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Himachal Pradesh High Court · body

2016 DIGILAW 1089 (HP)

State of Himachal Pradesh v. Sanjay Kumar

2016-06-17

AJAY MOHAN GOEL, SANJAY KAROL

body2016
JUDGMENT : Ajay Mohan Goel, J. 1. The present appeal has been filed by the State against judgment dated 6.4.2009 passed by the Court of learned Special Judge, Mandi in Sessions Trial No. 2 of 2006, vide which the learned Trial Court has acquitted the accused for the commission of offence under Section 20 of the Narcotic Drugs & Psychotropic Substance Act, 1985 (in short the ‘Act’). 2. The case of the prosecution, in brief, was that on 4.3.2005 HC Ram Lal, CIA staff Mandi, accompanied by Constables Sant Ram, Tara Chand and Vidya Sagar and Bhagmal Constable of Security Branch, Mandi were present, near under construction power bridge at Larji. A person came from Larji side and on noticing police, he took out a poly bag from the pocket of his jacket and threw the same towards Beas River. However, the poly bag fell on the bridge and he fled towards Larji. He was chased and apprehended. The poly bag which was carried out by him was checked in the presence of witnesses Jagdish Kumar and Tara Chand. From the said bag, charas was recovered and on weighing, it was found to be 1 Kg. Out of the recovered charas, two samples of 25 grams each were separated and sealed with six seals of ‘T’ and bulk charas was sealed in a separate parcel with six seals of ‘T’. NCB form in triplicate was prepared and specimen seal impression was drawn and seal after use was handed over to Jagdish Kumar. The case property was taken into possession as per memo Ext. PJ and Rukka Ext. PC was prepared and forwarded to the Police Station through Tara Chand Constable for recording the FIR. Accused was arrested as per memo Ext. PK and search memo of his personal search Ext. PL was prepared. The case property and accused were handed over by Ram Lal HC to SHO Dabe Ram, who resealed the case property with five seal impression of H. The case property was thereafter deposited with Raj Kumar MHC and special report Ext. PE was sent by HC, Balak Ram, through Constable Chandermani to Addl. Superintendent of Police, Mandi. The sample on analysis was found to be that of charas by the chemical analyzer as per his report Ext. PJ. PE was sent by HC, Balak Ram, through Constable Chandermani to Addl. Superintendent of Police, Mandi. The sample on analysis was found to be that of charas by the chemical analyzer as per his report Ext. PJ. Investigation was carried out and thereafter challan was filed in the Court and the accused was charged for the commission of offence punishable under Section 20 of the Act. 3. In order to substantiate its case, the prosecution, in all, examined ten witnesses. 4. PW1, HC Malkiat Singh, who was posted as Constable at Police Station Aut during the year 2005 stated that on 5.3.2005 MHC Raj Kumar had handed over him one sample parcel sealed with seal H and T, NCB form, copy of FIR, recovery memo along with RC No. 147/04/05 dated 5.3.2005 for depositing the same at CTL, Kandaghat which was deposited by him and copy of RC vide memo Ext. PA was handed over to Raj Kumar MHC. 5. PW2, HC Raj Kumar, has stated that he was posted as Investigating Officer at Police Station Aut during the year 2005 and he recorded FIR Ext. PB after receipt of Rukka, Ext. PC and on the same day, SI/SHO, Dabe Ram, deposited with him case property sealed with seal H at five places on each parcel and seal T at six places on each parcel. He further stated that sample parcels were marked as A1 and A2 and bulk parcel was marked as A. NCB form, sample seals along with other documents were also deposited with him. One sample parcel mark A1 was sent to CTL, Kandaghat through Constable Malkiat Singh, PW1, who after depositing the same had handed over the receipt to him. Abstract of Malkhana Register was Ext. PD. 6. PW3, Constable Jagdish Chand, proved Ext. PE copy of Rapat No. 29 dated 3.3.2005. PW4, HC Man Singh, deposed that he was posted as Assistant Reader to SP Mandi and on 5.3.2005 Addl. SP, Sh. Sunil Kumar had handed over to him special report, Ext. PF. 7. PW5, Constable Chandermani, has stated that on 5.3.2005 HC Balak Ram handed over special report Ext. PF to him which he delivered to Addl. SP, Mandi at 4:30 p.m. 8. PW6, Inspector Shamsher Singh, stated that he was posted as SHO, PS, Aut in the year 2005. After receipt of the report of Chemical Examiner Ext. PF. 7. PW5, Constable Chandermani, has stated that on 5.3.2005 HC Balak Ram handed over special report Ext. PF to him which he delivered to Addl. SP, Mandi at 4:30 p.m. 8. PW6, Inspector Shamsher Singh, stated that he was posted as SHO, PS, Aut in the year 2005. After receipt of the report of Chemical Examiner Ext. PG, challan was prepared by him. PW7, HC Balak Ram, who was also posted at Police Station Aut stated that the case file was handed over by SHO to him for further investigation and he prepared the special report which was sent through Constable Chandermani to SP Mandi and special report was signed by Sunil Chaudhary, ASP, Mandi. 9. PW8, HC Tara Chand, has deposed that on 4.3.2005 he along with HC Ram Lal, Constable Sant Ram, Constable Vidya Sagar and Constable Bhagmal were present at Larji Dam in order to trace accused of FIR No. 28 of 2005. In the meanwhile, a person, (later on identified as the accused) came from Larji side and when he saw the police, he threw a poly bag from his pocket towards Beas River which bag fell on the bridge. The accused was apprehended by the police and the poly bag was lifted by HC Ram Lal. On search of the bag, charas in the shape of sticks and chapaties was recovered which weighed 1Kg. Two samples of 25 grams each separated from the recovered charas and sealed with seal T at six places. The sample parcels were marked as A1 and A2 and thereafter bulk charas was put in the same bag and sealed with seal T at six places. The specimen of seal T was Ext. PH. The parcels were signed by him, Jagdish Kumar and accused. The charas was taken into possession as per memo Ext. PJ and search and seizure memo was also prepared which is Ext. PJ/1. Copy of said memo was given to the accused. The accused was appraised about the grounds of his arrest as per memo Ext. PK and formal search of the accused was taken as per memo Ext. PL. The charas was taken into possession as per memo Ext. PJ and search and seizure memo was also prepared which is Ext. PJ/1. Copy of said memo was given to the accused. The accused was appraised about the grounds of his arrest as per memo Ext. PK and formal search of the accused was taken as per memo Ext. PL. In his cross-examination, PW8 has feigned ignorance about the place as well as the name of the accused in the matter/case of FIR No. 28 of 2005, in the tracing of accused of which he was present at Larji Dam along with other police personnel on 4.3.2005. He also stated that officials and labourers were present near the bridge. He has further stated that when accused saw police, he got nervous and ran backwards after throwing the poly bag in hurry. PW8 could not disclose the distance between Thalaut and Larji and the length of the bridge or the approximate labourers engaged at Thalaut. 10. PW9, Inspector Dabe Ram, who was posted as SHO, PS, Aut in the year 2005 stated that on 4.3.2005, HC Ram Lal handed over to him three parcels marked A, A1 and A2 alongwith recovery memo, NCB form in triplicate, sample seal T at 5:30 p.m. and he resealed the same with seal H at five places and obtained the specimen seal impression Ext. PM. He further deposed that he filled up column No. 7A and B of NCB form Ext. PN and also affixed specimen of seal H and put his signatures therein. According to him, all parcels, NCB form, Sample seal T and H, search and seizure form were handed over to MHC Raj Kumar. 11. PW10, HC Ram Lal, who was posted as investigating officer with CIA Staff, Mandi during the year 2005, stated that on 4.3.2005 he along with Constable Sant Ram, Constable Tara Chand, Constable Vidya Sagar and Constable Bhagmal were present near Dam site at Larji Bridge in search of accused in case FIR No. 28 of 2005 towards Thalaut on the instructions of Inspector Narender Kumar CIA, Mandi. The police party noticed one person who was later on identified as accused coming towards Thalaut. The police party noticed one person who was later on identified as accused coming towards Thalaut. The said person on noticing the police took out one brown coloured packet from the pocket of his jacket and threw the same in River Beas and thereafter the said person attempted to flee towards Larji. The bag so thrown by the accused fell on the bridge itself. This bag was picked up him and the accused was apprehended with the help of Jagdish Kumar. After ascertaining the identity of the accused, the poly bag was checked from which charas in the shape of sticks and chapaties weighing 1 Kg was recovered. From the said recovered charas, 2 samples of 25 grams each separated and sealed with seal T at six places. Bulk parcel was also sealed with seal T and marked as A1 and A2. Specimen was taken and the same was signed by witnesses and the accused. NCB form in triplicate was filled and the seal was handed over to witness Jagdish. Thereafter, case property along with search and seizure from, NCB form were taken into possession. Copy of memo Ext. PJ was given to accused free of cost. Search and seizure form Ext.PJ/1 and Rukka Ext. PC was sent to Police Station, Aut through Constable Tara Chand at 1:30 p.m. Spot map Ext. PO was prepared and personal search of accused was carried out in the presence of Jagdish and Tara Chand vide Ext. PL and the accused was arrested as per memo Ext. PK and the intimation of arrest was given to his brother. The case property along with NCB form, sample seal, search and seizure form along with case file were handed over by him to SHO Dabe Ram. In his cross-examination, he has stated that Nepali and Bihari labourers were present at the construction site and Jagdish was resident of village Padiun which was at a distance of 45 KM from the spot where the accused was nabbed and that he i.e. PW10 was also resident of same area. 12. On the basis of the material so produced on record by the prosecution, the learned trial court came to the conclusion that the prosecution had failed to prove that the accused was found in conscious possession of the charas and accordingly it acquitted the accused of the charges alleged against him. 13. Mr. V.S. Chauhan, learned Addl. 12. On the basis of the material so produced on record by the prosecution, the learned trial court came to the conclusion that the prosecution had failed to prove that the accused was found in conscious possession of the charas and accordingly it acquitted the accused of the charges alleged against him. 13. Mr. V.S. Chauhan, learned Addl. Advocate General has argued that the judgment passed by the learned trial court vide which it has acquitted the accused is not sustainable in law. According to him, the findings returned by the learned trial court are based on surmises and conjectures and not the records of the case. According to Mr. Chauhan, the reasoning returned by the learned trial court in disbelieving the version of the prosecution was manifestly unsustainable both on facts and on law and there was, in fact, no reason to discard the consistent testimony of the prosecution witnesses on all material points by the learned trial court. According to Mr. Chauhan, the learned trial court had brushed aside the truthful testimony of the official witnesses on assumptions and presumptions which had no relevance in the facts and circumstances of the present case and the findings of acquittal returned by the learned trial court were, in fact, not sustainable in law. He further contended that 1 Kg charas was recovered from the accused and there was no material on record to suggest that the accused was falsely implicated by the prosecution in the case and this fact itself warranted setting aside of findings of acquittal returned by the learned trial court especially when the testimony of the official witnesses on material particulars had fully corroborated the case of the prosecution beyond any reasonable doubt. Therefore, Mr. Chauhan submitted that the findings returned by the learned trial court required interference and the accused deserved to be convicted for commission of offence under Section 20 of the NDPS Act. 14. On the other hand, Mr. Keshav Thakur, learned counsel appearing for the respondent submitted that there was no merit in the appeal filed by the State. He submitted that the findings of acquittal returned by the learned trial court were based on material produced on record by the prosecution, on the basis of which, the prosecution had not been able to prove beyond reasonable doubt that the accused was guilty of offence alleged against him. According to Mr. He submitted that the findings of acquittal returned by the learned trial court were based on material produced on record by the prosecution, on the basis of which, the prosecution had not been able to prove beyond reasonable doubt that the accused was guilty of offence alleged against him. According to Mr. Thakur, the learned trial court had rightly acquitted the accused because the prosecution had not been able to bring home the guilt of the accused. Mr. Thakur submitted that, in fact, the story put forth by the prosecution was a concocted story which had no element of truth in it. According to him, the accused was falsely implicated in the case which was amply clear and evident from the fact that there were major contradictions in the testimonies of PW8, PW9 and PW10 coupled with the fact that no independent witness was associated by the police at the time of search and seizure, though the alleged incident has not taken place in a secluded area. Accordingly, he contended that the judgment passed by the learned trial court was a well reasoned judgment and the conclusions contained therein were borne out from the records of the case and the same did not require any interference. 15. We have heard learned counsel for the parties and also gone through the records of the case. 16. As per the prosecution, on 4.3.2005 when police party was present at Larji Dam, accused came from Larji side towards Thalaut and when he noticed the police party, he took out a poly bag from his jacket which he threw it towards Beas River and then he tried to run away. Further, as per the prosecution, while the accused was trying to run away, he was nabbed by the police party with the assistance of one Sh. Jagdish Kumar and the bag which he tried to throw in River Beas incidentally fell on the bridge which was lifted by investigating officer Ram Lal from the bridge. Personal search of the accused was carried in the presence of Jagdish and Tara Chand. Incidentally, Tara Chand, PW8, was a part of the police party and Jagdish who was associated as an independent witness happens to be resident of Padiun village situated at a distance of 40 KM from the spot. Personal search of the accused was carried in the presence of Jagdish and Tara Chand. Incidentally, Tara Chand, PW8, was a part of the police party and Jagdish who was associated as an independent witness happens to be resident of Padiun village situated at a distance of 40 KM from the spot. It has come in the cross-examination of PW10, Investigating Officer Ram Lal that he is also resident of the same area to which Jagdish belong. It is not the case of the prosecution that the place of incident was a secluded place where no independent witness could have been associated. On the contrary, it has come in the cross-examination of PW8 that Bihari labourers were engaged in the construction of Larji Project near the bridge and officials are also present in the office normally. PW10 has also mentioned in his cross-examination that the construction work was going on and many labourers were engaged in the construction work. In these circumstances, the non-association of independent witnesses by the police raises serious doubts about the truthfulness of the version of the story of the prosecution. The prosecution otherwise also has not been able to give any cogent explanation as to why no independent witness was associated by the police at the spot. The so-called independent witness Jagidh has not even been examined by the prosecution. 17. Further, the testimony of PW8 and PW10 also does not inspire confidence and the truthfulness of these witnesses is also highly doubtful. In his cross-examination, PW8, Tara Chand, has stated that they left police lines Mandi on 3.3.2005 and searched for the accused in respect of FIR No. 28 of 2005. He further stated that he does not remember the date of said FIR nor does he remembers from where the said accused was nabbed. He has further stated that he did not remember the distance from Larji and Thalaut. He stated that the bridge at Larji was under construction at that time and in the same breath he further mentioned that he did not remember the number of labourers engaged in the construction of bridge. He has further mentioned that Bihari labourers were engaged in the construction work and there were offices of Larji Project near the bridge and officials are present in the office normally. He further states that he does not remember as to who nabbed the accused first. He has further mentioned that Bihari labourers were engaged in the construction work and there were offices of Larji Project near the bridge and officials are present in the office normally. He further states that he does not remember as to who nabbed the accused first. He further showed ignorance to the suggestion that Jagdish was a stock witness of the police and he was facing criminal cases. Incidentally, this so-called independent witness who was associated with the search and seizure by the police was not produced by the prosecution as their witness. 18. PW10 has admitted in his cross-examination that nearby Thaulat, construction work of the new bridge was going on and many labourers from UP and Nepal were doing the construction work. Thereafter, he has stated that the accused was nabbed in the centre of the bridge and at that time no labourer was present. He has also stated that Jagdish is resident of village Padiun and he (PW10) was also resident of same area from which Jagdish belonged. 19. Ext. PC is the copy of Rukka, a perusal of which demonstrates that there is overwriting carried in the same qua mentioning of case No. 28 of 2005. Further, there is interpolation even in the figure of ‘950’ which figure has been used to describe the remaining bulk quantity of charas i.e. 950 gram. According to HC Ram Lal (PW10) the case property along with NCB form, sample seal, search and seizure memo along with case file was deposited by him with PW9, SHO Dabe Ram. According to PW9, the case property was resealed by him in the presence of HC Ram Lal PW10 and MHC Raj Kumar PW2. However, this fact is not corroborated either by the statement of PW10 or by the statement of PW2. 20. Another glaring infirmity in the prosecution case is that copy of Rapat No. 29 Ext. PE dated 3.3.2005 refers to Inspector Narinder Kumar accompanied by ASI Yog Raj, HC Ram Lal and Constable Sant Ram leaving for patrolling towards Aut side at 5:45 p.m. In case said Narinder Kumar and other police officials were patrolling in the aforesaid area to trace the culprit of FIR No. 28 of 2005, then there is no plausible explanation coming from the prosecution as to why this fact has not been mentioned in the above mentioned Rapat No. 29. Now, when we peruse the contents of FIR No. 29 of 2005 dated 4.3.2005 which pertains to present case, it is mentioned therein that the police party was near the under construction bridge adjacent to Thaulat on the basis of the orders of Inspector Narinder Kumar. Where the said Inspector was, is also not clear, whereas had he really been in search of the accused in the matter pertaining to FIR No. 28 of 2005, then he also ought to have been at the spot along with other police officials when they nabbed the accused. The factum of said Inspector and ASI Yog Raj not being along with other police officials raises very-very serious doubt about the factum of recovery of charas and the apprehension of the accused by the police party as per the version of the prosecution. 21. One very important factor which has heavily weighed with the learned trial court is qua tampering with the NCB form. The learned trial court has categorically taken note of the fact that the discrepancy mentioned in the NCB form Ext. PN makes a reference that the case property was 25 gram each sample with date of seizure dated 4.3.2005 at Larji Dam and date of dispatch of sample as 5.3.2005, description of two samples 25-25 grams each mark A1 and A2, description of seal as T and H, number of seals put on samples as six seals T and resealed with seal H five numbers. The quantity of charas recovered has not been mentioned in the said form and there is interpolation with figure ‘5’ of the date 4.3.2005 and place of seizure and there is also interference with figure ‘5’ of date 5.3.2005 which appears to have been changed from ‘4’. PW10, HC Ram Lal, who was to update the NCB form, has not admitted the overwriting in his hand. The learned trial court has further held that NCB form is a basic document to prove the authenticity of the case and failure to complete the NCB form at the spot is a breach which is fatal to the prosecution case. 22. The learned trial court has further held that NCB form is a basic document to prove the authenticity of the case and failure to complete the NCB form at the spot is a breach which is fatal to the prosecution case. 22. Another relevant aspect of the matter is that according to the prosecution after the accused saw the police official he took out poly bag from his jacket and tried to throw out in the River Beas but the said bag fell on the bridge and the accused fled towards Larji. Ext. PO spot map shows that the poly bag is shown lying on the edge of the middle of the road which belies the story of the prosecution that accused threw the poly bag towards River Beas. 23. From all the above narrated facts, it cannot be said with certainty that the prosecution indeed was able to bring home the guilt of the accused. There are too many inconsistencies and contradictions in the testimony of police officials and no independent witness worth its name was associated by the police to corroborate its case. On the other hand, the material on record gives a looming impression that the testimony of police officials is neither cogent nor it is trustworthy. The prosecution has miserably failed to prove beyond reasonable doubt that the accused in fact was guilty of the offence with which he was charged. All these aspects of the matter have also been gone into by the learned trial court while it returned the findings of the acquittal in favour of the accused. We are of the considered view that the findings so arrived at by the learned trial court are neither perverse nor it can be said that the reasoning given by the learned trial court are not borne out from the records of the case. Accordingly, we uphold the judgment passed by the learned trial court and dismiss the present appeal being devoid of merit. Bail bonds, if any, furnished by the accused are discharged.