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2015 DIGILAW 429 (HP)

State of Himachal Pradesh v. Mizuta Natsuhiro

2015-05-01

RAJIV SHARMA, SURESHWAR THAKUR

body2015
Judgment : Sureshwar Thakur, J. Through the instant Cr. M.P(M) the appellant has sought grant of leave to appeal against the impugned findings of acquittal rendered in favour of respondent/accused by the learned Special Judge-II (Additional Sessions Judge), Kullu, in Sessions Trial No. 49 of 2014 decided on 1.1.2015. 2. The facts necessary for rendering an adjudication on the Cr.MP (M) No. 308 of 2015 are that on the evening of 13.3.2014 at about 6.30 p.m when a police party headed by PW-9 HC Vinay Kumar and consisting of Head Constable Hitesh Kumar, HHG Jagdish Chand, driver of official vehicle No. HP-34-A-9984 was on Nakabandi duty at Temporary Check Post Bajaura with Constable Mukesh Kumar, constable Naresh Kumar and Constable Vikram, then one Volvo Bus of Yak Bus Service bearing No. UP- 83-T-1704 came from Manali side and was going to Delhi, was signaled to stop. Thereafter HC Vinay Kumar, HC Hitesh Kumar and Constable Naresh Kumar boarded the bus and started checking the bus and when they reached near Seat No. 30 the accused on seeing the police party got perplexed and on asking the accused he disclosed his name Mizuta Natsuhiro. The investigator asked the conductor about the luggage of the accused and the conductor disclosed that the luggage of the accused was inside the dickey of the bus where seat Nos. of the passengers have been marked with chalk. Thereafter, the investigator got the accused alighted from the bus and one bag with Mark seat No. 30 belonging to accused was taken out from the dickey of the bus by conductor of the bus and the bag as well as the accused were taken to temporary check post. Thereafter, investigator PW-9 Head Constable Vinay Kumar gave his personal search to the accused but nothing incriminating was recovered. Thereafter, the bag of the accused was checked by investigator and inside the bag one transparent polythene envelope was found in which two shoes of red coloured were kept and on checking the shoes, transparent envelopes were found which were containing black colour substance in pan cake and round shape and when the said black coloured substance was checked, it was found charas. The recovered charas was weighed with the help of an electronic scale and its weight was found 190 grams. The recovered charas was weighed with the help of an electronic scale and its weight was found 190 grams. Out of the recovered 190 grams charas, one sample of ten gram charas was taken and put in a cloth parcel and sealed with three seal of ‘M’. Thereafter, investigating officer completed all the codal formalities. 3. After completion of the investigation, challan, under Section 173 of the Cr.P.C. was prepared and filed in the Court. The trial Court charged the accused for his having committed offence punishable under Section 20 of the NDPS ACt, to which he pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined as many as 10 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 and he chose not to adduce any evidence in defence. 5. On appraisal of the evidence on record, the learned trial Court returned findings of acquittal in favour of the accused/respondent. 6. The State of H.P. is aggrieved by the judgement of acquittal, recorded by the learned trial Court. Shri M.A. Khan, ld. Additional Advocate General, has concertedly and vigorously contended that the findings of acquittal, 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, he contends that leave to appeal be granted by this Court. 7. Admittedly, accused Mizuta Natsuhiro, as proved by ticket Ext.P-1 was occupying seat No. 30 and contraband was recovered from a rucksack kept in the dickey of the bus. The accused is sought to be connected with the ownership of the rucksack on the score of and on the strength of the rucksack wherefrom a polythene bag was retrieved wherein two shoes were found in which charas weighing 190 grams was recovered, bearing an inscription thereon compatible to the number of the seat occupied by the accused in the bus nomenclatured as Volvo Bus bearing No. UP-83-T-1704 bound from Kullu to Delhi. The prosecution has concerted to convey that the accused-respondent owned it, given the analogity qua seat No. 30 occupied by the accused and the inscription borne on the rucksack wherefrom charas weighing 190 grams was allegedly recovered. 8. 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, portraying proof of unbroken and unsevered links, in the entire chain of the circumstances, hence, it is argued that when the prosecution case stood established, it would be legally unwise for this Court to refuse to grant leave to appeal against the impugned findings of acquittal. 9. Besides, it is contended that when the testimonies of the official witnesses unravel the fact of their being bereft of any inter se and intra se contradictions hence, consequently when they too enjoy credibility they were undiscardable. 10. However, independent witnesses PW-8 and PW-10 turned hostile and omitted to lend support to the prosecution case. The mere fact of the prosecution witnesses having deposed in corroboration with each other besides in tandem qua each of the links of the prosecution case commencing from search, seizure and recovery till the consummate link comprised in the rendition of an opinion by the FSL, nonetheless the aforesaid proof lent by or existing in the deposition of the official witnesses qua each of the links in the prosecution case hence having come to be substantiated does not hold good for the prosecution nor does it prod an inference that the genesis of the prosecution version as such has come to be proved, especially the preponderant fact of recovery of charas weighing 190 grams having been effectuated from ‘rucksack’ found in the dickey of the bus though inscribed with a seat number analogous to the one demonstrated by ticket Ext.P-1 as held by the accused besides occupied by the latter when preeminently the rucksack remained not produced in Court. Non production of rucksack in Court, in its entirety belies the factum deposed by the prosecution witnesses that on its search and seizure by the Investigating Officer charas weighing 190 grams was recovered from the pair of shoes kept inside a polythene enclosed in the rucksack. Non production of rucksack in Court, in its entirety belies the factum deposed by the prosecution witnesses that on its search and seizure by the Investigating Officer charas weighing 190 grams was recovered from the pair of shoes kept inside a polythene enclosed in the rucksack. The omission of production of rucksack in Court for reiteration reinforcibly gives impetus to the formidable conclusion that the entire edifice of the genesis of the prosecution story of charas having come to be recovered in the manner alleged by the prosecution gets shattered. Besides, as a necessary sequel, the findings of acquittal rendered by the learned trial Court in favour of accused respondent suffers from no infirmity, especially when there is also no evidence on record personifying the fact that inscription, if any, of seat No. 30 on the rucksack though analogous to the seat occupied by the accused was scribed by the accused or that hence the rucksack was owned by the accused as also when there is nonexistence of any germane evidence on record personifying the fact that the two shoes wherefrom charas was recovered were owned by the accused. 11. In view of the above discussion, the learned trial Court is to be concluded to have appreciated the evidence in a mature and balanced manner and its findings, hence, do not necessitate interference. Therefore, the application for leave to appeal is dismissed being devoid of any merit and the findings rendered by the learned trial Court are affirmed and maintained.