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Himachal Pradesh High Court · body

2015 DIGILAW 777 (HP)

Jitender Kumar v. State of H. P.

2015-06-26

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT : SURESHWAR THAKUR, J. 1. The instant appeal is directed against the judgment of 5.3.2011, rendered by the learned Special Judge (1) Kangra at Dharamshala, H.P., in Sessions case No. 14-D/VII 2010, 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 one year for commission of offence under Section 21-61-85 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the Act”). 2. The facts, in brief are that, on 9.2.2010, ASI Ramesh Kumar alongwith HC Duni Chand, HC Sanjeev Walia, C Kuljeet Singh, C Rajinder Kumar and C Sanjeev Kumar were on patrolling duty at Kotwali Bazar-bus stand, Gharoh, Bandi and Kaliara in Government vehicle driven by C Ramesh Kumar. On suspicion, they stopped a motorcycle bearing registration No. HP-53-2848 which was occupied by three persons. On seeing the police party, the accused got perplexed. The person sitting in middle on the motorcycle was holding a plastic bag which he threw on the earth. The persons disclosed their names to the police party to be Jitender Kumar, Rakesh Kumar and Sanjeev Kumar. Accused Jitender Kumar opened the plastic bag which was found to be containing huge quantity of capsules. There were 1509 strips of spasmo proxyvon capsules and 138 strips of parvon capsules and total number of capsules were 13176. The accused could not produce a permit, licence and prescription slip qua the capsules aforesaid. All the capsules were put in a parcel and sealed with seal R at 10 places and sample seal was taken on a separate piece of cloth. NCB forms in triplicate were filled in on the spot. Rukka Ex. PW-9/A was prepared. Spot map is comprised in Ex. PW-9/B. Statements of HC Duni Chand and HC Sanjeev Kumar were also recorded at the spot. Identity certificates of accused Ex. PW-9/C to Ex. PW-9/E were also prepared at the spot. Special report under Section 57 of NDPS Act was also sent to S.P kangra. FSL report is comprised in Ex. PW-9/F. 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 presented in the Court. 3. PW-9/E were also prepared at the spot. Special report under Section 57 of NDPS Act was also sent to S.P kangra. FSL report is comprised in Ex. PW-9/F. 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 presented in the Court. 3. The accused persons were charged, for, theirs having committed offence punishable under Section 21-61-85 readwith Section 29 of NDPS Act, by the learned trial Court, to, which they pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined 10 witnesses. On closure of the prosecution evidence, the statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded, in, which they pleaded innocence and claimed false implication. They 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 Jitender Kumar whereas other accused were acquitted by the learned trial Court. 6. The accused/appellant Jitender 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 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 the 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, 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. PW-9 ASI Ramesh Kumar deposes that on 9.2.2010, he alongwith HC Duni Chand, HC Sanjeev Walia, C Kuljeet Singh, C Rajinder Kumar and C Sanjeev Kumar was on patrolling duty at Kotwali Bazar-bus stand, Gharoh, Bandi and Kaliara in Government vehicle driven by C Ramesh Kumar. 9. PW-9 ASI Ramesh Kumar deposes that on 9.2.2010, he alongwith HC Duni Chand, HC Sanjeev Walia, C Kuljeet Singh, C Rajinder Kumar and C Sanjeev Kumar was on patrolling duty at Kotwali Bazar-bus stand, Gharoh, Bandi and Kaliara in Government vehicle driven by C Ramesh Kumar. On suspicion, they stopped a motorcycle bearing registration No. HP-53-2848 which was occupied by three persons. He further deposes that on seeing the police party, the accused got perplexed. He continuous to depose that the person sitting in middle on the motorcycle was holding a plastic bag which he threw on the earth. The persons disclosed their names to the police party to be Jitender Kumar, Rakesh Kumar and Sanjeev Kumar. Accused Jitender Kumar has been deposed to have opened the plastic bag which was found to be containing huge quantity of capsules. There were 1509 strips of spasmo proxyvon capsules and 138 strips of parvon capsules and total number of capsules were 13176. The accused could not produce a permit, licence and prescription slip qua the capsules aforesaid. All the capsules were put in a parcel and sealed with seal R at 10 places and sample seal was taken on a separate piece of cloth. NCB forms in triplicate have been deposed by this witnesses to have filled in by him. He further deposes that Rukka Ex. PW-9/A was sent to the police Station Dharamshala. Spot map comprised in Ex. PW-9/B has been deposed to have prepared by him and Statements of HC Duni Chand and HC Sanjeev Kumar were also recorded at the spot by him. He continues to depose that identity certificates of accused Ex. PW-9/C to Ex. PW-9/E were also prepared at the spot. Special report under Section 57 of NDPS Act was also sent to S.P kangra. FSL report is comprised in Ex. PW-9/F. In his cross-examination he has denied the suggestion that he has planted a false case against the accused persons. 10. The other prosecution witnesses, in their depositions have deposed a version in square tandem to the prosecution story, as referred to hereinabove by PW-9, the Investigating Officer. 11. FSL report is comprised in Ex. PW-9/F. In his cross-examination he has denied the suggestion that he has planted a false case against the accused persons. 10. The other prosecution witnesses, in their depositions have deposed a version in square tandem to the prosecution story, as referred to hereinabove by PW-9, the Investigating Officer. 11. 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. 12. The prosecution was required to prove the fact that the case property, as shown to PW-1 (HC Duni Chand) and identified by him on its production in court by the learned P.P, was linkable to the case property as recovered from the site of occurrence in the manner as alleged by the prosecution. Even though, the deposition of PW-1 discloses that the specimen seals placed on the parcel were 8 in number, out of which seven seals placed by the FSL were intact, nonetheless PW-1 in his deposition has deposed that one seal was not visible. Even though, the deposition of PW-1 discloses that the specimen seals placed on the parcel were 8 in number, out of which seven seals placed by the FSL were intact, nonetheless PW-1 in his deposition has deposed that one seal was not visible. For omission of or non-existence of a statement to the effect that the case property as shown to him in Court by the learned P.P on production at his instance in Court, was handed over to him or to some other official by the Incharge, Police Malkhana, concerned after its having been retrieved from the police Malkhana, concerned, wherein it was kept in safe custody, besides omission of a disclosure in the statement of PW-1 that when he received the case property, after its retrieval by the Incharge, police Malkhana from the police Malkhana, the official concerned recorded an apposite entry in the Malkhana register, renders open a conclusion that the case property as shown in court to PW-1, on its production by the learned P.P, was not handed over by the Incharge, Police Malkhana, to PW-1 rather its entry in Court is to be attributed to an undisclosed source which renders suspect the factum of its constituting the property as was allegedly recovered from the conscious and exclusive possession of the accused. What fortifies the factum of the case property as shown to PW-1 in Court by the learned PP being not the property/contraband allegedly recovered at the site of occurrence from the conscious and exclusive possession of the accused, is the fact that there is no existence or occurrence in the deposition of PW-3 qua the person to whom he handed over the case property for its production in Court at the instance of the learned PP for its being shown to PW-1. Besides there being no apposite entry in the Malkhana register contemporaneous to the date of its production in Court at the instance of the learned PP, portraying the fact that it, was on the date on which it was shown to PW-1 by learned PP, retrieved from the Police Malkhana and thereupon handed over to an unnamed official for its being at the instance of the learned PP shown to PW-1. Consequently, even if the seal impressions on parcels remained intact and the seal impression borne on the parcels tallied with the seal impressions, as displayed in the report of the FSL, nonetheless for lack of a contemporaneous entry in the malkhana register depicting its retrieval therefrom on the date on which it was at the instance of learned PP produced in Court, besides there being also no enunciation in the deposition of PW-3 qua the person to whom he handed over the parcels, renders its appearance in Court at the instance of learned PP to be suspect. Obviously then it cannot be construed to be the case property as was recovered from the purported, alleged, conscious and exclusive possession of the accused at the site of occurrence. 13. 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. 14. In view of above discussion, the appeal is allowed and the impugned judgment of 5.3.2011, rendered by the learned Special Judge (I), Kangra at Dharamshala, 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. 15. 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.