross-examination has further deposed that the Investigating Officer had not made any arduous efforts to solicit the participation of independent witnesses in the apposite proceedings. The aforesaid evidence renders open or gives leeway to an inference that the Investigating Officer despite existence of habitation in the proximity and vicinity of the site of occurrence had willfully not made either arduous or assiduous efforts to solicit the participation of the independent witnesses in the apposite proceedings. Lack of sincere efforts on the part of the Investigating Officer to solicit the participation of independent witnesses in the apposite proceedings at the site of occurrence, sequels an apt deduction that the Investigating officer was goaded by an oblique motive to do so or he intended to smother or hide the truth qua the genesis of the prosecution version which hence stands flawed as well as vitiated. 14. Reinforcing strength to the aforesaid inference as derived from the factum deposed by PW-1 that despite existence of habitation in close proximity or vicinity of the site of occurrence, the Investigating Officer having willfully omitted to join inhabitants thereof in the apposite proceedings at the site of occurrence as such rendering the genesis of the prosecution version emaciated, is lent by the further factum as exists in the cross-examination of the Investigating Officer of his omitting to join independent witnesses in the apposite proceedings at the site of occurrence despite existence of a village in close vicinity to the site of occurrence. As a sequitur the inference as has hereinabove ensued on a discerning appraisal of the evidence of PW-1 C. Sohan Lal and the evidence existing in the cross-examination of the Investigating Officer, obviously then tilts the scale of justice in favour of the accused, besides shreds apart the evidentiary value of the testimonies of the officials witnesses even though they have deposed in unison and in consistency qua the factum of the apposite proceedings having been with legal aptness concluded at the site of occurrence. 15. The learned trial Court in having discarded the effect of or the impact of the testimony of the PW-1 and the testimony of the Investigating Officer which rather eroded the efficacy of the testimonies of the other official witnesses qua the factum as deposed by them has led its judgment to be ingrained with a legal fallibility of non appreciation of a valuable piece of evidence. Such non appreciation of a valuable piece of evidence by the learned trial Court has occasioned gross miscarriage of justice. In the exercise of its appellate jurisdiction, such gross miscarriage of justice is to be undone by this Court. As such, findings of conviction recorded by the learned trial Court necessitate interference. 16. 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. 17. 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/appellants are acquitted of the offences charged. Fine amount, if any, deposited by the accused/appellants be refunded to them. They be set at liberty forthwith, if not required in any other offence. Records of the learned trial Court be sent down forthwith.