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Himachal Pradesh High Court · body

2016 DIGILAW 1466 (HP)

State of H. P. v. Aman Dhama

2016-07-22

SANJAY KAROL, SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. 1. The instant appeal is directed by the State of Himachal Pradesh against the impugned judgment rendered on 08.05.2015 by the learned Special Judge-II (Additional Sessions Judge), Kullu Himachal Pradesh, in Sessions trial No. 38 of 2014 (2012), whereby the learned trial Court acquitted the respondent (for short ‘accused’) for the offences charged. 2. The brief facts of the case are that on 13.4.2012 around 12.25 p.m. when a police party headed by the then Sub Inspector Megh Singh, In-charge Police Post Manikaran and consisting of HHC Ved Ram, Constable Nitin Thakur was on patrolling duty at Kasol bridge and were present near Challal village path, accused coming from Chhalal village was noticed by the police party, when the accused was crossing the bridge at that time accused was carrying one rucksack on his left shoulder and behind the accused another person with empty hands was also coming. The accused on seeing the police party got perplexed and was nabbed by the police party and on asking the accused disclosed his name Aman Dhama whereas the person behind the accused had disclosed his name Nishant, who was friend of the accused. On having suspicion that accused might had been carrying some contraband with him PW-8 the then Sub Inspector Megh Singh had given option to accused if he wanted to give search of his rucksack to the police party or before the Gazetted Officer but the accused had consented to be searched by the police party regarding which memo was prepared and thereafter he and other police officials had given their personal search to the accused but nothing incriminating was found in possession of the police officials. Thereafter the rucksack which the accused was found carrying at that time was opened and inside the big packet of the rucksack, one plastic transparent packet was found in torn condition and when the said transparent packet was opened black colour substance five numbers in Chapati and rectangular shape were found and the said black colour substance was smelled and checked, it was found charas/ cannabis and when the said charas was weighed with electronic scale, its weight was found 222 grams. Thereafter the codal formalities for sealing and seizure of the case property were done on the spot and was taken into possession vide memo Ext.PW-6/A and the seal after its use was handed over to PW-6 Constable Nitin Kumar. On completion of the investigation and on receipt of SFSL report the Investigating Officer handed over the case file to the then Station House Officer who after completing all codal formalities and on conclusion of the investigation into the offence, allegedly committed by the accused prepared challan and filed in the Court. 3. Charges stood put to the accused by the learned trial Court for his committing offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, to which he pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined 9 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. He did not choose to lead any evidence in defence. 5. On an appraisal of evidence on record, the learned trial Court returned findings of acquittal in favour of the accused. 6. 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 evidence on record, rather, theirs standing se-quelled 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. We have heard the learned Additional Advocate General and have also gone through the entire record. 8. Charas Ext.P-3 stood recovered under memo Ext.PW-6/C by the Investigating Officer at the site of occurrence from the purported conscious and exclusive possession of the accused. When the testimonies of the official witnesses qua the ill-fated occurrence comprised in their respective examination in chief remain unblemished with any occurrence of any vice of contradictions vis-a-vis their respective cross-examinations besides when their respective depositions are free from any stain of any intra se contradictions hence would prod this Court to impute an aura of sanctity to their respective testifications qua the occurrence. However when their respective depositions suffer from any taint of any intra se contradictions, contrarily this Court would rear an inference qua the testimonies of the official witnesses acquiring a taint or a blemish whereupon any imputation of sanctity to them would be unwarranted. For unearthing the factum qua their respective depositions holding no taint of any intra se contradictions, an allusion to the testimony of PW-8 is imperative. However, before making an allusion thereto an advertence to the factum of charas standing recovered from a rucksack purportedly carried by the accused in his bag hung on his back is imperative. Even though, its recovery there from stood purportedly not effectuated on his personal search, given the rucksack not standing inextricably tethered to his body whereupon hence there was no enjoined legal obligation cast upon the Investigating Officer to preceding his holding its search either prepare consent memo comprised in Ext.PW-6/A nor it was incumbent upon him, to, elicit on his waiving his option qua his inherent primary legal right qua search of rucksack hung on his shoulder standing held before an Executive Magistrate or a Gazetted Officer his leaning for its search standing held by the Investigating Officer. However, with consent memo Ext.PW-6/A yet standing prepared by the Investigating Officer besides in pursuance to the accused meeting his consent to the Investigating Officer holding search of his rucksack his holding its search per se renders it vulnerable to suspicion also it breeds a deduction of its preparation besides its search in sequel to the accused meeting his apposite consent to the Investigating Officer standing prodded by the Investigating Officer concerting to smother the truth qua the manner of effectuation of recovery of charas. An inference of a vice of pervasive suspicion imbuing the manner of effectuation of charas under memo Ext.PW-6/C from rucksack hung by the accused on his shoulder gets momentum from the dire unnecessity of the Investigating Officer preparing consent memo Ext.PW-6/A besides with the Investigating Officer in his cross-examination deposing of his not preparing an apposite memo qua his holding personal search of the accused, factum whereof when stands contradicted by Ext.PW-8/D also garners an amplifying inference of the aforesaid variant stand of PW-8, the Investigating Officer, qua its preparation vis-a-vis reflections in Ext.PW-8/D constituting the consent memo of the accused to the Investigating Officer for empowering the latter holding his personal search not being a fortuitous variation rather appears to stand fostered by the Investigating Officer proactively hiding the factum of his holding a personal search of the accused also his proactively smothering recoveries if any effectuated in pursuance thereof begetting there from an ensuing sequel of his effectuating recovery of charas in a manner digressive from the one propagated by the prosecution. In aftermath, with the manner of effectuation of charas embodied in memo Ext.PW-6/C suffering an inherent discrepancy renders its recovery there under to be holding no legal solemnity. 9. Furthermore, prior to the purported effectuation of recovery of charas from the alleged conscious and exclusive possession of the accused from the rucksack hung by him on his shoulder, effectuation whereof stands embodied under memo Ext.PW-6/C, yet as unraveled by PW-6 in his deposition of the accused holding the personal search of the Investigating Officer in contradiction whereof the Investigating Officer deposes of the accused subjecting all the police officials to personal search prior to effectuation of recovery of charas from his conscious and exclusive possession under memo Ext.PW-6/C. The rife/pervasive contradictions qua the facet aforesaid as emanate on a scanning of the testimonies of PW-6 and PW-8 spurs an inference qua the testimonies of both holding no veracity qua the facet aforesaid wherefrom the ensuing sequel in entwinement with the afore stated inherent falsity engulfing the manner of effectuation of charas under memo Ext.PW-6/C by the Investigating Officer from the purported conscious and exclusive possession of the accused, is, of the Investigating Officer, given the minimal quantity of charas weighing 222 grams allegedly recovered by him from the conscious and exclusive possession of the accused under memo Ext.PW-6/C, planting it on the person of the accused. 10. 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 there from 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 evidence on record, rather it has aptly appreciated the material available on record. 11. In view of the above, we find no merit in this appeal which is accordingly dismissed. In sequel, the impugned judgment is affirmed and maintained. Record of the learned trial Court be sent back forthwith.