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Himachal Pradesh High Court · body

2015 DIGILAW 831 (HP)

Shah Nawaz v. State Of Himachal Pradesh

2015-07-06

SURESHWAR THAKUR

body2015
JUDGMENT : Sureshwar Thakur, J. 1. The instant appeal is directed against the judgment of 4.12.2013, rendered by the learned Special Judge-I, Sirmaur, District at Nahan, H.P., in Sessions trial No. 37-ST/7 of 2012, whereby, the learned trial Court convicted and sentenced the accused/appellant to undergo rigorous imprisonment for a period of seven years and to pay a fine in a sum of Rs. 70,000/- (Seventy Thousand) and in default of payment of fine to further undergo simple imprisonment for a period of one year for commission of offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "NDPS Act"). 2. The facts, in brief are that, on 9.8.2012, in connection with routine patrol duty, a police party of SIU, Nahan, headed by PW-10 SI Tara Negi was present at Biranwali. Accused Shah Nawaz at about 3.30 p.m. was found to be coming from the side of Nahan-Shimla road towards Kaulanwala Bhood Side on foot holding a bag in his right hand and on seeing the police party he turned back and tried to escape. However, he was apprehended by the police. The place, where accused was apprehended, was an isolated and secluded place and as such no independent witness was available there. Therefore, PW-10 SI Tara Negi joined the accompanying officials as witnesses. Thereafter, they informed the accused that they intended to conduct search of his person as well as of his bag and if he so desired search could be arranged in the presence of a Magistrate or a gazetted Officer, but accused opted to be searched by the police. The consent memo is comprised in Ex. PW-1/A. Thereafter the bag was searched and during search two packets containing 920 grams of Charas were recovered from the bag. Charas was put back into the same packets, which were then made into a parcel and sealed with seal bearing impression "T". NCB form in triplicate was filled in. Seal after its use was handed over to PW-1 HC Rajinder Kumar. Charas was taken into possession vide memo Ex. PW-1/D. On the basis of Rukka Ex. PW-8/A, FIR Ex. PW-8/B was registered. Accused was arrested and grounds of arrest was conveyed to him. Inspector Laiq Ram resealed the case property with seal bearing impression A and issued certificate of resealing Ex. Charas was taken into possession vide memo Ex. PW-1/D. On the basis of Rukka Ex. PW-8/A, FIR Ex. PW-8/B was registered. Accused was arrested and grounds of arrest was conveyed to him. Inspector Laiq Ram resealed the case property with seal bearing impression A and issued certificate of resealing Ex. PW-8/E. After updating the relevant columns of the NCB form, he deposited the case property with MHC of the Malkhana of the Police Station. On 13.8.2012, PW-2 sent the parcel containing Charas to FSL, Junga through PW-7 Pradeep Kumar. Special report Ex. PW-5/B was prepared and sent to the Additional S.P Sirmaur at Nahan. Report of FSL is comprised in Ex. PW-1/F. 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 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 as many as 10 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 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/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 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 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. 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 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. PW-10 SI Tara Negi is the complainant-cum-Investigating Officer of the case. He deposes that on 9.8.2012 he alongwith HC Rajinder Kumar, HC Mohd. Islam, HC Anil Kumar and C Kailash was present at Biranwali in connection with routine patrol duty. He continues to depose that at about 4.30 p.m. the accused was found to be coming from the side of Shimla-Nahan road towards Kaulanwala Bhood side on foot holding a bag in his right shoulder. On seeing the police party, the accused turned back and tried to skip, but on suspicion he was chased and overpowered by them. The place where the accused was apprehended was an isolated one therefore no independent witness was available there. Therefore, he joined the accompanying officials as witnesses. The accused was searched by the police on the spot vide consent memo comprised in Ex. PW-1/A. Thereafter, he, alongwith the other members of the police party gave their personal search to the accused vide memo comprised in Ex. PW-1/B. Thereafter search of the bag of the accused was conducted. During search, two packets containing charas were recovered from the bag of the accused. PW-1/A. Thereafter, he, alongwith the other members of the police party gave their personal search to the accused vide memo comprised in Ex. PW-1/B. Thereafter search of the bag of the accused was conducted. During search, two packets containing charas were recovered from the bag of the accused. On weighing the charas it was found to be 920 grams. After weighing the charas, it was put back into the same packets which were then made into a parcel and sealed with seal bearing impression "T". Besides charas, one ATM card of PNB and one PAN Card were also recovered from the bag. NCB form, Ex. PW-2/C was updated and after drawing sample of the seal, it was handed over to HC Rajinder Kumar. Rukka Ex. PW-8/A was drawn by him and sent to the police station. He also prepared the site plan Ex. PW-10/A. Vide memo Ex. PW-1/E the grounds of arrest was conveyed to the accused. Special report has been deposed by this witness to have been prepared by him. In his cross-examination he denied that they had recovered the charas abandoned in the bus and on suspicion they made four persons to deboard from the bus and when the accused disclosed his address to be of outside the state he was falsely implicated in this case. 11. PW-1 HC Rajinder kumar deposes that he is one of the marginal witnesses of the recovery. He has supported the version of the prosecution story in all the material particulars and testified that on 9.8.2012 at about 4.30 p.m. accused was found coming from the side of shimla Nahan road towards kaulanwala bhood side on foot holding a bag in his right shoulder. The bag of the accused was searched in his presence and during search two packets containing charas weighing 920 gms were recovered from the bag. The charas packets were put into a parcel which was sealed with seal bearing impression T and handed over to him after its use. He also testified that search and seizure memo was prepared which was witnessed by him. In his cross-examination, he has denied that one bus was checked by them near Resin factory in which the bag containing Charas was found abandoned. He also testified that search and seizure memo was prepared which was witnessed by him. In his cross-examination, he has denied that one bus was checked by them near Resin factory in which the bag containing Charas was found abandoned. He also denied that they made accused alongwith Rajesh, Javed and vikram to deboard from the bus and brought them to the police station alongwith the bag and when the police did not find any cogent evidence they foisted this case falsely against the accused. He in his cross-examination also deposes that he alongwith HC Anil went to look for independent witnesses but none was available. He also deposes that from resin factory the residential houses are situated upto a distance of 300-400 meters. He also conceded in his cross-examination that from Resin factory upto Kaulanwala bhood 10-15 villages exist. 12. PW-9 C Kailash Panwar in his examination-in-chief has supported the prosecution case in all material particulars. However, in his cross-examination he deposed that the spot of alleged occurrence is situated upto a distance of 300 meters from Resin factory and residential house are situated at a distance of 100 meters from the spot. 13. 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 PWs aforesaid. Consequently, the genesis of the prosecution case qua the accused being in conscious and exclusive possession of "Charas" 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 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 statements in the cross-examination of PW-1 and PW-9 qua availability of residential houses situated upto a distance of 300-400 meters from the Resin Factory and residential house being situated upto a distance of 100 meters from the spot. Given the proximate location of the aforesaid residential houses 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 residential habitations 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. 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. 14. Moreover, the prosecution was required to prove the fact that the case property, as shown to PW-1 and subsequently to PW-10 and identified by them 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 depositions of PW-10 and PW-1 disclose that the seals placed on the parcel were intact. However, for omission of or non-existence of a statement to the effect that the case property as shown to them in Court by the learned P.P on production at his instance, was handed over to them 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 statements of PWs aforesaid that when they 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-10 and PW-1, on its production by the learned P.P, was not handed over by the Incharge, Police Malkhana, to them 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-10 and 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-2, MHC Sandeep Negi, 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 PWs aforesaid. 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 PWs aforesaid 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 PWs aforesaid. 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-2 qua the person to whom he handed over the parcels, renders its appearance in Court at the instance of the 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 15. 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. 16. In view of above discussion, the appeal is allowed and the impugned judgment of 4.12.2013, rendered by the learned Special Judge-I, Sirmaur District at Nahan, is set aside. The appellant/accused is acquitted of the offence charged. Consequently reinforcingly, it can be formidably concluded, that, the findings of the learned trial Court merit interference. 16. In view of above discussion, the appeal is allowed and the impugned judgment of 4.12.2013, rendered by the learned Special Judge-I, Sirmaur District at Nahan, 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. 17. 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.