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Himachal Pradesh High Court · body

2016 DIGILAW 1122 (HP)

State of H. P. v. Vinod Kumar

2016-06-22

DHARAM CHAND CHAUDHARY, SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. The instant appeal stands directed by the State of H.P. against the judgment of the learned Additional Sessions Judge, Solan, District Solan, Himachal Pradesh, rendered on 20.03.2002 in Sessions Trial No. 14- S/7 of 2001, whereby, the latter Court acquitted the accused/respondent of the offences punishable under Section 20-61-85 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the “Act”). 2. The facts relevant to decide the instant case are that on 12.01.2001 at about 5.55 a.m., si Brij Mohan along with H.C. Paramljit Singh, No.79, C. Naresh Kumar, No. 138,C. Paramjit Singh No.345, C. Pankaj Negi No.238 and ASI Prithvi Raj, H.C. Amar Lal No. 62, C.Rajesh Kumar No.145 and C. Kishore Kumar No.237 were present at Parwanoo in connection with Nakabandi and Traffic Checking duty. At that time a maruti car bearing No. DL 6CA-7404 came there from the side of Shimla. On its being stopped by the police, it was found occupied by three persons including the driver. The car was searched by the police. During the course whereof, from beneath the back seat of the car one transparent “lifafa” was recovered which found carrying charas in different shapes. During the course of checking, one person while taking the advantage of the dark fled away from the spot. Thereafter, the charas so recovered was weighed and it was found to be 3 kg and 500 grams. Thereafter, other codal formalities were completed and the accused were arrested. Report of the FSL was procured. Statements of the witnesses were recorded. 3. On conclusion of investigations, into the offence, allegedly committed by the accused, a report under Section 173 of the Code of Criminal Procedure was prepared and filed in the Court. 4. The accused were charged by the learned trial Court for theirs committing offence punishable under Section 20-61-85 of the Act. In proof of the prosecution case, the prosecution examined 14 witnesses. On conclusion of recording of the prosecution evidence, the statements of the accused under Section 313 of the Code of Criminal Procedure were recorded by the trial Court, in which the accused claimed innocence and pleaded false implication in the case. However, they did not lead any defence evidence. 5. On conclusion of recording of the prosecution evidence, the statements of the accused under Section 313 of the Code of Criminal Procedure were recorded by the trial Court, in which the accused claimed innocence and pleaded false implication in the case. However, they did not lead any defence evidence. 5. During the pendency of the instant appeal before this Court, this Court on 7.1.2013 recorded an order directing the Station House Officer of the Police Station concerned to send the entire remaining bulk of contraband to FSL, Junga for its chemical examination thereat. A direction was also rendered upon the SHO concerned to before his thereto sending the bulk of contraband his moving an application under Section 52-A of the Act before the learned Magistrate concerned for issuing a certificate with respect to its identity including the FIR number, date, seal impression on the remaining bulk on the basis of sample-seal besides its weight. He was also enjoined to certify the correctness of the inventory prepared by the Investigating Officer and was also directed to take photographs of the drug/substance in his presence and certify such photographs being true. 6. In compliance with the rendition of this Court of 7.1.2013, the SHO concerned had sent the bulk parcels to the FSL concerned for eliciting an opinion from it qua the bulk of contraband satiating the mandate of this Court comprised in Criminal Appeal No. 259 of 2006, for its hence standing construable to be charas. The FSL concerned purveyed its apposite opinion thereon, opinion whereof stands comprised in Ex. Cx, exhibit whereof exists on the file of Criminal Appeal No. 470 of 2002, opinion whereof is denotative of on its examining the bulk of contraband, its concluding of its holding extract of cannabis and it being a sample of charas. On 12.8.2013 this Court rendered a direction upon the trial Court concerned for recording the depositions of the prosecution witnesses concerned on theirs being reexamined and further cross-examined by the Public Prosecutor concerned and the defence counsel. On 12.8.2013 this Court rendered a direction upon the trial Court concerned for recording the depositions of the prosecution witnesses concerned on theirs being reexamined and further cross-examined by the Public Prosecutor concerned and the defence counsel. Also a direction stood rendered to the learned trial Court to on conclusion of re-examination besides further crossexamination of five prosecution witnesses respectively by the Public Prosecutor concerned and the defence counsel concerned, to proceed to record the statements of the accused under Section 313 of the Cr.P.C. The trial Court concerned proceeded to in the manner as directed by this Court record the depositions of five witnesses, also the learned trial Court recorded the statements of the accused under Section 313 of the Cr.P.C. Thereupon the learned trial Court transmitted to this Court the apposite statements of five prosecution witnesses besides the statements of the accused recorded by it under Section 313 Cr.P.C. 7. On 31.03.2016, this Court in pursuance to a decision of a Larger Bench of this Court rendered in State of H.P. Vs. Mehboob Khan, 2013 (3) Him. L. R. (FB) 1834 wherein a firm pronouncement stands embedded of resin mixed with other parts of the apposite plant i.e. in crude form being Charas, as the legislature never intended to exclude the weight of the mixture i.e. other parts of the apposite plant in the resin, unless such mixture stands proven to be of some other neutral substance and not that of other parts of cannabis plant besides the amount of resin in the sample in purified or crude form being sufficient to hold of it being charas, especially when the expert expresses an opinion of the entire mass being a sample of Charas, his apposite opinion being both conclusive as well as infallible, hence recorded an order of the report of the FSL, comprised in Ex. Cx being excludable besides unreadable as evidence. In sequel, the order rendered on 16.9.2013 by this Court qua examination of the accused under Section 313 of the Cr.P.C., stood also recalled on 31.3.2016. In aftermath, the report of the FSL concerned comprised in Ex. Cx is unreadable as evidence. However, the report of the expert concerned comprised in Ex.PW14/E is alone readable. There exists a vivid portrayal therein of the sample denoted therein as transmitted for analysis to it being charas. 8. In aftermath, the report of the FSL concerned comprised in Ex. Cx is unreadable as evidence. However, the report of the expert concerned comprised in Ex.PW14/E is alone readable. There exists a vivid portrayal therein of the sample denoted therein as transmitted for analysis to it being charas. 8. On an appraisal of the evidence on record, the learned trial Court, returned findings of acquittal in favour of the accused/respondents herein. 9. The State of H.P. stands aggrieved by the judgment of acquittal recorded by the learned trial Court. The learned Additional Advocate General has concertedly and vigorously contended qua the findings of acquittal recorded by the learned trial Court standing not based on a proper appreciation of the evidence on record, rather, theirs standing sequelled by gross mis-appreciation of material on record. Hence, he contends qua the findings of acquittal being reversed by this Court in the exercise of its appellate jurisdiction and theirs being replaced by findings of conviction. 10. On the other hand, the learned defence counsel has with considerable force and vigour, contended qua the findings of acquittal recorded by the Court below standing based on a mature and balanced appreciation of evidence on record and theirs not necessitating interference, rather theirs meriting vindication. 11. 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. 12. The depositions of the official witnesses comprised in their respective examinations-in-chief qua effectuation of recovery of charas, Ex.P-2 under memo Ex.PW1/A at the site of occurrence by the Investigating Officer from the purported exclusive and conscious possession of the accused, are manifestly shorn off any vice of inter se contradictions vis-a-vis their respective cross-examinations. Also their respective depositions qua effectuation of recovery of charas, Ex.P-2 under memo Ex.PW1/A by the Investigating Officer at the site of occurrence from the exclusive and conscious possession of the accused are bereft of any intra se contradictions. Also their respective depositions qua effectuation of recovery of charas, Ex.P-2 under memo Ex.PW1/A by the Investigating Officer at the site of occurrence from the exclusive and conscious possession of the accused are bereft of any intra se contradictions. Consequently, when the respective depositions of the prosecution witnesses when unstained with any vice of any inter se contradictions or any blemish of any intra se contradictions coax an inference from this Court of their respective versions qua effectuation of recovery of charas Ex.P-2 under memo Ex.PW1/A by the Investigating Officer at the site of occurrence from the purported exclusive and conscious possession of the accused as stand comprised in their respective depositions being both truthful as well as credible. Even when the testimonies of the official witnesses qua effectuation of recovery of charas Ex.P-2 under memo Ex.PW1/A by the Investigating Officer at the site of occurrence from the purported exclusive and conscious possession of the accused, depositions whereof, when for reasons aforestated, stood recorded prior to the rendition of this Court of 31.03.2016 whereby this Court excluded the reading of the recitals of report comprised in Ex. Cx besides excluded from reading the statements of the accused subsequently recorded under Section 313 of the Cr.P.C., hence, alone constitute readable prosecution evidence in proof of the charge for which the accused stood tried and acquitted by the learned trial Court, depositions whereof when for reasons aforestated, stand unblemished with any stain of any intra se or inter se contradictions qua effectuation of recovery of charas Ex.P-2 under memo Ex.PW1/A by the Investigating Officer at the site of occurrence from the purported exclusive and conscious possession of the accused whereupon hence sanctity is imputable to their respective depositions, the learned trial Court yet rendered findings of acquittal in favour of the accused/respondent on the score of PW-1 Shri Kamal Kumar, an independent witness, associated by the Investigating Officer in the apposite proceedings not lending any succor to the factum of its standing recovered in his presence by the Investigating Officer from the purported conscious and exclusive possession of the accused. Consequently, with factum of PW-1, an independent witness associated by the Investigating Officer in the apposite proceedings which occurred at the site of occurrence hence belittling the credible unstained testimonies of the official witnesses, constrained the learned trial Court to on the score aforesaid, disimpute credence to the testimonies of official witnesses. Consequently, with factum of PW-1, an independent witness associated by the Investigating Officer in the apposite proceedings which occurred at the site of occurrence hence belittling the credible unstained testimonies of the official witnesses, constrained the learned trial Court to on the score aforesaid, disimpute credence to the testimonies of official witnesses. The learned trial Court in disimputing credence to the unbesmirched testimonies of official witnesses appears to have overlooked the factum of with PW-1 admitting his signatures on the apposite memos Ex.PW1/A and Ex.PW1/B whereupon he as mandated by the provisions of Section 91 and 92 of the Indian Evidence Act which stand extracted hereinafter stood interdicted besides forbidden to depose in variance therefrom rather his by the statutory mandate engrafted in the afore-referred apposite provisions of the Indian Evidence Act imputing credence also his imputing conclusive proof qua the recitals occurring therein on unflinching evidence emanating qua despite his orally digressing from its recorded recitals of yet his signatures existing thereon irrefragable evidence whereof stands evinced by his admitting the prime factum of the apposite memos holding his signatures, hence when his apposite admission sequelly statutorily belittles the effect of his deposing orally in variance or in detraction thereto naturally when he rather emphatically proves the recitals comprised in the apposite memos, it was neither appropriate nor tenable for the learned trial Court to conclude of the recorded recitals borne on Ex.PW1/A and Ex.PW1/B holding no evidentiary clout nor it was legally apt for it to outweigh the creditworthiness of the testimonies of the official witnesses qua the effectuation of recovery of charas Ex.P-2 under recovery memo Ex.PW1/A by the Investigating Officer at the site of occurrence from the purported exclusive and conscious possession of the accused. The provisions of Sections 91 and 92 of Indian Evidence Act read as under:- “91. The provisions of Sections 91 and 92 of Indian Evidence Act read as under:- “91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of documents.- When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained. 92. Exclusion of evidence of oral agreement.:- When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:- Proviso (1).- Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, [want of failure] of consideration, or mistake in fact or law; Proviso (2).- The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document: Proviso (3).- The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved: Proviso (4).- The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property,may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents: Proviso (5). Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved: provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of contract: Proviso (6).- Any fact may be proved which shows in what manner the language of a document is related to existing facts.” 13. Be that as it may, the prosecution was enjoined with a solemn duty to connect charas Ex.P-2 weighing 3kg and 500 grams with both the opinion rendered by the laboratory concerned comprised in Ex.PW14/E besides was also enjoined to prove the contraband produced in Court with its recovery standing effectuated by the investigating officer at the site of occurrence from the purported exclusive and conscious possession of the accused under memo comprised in Ex.PW1/A. The connectivity or the apposite link for sustaining the factum of the opinion comprised in Ex.PW14/E as stands recorded therein by the laboratory concerned being relatable to its recovery under Ex.PW1/A by the Investigating Officer at the site of occurrence from the purported exclusive and conscious possession of the accused would emerge only on the Investigating Officer adducing before the learned trial Court the relevant abstract of the Malkhana Register magnifying the factum of its under signatured recitals borne thereon standing deposited in the apposite Malkhana by the In-Charge of the Malkhana concerned. However, the aforesaid evidence remains unadduced by the prosecution. However, the aforesaid evidence remains unadduced by the prosecution. The effect of the best evidence aforesaid in portrayal of charas Ex.P-2 recovered under memo Ex.PW1/A by the Investigating Officer at the site of occurrence from the purported exclusive and conscious possession of the accused being linkable to the opinion recorded qua it by the laboratory concerned comprised in Ex.PW14/E remaining unadduced is of its de-establishing the preeminent prime factum of the opinion recorded by the laboratory concerned comprised in Ex.PW14/E holding any formadibility for this Court to conclude of its standing rendered by the laboratory concerned qua charas Ex.P-2 recovered under memo Ex.PW1/A by the Investigating Officer at the site of occurrence from the purported exclusive and conscious possession of the accused. In sequel, the opinion of the laboratory concerned comprised in Ex.PW14/E is unreadable qua Ex.P-2 which stood recovered under recovery memo Ex.PW1/A by the Investigating Officer at the site of occurrence from the purported exclusive and conscious possession of the accused. As an apt sequitur, it is to be held of the opinion of the laboratory concerned comprised in Ex.PW14/E not holding any efficacy for this Court to conclude thereupon of it being sufficient to conclude thereupon of the accused at the relevant time holding conscious and exclusive possession of charas Ex.P-2 recovery whereof by the Investigating Officer at the site of occurrence from their purported exclusive and conscious possession stood effectuated under memo Ex.PW1/A. 14. Furthermore, the prosecution was also enjoined to adduce potent evidence displaying the factum of the item of contraband as stood produced in Court by the Public Prosecutor concerned for its being shown to the prosecution witnesses concerned being analogous to the item of contraband as purportedly stood recovered from the purported exclusive and conscious possession of the accused at the site of occurrence by the Investigating Officer. The best evidence in display thereto stood embedded in adduction by the Public Prosecutor concerned at the time contemporaneous to its production by him before the learned trial Court for its being shown to the prosecution witnesses concerned, of the apposite abstract of the Malkhana Register with its evincing of the relevant item of contraband under signatured recitals standing retrieved from the apposite Malkhana by the In- Charge of the Malkhana concerned whereupon it stood transmitted by him to the Public Prosecutor concerned through an authorised official concerned for facilitating the former to show it to the prosecution witnesses concerned while holding them to examinations-in-chief. However, the aforesaid best evidence remains unadduced. Furthermore, even at the time of production of the relevant item of contraband by the Public Prosecutor before the learned trial Court for its being shown to the prosecution witnesses concerned at the time of their depositions standing recorded by the learned trial Court, there is no articulation therebefore by him of his receiving the relevant item of contraband from an authorized official, who had received it from the Incharge of the Malkahana concerned after the latter had retrieved it from the apposite Malkhana under apposite signatured entries recorded in the apposite register in display of its standing retrieved therefrom by him on each occasion it stood transmitted by him through an authorized official to the Public Prosecutor concerned for its being shown to the prosecution witnesses concerned during the course of the recording of their depositions before the learned trial Court. The omission of the aforesaid communications forestalls an inference of the prosecution adducing cogent proof in display of the item of contraband as stood produced in Court by the Public Prosecutor concerned for its standing shown to the prosecution witnesses concerned at the time of the recording of their depositions before the learned trial Court standing accentuatedly linked or connected with the effectuation of recovery of charas Ex.P-2 under memo Ex.PW1/A by the Investigating Officer at the site of occurrence from the purported exclusive and conscious possession of the accused. In aftermath, it can hence be invincibly concluded of the relevant item of contraband as stood produced before the learned trial Court by the learned Public Prosecutor concerned for its being shown to the prosecution witnesses concerned at the apposite stage of the recording of their depositions thereat whereupon they voiced of its being the item of contraband which stood recovered by the Investigating Officer at the site of occurrence from the purported exclusive and conscious possession of the accused not holding any congruity with the effectuation of recovery of charas Ex.P-2 by the Investigating Officer at the site of occurrence from the purported exclusive and conscious possession of the accused under memo Ex.PW1/A. Contrarily, it has to be concluded of the aforesaid lack of proof for linking Ex.P-2 with the item of contraband as stood produced by the Public Prosecutor concerned before the learned trial Court renders the contraband qua which the official witnesses recorded their depositions before the learned trial court of it being the very same contraband which stood recovered at the site of occurrence by the Investigating Officer from the purported exclusive and conscious possession of the accused at the site of occurrence not holding any evidentiary clout for this Court to conclude of its constituting conclusive proof qua the relevant item of contraband standing recovered by the Investigating Officer at the site of occurrence from the purported exclusive and conscious possession of the accused under memo Ex.PW1/A. 15. Be that as it may, this Court in its previous renditions has consistently held the view of the omissions aforesaid by the prosecution sapping the vigour of the prosecution case. However, the learned Additional Advocate General has contended of with the seals borne on the case property, at the time contemporaneous to its production before the learned trial Court by the Public Prosecutor concerned for its being shown to the prosecution witnesses concerned at the time of their depositions standing recorded by it, remaining intact renders insignificant besides minimizes the legal impact, if any, of the omissions aforesaid by the prosecution. He also contends of hence the effect, if any, of the omissions aforesaid standing undermined. He also contends of hence the effect, if any, of the omissions aforesaid standing undermined. However, the mere factum of the seals borne on the case property at the time of its production in Court by the Public Prosecutor concerned for its being shown to the prosecution witnesses concerned at the time of their depositions standing recorded by it would not sway from this Court a conclusion of hence the Investigating Officer or any police official concerned of the Police Station concerned standing precluded to tamper with the case property besides holding no latitude by ingenuous contrivances deployed by him to insert even in the sealed parcel by breaking the seals existing on the parcels, some contraband unlike and dissimilar to the one which stood recovered at the site of occurrence by the Investigating Officer from the purported exclusive and conscious possession of the accused nor would it baulk the Investigating Officer concerned or any police official concerned of the Police Station concerned to after breaking the seals existing on the parcels successfully insert therein contraband unlike the one or in addition to or in reduction to the weight borne by it at the stage contemporaneous to its recovery at the site of occurrence by the Investigating Officer from the purported exclusive and conscious possession of the accused whereafter the factum of his with facile grace resealing the parcels with the very same seals as borne thereon at the time contemporaneous to the effectuation of its recovery at the site of occurrence by the Investigating Officer from the purported exclusive and conscious possession of the accused, cannot stand obviously negated especially when the apposite seals always remain in the Police Station concerned. In sequel, when given the easy availability of apposite seals in the police station concerned would facilitate the Investigating Officer concerned to at any stage make use of it, hence, when the aforesaid possibility remains alive to be accomplished by the Investigating Officer concerned or by any other police official concerned of the Police Station concerned rather when hereat, it has palpably assumed a realistic form connoted by the factum of a display standing manifested in Ex.PW15/B, the apposite certificate prepared by the Magistrate concerned under Section 52- A of the NDPS Act in compliance to the renditions of this Court of there occurring a variance besides a stark discordance inter se the weight qua the bulk of contraband standing disclosed in the FIR to be 3 kgs, 500 grams vis-a-vis its standing drastically reduced to 2 kgs, 530 grams at the time of the Magistrate concerned weighing it also when the Magistrate concerned on weighing the sample parcels has unraveled in Ex.PW15/B of his on weighing it, detecting it to weigh 75 grams whereas its weight stands denoted in the apposite record maintained by the Investigating Officer to be 50 grams. Consequently, when the weight of the sample parcel when hence has increased from 50 grams it bore at the time of its standing separated from the mass or bulk by the Investigating Officer at the site of occurrence to 75 grams at the time of the Magistrate concerned weighing it, besides when the weight of the bulk stands reduced to 2 Kgs, 530 grams from 3 Kgs, 500 grams it initially bore as underscored in the FIR, constrain an inference of the aforesaid omissions made by the prosecution whereupon this Court has concluded of the omissions aforesaid deestablishing the factum of effectuation of recovery of contraband at the site of occurrence by the Investigating Officer from the purported exclusive and conscious possession of the accused standing not emphatically linked to the opinion purportedly recorded thereon by the laboratory concerned comprised in Ex.PW14/E besides detaching and delinking it from the item of contraband produced in Court by the Public Prosecutor concerned for its being shown to the prosecution witnesses concerned, omissions whereof when read in entwinement with the manifestations in Ex.PW15/B also give leeway to an inference of the item of contraband as sent to the laboratory concerned besides the item of contraband produced in Court by the Public Prosecutor concerned standing tampered with. In aftermath, for reiteration, with reflections in Ex.PW15/B fortifying the inference recorded by this Court of omissions of the prosecution qua the facets aforesaid standing engendered by proactive tamperings by the police official concerned of the Police Station concerned with charas Ex.P-2 recovered under memo Ex.PW1/A at the site of occurrence by the Investigating Officer from the purported exclusive and conscious possession of the accused, obviously with discrepant and infirm evidence standing adduced by the prosecution in display of the report of the laboratory concerned comprised in Ex.PW14/E being relatable to the effectuation of recovery of charas Ex.P-2, by the Investigating Officer at the site of occurrence from the purported exclusive and conscious possession of the accused under memo Ex.PW1/A besides adduction of emaciated evidence by it for linking the item of contraband produced before the learned trial Court by the Public Prosecutor concerned for its being shown to the prosecution witnesses with the relevant item of contraband comprised in Ex.P-2, recovery whereof stood purportedly effectuated by the Investigating Officer at the site of occurrence from the purported exclusive and conscious possession of the accused constrains this Court to hold with aplomb of the prosecution failing to prove the charge against the accused beyond all reasonable doubts. Hence, they are held entitled to the benefit of doubt. 16. Consequently, there is no merit in the instant appeal and it is accordingly dismissed. Records be sent back forthwith.