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2015 DIGILAW 660 (HP)

State of H. P. v. Om Parkash

2015-06-03

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT Per Sureshwar Thakur, Judge 1. This appeal is directed against the judgement of acquittal rendered on 15.11.2007 by the learned Special Judge (Court No.II), Kangra at Dharamshala, H.P. in Sessions Case No. 30-D/06 whereby the learned trial Court acquitted the respondent for his having committed offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act. 2. The prosecution story, in brief, is that on 14.5.2006 at about 7.10 p.m. SI Om Parkash, ASI Ranbir Singh HC Madan Mohan and C Anil Kumar were present at Kalapul for arranging a naka under rapat No. 10. At that time, the accused was seen by the police party. On seeing the police party, accused ran back, but was apprehended by the police after a chase. In the presence of two witnesses Om Parkash and Suresh Kumar, the accused has disclosed his name to the police to be Om Prakash. SI Om Parkash then gave his personal search to the accused but nothing incriminating was found on his personal search. On search of accused, Bag Ex. P-3, carried by him was checked and on its checking a yellow coloured plastic bag Ex. P-4 was found in it, which on checking was found to be containing charas Ex. P-5 in the form of tikkis. After weighing the charas so recovered from the possession of the accused, it was found to be 1120 grams. Two samples of 25 grams each of the contraband were separately taken for the purpose of analysis which were kept inside the matchboxes and thereafter both these match boxes were separately sealed in two cloth parcels with seal D and the remaining bulk of charas had been separately sealed in a cloth parcel with seal D. NCB forms in triplicate Ex. PW-3/B were filled in and sealed with seal impression D. All the documents were signed by the witnesses at the site of the occurrence. Rukka Ex. PW-2/A was prepared at the spot. FIR comprised in Ex. PW-2/B was registered. Site plan comprised in Ex. PW-11/D was also prepared. The accused was arrested under memo Ex. PW-11/F. The case property was produced by SI Om Parkash before ASI Surjit Kumar, who had re-sealed the sample and bulk of charas with his own seal ‘A’ and had also affixed six seals ‘A’ on NCB form. PW-2/B was registered. Site plan comprised in Ex. PW-11/D was also prepared. The accused was arrested under memo Ex. PW-11/F. The case property was produced by SI Om Parkash before ASI Surjit Kumar, who had re-sealed the sample and bulk of charas with his own seal ‘A’ and had also affixed six seals ‘A’ on NCB form. Separate seal impression of seal “A” on a piece of cloth was taken which is Ex. PW-3/C and thereafter all the case property after re-sealing had been handed over to MHC of police Station, concerned. Special report comprised in Ex. PW-4/A was prepared by the SHO and was sent to SP Kangra through HC Balbir Chand which was handed over by him to HC Subhash Chand, the then reader of SP, Dharamshala, who entered the same in the register. On 18.5.2006 MHC Anil Kumar, Police Station, Dharamshala had sent the sample of charas, one NCB form, one docket and samples of seal ‘A’ and ‘D’ to CTL Kandaghat through HHC Bir Singh, who had deposited the same to CTL Kandaghat. Chemical examiner report is comprised in Ex. PW-11/J and receipt of all the items aforesaid is comprised in Ex. PW-5/A. 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 11 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, 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. Shri M.A.Khan, 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 the findings of acquittal be reversed by this Court, in the exercise of its appellate jurisdiction and be replaced by findings of conviction and concomitantly an appropriate sentence be imposed upon the accused/respondent. 7. On the other hand, the learned counsel appearing for the respondent-accused, has, with considerable force and vigour, contended that the findings of acquittal, 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. Even though, the prosecution witnesses have deposed in tandem and in harmony in proof of 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 un-severed 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. 10. The genesis of the prosecution version has been proved by the depositions of the official witnesses. The depositions of the official witnesses, in concerting to prove the prosecution case, are undiscardable in the event of theirs depositions not suffering from the taint of inter-se or intra-se contradictions. However, in the event of blatant or open discrepancies occurring in the depositions of the prosecution witnesses an apt conclusion would be drawable by this Court that their testimonies are imbued with the vice of incredibility. However, in the event of blatant or open discrepancies occurring in the depositions of the prosecution witnesses an apt conclusion would be drawable by this Court that their testimonies are imbued with the vice of incredibility. The upsurging of preponderant, blatant and stark discrepancies are embedded in the depositions of PW-7, PW-10 and PW-11 wherein they have disclosed the fact of sample of charas weighing 25 grams each having been on 14.5.2006 separately sealed in separate match boxes at the site of occurrence, in sequel to the recovery of contraband from the conscious and exclusive possession of the accused. The sample had come to be deposited on 14.5.2006 in the police Malkhana and an apposite entry qua deposit thereof was recorded in the Malkhana register. PW-2, who had recorded the entry in the Malkhana register qua deposit of the case property has also deposed that he had on 18.5.2006 sent the parcels for examination to the chemical examiner, Kandaghat, alongwith sample of seal and NCB forms through constable Bir Singh. The certificate appended to the report of the chemical examiner comprised in Ext.PW-11/J bespeaks the fact that the sample had been deposited on 19.5.2006 by the official concerned and on weighment it was found to be 19.3711 grams. The communication in the certificate appended to the report of the Chemical Examiner qua the variant weight of the sample as received by him, for analysis in the laboratory concerned viz.a.viz the weight which it bore at the time of its having been separated from the bulk as allegedly recovered from the conscious and exclusive possession of the accused at the site of occurrence, gives latitude or fillips a deduction that the sample on which opinion was returned by the Chemical Examiner in Ext.PW-11/J, is neither relatable nor connectable to the case property, as allegedly recovered from the conscious and exclusive possession of the accused, at the site of occurrence. 11. Furthermore, the oral testimonies of PW-2 and PW-11 underscore the fact that case property had been resealed by ASI Surjeet Kumar and on its resealing it had come to be deposited by him in the Malkahana. Besides, both communicate in their respective testimonies that ASI Surjeet Kumar had deposited the case property alongwith NCB forms and sample of seals, in the Malkhana concerned. Besides, both communicate in their respective testimonies that ASI Surjeet Kumar had deposited the case property alongwith NCB forms and sample of seals, in the Malkhana concerned. However, the revelation in Ext.PW-2/E, the abstract of Malkhana Register, belies the oral testimonies of PW 2 and 11, qua the fact of ASI Surjeet Kumar after his having resealed the case property, his having deposited the same alongwith NCB forms and the sample of seals in the Malkhana concerned inasmuch, as, the factum of deposit of case property in the Malkhana concerned has been depicted therein to be at the instance of both Om Prakash and Surjeet Kumar. Ext.PW-2/E hence, undermining the oral testimonies of PW-2 and PW-11 qua the fact as deposed by them, sequels the concomitant inference that the case property had, besides passing through the hands of ASI Surjeet Kumar had also passed through the hands of S.I. Om Prakash, who may have with an oblique motive even after its initial resealing by ASI Surjeet Kumar undone the initial resealing and resealed it. Moreover, with documentary evidence comprised in Ext.PW-2/E communicating the fact of NCB forms having been not deposited with the MHC, constrains an inference that the case property as transmitted through an official witness for its examination in the laboratory concerned was transmitted without it being accompanied by the NCB forms for facilitating the chemical analyst to collate the seal impression depicted in the NCB forms to be borne as such on the parcel sent for examination with the seal impressions borne on the parcel. In absence of transmission of NCB forms alongwith the official who carried the sample parcel for examination to the laboratory concerned, obviously precluded and deterred the chemical analyst to collate the seal impressions embossed on the NCB forms with the seal impression carried or borne on the sample parcel, for facilitating an inference that the opinion rendered on the sample parcel sent for analysis to the chemical examiner was qua the property recovered at the site of occurrence from the alleged conscious and exclusive possession of the accused. A further sequel thereof is that the opinion rendered on the sample hence cannot be construed to be relatable or connectable to the case property. The aforesaid pervasive infirmities and discrepancies pervading the prosecution case acquire enormity, with an obvious sequel of the prosecution case hence suffering from the vice of incredibility or prevarication. A further sequel thereof is that the opinion rendered on the sample hence cannot be construed to be relatable or connectable to the case property. The aforesaid pervasive infirmities and discrepancies pervading the prosecution case acquire enormity, with an obvious sequel of the prosecution case hence suffering from the vice of incredibility or prevarication. 12. Fortificatory accentuation to the aforesaid inference is lent by the factum of a conscious and deliberate omission on the part of the Investigating Officer to associate independent witness in the proceedings relating to search, seizure and recovery of contraband, even when there is portrayal in Ext.PW-2/C, of the police, having prior information qua consumption of contraband by tourists at Bhagsunag hence affording ample, abundant and sufficient time and opportunity to the Investigating Officer to solicit the participation of independent witnesses in the proceedings relating to search, seizure and recovery of contraband. Even when besides as deposed by PW-5, 7, 10 and 11 there being a thick habitation in the close vicinity of the site of occurrence hence, as such, despite availability of independent witnesses in close proximity to the site of occurrence , the non-solicitation of their participation by the Investigating Officer in the apposite proceedings, appears to have been goaded by a palpable and oblique motive on his part to smother the truth qua the genesis of the prosecution case or to falsely implicate the accused. 13. In view of 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. The appeal is dismissed being devoid of any merit and the findings rendered by the learned trial Court are affirmed and maintained. Records be sent back.