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Himachal Pradesh High Court · body

2016 DIGILAW 1797 (HP)

State of H. P. v. Anil Kumar

2016-08-29

RAJIV SHARMA, SURESHWAR THAKUR

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JUDGMENT : Sureshwar Thakur, J. 1. The instant appeal stands directed by the State of H.P. against the judgment of the learned Special Judge (I), Kangra at Dharamshala, Himachal Pradesh, rendered on 15.10.2011 in Sessions Case No. 42-D/VII-2009, whereby, it acquitted the accused/ respondents for an offence punishable under Section 20-61-85 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 4.10.2009 PW-7 Inspector Rajeev Attri along with other police officials of P.S. Dharamashala were on patrol duty. At about 9.45, when they were present near bus stand on Sudher road a motor cycle bearing No. HP-39A-7144, occupied by two persons on sighting their vehicle, the rider of the motor cycle increased the speed of it. On suspicion they chased it and stopped it at some distance. On inquiry, the rider and the pillion rider of the motorcycle disclosed their names as Dharam Dhoj and Anil respectively. Both of them were not possessed with the documents of the motor cycle. The police noticed that the jacket worn by the pillion rider, namely, Anil Kumar, was slightly lifted from right side upon which suspicion regarding some objectionable article raised. On this, the Investigating Officer after complying with the provisions of Section 50 of the NDPS Act, the police conducted their personal search. Nothing was recovered from accused Dharam Dhoj. However, on conducting the personal search of accused Anil Kumar by the Investigating Officer, a packet concealed inside the jacket worn by him stood recovered. The said packet was found containing charas weighing 985 grams. Thereafter, other codal formalities were completed and the accused were 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 were charged by the learned trial Court for theirs committing offence punishable under Section 20-61-85 of the NDPS Act. In proof of the prosecution case, the prosecution examined 7 witnesses. On conclusion of recording of the prosecution evidence, the statements of the accused under Section 313 of the Code of Criminal Procedure were recorded by the trial Court, in which the accused claimed innocence and pleaded false implication. In proof of the prosecution case, the prosecution examined 7 witnesses. On conclusion of recording of the prosecution evidence, the statements of the accused under Section 313 of the Code of Criminal Procedure were recorded by the trial Court, in which the accused claimed innocence and pleaded false implication. However, they 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/respondents 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 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. 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.PW1/E by the Investigating Officer at the site of occurrence from the purported exclusive and conscious possession of accused Anil Kumar, 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.PW1/E by the Investigating Officer at the site of occurrence from the exclusive and conscious possession of accused Anil Kumar are bereft of any vice of any intra se contradictions. Also their respective depositions qua effectuation of recovery of charas, under memo Ex.PW1/E by the Investigating Officer at the site of occurrence from the exclusive and conscious possession of accused Anil Kumar 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.PW1/E by the Investigating Officer at the site of occurrence from the purported exclusive and conscious possession of accused Anil Kumar being truthful as well as credible. Even when the testimonies of the official witnesses qua effectuation of recovery of charas under memo Ex.PW1/E by the Investigating Officer at the site of occurrence from the purported exclusive and conscious possession of accused Anil Kumar, when for reasons aforestated, remain unblemished with any stain of any intra se or inter se contradictions whereupon hence sanctity is imputable to their respective depositions. 10. Be that as it may, even if the official witnesses render a credible version qua the factum of recovery of charas weighing 980 grams under memo Ex.PW1/E by the Investigating Officer at the site of occurrence from the purported exclusive and conscious possession of accused Anil Kumar would not yet constrain this Court to reverse the findings of acquittal recorded by the learned trial Court vis-a-vis the accused. The reason for disimputing sanctity to the testimonies of the official witnesses spurs from the factum of the Investigating Officer proceeding to effectuate recovery of charas from Anil Kumar in sequel to his holding his personal search. The aforesaid effectuation of recovery of the relevant item of contraband weighing 980 grams stood made by the Investigating Officer on the right side of the Jacket adorned by accused Anil Kumar standing searched, wherefrom the relevant item of contraband stood retrieved therefrom while its standing enclosed in paper foil. The aforesaid effectuation of recovery of the relevant item of contraband weighing 980 grams stood made by the Investigating Officer on the right side of the Jacket adorned by accused Anil Kumar standing searched, wherefrom the relevant item of contraband stood retrieved therefrom while its standing enclosed in paper foil. Obviously since the effectuation of recovery of the aforesaid item of contraband stood effectuated on the Investigating Officer holding a personal search of accused Anil Kumar hence peremptorily entailed upon him to mete strict compliance to the mandatory statutory provisions encapsulated in Section 50 of the NDPS Act whereupon a mandate stood enjoined upon him to preceding his holding the personal search of accused Anil Kumar his under an apposite consent memo purveying to him intimation qua his holding a vested statutory right qua his initially opting for his personal search standing conducted before a Gazetted Officer or a Magistrate, option whereof in case foregone by the accused also with the accused consenting to his personal search standing held by the Investigating Officer, would both empower him to hold his personal search also would validate the recovery of the relevant item of contraband by the Investigating Officer in sequel to his holding a personal search of accused Anil Kumar. Contrarily, the aforesaid intimation qua the facet aforesaid remained undisclosed besides un-recited by the Investigating Officer in the apposite consent memo comprised in Ex.PW1/A. In aftermath, the mandate of Section 50 of the NDPS Act stood infracted whereas its mandate enjoining strict compliance thereto hence renders the entire proceedings relating to search besides on its consummation, the effectuation of recovery of the relevant item of contraband from co-accused Anil Kumar to be vitiated. 11. For making an ad nauseam determination whether the Investigating Officer meted reverence to the statutory mandate of Section 50 of the Act, an allusion to consent memo Ex.PW1/A is imperative. An incisive reading thereof makes a display of the Investigating Officer therein not enunciating the trite factum of accused Anil Kumar holding a vested statutory right to primarily besides initially opt for his personal search being held before a Gazetted Officer or a Magistrate. Withholding of the aforesaid intimation by the Investigating Officer in Ex.PW1/A to accused Anil Kumar renders Ex.PW1/A to not hold any legal significance rather renders its recitals to digress from the mandate of Section 50 of the NDPS Act. Withholding of the aforesaid intimation by the Investigating Officer in Ex.PW1/A to accused Anil Kumar renders Ex.PW1/A to not hold any legal significance rather renders its recitals to digress from the mandate of Section 50 of the NDPS Act. The sequel of the aforesaid non compliance by the Investigating Officer, non compliance whereof stands constituted in his not drawing Ex.PW1/A within the mandate of Section 50 of the NDPS Act begets an inference of his subjecting the accused to personal search standing both stained besides vitiated whereupon hence a conclusion is foisted of recovery of the relevant item of contraband by the Investigating Officer on his holding a personal search of accused Anil Kumar, holding no statutory sinew. In aftermath, with hence the entire relevant proceedings getting vitiated, leeway is opened for an inference of the accused as aptly concluded by the learned trial Court standing entitled to acquittal. Furthermore, the salutary solemn principle behind the engraftment of the mandatory statutory provisions embedded 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 theirs holding a primary vested statutory right for their personal search standing initially held by an Executive Magistrate or a Gazetted Officer, is of its se-quelling awakenings in the accused qua an indefeasible primary statutory right inhering in them qua theirs opting for their personal search standing initially held by an Executive Magistrate or a Gazetted Officer, right whereof unless stands foregone by the accused would dis-empower the Investigating Officer to hold their personal search. Holding of unequivocal communications in the apposite consent memo qua the apposite statutory right vesting in the accused is also a safe deterrent for them to refrain from opting for their personal search standing held by the Investigating Officer. It is also to inspire confidence in the accused to withhold their consent to their 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.PW1/A flagrantly depart from the solemn salutary principle engrafted in Section 50 of the NDPS Act, the invincible conclusion therefrom is of an un-creditworhty legally frail personal search of the accused standing held by the Investigating Officer. Since the recitals embodied in Ex.PW1/A flagrantly depart from the solemn salutary principle engrafted in Section 50 of the NDPS Act, the invincible conclusion therefrom is of an un-creditworhty legally frail personal search of the accused standing held by the Investigating Officer. Furthermore, amplifying vigour to the aforesaid inference of the salutary principle underlying Section 50 of the NDPS Act standing blunted by the Investigating Officer is lent by his mis-phrasing the recitals of consent memo Ex.PW1/A. 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. 12. Be that as it may, a perusal of Ex.PW1/A makes a disclosure of the Investigating Officer concerned concerting to obtain thereunder a joint apposite consent of both the accused. The manifestations in Ex.PW1/A of the Investigating Officer thereunder concerting to elicit the joint apposite consent of both the accused qua his proceeding to subject them to personal search renders it to apart from the infirmity afore referred gripping it to also infract the mandate of law foisting an obligation upon the Investigating Officer to obtain under the apposite consent memo, the individual rather than the collective consent of the accused. In aftermath, with the Investigating Officer under Ex.PW1/A endeavouring to obtain the collective or the joint apposite consent of both the accused also stains it with a legal infirmity. Consequently, a collective contrived consent obtained by the Investigating Officer from the accused qua his holding their personal search cannot stand clothed with any tinge of its holding any statutory validation. 13. Furthermore, PW-7 Inspector Rajeev Attri, who recorded a complaint qua the occurrence, proceeded to also carry out investigations in the matter. Consequently, besides cumulatively even the mandate of law interdicting him to hold investigations in the matter given his recording a complaint stands infracted prodding a sequel of the investigations as conducted by him being partisan whereupon no reliance can be imputed. 14. Consequently, besides cumulatively even the mandate of law interdicting him to hold investigations in the matter given his recording a complaint stands infracted prodding a sequel of the investigations as conducted by him being partisan whereupon no reliance can be imputed. 14. 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. 15. Consequently, there is no merit in the instant appeal and it is accordingly dismissed. In sequel, the judgment impugned before this Court is affirmed and maintained. Records be sent back forthwith.