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Himachal Pradesh High Court · body

2016 DIGILAW 1187 (HP)

Munish Verma v. State of H. P.

2016-06-27

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. 1. The instant appeal stands directed against the judgment of 20.11.2007 rendered by the learned Special Judge, Fast Track Court, Shimla, H.P., in Sessions trial No. 11-S/7 of 2007, whereby the learned trial Court convicted and sentenced the accused/appellants (for short “the accused’) to undergo rigorous imprisonment for a period of 8 years each and to pay a fine in a sum of Rs.80,000/- each and in default of payment of fine they stood sentenced to further undergo rigorous imprisonment for a period of two years for commission of an offence punishable under Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the Act”). 2. The brief facts of the case are that on 3rd July, 2006 at 10.45 p.m., lady SI Shakuntala Sharma, the then In-charge, Police Post, Sanjauli along with HC Kuldeep Singh, HHC Jeet Ram and C Gian Chand was on routine patrol and traffic checking duty at place Sanjauli Chowk. In the meanwhile, a white coloured Maruti car bearing registration No.HP-09A-1666 came from Lakkar Bazar (Shimla) side. The said car was signaled to stop. Its driver brought the vehicle to a halt. The car driver was asked to show his driving licence and RC of the vehicle, which he failed to do. In the meantime S/Sh. Chander Parkash and Sanjeev Kanwar too reached near the car. With a view to search for the certificate of registration of the car, its door was opened. It surfaced that in front of the gear lever of the car in between the driver’s seat and front seat of the car, a black and red coloured bag is lying. A cap had been kept on the bag. The bag was opened and checked. A polythene lifafa containing the charas in the shape of sticks was found in it. On being asked the driver of the car disclosed his name to be Munish Verma whereas the person who was sitting with him disclosed his name to be Sudhir Pal. The registration certificate of the car had been concealed behind the sunshade. Its perusal disclosed that the registered owner of the car is Sh. Sita Ram Verma. Thereafter SI Shakuntla Sharma took out the weights and scale from her investigation kit. On weighment, it transpired that the occupants of the car are carrying 830 grams of charas in all. The registration certificate of the car had been concealed behind the sunshade. Its perusal disclosed that the registered owner of the car is Sh. Sita Ram Verma. Thereafter SI Shakuntla Sharma took out the weights and scale from her investigation kit. On weighment, it transpired that the occupants of the car are carrying 830 grams of charas in all. Out of the recovered contraband, two samples of 25 grams each were separated. The sample parts of the charas were wrapped in the pieces of cloth and sealed by affixing seal impression ‘M’. The remaining bulk charas weighting 780 grams was put in the same lifafa which was recovered from the accused. Its parcel was also prepared and sealed by affixing seal impression ‘M’. N.C.B forms were filled in on the spot in triplicate. Specimen impression of the seal used was retained on a piece of cloth Ex.PW-12/A and the seal after its user was handed over to Sh. Chander Parkash. The parcels of charas, bag and cap etc., which were recovered from the accused were taken into possession by the police vide memo Ex.PW-12/C. Rukka Ex.PA was prepared. FIR Ex.PW-9/A was registered. Site plan was prepared. Statements of the witnesses were recorded. Accused were arrested. Special report was sent to the office of Superintendent of police, Shimla. 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 stood charged by the learned trial Court for theirs committing an offence punishable under Section 20 of the NDPS Act to which they pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined as many as 12 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, also they chose to lead evidence in defence and examined five witnesses in their defence. 5. On an appraisal of the evidence on record, the learned trial Court returned findings of conviction against the accused. 6. The accused are aggrieved by the judgment of conviction, recorded by the learned trial Court. 5. On an appraisal of the evidence on record, the learned trial Court returned findings of conviction against the accused. 6. The accused are aggrieved by the judgment of conviction, recorded by the learned trial Court. The learned counsel appearing for the accused has concertedly and vigorously contended qua the findings of conviction recorded by the learned trial Court standing not based on a proper appreciation of evidence on record, rather, theirs standing se-quelled by gross mis-appreciation of material on record. Hence, he contends qua the findings of conviction, being reversed by this Court in exercise of its appellate jurisdiction and theirs being replaced by findings of acquittal. 7. On the other hand, the learned Additional Advocate General has with considerable force and vigor contended qua the findings of conviction recorded by the Court below standing based on a mature and balanced appreciation of evidence on record and theirs not necessitating interference rather meriting 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. Recovery of charas weighing 830 grams stood effectuated by the Investigating Officer at the site of occurrence whereat it stood carried in a white coloured Maruti car, car whereof stood occupied at the relevant time by both the accused. All the official witnesses depose a version qua the occurrence as reflected in the FIR, bereft of any emanation therein of any stain of any inter-se contradictions occurring in their respective examinations-in-chief vis-a-vis their respective previous statements recorded in writing besides their respective cross examinations, also their respective depositions on oath are shorn off any vice of intrase contradictions. Consequently, this Court is constrained to accept the version qua the occurrence rendered by the official witnesses. Even if two independent witnesses who stood associated by the investigating Officer in the apposite proceedings which stood commenced and concluded at the site of occurrence omitted to lend support to the prosecution version, contrarily when they reneged from their previous statements recorded in writing, the learned counsel for the accused contends with vigor qua the version propagated by the prosecution through the depositions of the official witnesses suffering impairment, impairment whereof germinates from the independent witnesses associated by the Investigating Officer in the apposite proceedings which stood conducted by her at the relevant site of occurrence not lending corroboration thereto. However the aforesaid submission is extremely frail as solitarily thereupon the un-besmirched testimonies of the official witnesses cannot be disimputed credence bereft of the prime factum of both the independent witnesses admitting their respective signatures borne on the apposite memo comprised in Ex.PW-12/C whereupon they 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 there from rather in consonance with the statutory mandate engrafted in the afore-referred apposite provisions of the Indian Evidence Act imputing credence also theirs imputing conclusive proof qua the recitals occurring therein on unflinching evidence emanating qua despite theirs orally digressing from their recorded recitals of yet their signatures existing thereon, irrefragable evidence whereof stands evinced by theirs admitting the prime factum of the apposite memos holding their signatures, hence when their apposite admission sequelly statutorily belittles the effects of their deposing orally in variance or in detraction thereto, naturally when they rather emphatically prove the recitals comprised in the apposite memos, it was appropriate besides tenable for the learned trial court to conclude of the recorded recitals borne on the recovery memo comprised in Ex.PW-12/C holding evidentiary clout also hence theirs lending succor to the creditworthy testimonies of the official witnesses qua the effectuation of recovery of the relevant item of contraband under recovery memo PW-12/C by the investigating Officer at the site of occurrence from the purported exclusive and conscious possession of the accused. “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.” 10. Even if hence the prosecution has succeeded in proving the factum of the investigating Officer making an efficacious recovery of the relevant item of contraband from the alleged, conscious and exclusive possession of both the accused with both jointly occupying a car, nonetheless it was also enjoined upon the prosecution to by adducing cogent evidence connect the purported case property Ex.P-2 with the relevant item of contraband, recovery whereof stood effectuated in the manner espoused in the FIR, besides the apposite proof qua recovery whereof for reasons afore-stated stands adduced by the prosecution whereupon this Court would hence stand constrained to conclude with aplomb qua the purported case property Ex.P-2, as stood produced in Court by the P.P concerned for its being shown to PW-1 at the time his deposition stood recorded thereat holding connectivity besides congruity with its recovery standing effectuated in the manner espoused by the prosecution. For determining the aforesaid prime factum of connectivity or lack of connectivity inter-se the purported case property Ex.P- 2 vis-a-vis effectuation of its recovery at the site of occurrence, an advertence to the factum of PW-12 the Investigating Officer disclosing in her examination-in-chief of hers at the site of occurrence embossing seal impression ’M’ on both parcels respectively containing the sample charas and its bulk, is imperative. She also deposes of there after hers transmitting the aforesaid bulk parcel of Charas besides the sample parcel of charas through Constable Gian Chand to the police Station concerned for its standing deposited in the Malkhana concerned. PW-9 who received the aforesaid sample parcel besides bulk parcel of charas from PW-1 Gian Chand, the latter of whom had received it from PW-12 for its onward transmission by him to PW-9, has deposed of, on his receiving the aforesaid sample parcels besides bulk parcel of the purported case property from PW-1, his wrapping both in different pieces of cloth whereon he embossed seal impression “I”. The case property stood produced in Court by the learned PP concerned for its being shown to PW-1 yet as displayed by disclosures emanating in the deposition of PW-1 of thereat the parcels containing the parcel of bulk Charas also the parcel containing sample of charas though holding conformity with the deposition of PW-9 qua seal impression “I” as embossed thereon by PW-9 existing thereon yet on theirs standing respectively opened with the permission of the learned trial Court, both the sample parcels of charas also the bulk parcel of Charas contained besides held therein, also bearing seal impressions “I” and “M”. Hereat exists a dichotomy inter-se the deposition of PW-9 vis-a-vis the production, of both the sealed parcels respectively containing the sample parcel of charas besides the bulk parcel of charas, by the learned PP concerned, before the learned trial Court for theirs being shown to PW-1, comprised in the fact of PW-9 deposing of his inserting in two separate parcels the sample parcels of charas and the bulk parcel of charas whereupon on each he embossed seal impression “I” whereas he did not make any communication therein of his embossing seal impression “I” on either of the parcels holding respectively therein the sample of charas and the bulk of charas at the stage they stood handed over to him by PW-1 renders the existence of seal impression “I” on both the aforesaid parcels enclosed or kept by him in two parcels whereon on each alone he embossed seal impression “I”, at the stage whereat they stood produced by the learned P.P. before the learned trial Court for theirs standing shown to PW-1 to hence hold no congruity with the disclosures made by PW-9. As a corollary this Court is constrained to foist a conclusion of the prosecution evidence qua any connectivity existing inter-se the purported efficacious effectuation of recovery of charas from the purported conscious and exclusive possession of the accused as espoused in the FIR vis-a-vis the production by the learned P.P. concerned before the learned trial Court of the relevant item of contraband being grossly infirm for hence sustaining a firm conclusion qua relevant connectivity or congruity existing vis-a-vis the relevant item of contraband recovered under Memo Ext.PW-12/C with the purported case property as stood produced in Court. In sequel, the findings recorded by the learned trial Court suffer from an infirmity awakened by its overlooking the aforesaid evidence, personificatory of lack of connectivity inter-se the effectuation of recovery of the relevant item of contraband in the manner propagated by the prosecution vis-a-vis its production in Court by the learned PP concerned for its being shown to PW-1. 11. 11. Further more a perusal of Ex.PB, the relevant abstract of Malkhana register makes a disclosure therein of the relevant items of contraband standing dispatched to the FSL concerned in a wooden box, for the laboratory concerned recording an opinion thereon yet as apparent on a reading of the testimony of PW-1 there occurs no communication therein of at the time the learned PP concerned producing the case property before the learned trial Court for its being shown to PW-1, of its standing carried thereat in a wooden box. In sequel, there also appears an apparent dichotomy inter-se the reflections in Ex.PB vis-a-vis the production of the relevant item of contraband in Court by the PP concerned, dichotomy whereof stands constituted in the fact of Ex.PB carrying reflections qua the case property standing sealed in a wooden box for its onward transmission to the FSL concerned for the latter recording an opinion thereon vis-a-vis its production in Court by the learned PP concerned for its being shown to PW-1 whereat it did not come to be retrieved from a wooden box wherein earlier thereto it stood enclosed. The effect of the aforesaid incongruity is of the production of the relevant item of contraband by the learned PP concerned before the learned trial Court holding no connectivity with the relevant reflections qua it carried in Ex.PB also it enhances an inference underscored hereinabove of the prosecution not adducing firm evidence for connecting besides linking the relevant item of contraband, recovery whereof stood effectuated by the Investigating Officer from the purported, conscious and exclusive possession of the accused at the site of occurrence vis-a-vis its production before the learned trial Court by the learned PP concerned. Consequently, the effectuation of recovery, if any, of the relevant item of contraband by the Investigating Officer at the site of occurrence from the conscious and exclusive possession of the accused though may for reasons aforesaid stand proved yet with the prosecution not linking the prime factum of the relevant item of contraband recovered by the Investigating Officer at the site of occurrence from the conscious and exclusive possession of the accused vis-a-vis the production in Court of the item of contraband no capitalization can stand secured by the prosecution from the mere factum of its proving the factum of its holding an efficacious recovery of the relevant item of contraband from the purported, conscious and exclusive possession of the accused in the manner espoused in the FIR comprised in Ex. PW-9/A. 12. Be that as it may PW-4 has in his deposition disclosed, of his on 4.7.2006 transmitting the case property through C Hem Singh to CTL Kandaghat, for the latter recording its opinion thereon whereat the sample could not be deposited as the CTL concerned refused to accept it hence concomitantly no opinion thereon stood recorded by the CTL concerned. He also proceeds to divulge in his deposition of his on 9.7.2006 sending the case property to CFSL, Hyderabad vide RC No. 78 of 2006 through C Hem Singh and Shiv Ram whereat also the sample could not be deposited as the CFSL concerned refused to accept it. Hence concomitantly no opinion thereon stood recorded by the CFSL concerned. However the apposite abstract of Malkhana register comprised in Ex.PB does not contain any recital (a) of PW-4 (Malkhana In-charge) depositing it in the Malkhana concerned (b) of PW-4 on 4.7.2006 and 27.9.2006 respectively sending the case property respectively to CTL Kandaghat and CFSL Hyderabad, both Laboratories whereof purportedly refused to accept it. 13. However the apposite abstract of Malkhana register comprised in Ex.PB does not contain any recital (a) of PW-4 (Malkhana In-charge) depositing it in the Malkhana concerned (b) of PW-4 on 4.7.2006 and 27.9.2006 respectively sending the case property respectively to CTL Kandaghat and CFSL Hyderabad, both Laboratories whereof purportedly refused to accept it. 13. Omission of the aforesaid recitals in Ex.PB though mandatorily enjoined to occur therein for dispelling any inference qua the case property whereon an opinion stood recorded by the FSL concerned holding no connectivity with effectuation of recovery of case property by the investigating Officer at the site of occurrence from the conscious and exclusive possession of the accused in the manner espoused by the prosecution, contrarily with no apposite recital in conformity with the deposition of PW-4 or in conformity with the deposition of PW-9 wherein he echoes of his, on his receiving the relevant item of contraband from PW-1 his delivering it to PW-4 for depositing it in the malkhana concerned, occurring therein, constrains an inference from this Court of the relevant item of contraband as stood produced in Court by the learned PP for its being shown to PW-1 not holding any connectivity with the effectuation of recovery of the item of contraband by the Investigating Officer in the manner espoused by the prosecution rather the aforesaid omission accentuates an inference recorded hereinabove of with the aforesaid infirmities displaying incongruity qua the seal impression borne respectively on the sample parcels and the bulk parcel of charas vis-a-vis the deposition of PW-9, of hence the relevant item of contraband produced in Court not holding any connectivity qua its recovery standing effectuated in the manner espoused by the prosecution in the FIR. 14. Lastly the prosecution was enjoined to adduce emphatic evidence in portrayal of the report of the FSL concerned comprised in Ex.PW-9/E also being linkable with Ex.P-2 especially when for reasons aforesaid it holds no connectivity with the relevant item of contraband purportedly recovered by the Investigating Officer at the site of occurrence from the conscious and exclusive possession of the accused. The factum of its standing examined thereat by a Jr. The factum of its standing examined thereat by a Jr. scientist officer (Explosive) obviously when he is to be hence concluded to be holding no expertise to hold examination of charas, with greater vigor constrains this Court to conclude of the prosecution abysmally failing to prove even the factum of the opinion recorded by the expert concerned even if assumingly recorded qua the relevant item of contraband recovered at the site of occurrence by the investigating Office from the conscious and exclusive possession of the accused holding any force for this Court to hold with formidability of it being qua the relevant item of contraband, recovery whereof stood effectuated in the manner espoused by the prosecution. 15. A wholesome analysis of the evidence on record portrays that the appreciation of evidence as done by the learned trial Court suffers from a gross perversity and absurdity or it can be said that the learned trial Court in recording findings of conviction has committed a legal misdemeanor, in as much, as, its mis-appreciating the evidence on record or its omitting to appreciate relevant and admissible evidence. In aftermath this Court deems it fit and appropriate that the findings of conviction recorded by the learned trial Court merit interference. 16. In view of the above discussion, I find merit in this appeal, which is accordingly allowed and the judgment of conviction and sentence recorded by the learned trial Court is set aside. Accused stand acquitted of the charge. Bail bonds stand discharged. Fine amount be refunded. Record of the learned trial Court be sent back forthwith.