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Himachal Pradesh High Court · body

2016 DIGILAW 1461 (HP)

State of H. P. v. Dharam Chand

2016-07-21

RAJIV SHARMA, SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. The instant appeal stands directed by the State of H.P. against the judgment of the learned Special Judge, Fast Track Court, Kullu, Himachal Pradesh, rendered on 22.01.2009 in Sessions Trial No.49 of 2007, whereby, the latter Court acquitted the accused/respondent of an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the “NDPS Act”). 2. The facts relevant to decide the instant case are that on 2.4.2007, HC Roshan Lal along with C. Chand Mishra, C. Tarsem Lal and C. Pritam Singh had proceeded towards Ramshila from Police Station on patrol duty. At about 4.15 p.m., patrol party was present near Gammon bridge. A secret information was revived by HC Roshan Lal to the effect that one person wearing blue coloured sweater and having thin beard has been coming on foot towards Ramshila and that said person had been carrying charas. This information was reduced into writing and necessary intimation was given to the Superior Officer under Section 42(2) of the NDPS Act. One Guru Dutt was associated as witness in the patrol party. Thereafter, they went towards Bhekhali road. One person was found coming from opposite direction. He was stopped and inquired. He disclosed his name as Dharam Chand. After complying with the provisions of Section 50 of the NDPS Act, the police conducted his personal search. On his personal search being conducted by the Investigating Officer, he was found in possession of charas weighing 1Kg and 10 grams. Thereafter, other codal formalities were completed and the accused was 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 was charged by the learned trial Court for his committing offence punishable under Section 20 of the NDPS Act. In proof of the prosecution case, the prosecution examined 8 witnesses. On conclusion of recording of the prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded by the trial Court, in which the accused claimed innocence and pleaded false implication. However, he did not lead any defence evidence. 5. In proof of the prosecution case, the prosecution examined 8 witnesses. On conclusion of recording of the prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded by the trial Court, in which the accused claimed innocence and pleaded false implication. However, he did not lead any defence evidence. 5. On an appraisal of the evidence on record, the learned trial Court, returned findings of acquittal in favour of the accused/respondent herein. 6. 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. 7. 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. 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. The depositions of the official witnesses comprised in their respective examinations-in-chief qua effectuation of recovery of charas, under memo Ex.PD by the Investigating Officer at the site of occurrence 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, under memo Ex.PD by the Investigating Officer at the site of occurrence from the exclusive and conscious possession of the accused are bereft of any vice of any intra se contradictions. Also their respective depositions qua effectuation of recovery of charas, under memo Ex.PD by the Investigating Officer at the site of occurrence from the exclusive and conscious possession of the accused are bereft of any vice of any intra se contradictions. Consequently, when the respective depositions of the prosecution witnesses when remained unstained with any vice of any inter se contradictions or any blemish of any intra se contradictions hence coax an inference from this Court of their respective versions qua effectuation of recovery of charas under memo Ex.PD by the Investigating Officer at the site of occurrence from the purported exclusive and conscious possession of the accused being truthful as well as credible. Even when the testimonies of the official witnesses qua effectuation of recovery of charas under memo Ex.PD 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, remained unblemished with any stain of any intra se or inter se contradictions 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-5 Shri Guru Dutt, 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-5, 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-5, 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 unblemished testimonies of official witnesses appears to have overlooked the factum of with PW-5 admitting his signatures on the apposite memos Ex.PA to Ex.PD 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 with 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. PA to Ex.PD hold 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 under recovery memo Ex.PD 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, with the aforesaid inference drawn by this Court whereupon, rather findings of conviction against the accused/appellant are warranted, nonetheless, the nerve center of the case is qua the consent memo comprised in Ex.PA standing drawn in conformity with the provisions of Section 50 of the NDPS Act. Since the recovery of contraband under memo Ex.PD stood effectuated from one polythene envelope red and white in colour which was held by the accused inside the sweater and shirt worn by him, rendered its effectuation therefrom to occur on his personal search standing held by the Investigating Officer concerned whereupon hence the play of Section 50 of the NDPS Act stood galvanized besides strict compliance by the Investigating Officer concerned qua its mandatory statutory provisions stood enjoined to be accomplished by him. The contents of consent memo Ex.PA would render the recovery of charas under memo Ex.PD from the exclusive and conscious possession of the accused being construable to be efficaciously recovered thereunder only when Ex. The contents of consent memo Ex.PA would render the recovery of charas under memo Ex.PD from the exclusive and conscious possession of the accused being construable to be efficaciously recovered thereunder only when Ex. PA held reflections of the Investigating Officer intimating the accused of his holding a vested legal right of his personal search standing carried before a Gazetted Officer or before an executive Magistrate, on waiver whereof by him, he also stood apprised therein of his holding an alternative right to opt for his personal search standing carried by the Investigating Officer. However, on an incisive scanning of the recitals embodied in Ex.PA disclose of the Investigating Officer not incongruity with the statutory requirements contemplated in Section 50 of the NDPS Act intimating the accused/respondent of his holding a vested primary statutory right qua his personal search initially being opted by him to be carried or conducted by an Executive Magistrate or a Gazetted Officer. Since, the Investigating Officer while scribing Ex.PA departed from the apposite statutory mandate, of the accused holding a vested primary legal right for his personal search initially standing opted by him to be held by an Executive Magistrate or a Gazetted Officer nor also it holds recitals of in the event of his waiving the aforesaid right his holding a right to opt for the alternative mode for his personal search being conducted by the Investigating Officer, renders the consent, if any, of the accused qua his personal search standing held by the Investigating Officer to infract the statutory mandate of Section 50 of the NDPS Act. The departure from the aforesaid statutory requirements by the Investigating Officer though enjoined to be strictly complied by him, appear to stand germinated from hence his adopting a contrivance for beguiling the accused to opt for his personal search being held by him also it appears of the Investigating Officer withholding the occurrence of apposite statutory recitals in Ex.PA for forestalling the accused in his not purveying his consent to his holding his personal search. Consequently, the contrived consent obtained from the accused by the Investigating Officer qua his holding his personal search cannot stand clothed with any tinge of its holding any statutory validation. Consequently, the contrived consent obtained from the accused by the Investigating Officer qua his holding his personal search cannot stand clothed with any tinge of its holding any statutory validation. The solemn principle engrafted in the mandatory statutory provisions engrafted in Section 50 of the NDPS Act, whereupon the Investigating Officer stands fastened with a statutory duty to purvey in the apposite consent memo to the accused qua his holding a vested statutory right for his personal search standing held by an Executive Magistrate or a Gazetted Officer is of its sequeling awakenings in the accused qua an indefeasible statutory right inhering him, right whereof unless stands foregone by the accused would dis-empower the Investigating Officer to hold his personal search. The unequivocal communications in the apposite consent memo qua the apposite statutory right vesting in the accused is also a safe deterrent for him to refrain from opting for his personal search standing held by the Investigating Officer. It is also to inspire confidence in the accused to withhold his consent to his personal search standing carried by the Investigating Officer which may otherwise stand stained with an aura of false implication besides concoction. Since the recitals embodied in Ex.PA flagrantly depart from the solemn salutary principle engrafted in Section 50 of the NDPS Act, the invincible conclusion therefrom is of an uncreditworhty legally frail personal search of the accused standing held by the Investigating Officer. Furthermore, amplifying vigour to the aforesaid inference is lent by the fact of the salutary principle underlying Section 50 of the NDPS Act standing blunted by the Investigating Officer by his mis-phrasing the recitals of consent memo Ex.PA. Also, with the Investigating Officer intentionally blunting the play of Section 50 of the NDPS Act, reiteratedly his conducting the personal search of the accused in the guise of a vitiated consent memo cannot hold any formidability. 14. Moreover, there occurs a dichotomy inter se FIR Ex.PX vis-a-vis the deposition of H.C. Roshan Lal qua the factum of time of seizure of contraband from the purported exclusive and conscious possession of the accused. 14. Moreover, there occurs a dichotomy inter se FIR Ex.PX vis-a-vis the deposition of H.C. Roshan Lal qua the factum of time of seizure of contraband from the purported exclusive and conscious possession of the accused. Rife contradiction qua the facet aforesaid is palpable on column No.3 of NCB form, Ex.PQ relating to date, time and place of its seizure as enjoined to be filled by the Investigating Officer at the site of occurrence holding no recitals, though PW Roshan Lal deposes of his making reflections therein of his seizing the contraband at 9.00 p.m. Since, the best evidence in communication of the aforesaid factum is comprised in Ex.PX hence, the oral deposition of H.C. Roshan Lal in variation thereto is insignificant. Contrarily, with the legally tenacious documentary evidence qua the facet aforesaid stands constituted in FIR Ex. PX and rukka Ex. PR, both whereon hold revelations of 4.15 p.m., constituting the time of seizure of charas, renders uncreditworhty the testimony of PW Roshan Lal qua the effectuation of its seizure from the purported exclusive and conscious possession of the accused occurring at 9.00 p.m. The contradiction aforesaid inter se the deposition of H.C. Roshan Lal vis-avis FIR, Ex. PX as well as rukka, Ex.PR contrarily also lends an impetus to a firm conclusion of the Investigating Officer ante timing in Ex.PX & Ex.PR, the factum probandum of his subjecting the accused to personal search also spurs a deduction of his holding the personal search of the accused on a date, time and place other than the one as enunciated in his deposition also an inference stands erected of hence the effectuation of recovery of charas under memo Ex.PD in sequel to his holding the personal search of the accused being at a place distinct from the one reflected in Ex.PD whereupon this Court holds of the Investigating Officer holding a partisan taint ridden investigation qua the offence ascribed to the accused. 15. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court below has appraised the entire evidence on record in a wholesome and harmonious manner apart therefrom the analysis of the material on record by the learned trial Court does not suffer from any perversity or absurdity of mis-appreciation and non appreciation of the evidence on record, rather it has aptly appreciated the material available on record. 16. 16. Consequently, there is no merit in the instant appeal and it is accordingly dismissed. Records be sent back forthwith.