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Himachal Pradesh High Court · body

2016 DIGILAW 1872 (HP)

State of Himachal Pradesh v. Ram Singh

2016-09-02

AJAY MOHAN GOEL, SANJAY KAROL

body2016
JUDGMENT : Ajay Mohan Goel, J.: By way of this appeal, State has challenged the judgment passed by the Court of learned Special Judge (II), Kinnaur at Rampur, in case RBT No. 10-AR/3 of 2008/2011 dated 05.09.2011, vide which, learned trial Court has acquitted the accused for commission of offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 2. The case of the prosecution was that on 21.04.2008, a police party headed by HC Pune Ram and comprising of HHC Kashmi Ram, HHC Santosh Kumar and Constable Ishwari Ram, were present at Dogla Nullah in connection with Naka Bandi and general patrol duty. At around 6.45 A.M., one HRTC bus stopped 100 meters behind Dogla Nullah from which the accused got down. Thereafter, he started coming on foot towards Nagaan. When he saw the police party, he tried to escape, but he was apprehended by the police officials. On suspicion, that the said person (hereinafter referred to as the accused) was in possession of some narcotic substance, HC Pune Ram PW-9 obtained option of the accused as per the provision of Section 50 of the NDPS Act and thereafter, he conducted search of the bag of the accused and recovered 800 grams opium from the same. Two samples each weighing 25 grams were separated and the samples as well as bulk were converted into three separate parcels which were sealed with seal impression ‘T’. NCB form was filled in triplicate and sample of seal was drawn and seal was handed over to PW-6 Kashmi Ram. Vide seizure Memo Ext. PW6/D, case property was also taken into possession. Rukka Ext. PW2/A was drawn and sent to the Police Station on the basis of which FIR Ext. PW2/B was reregistered. Case property was presented before PW-1 Rajinder Singh who resealed the same with seal impression ‘X’ and the same was thereafter deposited in the Malkhana. Special report was prepared on 22.04.2008 by HC Pune Ram and the same was sent to SDPO, Ani. On 23.04.2008 PW-1 HC Rajinder Singh sent one part of sample to FSL, Kandaghat and Chemical Examiner vide report Ext. PA opined that the contents of the sample were that of opium. 3. Special report was prepared on 22.04.2008 by HC Pune Ram and the same was sent to SDPO, Ani. On 23.04.2008 PW-1 HC Rajinder Singh sent one part of sample to FSL, Kandaghat and Chemical Examiner vide report Ext. PA opined that the contents of the sample were that of opium. 3. After completion of investigation, challan was filed and as a prima facie case was found as against the accused, accordingly he was charged for commission of offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985, to which he pleaded not guilty and claimed trial. 4. Learned trial Court on the basis of material produced on record by the prosecution concluded that the prosecution had failed to establish the recovery of the opium from the exclusive and conscious possession of the accused beyond reasonable doubt and on these basis, the accused was acquitted by learned trial Court. 5. Mr. V.S. Chauhan, learned Additional Advocate General, argued that the judgment of acquittal passed by learned trial Court is perverse and the findings returned by learned trial Court were not sustainable either on facts or law. He submitted that learned trial Court failed to appreciate the prosecution evidence in the correct perspective and the reasonings returned by learned trial Court were manifestly unreasonable. According to Mr. Chauhan, learned trial Court had discarded the well reasoned and consistent testimony of the prosecution witnesses on material points without any cogent justification. He also submitted that learned trial Court took into consideration minor contradictions without appreciating that the evidence produced on record by the prosecution both ocular as well as documentary on material points was cogent and reliable. On these basis, it was submitted by Mr. Chauhan that the judgment of acquittal returned by learned trial Court required reversal and the accused be convicted for commission of offence punishable under Section 18 of the NDPS Act. 6. Mr. Sanjay Jaswal, learned counsel appearing for the respondent argued that the judgment passed by learned trial Court was neither perverse nor it could be said that the findings returned by learned trial Court in favour of the respondent were not sustainable either on facts or on law. According to Mr. 6. Mr. Sanjay Jaswal, learned counsel appearing for the respondent argued that the judgment passed by learned trial Court was neither perverse nor it could be said that the findings returned by learned trial Court in favour of the respondent were not sustainable either on facts or on law. According to Mr. Jaswal, judgment passed by learned trial court was a reasoned judgment, perusal of which demonstrated that learned trial Court after due appreciation of the entire material produced on record by the prosecution had come to the conclusion, and rightly so, that the prosecution had not been able to establish the guilt of the accused beyond reasonable doubt. It was further argued by Mr. Jaswal that the respondent in fact was falsely implicated in the case and he had not committed the alleged offence for which was tried. As per him, the case put forth by the prosecution was highly improbable and this was evident from the fact that neither any independent witness was associated by the police at the time of search and seizure nor the prosecution could prove its case beyond reasonable doubt, as was held by learned trial Court. On these basis, he argued that the findings of acquittal returned by learned trial Court warranted no interference. 7. We have heard learned counsel for the parties and we have also gone through the records of the case as well as the judgment passed by learned trial Court. 8. A perusal of the record of the case demonstrates that no independent witness has been associated by the police at the time of search and seizure of the alleged contraband from the accused. Search and seizure of opium has been made vide Memo Ext. PW6/D by Investigating Officer Pune Ram which is witnessed by HHC Kashmi Ram and Constable Ishwari Ram. Investigating Officer HC Pune Ram entered the witness box as PW-9 and Constable Kashmi Ram entered the witness box as PW-6. Constable Ishwari Ram has not been examined by the prosecution. 9. In his statement PW-9 HC Pune Ram has stated that on 21.04.2008 at around 6.45 AM he alongwith HHC Kashmi Ram, HHC Santosh Kumar and Constable Ishwari Ram, were present at Dogla Nullah in connection with Nakabandi and general patrol duty. Constable Ishwari Ram has not been examined by the prosecution. 9. In his statement PW-9 HC Pune Ram has stated that on 21.04.2008 at around 6.45 AM he alongwith HHC Kashmi Ram, HHC Santosh Kumar and Constable Ishwari Ram, were present at Dogla Nullah in connection with Nakabandi and general patrol duty. In the meantime one HRTC bus came and stopped 100 meters behind Dogla Nullah from which accused alighted and he started coming on foot towards Nagaan. He also stated that the said HRTC bus which was coming from Karana to Delhi was checked by them but no incriminating article was recovered from the bus. Thereafter, he deposed that the accused who had got down from the bus reached near the police party and when he saw the police party, he tried to escape but he was overpowered and apprehended by the police and as there was no habitation nearby nor any other person was present, accordingly, he joined HHC Kashmi Ram and Constable Ishwari Ram as witnesses and thereafter, he informed the accused person that he suspected the accused to be in possession of some narcotic substance. He thereafter informed the accused that his personal search was intended to be taken and accordingly, the accused was made aware about his legal right as to whether he wanted to be searched either in the presence of a Magistrate or a Gazetted Officer. Accused opted to be searched by the police on the spot. This witness further deposed that vide Memo Ext. PW6/B search of the polythene bag being carried by the accused revealed 800 grams of opium which was recovered. Thereafter, this witness stated that two samples each weighing 25 grams were separated and made into parcels which were sealed with seal impression ‘T’ and the remaining bulk opium was put back into the same parcel and sealed with seal impression ‘T’. NCB form Ext.PW1/B was filled in triplicate and specimen of seal was obtained and the seal was handed over to HHC Kashmi Ram. After preparation of search and seizure, Rukka was prepared and sent to Police Station Ani through HHC Santosh Kuma. Site plan was also prepared and statements of the witnesses were recorded. He also deposed that after returning back to the Police Station, the case property was presented before MHC Rajinder Singh alongwith NCB form and sample of seal. After preparation of search and seizure, Rukka was prepared and sent to Police Station Ani through HHC Santosh Kuma. Site plan was also prepared and statements of the witnesses were recorded. He also deposed that after returning back to the Police Station, the case property was presented before MHC Rajinder Singh alongwith NCB form and sample of seal. Next day, he prepared special report which was sent to SDPO, Ani. In his cross-examination, he stated that before leaving the Police Station he had asked Luder Singh to make entry in the daily diary about their departure. He further stated that they had left Police station on foot as there was no vehicle. He also deposed that when they were at Nagaan one bus came from Ani side at 5.45 A.M. which was checked by them. They had laid Naka on the spot where they had reached 10-15 minutes before Karana Delhi bus reached there. He also stated that they checked the passengers and their luggage in the bus. According to him, accused person reached the spot 5-10 minutes after the bus had left the spot. He also stated that Dogla Nullah was situated at a distance of about 1 K.M. from Navypul. He denied the suggestion that there were 4-5 houses situated above Navypul. He stated that it took them about 10 minutes to check the bus. He also stated that the personal search of the accused person was not conducted before search of his bag. He also stated that the weights and balance which he was carrying with him was his personal property. He stated that he had seized the opium at around 8.00 A.M. and thereafter, he had prepared the Rukka. He further stated that they left the spot at 12.30 P.M. He denied the suggestion that the polythene containing opium was recovered from inside the bus next to a person belonging to Soidhar, who was an Electrician and this fact was pointed out by the accused. He also denied the suggestion that the accused was falsely implicated in the case at the instance of person belonging to Soidhar. 10. PW-6 Kashmi Ram stated on oath that on 21.04.2008 he alonghwith HC Pune Ram, HHC Santosh Kumar and Constable Ishwari Ram were present at Dogla Nullah in connection with general patrol duty and detection of criminal cases. He also denied the suggestion that the accused was falsely implicated in the case at the instance of person belonging to Soidhar. 10. PW-6 Kashmi Ram stated on oath that on 21.04.2008 he alonghwith HC Pune Ram, HHC Santosh Kumar and Constable Ishwari Ram were present at Dogla Nullah in connection with general patrol duty and detection of criminal cases. As per him, at around 6.45 A.M. one bus stopped at about 100 meters behind Dogla Nullah from which accused alighted and started walking towards Nagaan. The said bus was going from Tarana to Delhi. The bus was checked by the police party but nothing incriminating was found. When the accused reached near the police party, he was holding a polythene bag in his hand and he tried to escape but he was overpowered and apprehended by the police. As per this witness, there was no habitation nearby nor any person was available and, therefore, HC Pune Ram joined him and Constable Ishwari Ram as witnesses and thereafter, conducted search and seizure of the contraband. In his cross-examination, this witness has stated that they left the Police Station at 3.00 A.M. for Nagaan on foot which was situated at a distance of 5 KMs from Police Station to Dogla Nullah, which was situated at a distance of 400-500 meters from Navypul. According to him, when the police party left Police Station, rapat was recorded in the daily diary. He further stated that they were present at the spot for about 30 minutes before the bus had stopped at Dogla Nullah. He also stated that the place where they ha laid Naka road was visible upto a distance of 100 meters. This witness further deposed that first they saw the bus stop at Dogla Nullah and thereafter they saw the accused person getting down from the bus. There were 10-15 passengers present in the bus and they checked the passengers and their luggage in the bus. This witness further stated in his cross-examination that after the bus left the spot the accused person was found coming at a distance of 10-15 meters. This witness admitted that there were 4-5 houses situated above Navypul and that there were 2-3 shops near Navypul but the shops were closed at that time. He further deposed that NCB form was filled up by HC Pune Ram. This witness admitted that there were 4-5 houses situated above Navypul and that there were 2-3 shops near Navypul but the shops were closed at that time. He further deposed that NCB form was filled up by HC Pune Ram. He also stated that opium was taken into possession after about one hour from the time when the accused was overpowered. 11. The other witness of search and seizure Constable Ishwari Ram has not been examined by the prosecution and was given up. 12. PW-7 HHC Santosh Kumar, who was also member of the police party, deposed that while they had laid Naka one HRTC bus came from Swad side which stopped 100 meters behind Dogla Nullah and from which one person alighted and started walking towards Nagaan. This witness has further stated that bus was going from Tarana to Delhi and the same was checked by the police party. According to him, the accused tried to escape but was overpowered by the police party and there was no habitation nearby nor any independent witness was available. In his cross-examination, this witness has stated that they were present at the spot for 5-10 minutes when Karana-Delhi bus came. He expressed his ignorance about the fact that the there were 4-5 houses situated above Navypul. This witness further deposed that he left the spot for the Police Station on foot but after walking for some distance he got lift in a private vehicle. As per him, he handed over the case file to the Investigating Officer on the spot at 10.00 A.M. and they left the spot at 12.30 P.M. and went to Shawad and reached there at 3.00 or 3.30 P.M. 13. HC Anup Kumar entered the witness box as PW-10 and stated that at the relevant time he was posted as MHC in Police Station Ani and on 03.09.2010 he sent the case property alongwith the sample and seal to FSL Junga. 14. PW-6, PW-7 and PW-9 in our considered view are the key witnesses keeping in view the fact that no independent witness has been associated by the police during the search and seizure. 14. PW-6, PW-7 and PW-9 in our considered view are the key witnesses keeping in view the fact that no independent witness has been associated by the police during the search and seizure. It is incumbent upon us to closely scrutinize the statements of these three witnesses in order to satisfy ourselves as to whether the judgment of acquittal returned by learned trial Court is sustainable or whether learned trial Court has erred in not convicting the accused. 15. The justification which has been given by the prosecution witnesses for not associating any independent witness with search and seizure is that the site of occurrence was secluded as there was neither habitation nearby nor any person was present. It is apparent and evident from the testimony of PW-6, PW-7 and PW-9 that in fact no effort was made by PW-9 to join any independent witness with the search and seizure of the contraband allegedly recovered from the accused. The stand of PW-7 and PW-9 that there was no habitation nearby and therefore, no independent witness could be associated is belied from the testimony of PW-6 Kashmi Ram, who in his cross-examination has admitted that Dogla Nullah is situated at a distance of 400-500 meters from Navypul and that there were 4-5 houses situated above Navypul and 2-3 shops were also there near Navypul but those shops were closed at that time. It is not the case of the Investigating Officer that though he made attempt to associate independent witness but he could not do so. Therefore, in the teeth of the testimony of PW-6 that there were 4-5 houses situated above Navypul and 2-3 shops were there near Navypul though the same were closed, the act of the Investigating Officer of not making any effort to associate any independent witness with the search and seizure, creates a doubt over the veracity of the story of the prosecution. It is settled law that the reason as to why independent witnesses are associated with the search and seizure is to ensure that on one hand it acts as a protector of the right of the accused and on the other hand, it gives veracity also to the case of the prosecution. 16. In the present case, there are other inconsistencies and contradictions in the testimony of the prosecute witnesses. 16. In the present case, there are other inconsistencies and contradictions in the testimony of the prosecute witnesses. As per PW-7 and PW-9, the police party had reached the place where Naka was laid about 5-10 minutes before the HRTC bus came there, whereas as per PW-6, the police party had reached the spot about 30 minutes before the bus came. PW-9 in his cross-examination has stated that when they were at Nagaan one bus came from Ani side at 5.45 A.M. which was checked by them, however, this fact has not been deposed either by PW-6 or PW-7. 17. Now comes the most incriminating factor as far as the case put forth by the prosecution is concerned. PW-6, PW-7 and PW-9 in unison have stated that the bus in issue came at around 6.45 A.M. and it stopped 100 meters behind Dogla Nullah and the accused alighted from the bus and started walking towards Nagaan. According to all these witnesses, when accused saw the police party, he tried to escape but he was overpowered by the police party. All these witnesses have also stated that the HRTC bus in issue was checked by the police party in which 10-15 passengers were traveling and nothing incriminating were found from the said passengers. If the version of these witnesses is to be believed then the police party searched HRTC bus in which the accused was also travelling but nothing incriminating was found by the police party from the passengers of the said bus which also included the accused. If this version of the prosecution is to be believed then the story being putforth by the prosecution to the effect that the bus stopped 100 meters behind Dogla Nullah and from the said bus accused alighted and when he saw the police party he tried to escape is false and incorrect. This is for the reason that if this version of the prosecution is correct then its other version that the police party checked the bus is falsified. It cannot be that firstly the police party checked the bus and thereafter it returned back to the Naka and thereafter accused alighted from the bus and when he again saw the same police party which had earlier checked him in the bus he tried to run away but was over powered. It cannot be that firstly the police party checked the bus and thereafter it returned back to the Naka and thereafter accused alighted from the bus and when he again saw the same police party which had earlier checked him in the bus he tried to run away but was over powered. There is no explanation given by the prosecution that if the police party had in fact checked the bus in which the accused was also travelling then why polythene bag was not recovered by the police party during the course of said checking. None of the said witnesses have deposed that when the bus stopped about 100 meters from Dogla Nullah, they immediately searched the bus and they did not allow any person to get down from the bus till the time the search was over. On the other hand, all these three witnesses in unison had stated that immediately after the bus stopped about 100 meters from Dogla Nullah, the accused got down from the bus. 18. In our considered view, had it been a case that after the bus stopped at Dogla Nullah the police party had in fact really checked the bus and the accused was carrying the contraband alongwith him then nothing stopped the police from having recovered the contraband from the accused during the search of the said bus. Further, if the accused had in fact alighted from the bus immediately when it stopped and the police party had in fact checked the bus as is the case of the prosecution, then obviously the accused had ample time to run away from the spot. The factum of the bus having been checked by the police party on 21.04.2008 at 6.45 A.M. and the accused travelling in the said bus has not been proved by the prosecution by bringing into the witness box either the driver or conductor of the said bus or any other passenger especially when route of the bus was known to the prosecution and it is matter of record that the bus belonged to Himachal Road Transport Corporation. 19. 19. All these facts in our considered view shroud the case of the prosecution with suspicion and it cannot be said that the prosecution has proved its case beyond reasonable doubt that the search and seizure in fact took place in the mode as has been projected by the prosecution or that the contraband in fact was recovered from the exclusive possession of the accused as per the case put forth by the prosecution. 20. Besides this, another important aspect of the matter is that whereas PW-6 and PW-7 have deposed that the accused reached the site after he alighted from the bus in a couple of minutes, as per PW-9 it took the accused 5-10 minutes to reach the spot after getting down from the bus. This seems highly improbable because as per the case of the prosecution the accused had deboarded the bus 100 meters from the place where Naka was laid down by the police party. This also creates serious doubt about the veracity of the case of the prosecution because it will not take a person normally 5 to 10 minutes to cover 100 metera distance. 21. PW-9 has stated on oath that he seized opium at around 8.00 A.M. As per the testimony of PW-6, case property was seized one hour after the accused was apprehended by the police party. However, a perusal of the entries made in NCB form Ext. PW1/B demonstrates that the case property was seized at 6.45 A.M. Thus, the entry in the NCB form is not in harmony with the testimony of PW-6 and PW-9. Ext. PW1/D is daily diary report dated 21.04.2008 as per which the departure of HC Pune Ram, HHC Kashmi Ram, HHC Santosh Kumar and Constable Ishwari Ram for the purpose of Nakabandi is mentioned at “ Samay Teen Baje Din Darj Hai”. This belies as has been putforth by the prosecution and as has been stated by PW-6, PW-7 and PW-9 that they had left Police Station for the purpose of Naka after making necessary entries in the daily diary register at 3.00 A.M. HC Pune Ram PW-9 also stated that he presented the case property alongwith NCB form before PW-1 HC Rajinder Singh who resealed it and thereafter the same was deposited in the Malkhana. However, HC Rajinder Singh who entered the witness box as PW-1, in his cross-examination has admitted that there is no entry about the deposit of NCB form in the Malkhana register. 22. From all that has been discussed above, it cannot be said that on the basis of material produced on record by the prosecution, it stood proved beyond reasonable doubt that the accused was guilty of commission of offence punishable under Section 18 of the NDPS Act. We have also perused the judgment passed by learned trial Court and according to us, learned trial Court after taking into consideration the entire material produced on record by the prosecution and after appreciating the same has rightly concluded that the prosecution in fact had failed to prove beyond reasonable doubt that the contraband in fact was found from the exclusive and conscious possession of the accused. We concur with the findings which has been so arrived at by learned trial Court. There is neither any perversity nor any infirmity with the findings so recorded by learned trial Court and, therefore, while upholding the judgment passed by learned trial Court, we dismiss the present appeal being devoid of any merit. Bail bonds, if any, furnished by the accused are discharged.