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Himachal Pradesh High Court · body

2016 DIGILAW 1359 (HP)

Lal Chand v. State of H. P.

2016-07-13

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. The instant appeal stands directed against the impugned judgment of 24.1.2008 rendered by the learned Special Judge, Kullu, in Sessions trial No. 44/2006, whereby the learned trial Court convicted the appellant (hereinafter referred to as “accused”) for his committing offence punishable under Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for shot “the Act”) also sentenced him as under:- “…………..the convict is sentenced to six years rigorous imprisonment and to pay a fine of Rs.60,000/-. In default of payment of fine, he shall suffer simple imprisonment for six months.” 2. The prosecution case in brief is that on 27.10.2005 a police party headed by ASI Gian Chand proceeded for patrolling and laid a Naka from PP Bhunter towards Bajaura in an official vehicle bearing No. HP-34A-0162 which was being driven by C Pitamber Lal, vide daily diary report Ex.PW-2/A. When the aforesaid police party was present at Bajaura Bridge, then at around 9.15 p.m. they spotted one person carrying a rucksack on his shoulder coming from Hurla Side, who on seeing the police party took U-turn and tried to flee away, which raised suspicion and therefore he was over powered by ASI Gian Chand with the help of other police staff assisting him. On enquires about his antecedents, he disclosed his name to be Lal Chand. The IO first offered his search to the accused and thereafter search of the bag of the accused was conducted. During search of the bag, one polythene bag containing charas in the shape of rounds and chocolates was recovered, which was found to be kept in small packets. On weighment of the same, the same was found to be 2.000 kgs. Thereafter two samples each weighing 25 grams were drawn from the recovered charas and the remaining bulk of charas was sealed into separate parcel. All three parcels were sealed with six seals of seal H. The seal impression of seal Ex.PW- 6/A was drawn on a separate piece of cloth. The Investigating Officer also filled in column No.1 to 8 of NCB form Ex.PW-3/D. The seal after use was entrusted to HC Bhagat Ram. The case property thereafter was taken into possession vide recovery memo Ex.PW-6/B. Thereafter rukka Ex.PW-5/A was prepared. Site Plan Ex.PW-6/C was prepared. FIR Ex.PW-5/B was came to be registered. The Investigating Officer also filled in column No.1 to 8 of NCB form Ex.PW-3/D. The seal after use was entrusted to HC Bhagat Ram. The case property thereafter was taken into possession vide recovery memo Ex.PW-6/B. Thereafter rukka Ex.PW-5/A was prepared. Site Plan Ex.PW-6/C was prepared. FIR Ex.PW-5/B was came to be registered. On 28.10.2005 at about 12.15 mid night ASI Gian Chand produced the accused and three parcels duly sealed with seal H containing the case property along with NCB form in triplicate, sample of seal H before SI Mohinder Kumar. All the three parcels were then resealed by SI Mohinder Kumar with three seals of seal T each and he also filled in columns No. 9 to 11 of NCB form Ex.PW-3/D. Facsimile of seal-T Ex.PW-5/C was also taken. The case property was handed over by him to MHC Roop Singh, who entered the case property in the Malkhana register, the abstract of entry is Ex.PW-3/A. One sample parcel duly sealed with seal H and seal T along with NCB form in triplicate and samples of seal H and T as well as other concerned documents were handed over by MHC Roop Singh to HHC Jai Kishan for carrying the same to CFSL, Chandigarh. CFSL Chandigarh refused to accept the same on account of heavy pendency of work and shortage of staff. Thereafter HHC Jai Kishan returned the parcel along with NCB form, sample seals and other articles to MHC Roop Singh on his return. Thereafter the parcel along with sample seals of H and T and other documents were sent by MHC Roop Singh to CTL, Kandaghat. Special report Ex.PW-1/C was prepared and handed over to the then Dy.S.P, who handed over the same to his reader Kashmi Ram on 28.10.2005 for making entries in the special report register after putting his endorsement Ex. PW-1/A. The report of FSL concerned was also obtained. On completion of all codal formalities and on conclusion of the investigation into the offence, allegedly committed by the accused challan was prepared and filed in the Court. 3. The accused stood charged by the learned trial Court for his committing an offence punishable under Section 20 of the Act to which he pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined 8 witnesses. 3. The accused stood charged by the learned trial Court for his committing an offence punishable under Section 20 of the Act to which he pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined 8 witnesses. On closure of 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. In his defence, he examined two defence witnesses. 5. On an appraisal of evidence on record, the learned trial Court returned findings of conviction against the accused for his committing an offence punishable under Section 20 of the Act. 6. 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 sequelled by gross mis-appreciation of material on record. Hence he contends qua the findings of conviction being reversed by this Court in the exercise of its appellate jurisdiction and theirs being replaced by findings of acquittal. 7. The learned Deputy 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 the relevant item of contraband stood effectuated under memo Ex. PW-6/B by the Investigating Officer from the purported conscious and exclusive possession of the accused. In proof thereof all the prosecution witnesses, who are police officials, deposed qua its recovery standing begotten in the manner as pronounced in memo comprised in Ex.PW-6/B bereft of any vice of any inter-se contradictions vis-à-vis their respective examinations in chief with their respective cross-examinations also when their respective versions qua the relevant item of contraband standing recovered in the manner narrated in memo Ex.PW-6/B are free from any stain of any intra-se contradictions whereupon hence credence is liable to be imputed to their respective testimonies on oath. 10. 10. Be that as it may for the apposite investigation conducted by the Investigating Officer concerned standing construed to be free from any stain of impartisanship also its being free from any frailty of his holding a slanted investigation, evidence was enjoined to imperatively surface in portrayal of his concerting to in the relevant proceedings associate independent witnesses who were easily available in close vicinity of the relevant site of occurrence. However, when despite easy availability of independent witnesses in close vicinity to the relevant site of occurrence, the Investigating Officer omits to solicit their participation in the apposite proceedings, his omission in regard aforesaid would be amenable to a construction of its standing prodded by proactive deliberateness on his part to smother the truth qua the genesis of the prosecution case. Hereat, it is incumbent to from the evidence available on record to fathom there from qua availability of independent witnesses in immediate vicinity to the relevant site of occurrence, on availability whereof the Investigating Officer stood enjoined to make arduous concerts to elicit their association in the apposite proceedings, his apposite concerts when provenly stood not endeavored by him would concomitantly beget a sequel of the investigations held by him being slanted besides skewed. Also it would sequel an inference of the testimonies of the official witnesses though free from any blemishes aforesaid yet theirs being contrived besides invented. In the aforesaid endeavor for determining the availability of independent witnesses in close vicinity to the site of occurrence, an advertence to the testimony of PW-7 is imperative, wherein he deposes of an inhabited locality existing in close vicinity to the site of occurrence also he voices therein of a tea stall standing located in close vicinity to the relevant site of occurrence. Further more he deposes of the Investigating Officer not deputing any police official for associating in the apposite proceedings any of the inhabitants of the homesteads located in close vicinity to the relevant site of occurrence nor his concerting to associate in the apposite proceedings the owner of the tea stall located in proximity thereto. Further more he deposes of the Investigating Officer not deputing any police official for associating in the apposite proceedings any of the inhabitants of the homesteads located in close vicinity to the relevant site of occurrence nor his concerting to associate in the apposite proceedings the owner of the tea stall located in proximity thereto. Even though the investigating Officer who has deposed as PW-6 has corroborated the factum as deposed by PW-7 qua his not deputing any police official for soliciting the participation of independent witnesses in the apposite proceedings yet PW- 8 contradicts both, however his deposition in contradiction to the testifications on oath of both PWs 6 and 7 stands belittled especially when PW-6 the prime witness underscores the factum of no endeavor standing concerted by him to solicit the participation of independent witnesses in the relevant proceedings. The effect of the aforesaid pronouncements occurring in the depositions of the PW-6 and PW-7 qua homesteads occurring in close vicinity to the relevant site of occurrence read in coagulation with this Court holding of the investigating officer concerned not concerting to associate in the apposite proceedings any of the inhabitants of the homesteads existing in close vicinity to the relevant site of occurrence is of a conclusion standing evinced from this Court qua the aforesaid omissions of the Investigating Officer standing goaded by his holding an intention to smother the truth qua the occurrence. In aftermath with the apposite investigations held by the Investigating officer carrying a taint of slantedness besides of impartisanship, the ensuing sequel there from is of even the unblemished testimonies rendered by the Official witnesses yet not acquiring any virtue of credibility rather their respective testimonies qua the genesis of the prosecution case standing imbued with a vice of doctoring besides of proactive concoctions whereupon hence no reliance is imputable. 11. Apart there from the deposition of PW-3 unveils the factum of on 30.10.2005 the sample parcel of the relevant item of contraband whereon stood embossed seal impressions analogous to the one recited in the NCB forms, standing dispatched to CSFL Chandigarh through HHC Jai Kishan for facilitating the laboratory concerned to render its opinion thereon. However the CFSL concerned refused to accept it for analysis on account of heavy backlog of work besides shortage of staff precluding it to render an opinion thereon. However the CFSL concerned refused to accept it for analysis on account of heavy backlog of work besides shortage of staff precluding it to render an opinion thereon. Subsequently after a lapse of 30 days there from the sample parcel of charas was dispatched through C Pratap Singh to CTL Kandaghat for the latter recording an opinion thereon. The learned counsel for the accused contends of the aforesaid delay of one month in the police official concerned dispatching the sample parcel of charas to the Laboratory concerned for its recording an opinion thereon is fatal to the prosecution case. However, the aforesaid submission stands discounted on the anvil of the judgment of the Hon’ble Apex Court reported in AIR 2009 Supreme Court 432 Hardip Singh v. State of Punjab, relevant paragraph 12 whereof stands extracted hereinafter. “So far as the question of delay in sending the samples of opium to the Forensic Science Laboratory (FSL) is concerned, the same in our opinion has no consequence for the fact that the recovery of the said sample from the possession of the appellant stands proved and established by cogent and reliable evidence led in the trial. PW-5 has categorically stated and asserted about the recovery of opium from the possession of the appellant, which fact is also corroborated by a higher officer, namely, SS Mann, DSP who was also examined at length during the trial. The said recovery was effected in presence of the said SS Mann, DSP, as senior police officer, who also put his seal on the said parcels of opium. The then Station House Officer, Inspector Baldev Singh, who was examined as PW-1 was posted at Police Station Ajnala on the date of occurrence. He received the said samples of opium along with case material, being produced before him by PW-5. It has come on evidence that Inspector Baldev Singh Kept the entire case property with him till it was deposited in the office of Chemical Examiner, Amritsar on 30.9.1997 through ASI Surinder Singh (PW-3). It has also come on evidence that till the date the parcels of sample were received by the Chemical examiner, the seal put on the said parcels was intact. It has also come on evidence that till the date the parcels of sample were received by the Chemical examiner, the seal put on the said parcels was intact. That itself proves and establishes that there was no tampering with the aforesaid seal in the sample at any stage and the sample received by the analyst for chemical examination contained the same opium which was recovered from the possession of the appellant. In that view of the matter, delay of about 40 days in sending the samples did not and could not have caused any prejudice to the appellant. The aforesaid contention, therefore, also stands rejected.” 12. Even though the Hon’ble Apex Court in the relevant paragraph of its rendition had dispelled the efficacy of delay, if any, occurring in dispatching of the relevant parcels of charas to the Laboratory concerned for its recording an opinion thereon solitarily on the anvil of existence of seals thereon in an intact condition precluding the possibility of theirs standing tampered with. However, the aforesaid paragraph of the judgment supra as stands relied upon by the learned Deputy Advocate General does not allude to the factum of omission on the part of the prosecution to adduce before the learned trial Court the relevant abstracts of the Malkhana register connotative of the relevant item of contraband in sequel to its standing recovered from the purported conscious and exclusive possession of the accused it under signatured entries standing deposited in the Malkhana concerned nor omission on the part of the prosecution to adduce emphatic evidence in unfoldment of it after the official concerned thereat who carried it to the CFSL concerned, whereat it stood refused to be accepted, his on his return there from returning it to the Incharge of the Malkhana concerned, who under signatured entries held it in storage in the Malkhana concerned apparently stood neither espoused thereat nor any pronouncement thereupon emanated from their lordships nor when any evidence thereat stands adduced in portrayal of at each of the moments it stood produced in Court by the learned PP for its being shown to PWs concerned it under signatured entries standing retrieved from the Malkhana concerned, omissions whereof hereat begetting a sequel of the prosecution not connecting the relevant item of contraband as stood recovered at the site of occurrence from the purported conscious and exclusive possession of the accused with the item of contraband which stood produced in Court omissions whereof palpably hence obviously precluded the apposite cogent evidence in display thereof standing sighted by their lordships nor obviously any pronouncement thereupon emanated from their lordships. Since the aforesaid omissions did not beset the Hon’ble Apex Court, whereas omissions hereat of the prosecution qua the aforesaid facets stand espoused here before besides are manifestly depictive of the relevant link evidence for establishing the connectivity of the relevant item of contraband recovered from the relevant site of occurrence from the purported, exclusive and conscious possession of the accused with the item of contraband which stood produced in Court being amiss hereat, the effect of their lordships pronouncing therein of seals existing thereon being intact holding sufficient legal tenacity for sustaining a conclusion of the prosecution succeeding in proving the charge against the accused, may not, be with aplomb applicable hereat preeminently reiteratedly given the aforesaid non-existence there before of the apposite link evidence qua the aforesaid facets whereupon the verdict of their lordships in case supra is distinguishable vis-à-vis the factual scenario hereat. Moreover since the apposite link evidence in depiction of connectivity occurring inter-se the relevant items of contraband recovered from the site of occurrence from the purported, conscious and exclusive possession of the accused with the item of contraband which stood produced in Court tellingly impinges upon the efficacy of existence of seals on the relevant parcel also bears an effect upon theirs being intact thereon at the time contemporaneous to their production in Court by the learned PP concerned nor ousts rather erects an inference of the relevant parcel standing subjected to tampering at the police station concerned prominently when seals in congruity with the description of seals occurring in the relevant NCB forms remain in the custody of the police officials concerned dehors the existence of seals in an intact condition thereon. Reiteratedly since the aforesaid apposite evidence in depiction of connectivity occurring inter-se the relevant item of contraband recovered from the site of occurrence from the purported, conscious and exclusive possession of the accused with the one which stood produced in Court is amiss hereat its non-existence does foist a conclusion dehors seals on the relevant parcel remaining intact at the time when they stood produced before the learned trial Court not yet giving any sinew to the espousal of the prosecution of its linking the relevant item of contraband recovered at the site of occurrence from the purported, conscious and exclusive possession of the accused with the item of contraband produced in Court. Consequently, with the aforesaid marked distinctivity for the reasons aforesaid occurring in the factual matrix in the case relied by the learned Deputy Advocate General vis-à-vis the factual scenario hereat any reliance there upon by the learned Deputy Advocate General is inapposite. Also the prime factum of the Investigating Officer concerned not concerting to despite availability of independent witnesses in close vicinity to the relevant site of occurrence solicit their participation in the relevant proceedings is also a grave infirmity which seeps into the efficacy of the prosecution case. 13. All the police stations concerned hold apposite Malkhana registers. Also all the police stations concerned hold “Malkhanas” for storing therein the case property/properties. The existence of Malkhana registers in the police stations also the existence of “Malkhanas” thereat hold a salutary purpose, of, the Incharge of the Malkhana concerned ensuring on his receiving the case property from the police officials concerned recording therein signatured entries qua its receipt from the police official concerned whereupon he is obliged to store it in the Malkhana concerned where alone it is enjoined to be kept. If the relevant entries reflective of its receipt by the Incharge of the Malkhana concerned do not find their occurrence therein the imminent sequel therefrom is of the relevant case property standing located or its standing kept at a place other than the “Malkhana” whereat alone it is enjoined to be stored. If the aforesaid inference is drawable, necessarily the effect thereof is of the case property being kept open at an open besides at an accessible place leaving it open to stand subjected to tampering by any of the police officials who man the police station concerned, who too, holding seals in congruity with the one embossed on the case property can with facile skill proceed to emboss them thereon for hiding besides camouflaging their tampering with it. The Incharge of the malkhana concerned when proceeds to record an apposite signatured entry in the Malkhana register qua its standing deposited before him by the police official concerned whereupon he proceeds to keep it in safe storage in the apposite Malkhana, is also enjoined to ensure, of, on all moments when it successively stands retrieved therefrom for its standing transmitted by him for relevant purposes to the Court concerned, his recording in the apposite register the apposite signatured entries in consonance therewith. His omissions aforesaid tantamount to his derelicting from his duties rendering him open to his standing subjected to appropriate proceedings in accordance with law. Unless the aforesaid consequence stands germinated from his omissions aforesaid it would give an open latitude to the incharge of the Malkhana concerned to breach the enjoined obligation cast upon him qua his maintaining the appropriate entries in the apposite Malkhana register also would give him leeway to depart from his duty of ensuring its storage in the Malkhana concerned whereat alone it stands enjoined to be deposited. Consequently to preempt the aforesaid breaches, insistence upon the prosecution to adduce the hereinabove referred evidence is imperative. In aftermath with all the afore-referred omissions constraining a conclusion of the relevant item of contraband standing kept in storage not in the Malkhana concerned rather its standing kept in an open and accessible place whereupon it was amenable to its standing tampered with also omissions aforesaid beget an ensuing deduction of the prosecution failing to connect the relevant item of contraband which stood recovered by the Investigating Officer from the purported conscious and exclusive possession of the accused at the site of occurrence with the item of contraband produced in Court. 14. The crux of the above discussion is of the prosecution not adducing 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. 15. In view of above discussion, the appeal is allowed and the impugned judgment of 24.1.2008, rendered by the learned Special Judge, Kullu is set aside. The accused is acquitted of the offence charged. The fine amount, if any, deposited by the accused is ordered to be refunded to him. Bail bonds, if any, furnished by the accused are discharged. Records be sent down forthwith.