Research › Search › Judgment

Himachal Pradesh High Court · body

2016 DIGILAW 1387 (HP)

State of Himachal Pradesh v. Mukesh Mohan

2016-07-15

AJAY MOHAN GOEL, SANJAY KAROL

body2016
JUDGMENT : Ajay Mohan Goel, J. By way of present appeal, the State has challenged the judgment passed by the Court of learned Special Judge-I, Sirmaur District at Nahan in Sessions Trial No. 23-ST/7 of 2010, vide which the learned Trial Court has acquitted the accused for the commission of offence under Section 20/61/85 of the Narcotic Drugs & Psychotropic Substance Act, 1985 (in short the ‘Act’). 2. The case of the prosecution was that on 18.12.2009 Inspector Om Parkash along with ASI Ranjeet Singh, HC Subhash Chand, Constables Mukesh Kumar, Mohd. Khalid and Kailash Panwar proceeded to Illaqua after making an entry in the Rapat Rojnamcha and at around 4:30 p.m., when they were present at Bus stand Sainwala, Inspector Om Parkash received secret information that accused Mukesh and Jagat Singh were standing in front of Punjabi Dhaba and if they were searched, some contraband can be recovered from their possession. Accused Mukesh was stated to be carrying a red and black coloured bag on his shoulder. On receipt of the said information, Inspector Om Parkash reduced into writing reasons of belief (Ext. PW8/A) and sent the same to Addl. Superintendent of Police, Nahan through constable Kailash Panwar. Thereafter Inspector Om Parkash associated independent witnesses Dilshad and Kamal Kumar as well as other police officials and proceeded towards the said Dhaba. At around 5:00 p.m., Inspector Om Parkash along with raiding party reached said Dhaba where two persons were standing outside the Dhaba and on asking their names, one of them disclosed his name Mukesh Mohan son of Yash Pal Singh, whereas second disclosed his name as Jagat Singh son of Dhongu Ram. A red and black coloured bag was hanging on the shoulder of accused Mukesh Mohan. Memo Ext. PW14/A seeking consent of accused Mukesh Mohan was issued by Inspector Om Parkash in presence of witnesses Dilshad Khan and Kamal Kumar and before searching the bag of accused Mukesh Mohan, the raiding party gave its personal search to accused vide memo Ext. PW4/A, which was signed by witnesses Raj Kumar and Jagdish. The search of the bag revealed one polythene envelope and on opening the same, black coloured substance in the shape of sticks was found which turned out to be charas. The same was weighed and it turned out to be 1.100 grams. PW4/A, which was signed by witnesses Raj Kumar and Jagdish. The search of the bag revealed one polythene envelope and on opening the same, black coloured substance in the shape of sticks was found which turned out to be charas. The same was weighed and it turned out to be 1.100 grams. Two samples of 25 grams were separated from the recovered charas which were put into the empty match boxes and the same were packed in a cloth packet and both samples were sealed with seal impression ‘H’. The remaining bulk charas was put in a cloth packet and the same was sealed with seal impression ‘H’ and the same seal was taken on a piece of cloth. The bulk charas, bag and two samples were taken into possession vide memo Ext. PW2/A which was signed by both independent witnesses as well as the accused. The seal after use was handed over to witness Dilshad Khan. NCB forms in triplicate were filled on the spot and seal impression ‘H’ was affixed on the said forms. Jama Talashi of accused was also conducted and articles mentioned in Ext.PW14/B were recovered. Accused was arrested and informed of grounds of his arrest. The case property was produced before ASI Agya Ram Officiating SHO, Police Station Nahan along with sample seal, who after checking the same resealed the sample parcels and remaining charas with seal impression ‘K’. Case property was deposited with MHC, Police Station Nahan along with sample seals, who forwarded the sample parcels along with sample seals and connected documents to SFSL, Junga through HHC Surender Singh who deposited the same at SFSL, Junga and as per report of Chemical Examiner, Ext. PZ, the same was found to be containing contents of charas. FIR Ext. PW11/A was registered at Police Station, Nahan on the basis of Rukka, Ext. PW13/A sent through Constable Mohd. Khalid. On completion of the investigation, challan was presented and as a prima facie case was found against the accused, he was charged for commission of offences under the NDPS Act. The accused pleaded not guilty and claimed trial. 3. In order to substantiate its case, prosecution, in all, examined 14 witnesses, whereas, accused also examined one witness in defence. 4. On completion of the investigation, challan was presented and as a prima facie case was found against the accused, he was charged for commission of offences under the NDPS Act. The accused pleaded not guilty and claimed trial. 3. In order to substantiate its case, prosecution, in all, examined 14 witnesses, whereas, accused also examined one witness in defence. 4. HC Kamlesh Kumar entered the witness box as PW1 and stated that on 20.12.2009 a special report of the case was received from SIU, Nahan through Dak which was received by him which is Ext. PW1/A. 5. PW2 Dilshad Khan stated that he runs a Dhaba at Sainwala on Nahan-Kala Amb road. On 18.12.2009 he was associated by police in the case and at around 4-4:30 p.m, two persons were standing in front of his Dhaba. He further stated that police did not ask the name of those persons in his presence but he could identify those persons. This witness did not support the case of the prosecution and stated that none of accused was searched in his presence and he was busy in cooking and serving his customers. This independent witness was declared as hostile, as he resiled from his earlier statement and he was cross-examined by the Public Prosecutor. In his cross-examination by the Public Prosecutor, he admitted it to be correct that one bag was searched in his presence and a polythene envelope was found inside the same and from it sticks of black substance were taken out and on smelling and tasting, were found to be charas. He has also admitted the case of the prosecution to the effect that the recovered charas weighed 1.100 grams and from it two samples were taken. In his cross-examination by the defence he has stated that the accused were taking tea outside the road and he did not know whether the bag was slung on the shoulder or lying on the table. As per this witness, he saw the bag first time with the police while it was checked. He admitted it to be correct that police asked from the accused whether the bag belonged to them and in answer to said query, the response of the accused was in negative. He has admitted it to be correct that there were reports in daily news that he was allegedly dealing with in trade of contraband. 6. He admitted it to be correct that police asked from the accused whether the bag belonged to them and in answer to said query, the response of the accused was in negative. He has admitted it to be correct that there were reports in daily news that he was allegedly dealing with in trade of contraband. 6. HC Kunwar Singh entered into the witness box as PW3 and stated that on 18.12.2009 at around 11:30 p.m., a contraband parcel pertaining to this case was deposited by ASI Agya Ram and he made entries qua the above parcels in the Malkhana Register. He further deposed that on 21.12.2009 said parcels along with sample seals and NCB Forms were sent to FSL, Junga through LHC Surender Pal and the RC was brought back by LHC Surender Pal and handed over to him. 7. PW4 Jagdish Chand has deposed to the effect that he was associated by the police at the Dhaba of Dilshad at Sainwala. Memo Ext. PW4/A was prepared by the police which bears his signatures. 8. PW5 Kamal Kumar has deposed that on 18.12.2009 he was associated by the police while he was present at the Dhaba of Dilshad Khan. According to him, there were 8-10 persons inside the Dhaba and two persons were standing outside the Dhaba near the road. They revealed their names to the police as Mukesh and Jagat Singh. He further stated that there was a bag with accused Mukesh which was searched by the police from which charas was recovered. In his cross-examination he has stated that he cannot say the bag was lying on a table outside the Dhaba. He further deposed that he had not seen the bag on the person of accused or lying on the table outside the Dhaba. He further stated that police enquired from all persons present in the Dhaba as to whether bag belonged to them and all persons denied that the bag belonged to them. He has further stated that he was called by the police when they started searching the bag outside the Dhaba. 9. Constable Sushil Kumar entered into the witness box as PW6 and stated that he remained posted as MC, CIA, Nahan and Rapat No. 7 was entered by Inspector Om Parkash on 18.12.2009. 10. He has further stated that he was called by the police when they started searching the bag outside the Dhaba. 9. Constable Sushil Kumar entered into the witness box as PW6 and stated that he remained posted as MC, CIA, Nahan and Rapat No. 7 was entered by Inspector Om Parkash on 18.12.2009. 10. PW7 Inspector Gurbax Singh deposed that after completion of investigation of this case, the case file was handed over to him by ASI Narayan Singh and he prepared the challan of the case. 11. PW8 Gurmeet Singh has deposed that on 18.12.2009 Constable Kailash brought reasons of belief of this case having been sent by Inspector SIU to his office which were received by him. 12. PW9 HC Surinder Pal deposed that on 21.12.2009 he took the case property along with sample seals and NCB forms and deposited the same at FSL, Junga and on his return he handed over the RC to the MHC. 13. PW10 Constable Kailash Panwar deposed to the effect that on 18.12.2009 he was part of the police party and was accompanying Inspector Om Parkash at Bus stand Sainwala at around 4:30 p.m. where Inspector Om Parkash received secret information about carrying of charas in a bag by accused Mukesh and Jagat Singh. He has further deposed that the reasons of belief were recorded by Inspector Om Parkash and handed over to him to take the same to the office of Addl. SP Nahan which he did. 14. PW11 ASI Agya Ram deposed that on 18.12.2009 on the basis of rukka mark A, FIR Ext. PW11/A was registered at Police Station, Nahan which bears his signatures. He has further deposed that at around 11:00 p.m., Inspector Om Parkash brought the parcel to Police Station, Nahan which was resealed by him and he thereafter deposited the case property, sample seals with MHC Kanwar Singh. 15. PW12 SI Narayan Singh has deposed that accused Mukesh had absconded during the investigation and was re-arrested and produced by Constables Sushil Kumar and Rajinder Singh before him. 16. PW13 Constable Mohd. Khalid has also supported the case of the prosecution. He has also deposed that the investigating officer reduced into writing Rukka Mark A, now Ext. PW13/A which was taken by him to Police Station, Nahan and got the FIR registered. 16. PW13 Constable Mohd. Khalid has also supported the case of the prosecution. He has also deposed that the investigating officer reduced into writing Rukka Mark A, now Ext. PW13/A which was taken by him to Police Station, Nahan and got the FIR registered. He has further deposed that the case file was taken by him to the spot and handed over to the investigating officer on the spot. 17. PW14 Inspector Om Parkash has also supported the case of prosecution and has narrated the mode and manner in which he received the information and thereafter the factum of his carrying out search and seizure by associating independent witnesses and thereafter arresting the accused. 18. On the basis of material produced on record by the prosecution, the learned Trial Court concluded that the prosecution had failed to prove its case against the accused beyond all reasonable doubt and on these bases, the learned Trial Court acquitted the accused of the charge framed against him. 19. Learned Addl. Advocate General argued that the judgment passed by the learned Trial Court was perverse and the findings returned by the learned Trial Court were not borne out from the records. He submitted that the learned Trial Court erred in not appreciating that it stood established from the testimony of PW5 read with testimony of PW13 and PW14 that the contraband in fact was recovered from the bag which was being carried by accused Mukesh. He further argued that the learned Trial Court had erred in not appreciating the testimony of PW13 and PW14 in the right perspective. He also argued that the learned Trial Court had given undue importance to minor discrepancies in the statements of PW5 as well as PW13 and PW14 without appreciating that on the basis of material on record, the prosecution had been able to establish beyond all reasonable doubt that the contraband in fact was recovered from the bag which was found on the shoulder of accused Mukesh. Accordingly, on these points, it was urged by the learned Addl. Advocate General that the judgment passed by the learned Trial Court was not sustainable in the eyes of law and was liable to be quashed and set aside. 20. Accordingly, on these points, it was urged by the learned Addl. Advocate General that the judgment passed by the learned Trial Court was not sustainable in the eyes of law and was liable to be quashed and set aside. 20. On the other hand, learned Amicus Curiae submitted that a perusal of the records of the case demonstrate that the prosecution had not been able to link the accused with the recovery of the alleged charas from the bag. She submitted that the prosecution had miserably failed to prove on record that accused-Mukesh was carrying any bag from which charas was recovered by the police. According to her, there was neither any perversity nor any infirmity with the findings returned by the learned Trial Court and the judgment passed by the learned Trial Court needed no interference. 21. We have heard learned counsel for the parties as well as Ms. Kanta Thakur, learned Amicus Curiae. We have also perused the judgment passed by the learned Trial Court. 22. The case as has been put forth by the prosecution is that Inspector Om Parkash who was heading the police party on 18.12.2009 had received a secret information to the effect that the accused were standing near Punjabi Dhaba and if they were searched, some contraband can be recovered from their possession. On the basis of said information, he associated independent witnesses Dilshad Khan and Kamal Kumar and thereafter proceeded towards Punjabi Dhaba situated at Sainwala alongwith other police officials. The first fallacy which appears with the veracity in the story of the prosecution is this that as per prosecution, Insp. Om Parkash received the secret information at about 4:30 p.m., while the police party was at Bus stand Sainwala and on receipt of the same, it associated two independent witnesses, namely, Dilshad Khan and Kamal Kumar and thereafter proceeded towards Punjabi Dhaba situated at Sainwala and incidentally one of them who was present at bus stand Sainwala happened to be the owner of the said Punjabi Dhaba. We fail to understand whether this is coincidence or otherwise that out of the two independent witnesses who were associated by the police and that too not at Punjabi Dhaba but at bus stand Sainwala one happened to be the owner of the Punjabi Dhaba where the accused were to be found with contraband as per the secret information received by Insp. Om Parkash. Om Parkash. Incidentally, Dilshand Khan has not supported the case of prosecution. According to him, the alleged bag from which charas was recovered was not found in the possession of accused Mukesh by the police. As per this witness, when he first time saw the bag the same was with the police and the same was being searched by the police. Similarly, the second independent witness PW5 (Kamal Kumar) in his cross-examination stated that he had not seen the bag on the person of the accused or lying outside the table outside the Dhaba. According to him, the police enquired from all persons present in the Dhaba whether the bag belonged to them or not. All persons present there denied the factum of owning the bag including the accused. No other independent person has been associated by the police at the time of search and seizure except these two independent witnesses who have not supported the case of the prosecution, therefore, it is apparent and evident from the perusal of the testimony of said two witnesses that the prosecution has not been able to prove that the bag from which the charas was recovered belonged to accused Mukesh and that Mukesh was in possession of the said bag before the same was allegedly seized from him by the police. 23. Another important aspect of the matter is that it has come in the statement of PW5 that there were 8-10 persons outside the Dhaba. Therefore, it is not as if no other person was available who could have been associated at the time of search and seizure. Further it is not the case of the prosecution that these two independent witnesses were associated at the spot only. As per the prosecution Insp. Om Parkash had associated these persons at around 4:30 p.m., after he received the secret information at 4:30 p.m., at the bus stand and he reached Punjabi Dhaba along with these two independent witnesses and other police officials at around 5:00 p.m. This stand of the prosecution is also falsified by the statement of these two independent witnesses (PW2 and PW5) because it has categorically come in the statement of these two independent witnesses that they were not associated by the police near the bus stand but they were present at the Dhaba in issue i.e. at Punjabi Dhaba. 24. 24. Further the case of the prosecution that the accused were in conscious possession of contraband which was allegedly recovered from a bag which was slung on his shoulder by accused Mukesh, the same is not supported by the statements of PW2 and PW5, as has been discussed by us hereinabove. Thus, it is evident from what we have discussed above that the prosecution has not been able to prove from the material placed on record that accused Mukesh was present outside the Dhaba with a bag slung on his shoulder which was seized by the prosecution in the presence of independent witnesses and search of which revealed that the accused were carrying 1.100 grams charas in the same. 25. Incidentally, a perusal of the statements of PW13 and PW14 will demonstrate that according to them the independent witnesses were made to join the investigation about 200 meters from the Dhaba near the rain shelter. PW13 in fact has stated that both Dilshad and Kamal Kumar were joined at rain shelter where the secret information was received and from there they came to the Dhaba of Dilshad. He has further deposed that he does not remember that how many persons were sitting in the Dhaba. He further deposed that he does not remember whether there are sitting arrangement in the shape of tables and chairs nor he remembers whether there were any customers present inside the Dhaba. On the other hand, PW14 has stated that both Dilshad and Kamal were present at Sainwala where he was standing. He has further stated that there was no arrangement for sitting of customers outside the Dhaba, however, there was arrangement inside the Dhaba, but there was no customer either inside or outside the Dhaha. 26. If we carefully peruse the testimonies of these four witnesses i.e. PW2, PW5 on one hand and PW13 and P14 on the other hand there are major contradictions in their depositions with regard to the mode and manner in which PW2 and PW5 were associated by PW14 to be a part of the investigation. Not only this, there are major contradictions made by PW13 and PW14 when compared with the statements of PW2 and PW5 with regard to the sitting arrangement of Punjabi Dhaba as well as with regard to the number of customers who were present at the said Dhaba at the relevant time. Not only this, there are major contradictions made by PW13 and PW14 when compared with the statements of PW2 and PW5 with regard to the sitting arrangement of Punjabi Dhaba as well as with regard to the number of customers who were present at the said Dhaba at the relevant time. All these facts raise serious doubt and suspicion on the mode and manner in which the alleged recovery of contraband has actually taken place and version of prosecution does not inspire confidence. 27. The testimony of PW13 and PW14 does not seem to be trustworthy and it does not inspire confidence so as to be made basis of conviction of the accused. Therefore, in the absence of the independent witnesses corroborating the case of the prosecution and further in view of their being major contradictions in the testimony of PW13 and PW14 with regard to the mode and manner in which the alleged recovery of the contraband was made from the accused, we are afraid that it cannot be held that the prosecution was able to prove its case against the accused beyond reasonable doubt. 28. Further a perusal of the judgment passed by the learned Trial Court demonstrates that all these aspects of the matter have been considered by the learned Trial Court minutely and it is only thereafter that the learned Trial Court has come to the conclusion that on the basis of the material on record, the prosecution has not been able to bring home guilt of the accused. It is apparent and evident from the testimony of PW2 and PW5 that they were summoned from inside the Dhaba and were joined as witnesses while they were present at the Dhaba of PW2 which belies the version put forth by the prosecution about the said independent witnesses having been associated by Inspector Om Parkash at 4:30 p.m. after he received the secret information at the bus stand. 29. All the above factors when taken together create grave suspicion over the case of the prosecution, as has been put forth by it. In our considered view, it cannot be said that on the basis of material which have been produced on record by the prosecution that it has proved beyond all reasonable doubt that accused were guilt of the offence with which they were charged. In our considered view, it cannot be said that on the basis of material which have been produced on record by the prosecution that it has proved beyond all reasonable doubt that accused were guilt of the offence with which they were charged. Therefore, in our view there is no perversity or infirmity with the judgment passed by the learned Trial Court vide which it has acquitted the accused by holding that the prosecution has not been able to prove its case against the accused beyond all reasonable doubt. In our considered view also, the prosecution has not been able to prove its case against the accused beyond all reasonable doubt. 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. This Court places on record it’s appreciation for the assistance rendered by the learned Amicus Curiae in the adjudication of the present case.