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2015 DIGILAW 655 (HP)

Jagdish Kumar v. State of Himachal Pradesh

2015-06-03

RAJIV SHARMA, SURESHWAR THAKUR

body2015
Judgment : Sureshwar Thakur, J. 1. This appeal is directed against the judgment rendered on 5.1.2013 by the learned Special Judge (II), Mandi, District Mandi, H.P. in Sessions trial No. 1 of 2012, whereby the appellant has been convicted and sentenced to undergo rigorous imprisonment for a period of twelve years and to pay a fine of Rs. One lac for commission of offence punishable under Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as ‘NDPS Act’) and in default of payment of fine, he has been sentenced to undergo simple imprisonment for two years. 2. The prosecution story, in brief, is that on 20.10.2011 at about 4.30 p.m. SI Dulo Ram alongwith ASI Pratap Singh, HHC Raj Kumar, LHC Sanjay Kumar, on receipt of prior information, were present near Dhanotu Chowk, in the meantime accused came there having a bag in his right hand. It is alleged that accused was roaming quickly towards Sabzi Mandi and also came back, the police got suspicion and the accused was stopped. Dalip Chand and Kartar Singh were joined as indepdent witnesses in the raiding party. On inquiry, accused had disclosed his name and address. Thereafter the bag, on which “Next Gen” was imprinted was checked and on checking the bag, one polythene bag was found kept inside it on which “Lall and Sons”, the Mall Shimla was imprinted and inside the said bag one polythene envelope, which was tied with a piece of cloth was found and on opening the same a black coloured material in the shape of sphere and stick was found in it and on smelling the same was found to be Charas. On weighing the charas, it was found to be 4 Kg. 880 grams. The charas was sealed in a parcel in the same manner by using seal H at 18 places. Sample seal was taken on piece of cloth. NCB form in triplicate were filled in and seal was also affixed on it. Charas was taken into possession vide seprate memo, which was singed by the accused and the witnesses. Rukka was prepared. Rukka, NCB form, copy of seizure memo, sample seal were then sent to P.S State CID Bharari through HHC Raj Kumar. FIR was registered against the accused. Accused was arrested and the case property for chemical examination was sent to FSL Junga and report was received. Rukka was prepared. Rukka, NCB form, copy of seizure memo, sample seal were then sent to P.S State CID Bharari through HHC Raj Kumar. FIR was registered against the accused. Accused was arrested and the case property for chemical examination was sent to FSL Junga and report was received. Special Report was sent to ASP, CID Bharari. 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(b)(ii)(c) 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 conviction against the accused. 6. The accused/appellant is aggrieved by the judgement of conviction recorded by the learned trial Court. Shri Vivek Sharma, Advocate, has 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, he contends that the findings of conviction be reversed by this Court, in the exercise of its appellate jurisdiction and be replaced by findings of acquittal. 7. On the other hand, the learned Assistant Advocate General appearing for the 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. 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 prosecution version is embedded in the deposition of PW-1. He deposes that on 20.10.2011 at about 4.30 p.m, he alongwith HHC Raj Kumar, LHC Sanjay Kumar and ASI Dulo Ram were present near Dhanotu Chowk. 9. The prosecution version is embedded in the deposition of PW-1. He deposes that on 20.10.2011 at about 4.30 p.m, he alongwith HHC Raj Kumar, LHC Sanjay Kumar and ASI Dulo Ram were present near Dhanotu Chowk. The accused has been deposed to have there arrived from Jai Devi. The accused has been deposed to be the carrier of a raxine type black green coloured bag on his right shoulder. He further deposes that the accused was walking briskly towards Sabzi Mandi wherefrom he turned towards Dhanotu Chowk. Thereafter he has been deposed by this witness to have retrieved towards Sabzi Mandi. On suspicion having been aroused he was stopped. Dalip Chaudhary and Kartar Chandel have been deposed to have been associated. On inquiry accused revealed his name to be Jagdish Kumar. The Investigating Officer has been deposed by this witness to have checked the bag carried by the accused in the presence of witnesses Dalip Chaudhary and Kartar Chandel and in the presence of official witnesses. The bag was bearing the words ‘Next Gen’. On opening the bag aforesaid, it was found to be containing a white, red and green polythene bag bearing the label of Lal and Sons, The Mall, Shimla. On checking, it was found to be containing a transparent polythene bag which was tied with a piece of cloth from one side. In it a black coloured substance, in the form of spheres and sticks, was recovered. On the basis of smell and experience it was identified to be the Charas. On weighment, the charas was found to be 4.880 kilograms. Memo of identification has been deposed by this witness to have prepared. The memo aforesaid has been deposed to have signatured by him, Dalip Chaudhary and Kartar Chand. Thereafter, the Charas was inserted in a polythene bag and the polythene bag was put in the same bag, wherefrom it was recovered. The bag was put in the same cloth parcel and the parcel was sealed with 18 impressions of seal H. Seal impression has been deposed by this witness to have taken on separate pieces of cloths, one of such impression is comprised in Ex. PW-1/B, which bears his signatures and signatures of Kartar Chandel, Daleep Chaudhary and Jagdish Kumar. The bag was put in the same cloth parcel and the parcel was sealed with 18 impressions of seal H. Seal impression has been deposed by this witness to have taken on separate pieces of cloths, one of such impression is comprised in Ex. PW-1/B, which bears his signatures and signatures of Kartar Chandel, Daleep Chaudhary and Jagdish Kumar. He continuous to depose that NCB Form-1 Mark A was filled in triplicate at the spot and seal impression has been deposed by this witness to have embossed on it. He further deposes that seal after use was handed over to Dalip Chaudhary. Charas was seized vide seizure memo Ext.PW-1/C, which was signed by him, Kartar Chandel, Dalip Chaudhary, LHC Sanjay Kumar and by the accused. Copy of the seizure memo has been deposed to have been supplied to the accused. Ruka mark-B was prepared and handed over to HHC Raj Kumar alongwith the case property, sample seal and NCB 1 form with a direction to carry the aforesaid to the police station Bharari. The investigating officer has been deposed to have prepared the site plan and recorded the statement of witnesses as per their version. Accused has been deposed by this witness to have arrested vide memo Mark-C, which bears the signatures of Kartar Chandel, Dalip Chaudhary and accused. During the course of his examination in chief, one sealed parcel sealed with seven impressions of FSL, 17 impressions of seal H, 10 impressions of seal T were produced in Court. One seal impression was broken and was not legible. On permission having been accorded to the learned Public Prosecutor to open the parcel, this witness identified the parcel Ext.P-1 to be the same which was prepared in his presence. Further he deposes that the bag Ext.P-2 bearing the words “Next Gen”, polythene bag Ext.P-3 bearing the words “Lal and Sons”, transparent polythene Ext.P-4, piece of cloth Ext.P-5 and charas Ext.P-6 have been deposed to be the same as were seized from the alleged conscious and exclusive possession of the accused. 10. Even though the testimonies of the official witnesses do not suffer from any taint of incredulity for existence there if any inter-se and intra-se contradictions nor theirs testimonies are bereft of the consistencies as such obviously rendering them to be construable to be credible as well as inspiring for concluding qua the guilt of the accused. 10. Even though the testimonies of the official witnesses do not suffer from any taint of incredulity for existence there if any inter-se and intra-se contradictions nor theirs testimonies are bereft of the consistencies as such obviously rendering them to be construable to be credible as well as inspiring for concluding qua the guilt of the accused. However, when the testimonies of the official witnesses qua the factum of recovery of contraband under memo PW-1/C from the alleged conscious and exclusive possession of the accused at the site of occurrence suffers contradiction from the deposition of an independent witness PW-2, who has openly and loudly communicated therein the fact that the recovery of charas as alleged by the prosecution to be effected from the conscious and exclusive possession of the accused at the site of occurrence, was not so recovered, in his presence, hence seeps into the truthfulness of the genesis of the prosecution version as deposed by the official witnesses. In other words, with the independent witness associated by the Investigating Officer in the apposite proceedings at the site of occurrence omitting to lend support to or his not corroborating the prosecution case, the testimonies of the official witnesses qua the genesis of the prosecution version loose their credibility. As a natural concomitant then an apt inference which ensues is that the recovery of charas from the alleged conscious and exclusive possession of the accused at the site of occurrence, is not attributable to the accused nor also then any incriminatory role to him in the alleged commission of any offence, can be fastened. 11. As a natural concomitant then an apt inference which ensues is that the recovery of charas from the alleged conscious and exclusive possession of the accused at the site of occurrence, is not attributable to the accused nor also then any incriminatory role to him in the alleged commission of any offence, can be fastened. 11. Dehors the aforesaid discussion, bringing to the fore the fact that the prosecution case is hence engrained with the vice of prevarication as well as falsehood, the further connecting evidence qua the factum of the case property as produced in Court during the recording of the testimony of PW-1 being linkable to the case property as was recovered from the alleged conscious and exclusive possession of the accused at the site of occurrence, was comprised in the factum of theirs, being a display in the Malkhana register of the police station concerned, where it was deposited after its recovery from the alleged conscious and exclusive possession of the accused at the site of occurrence, qua the fact that it at a time contemporaneous to its production in Court, at the instance of learned Public Prosecutor during the Course of recording of testimony of PW-1, retrieved therefrom, for facilitating its production in Court. Besides, there was an enjoined necessity of, an entry being recorded in the apposite register qua the re-deposit of case property in the Malkhana concerned after its production in Court during the course of the recording of the testimony of PW-1. However, Prakash Chand as deposed by PW-3 to be the regular MHC , has been omitted to be examined by the prosecution. Omission on the part of the prosecution to examine the regular MHC Prakash Chand, who during the course of the recording of his deposition, may have displayed evidence connoting the factum of it having been retrieved from the Malkhana, with an apposite contemporaneous entry at the time of its retrieval therefrom in the register concerned, for transmission to an official named therein for producing it in Court. Besides the recording of his deposition would have also underscored the factum whether subsequent, to its production in Court during the course of recording of the deposition of PW-1, it was returned to Prakash Chand through an official named in register, who then on receiving it had recorded an apposite contemporaneous entry of its return, in the apposite register whereafter he deposited the same in the Malkhana concerned. However, omission of examination of the regular MHC, has stifled or smothered the adduction of evidence with respect to the case property as produced in Court during the course of the examination of PW-1 retrieved from the Malkhana with an apposite contemporaneous entry having been recorded in the register concerned, besides has also suffocated evidence qua the name of official to whom the purported case property was handed over for its production in Court at the instance of the learned PP during the course of recording of the testimony of PW-1. Moreover the absence of his examination has too precluded the emanation of evidence that even after his production in Court it was through an official named in the Malkhana register, received by Prakash Chand, the Regular MHC who thereupon after recording an entry of its return to him after its production in the Court, had deposited it in the Police Malkhana. In aftermath, the nonexistence of the aforesaid evidence which may have emanated on examination of MHC Prakash Chand had precluded the obvious upsurging of evidence qua hence the fact that the case property as produced in the Court during the course of recording of deposition of PW-1 is both connectable or relatable to the case property as allegedly recovered from the conscious and exclusive possession of the accused at the site of occurrence. The above said infirmity grips the prosecution case with the vice of pervasive infirmity rendering it hence to be unbelievable. 12. 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 the learned trial Court merit interference. 13. 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 the learned trial Court merit interference. 13. In view of above discussion, the appeal is allowed and the impugned judgment of 5.1.2013, rendered by the learned Special Judge (II) Mandi 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. 14. 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 the judgment forthwith. Records be sent forthwith.