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2016 DIGILAW 142 (HP)

State of Himachal Pradesh v. Sudhir Prakash

2016-02-27

P.S.RANA, SANJAY KAROL

body2016
JUDGMENT : Sanjay Karol, J. 1. 800 grams of Charas is alleged to have been recovered from the conscious possession of accused Sudhir Prakash on 2.5.2004. In order to substantiate its case, prosecution has examined 11 witnesses. Undisputedly, two of the independent witnesses, who were associated by the police in the search and seizure operations, have not supported the prosecution. Finding the testimonies of police officials to be not inspiring in confidence, accused stands acquitted of the charge framed for commission of offence punishable under the provisions of Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). 2. State has appealed against the judgment dated 20.9.2008, passed by learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, Himachal Pradesh, in NDPS Act Case No.3 of 2005, titled as State v. Sudhir Prakash, challenging the acquittal of respondent Sudhir Prakash (hereinafter referred to as the accused). 3. It is the case of prosecution that on 2.5.2004, a police party comprising of ASI Bhagat Singh (PW-11), Constable Devi Singh ((PW-2), Constable Sohan Lal (PW-3) and Driver Dev Raj (not examined), had set up a Naka on the National Highway, near Shiv Temple, Nogli, Tehsil Rampur, District Shimla, Himachal Pradesh. At 3.35 am, accused, who came on a scooter bearing No.PB-65A-3837, was signaled to stop for checking. After informing the accused of his statutory rights, ASI Bhagat Singh obtained his consent (Ex.PW- 1/A). From the scooter 800 grams of Charas was recovered. Rukka (Ex.PW-11/C), so prepared by ASI Bhagat Singh, was taken to the Police Station, on the basis of which FIR No.89, dated 2.5.2004 (Ex.PW-5/A), for commission of offence punishable under the provisions of Section 20 of the Act was registered. Police official took the file to the spot, where proceedings were completed. NCB form was prepared; contraband substance was taken into possession vide memo (Ex.PW-1/D), after drawing two samples each weighing 50 grams. Accused was arrested and along with the contraband substance produced before SI/SHO Rupinder Singh (PW-5), who resealed the case property and the samples with his own seal of impression `T' and deposited the same with MHC Swarup Ram (PW-4), who, through Constable Atma Ram (PW-9), sent the samples for chemical analysis and report of the Chemical Examiner (Ex.PW-11/H), so obtained, was taken on record. With the completion of investigation, which prima facie revealed complicity of the accused, in the alleged crime, challan was presented in the Court for trial. 4. Accused was charged for having committed an offence punishable under the provisions of Section 20 of the Act, to which he did not plead guilty and claimed trial. 5. In order to establish its case, prosecution examined as many as 11 witnesses and statement of the accused under the provisions of Section 313 of the Code of Criminal Procedure was also recorded, in which he took plea of innocence and false implication. 6. Based on the testimonies of witnesses and the material on record, trial Court acquitted the accused of the charged offence. Hence, the present appeal by the State. 7. We have heard Mr. V.S. Chauhan, learned Additional Advocate General and Mr. J.S. Guleria, learned Assistant Advocate General, on behalf of the State as also Mr. B.R. Sharma, Advocate, on behalf of the accused. We have also minutely examined the testimonies of the witnesses and other documentary evidence so placed on record by the prosecution. Having done so, we are of the considered view that no case for interference is made out at all. We find that the judgment rendered by the trial Court is based on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record. There is neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice. 8. It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. Having considered the material on record, we are of the considered view that prosecution has failed to establish essential ingredients so required to constitute the charged offence. 9. In Prandas v. The State, AIR 1954 SC 36 , Constitution Bench of the apex Court, has held as under: "(6) It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under Section 417, Criminal P.c., to reverse a judgment of acquittal, unless the judgment is perverse or the subordinate Court has in some way or other misdirected itself so as to produce a miscarriage of justice. In our opinion, the true position in regard to the jurisdiction of the High Court under Section 417, Criminal Procedure Code in an appeal from an order of acquittal has been stated in - `Sheo Swarup v. Emperor', AIR 1934 PC 227 (2) at pp.229, 230 (A), in these words: "Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognised in the administration of justice." " 10. ASI Bagat Singh, who had set up the Naka on the spot and with whom police officials Constables Devi Singh and Sohan Lal were present, through his testimony wants the Court to believe that first the vehicle was stopped and suspecting the accused to be in possession of contraband substance, after obtaining his consent, the same was checked. Only after recovery was effected, Constable Devi Singh was sent for bringing the weighing scales, which were brought from the shop of Chet Ram (PW-1), who also accompanied Devi Singh to the spot. Charas was weighed; samples were drawn and recovery was effected vide Memo (Ex.PW-1/D). Such version stands corroborated by Devi Singh and Sohan Lal. 11. Witness Chet Ram was declared hostile and extensively cross-examined by the Public Prosecutor. Charas was weighed; samples were drawn and recovery was effected vide Memo (Ex.PW-1/D). Such version stands corroborated by Devi Singh and Sohan Lal. 11. Witness Chet Ram was declared hostile and extensively cross-examined by the Public Prosecutor. However, he has categorically deposed that on 2.5.2004 at about 4-5 am, police came to his hotel along with the accused, where Charas was weighed. It is true that the samples were drawn and sealed. This totally renders the genesis of the prosecution story of having conducted the search and seizure operations on the spot to be false. Not only that, from his unrebutted testimony, we find that there were 5-6 buildings/commercial establishes near the Shiv Mandir, the place where the police had set up a Naka and the vehicle driven by the accused was checked. It is the categorical case of the police officials (ASI Bhagat Singh, Constables Devi Singh and Sohan Lal) that on suspicion of the accused carrying contraband substance, ASI Bhagat Singh searched both the accused and his vehicle. 12. Now, it is not the case of the police officials that the accused tried to flee away. It is also not a case of chance recovery, in the sense that the vehicle was being otherwise searched and the contraband substance was recovered incidently. Now, if the police had specific suspicion of the accused carrying the contraband substance, then why is it that no independent witness was associated, while carrying out the search and seizure operations? It is not the case of the police that no independent witness was available on the spot. 13. In fact, it has come in the testimony of police officials that at the time of search of the vehicle, other vehicles had also passed by. Then why is it that no attempt was made to associate drivers of such vehicles. In fact Sohan Lal admits that in Nogli there is a petrol pump and other commercial establishments. Thus, non-association of independent witnesses, at the time of carrying out search and seizure operations, also renders the prosecution case to be doubtful. 14. Harish Kumar (PW-7) has not supported the prosecution on the aspect of the seals being drawn and the impressions thereof taken on different pieces of cloth. 15. Thus, non-association of independent witnesses, at the time of carrying out search and seizure operations, also renders the prosecution case to be doubtful. 14. Harish Kumar (PW-7) has not supported the prosecution on the aspect of the seals being drawn and the impressions thereof taken on different pieces of cloth. 15. Even with regard to seals `H' and `T', alleged to have been embossed by ASI Bhagat Singh and SI Rupinder Singh, there is contradiction in the prosecution case, for in the seal impressions (Ex.PW- 1/A to 1/C), there is seal `H' and not `T'. 16. Further, we find that there is material contradiction in the testimony of ASI Bhagat Singh, Constables Devi Singh and Sohan Lal, with regard to the consent memo. According to ASI Bhagat Singh, consent was obtained in writing, which fact is categorically not deposed by Devi Singh. Sohan Lal does not even remember having signed any document in support thereof. 17. Not only that, we find the prosecution to have prepared the documents not on the spot but in fact in the police station. ASI Bhagat Singh states that he filled up all the columns of the NCB form on the spot, however, Constables Devi Singh and Sohan Lal do not corroborate such version. SI Rupinder Singh (PW- 5), who resealed the case property, does not state that he had filled up the form. If that be so, then how is it that ASI Bhagat Singh could fill up columns No.9 to 11 of the NCB form, more so on the spot? Thus, preparation of NCB form cannot be said to be in consonance with law. Trial Court has rightly observed that in the absence of any reference of NCB form in the Malkhana Register (Ex.PW-4/A) or any other memo, preparation of the documents in the manner in which the prosecution wants the Court to believe is rendered to be doubtful. There is a reference of the NCB form being handed over to MHC Suram Singh, who, for the reasons best known to the prosecution, has not been examined in Court. 18. In fact, Sohan Lal belies the version of ASI Bhagat Singh, by deposing that at the time when the case property was handed over to the SHO, no proceedings were conducted at the Police Station. 19. 18. In fact, Sohan Lal belies the version of ASI Bhagat Singh, by deposing that at the time when the case property was handed over to the SHO, no proceedings were conducted at the Police Station. 19. Also, one finds there is contradiction, with regard to the time when the police party returned to the Police Station. The contradiction is not minor, it is material. The time varies from 8 am to 11 am. 20. We do not find testimonies of the relevant prosecution witnesses, i.e. the police officials, to be inspiring in confidence. There are improvements, contradictions, exaggerations and embellishments, impeaching their credit, rendering them not to be trustworthy witnesses. 21. From the material placed on record, prosecution has failed to establish that the accused is guilty of having committed the offence, he has been charged with. The circumstances cannot be said to have been proved by unbroken chain of unimpeachable testimony of the prosecution witnesses. The guilt of the accused does not stand proved beyond reasonable doubt to the hilt. The chain of events does not stand conclusively established, leading only to one conclusion, i.e. guilt of the accused. Circumstances when cumulatively considered do not fully establish completion of chain of events, indicating to the guilt of the accused and no other hypothesis other than the same. 22. Hence, it cannot be said that prosecution has been able to prove its case, by leading clear, cogent, convincing and reliable piece of evidence so as to prove that the accused was found in conscious and exclusive possession of Charas. 23. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Mohammed Ankoos and others v. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad (2010) 1 SCC 94 , it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. Appeal stands disposed of, so also pending applications, if any.