Research › Search › Judgment

Himachal Pradesh High Court · body

2015 DIGILAW 774 (HP)

Ashwani Kumar v. State of H. P.

2015-06-26

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT : Sureshwar Thakur, J. The instant appeal is directed against the judgment of 18.2.2013, rendered by the learned Special Judge, Fast Track Court, Una, H.P., in Sessions case No. 06-VII-2012, whereby, the learned trial Court convicted and sentenced the accused/appellant to undergo rigorous imprisonment for a period of ten years and to pay a fine in a sum of Rs.1,00,000/- (One Lac) and in default of payment of fine to further undergo rigorous imprisonment for a period of six months for commission of offence under Section 15 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the ACT”). 2. The facts, in brief are that, on 22.9.2011, the police party headed by HC Sanjay Kumar (PW-16) alongwith HC Naresh Kumar, C Ranjeet Singh and C Ram Gopal were on patrolling duty at Una Dhamandri Road at about 9.45 p.m. HC Sanjay Kumar received secret information of the accused Naresh Kumar and Ashwani Kumar being indulged in illegal business of selling poppy straw in the area and they are present at Badsala village near Datwara chowk and huge quantity of contraband can be recovered from them. Finding the information trustworthy, rukka comprised in Ex. PW-2/A was prepared and sent to the Police Station, Una through C Ram Gopal. On the basis of Rukka, FIR comprised in Ex. PW2/B had been registered. In the meantime, ASI Chaman Singh alongwith C Mohit Kumar came to the spot on motorcycle and facts of the case were disclosed to them by HC Sanjay Kumar. Thereafter, the remaining investigation was carried out by ASI Chaman Singh, who prepared reasons of belief report under Section 42(1) (a) Ex. PW-8/A and sent the same through C Ranjeet Singh to Superintendent of Police, Una. At about 10.35 p.m. the police official noticed the shadows of two persons in the bushes and ultimately two persons were found to be sitting on the white coloured sacs. One person on seeing the police party, fled away whereas the other was apprehended by the police. On inquiry, the said person disclosed his name to be Ashwani Kumar S/o Kapoor Singh. He also disclosed the name of the other person, who fled from the spot to be Naresh Kumar S/o Jagdish Ram. The place was isolated and no local person was available. The sacks were opened and all the four sacks were found to be containing another plastic sack inside. He also disclosed the name of the other person, who fled from the spot to be Naresh Kumar S/o Jagdish Ram. The place was isolated and no local person was available. The sacks were opened and all the four sacks were found to be containing another plastic sack inside. The Investigating Officer on smelling and tasting and on the basis of experience opined the contents to be of poppy husk. All the sacks were weighed with spring scale lying in the I.O Kit and first sack was found to be containing 25 kgs, sack No.2, 23 kgs, sack-3, 23 kgs and fourth sack was found to be containing 24 kgs, total 95 kgs. All the sacks were mixed separately with hands and after making them homogenous one sample from each sack weighing I kg each was separated. Photographs were also clicked. The samples were packed in cloth parcels separately and sealed with three seal impressions of T and four sacks were also sealed with the same seal by affixing three seals on each sacks and sacks were marked as P-1 to P-4 and samples were marked as P1/A to P1/D. NCB form was filled in by the IO. Facsimile of seal was separately taken as Ex. PW-16/A. The seal after its use was entrusted to HC Naresh Kumar. The recovered contraband, samples, sacks, NCB forms in triplicate were taken into possession vide memo Ex. PW-16/B. Site plan of place of occurrence was also prepared. Statements of the witnesses under Section 161 of Cr. P.C were also recorded. Personal search of accused was conducted under memo Ex. PW-19/B. The intimation regarding arrest of accused was also given to his brother. The case property, samples, NCB forms and sample seals were handed over to SHO Harjeet Singh, who had resealed the samples, sacks with seal N and impression of seal was also affixed on NCB forms and sample of seal Ex. PW-14/B was taken on a piece of cloth. Special report Ex. PW-8/B was also submitted to the Superintendent of Police, Una. The I.O had moved an application Ex. PW-15/A to the Superintendent of Police, Una for obtaining call details of the mobile number of the accused. Call details of accused are comprised in Ex. PW-15/B. The IO had also obtained ID Ex. PW- 15/C to Ex. Special report Ex. PW-8/B was also submitted to the Superintendent of Police, Una. The I.O had moved an application Ex. PW-15/A to the Superintendent of Police, Una for obtaining call details of the mobile number of the accused. Call details of accused are comprised in Ex. PW-15/B. The IO had also obtained ID Ex. PW- 15/C to Ex. PW-15/F. On 9.11.2011 on the directions of the SHO, I.O took the case property i.e. four sacks sealed with seals T and N from Malkhana to the court of learned Chief Judicial Magistrate, Una for inventory and learned chief judicial Magistrate prepared inventory Ex. PW-18/A and after inventory, four sacks and eight samples were sealed with seal SJ and specimen of seal were deposited in Malkhana. The samples etc. were sent to FSL, Junga and their reports comprised in Ex. PW-6/C and Ex. PW-6/D had been received. On conclusion of the investigation, into the offences, allegedly committed by the accused, final report under Section 173 of the Code of Criminal Procedure was prepared and presented in the Court. 3. The accused was charged, for, his having committed offence punishable under Section 15/61/85 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 as many as 21 witnesses. On closure of the 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 to lead evidence in defence. 5. On appraisal of the evidence on record, the learned trial Court, returned findings of conviction against the accused/appellant. 6. The accused/appellant is aggrieved by the judgment of conviction, recorded by the learned trial Court. The learned counsel appearing for the appellant/accused 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 misappreciation 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 the 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 the findings of acquittal. 7. On the other hand, the learned Deputy 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, hence, do not necessitate interference, and 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 parcels of specimen 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. 10. The depositions of PW-13, C Mohit Kumar, PW-14 HC Sanjay Kumar, PW-19 HC Naresh Kumar and PW-20 ASI Chaman Singh, are of prime importance as they are the witnesses of interception of accused as well as of recovery of contraband. 11. PW-13 C Mohit Kumar, in his deposition, has voiced that on 22.9.2011 at about 8.30 p.m., he alongwith ASI Chaman Singh, was on patrolling duty in Government vehicle and when they reached on Dhamandari road near Datwara chowk at about 10.05 p.m., HC Sanjay Kumar, HC Naresh Kumar and C Ranjeet Singh met them and HC Sanjay disclosed to them qua his having received a secret information about indulgence of accused Ashwani and one Naresh Kumar in the business of selling of poppy husk. ASI Chaman Lal has been disposed by this witness to have prepared the reasons of belief report under Section 42 (2) of the Act and the same was sent to the Superintendent of Police, Una. ASI Chaman Lal has been disposed by this witness to have prepared the reasons of belief report under Section 42 (2) of the Act and the same was sent to the Superintendent of Police, Una. He continues to depose that he alongwith ASI Chaman Singh, HC Sanjay and HC Naresh Kumar went towards Dathwara side and at Badsala-Datwara, they noticed shadows of two persons. He deposes that on theirs reaching near the shadows, they found two persons sitting on the plastic sacks, and on seeing the police, one of them has been deposed by this witness to have fled away, whereas the other has been deposed by this witness to have been apprehended by the police. He further deposes that the accused disclosed his name to be Ashwani Kumar and the name of other person was disclosed by accused Ashwani Kumar to be Naresh Kumar. He continues to depose that the place was isolated and no private witness was present there. He further deposes that the photographer came there, in whose presence sacks were opened and weighed. The sacks were found containing poppy straw (Husk). The ASI has been deposed by this witness to have checked the contents of the sacks by smelling and tasting and sacks were made homogenous by ASI with his own hands and first sack was found to be containing 25 kgs contraband, second sack 23 kg, third sack 23 kg and fourth sack was found to be containing 24 kg and total weight of the contraband/poppy straw was disclosed by this witness to be 95 kgs including the weight of the sacks. He continues to depose that out of every sack, one sample of one kgs each i.e. total four samples were taken out and the samples were sealed in parcels of cloth with three seals of T on each parcel. The sacks were also sealed with three seals of impression T and marked as P-1 to P-4 and samples as P-1/A to P-1/D. The photographs of the proceedings were also clicked. The seal of cloth was given to HC Naresh Kumar. The IO had also filled in NCB forms in triplicate and the case property alongwith samples, NCB forms and sample seal were taken into possession vide memo Mark M. Information regarding arrest of the accused had been given to his brother. The seal of cloth was given to HC Naresh Kumar. The IO had also filled in NCB forms in triplicate and the case property alongwith samples, NCB forms and sample seal were taken into possession vide memo Mark M. Information regarding arrest of the accused had been given to his brother. The case property alongwith the accused had been taken to police Station, Una. IO has been deposed by this witness to have prepared site plan. He further deposes that on 16.11.2011, he took four samples sealed with two seals of SJ on each sample alongwith connected documents to FSL, Junga in safe condition and on return handed over RC to MHC. On 26.12.2011, he had been deputed to bring result from FSL, Junga. On 28.12.2011 he brought four samples sealed with seals of FSL; alongwith result and handed over the same to HC Ajaib Singh. He has also identified sacks Ex. P-1 to P-4 and samples Ex. P5 to P8, P10, P-12 and P15 in the Court. During the course of his cross-examination, he deposes that the distance between Dathwara chowk and SIU, Una is about 10-11 kms. He also admits that there is a market located at a distance of about 100-200 meters towards Una side from Datwara chock. He further deposes that the site of recovery is about 300-400 meters away from Datwara chowk. 12. The other prosecution witnesses, in their depositions have deposed a version in square tandem to the prosecution story, as referred to hereinabove, as also in corroboration to the testimony of PW-13. Consequently, the genesis of the prosecution case qua the accused being in conscious and exclusive possession of poppy husk has been contended to have been firmly established. However, though the depositions of the official witnesses in the event of their testimonies being bereft of any inter-se or intra-se contradictions, are both trustworthy and credible, for founding thereupon findings of conviction against the accused, even when there is omission on the part of the Investigating Officer to associate independent witnesses in the proceedings relating to search, seizure and recovery of contraband. The omission on the part of the Investigating Officer to associate independent witnesses in the apposite proceedings would not stand in the way of returning findings of conviction against the accused on the strength of the consistent testimonies of the official witnesses qua the genesis of the prosecution case unless the evidence comprised in the testimonies of the official witnesses discloses that independent witnesses were not available for theirs being joined in the proceedings relating to search, seizure and recovery of contraband. However, in the event of evidence on record fortifyingly disclosing that the independent witnesses were available in close vicinity to the site of occurrence, the inability of the Investigating Officer to solicit their participation in the apposite proceedings would taint the genesis of the prosecution version, especially when theirs being joined in the apposite proceedings, a firm conclusion of the investigation having been carried out in an independent and fair manner would be garnered. This Court to disinter whether independent witnesses were available in the vicinity of the site of occurrence for theirs being joined in the apposite proceedings, yet there being a conscious omission on the part of the Investigating Officer to do so, for fostering an apt conclusion that omission on the part of the Investigating Officer to despite their availability solicit their participation in the apposite proceedings, was constrained by an oblique motive on his part to smother the truth qua the genesis of the prosecution case, an advertence is required to be made to the existence of a statement in the cross-examination of PW-13 qua availability of a market located at a distance of about 100-200 meters towards Una Side from Dathwara chowk and the site of recovery being located at a distance of 300-400 meters from Datwara chowk. Given the proximate location of the aforesaid market to the site of occurrence necessarily then the presence of independent witnesses hence cannot be overruled. Consequently, it was only on concerted efforts having been made by the Investigating Officer, by visiting the market aforesaid located in the vicinity of the site of occurrence, that the availability of independent witnesses could be ascertained for hence soliciting their participation in the apposite proceedings. However, there is no evidence on record portraying the fact that any concerted effort was made by the Investigating Officer to ascertain the presence of independent witnesses. However, there is no evidence on record portraying the fact that any concerted effort was made by the Investigating Officer to ascertain the presence of independent witnesses. Consequently, the omission of concerted efforts on the part of the Investigating Officer to either ascertain the presence of independent witnesses, obviously then, solicit their presence in the apposite proceedings relating to search, seizure and recovery, constrains an inference that despite availability of independent witnesses in the vicinity of the site of occurrence, the Investigating Officer consciously omitted to do so. His conscious omission to associate independent witnesses in the apposite proceedings relating to search, seizure and recovery of contraband naturally foments a conclusion that the said omission was sequelled by an oblique motive on the part of the Investigating officer to smother the truth qua the occurrence. Consequently, this Court would not imbue veracity to a smothered investigation carried out by the Investigating Officer. 13. Fortificatory accentuation to the aforesaid inference to the factum of a conscious and deliberate omission on the part of the Investigating Officer to associate independent witnesses in the proceedings relating to search, seizure and recovery of contraband is lent by the fact that even when this is a case of prior information hence affording ample, abundant, 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. Obviously, the non-solicitation of their participation by the Investigating Officer in the apposite proceedings, appears to have been goaded by a palpable oblique motive on his part to smother the truth qua the genesis of the prosecution case or to falsely implicate the accused. 14. 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. 15. In view of above discussion, the appeal is allowed and the impugned judgment of 18.2.2013, rendered by the learned Special Judge, Fast Track Court, Una, H.P, 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. 15. In view of above discussion, the appeal is allowed and the impugned judgment of 18.2.2013, rendered by the learned Special Judge, Fast Track Court, Una, H.P, 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. 16. The registry is directed to prepare the release warrant of the accused and send the same to the Superintendent of the jail concerned, in conformity with this judgment forthwith. Records be sent down forthwith.