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Himachal Pradesh High Court · body

2015 DIGILAW 43 (HP)

Gulam Rasool v. State of Himachal Pradesh

2015-01-08

RAJIV SHARMA, SURESHWAR THAKUR

body2015
Judgment Sureshwar Thakur, Judge The instant appeal is directed against the impugned judgment rendered on 21.4.2012, by the learned Special Judge, Chamba Division Chamba, Himachal Pradesh in Sessions trial No. 47 of 2010, whereby, the learned trial Court convicted and sentenced the accused/appellant to undergo rigorous imprisonment for a period of 10 years and to pay a fine in a sum of Rs.1,00,000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of one year for the commission of offence punishable under Section 20 of the NDPS Act. 2. Brief facts of the case are that on 17.10.2010 ASI Amar Nath (PW-10) alongwith other police officials HC Deva Nand (PW-1), Constable Som Prakash (PW-2), Constable Sandeep Kumar (PW-3) and SPO Jamaldeen was on patrolling towards Madhuwad, Nakrod and Dam site. They laid Naka near Pangola Nallah. At about 7.45 p.m.. the accused/appellant was noticed to be coming from village Himgiri with a bag carrying on his shoulder. On seeing the police, he tried to return back. The accused was asked to stop, however he did not stop and came to be nabbed by the police at the spot. On inquiry, he disclosed his name to be Gulam Rasul S/o Shri Fateh Mohammad alias Chunni. Since the place of occurrence was a secluded place and no independent witness was available at that odd hour, ASI Amar Nath (PW-10) and other police officials gave their personal search to the accused including the I.O kit. A memo in this behalf is comprised in Ex. PW-1/B. PW-10 informed the accused of his legal right to be searched in the presence of a Gazetted officer or a Magistrate vide memo Ex. PW-1/C, the accused opted to be searched by the police party. The bag carried by the accused was of black and blue in colour and words “solvtions Dynesty” were inscribed on it. On checking the bag, there was another green bag in it. On opening the said green bag it was found to be containing 2Kg. 500 grams charas in the shape of Batties. The recovered charas was taken into possession vide memo Ex. PW-1/D. Thereafter the contraband was put back in the same cloth bag and was sealed in a cloth parcel bearing 5 seals of seal impression ‘T’. On opening the said green bag it was found to be containing 2Kg. 500 grams charas in the shape of Batties. The recovered charas was taken into possession vide memo Ex. PW-1/D. Thereafter the contraband was put back in the same cloth bag and was sealed in a cloth parcel bearing 5 seals of seal impression ‘T’. The Investigating Officer thereafter completed the codal formalities of having filled in the NCB forms, taking the specimen seals on a piece of cloth and preparing the seizure memo. PW-3 Sandeep Kumar was sent alongwith the Rukka Ex. PW- 10/A for registration of an FIR to the Police Station, Tissa. One copy of Rukka was also sent to the SP Chamba through C. Som Parkash. The recovered charas was produced by the IO before the Additional SHO Mohinder Singh (PW-9), who resealed the parcel EX. P-1 with five seals of seal ‘D”. On 19.10.2010 the MHC Ravinder Singh (PW-8) had sent the seized contraband to the FSL, through Constable Ravinder Kumar. Report of FSL is comprised in Ex. PW-11/A. 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 was charged for his having committed offence punishable under Section 20 of the 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 11 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 not to lead evidence in defence. 5. On appraisal of the evidence on record, the learned trial Court, returned findings of conviction against the accused. 6. The accused/appellant is aggrieved by the judgment of conviction, recorded by the learned trial Court. 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. 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. On the other hand, the learned Additional 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. Since, the official witnesses have deposed in harmony and consistency with each other qua the genesis of the prosecution version, obviously, then when they have not rendered a discrepant version qua the prosecution version, their testimonies carry probative worth and value. Consequently, when hence credence is to be imputed to their testimonies, the omission on the part of the Investigating Officer to associate independent witnesses in the proceedings relating to search, seizure and recovery is rendered insignificant and un-worthwhile, especially when PW-11 in his deposition has forthrightly deposed that the place where the proceedings were commenced and concluded was a secluded place precluding the association of independent witnesses, as such, when at the relevant time at the site of occurrence no independent witnesses were available in immediate vicinity thereof, the omission on the part of Investigating Officer to associate independent witnesses in the proceedings relating to search seizure and recovery cannot be faulted nor also it can hence be concluded that such omission renders the prosecution case to acquire the taint of partisanship or the hue of prevarication. 10. Nonetheless the significance which is to be imputed to the factum occurring in the deposition of PW-9 the person who recorded the FIR wherein he has deposed that he had received the Rukka at 8. 30 P.M. which fact occurring in his deposition belies the recital recorded in Ex. PW-10/A of it i.e. rukka having been sent from the spot at about 9 p.m. ought not to have been slighted or overlooked as untenably done by the learned trial court as it devolve upon the factum of (a) the time of preparation of rukka (b) the place where the proceedings relating to search, seizure and recovery were commenced and concluded. The learned trial Court disimputed the credibility of PW-9 qua the factum of his having received the rukka at 8.30 p.m. on the mere score that PW-3 C Sandeep Kumar, the carrier of rukka had deposed that he delivered the rukka to MHC Bachan Singh at 10.30 p.m. The testimony of PW-3 the carrier of the rukka would have acquired credibility qua the fact of his having delivered the rukka to MHC at about 10.30 p.m., only in the event of the MHC to whom it was delivered, too, in harmony thereof in his deposition deposed that PW3 had handed over the rukka to him at 10.30 p.m. However, a close and incisive reading of the testimony of MHC Bachan Singh omits to unravel as deposed by PW-3 of his having handed over to the former the rukka at about 10.30 p.m. Therefore, the mere factum of PW-3 having deposed that he had delivered the Rukka to MHC Bachan Singh at about 10.30 p.m. when has remained un-corroborated by MHC Bachan Singh cannot as such efface the truth of the testimony of PW-9 qua the fact of his having received the rukka at about 8.30 p.m. Besides, the revelation in Ex. PW-9/A of the FIR having come to be recorded at 10.30 p.m. cannot foist leverage to the fact that rukka had been received in the police station at about 10.30 p.m. nor also it can contradict the deposition of PW-9 of his having received the rukka at about 8.30 p.m. especially when the MHC to whom it was delivered by PW-3 has omitted to testify the fact of his having received from PW-3 rukka at about 10.30 p.m., moreso, when PW-9 who recorded the FIR may have consumed time since the receiving of the rukka in the police station till its contents being reduced in writing in the FIR recorded by him. Moreover an inference which is rather generated by the fact of the time of dispatch of rukka disclosed in Ex. PW-10/A to have been sent from the site of occurrence at 9.00 p.m. while having come to be belied by the deposition of PW-9, is that the proceedings relating to search, seizure and recovery were concluded at a place other than the site of occurrence. PW-10/A to have been sent from the site of occurrence at 9.00 p.m. while having come to be belied by the deposition of PW-9, is that the proceedings relating to search, seizure and recovery were concluded at a place other than the site of occurrence. Consequently, with a rife and blatant contradiction arising qua the time of despatch of rukka recited in PW-10/A and the testimony of PW-9 upsurges the deduction that the timing of its dispatch was invented or prevaricated to camouflage the truth qua the occurrence besides the genesis of the occurrence being prevaricated as also lends a boost and impetus to the sequel that the entire proceedings were carried out at the police station. In aftermath the entire proceedings ought to be concomitantly concluded to be invented and concocted, hence, jettison the genesis of the prosecution version qua the manner, time and place of recovery of contraband from the alleged conscious possession of the accused. 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. In view of above discussion, the appeal is allowed and the impugned judgment of 21.4.2012, rendered by the learned Special Judge, Chamba is set aside. The appellant/accused is acquitted of the offence 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. 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.