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Himachal Pradesh High Court · body

2016 DIGILAW 1947 (HP)

State of Himachal Pradesh v. Hottam Ram

2016-09-09

AJAY MOHAN GOEL, SANJAY KAROL

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JUDGMENT : Ajay Mohan Goel, J. By way of this appeal, State has challenged the judgment passed by the Court of learned Special Judge, Fast Track, Kullu, in Sessions Trial No. 63 of 2010 dated 30.09.2011, vide which, learned trial Court has acquitted the accused for commission of offence punishable under Section 20 of Narcotic Drugs & Psychotropic Substances Act. 2. The case of the prosecution was that on 04.07.2010, at about 5.00 p.m., Onkar Singh alongwith other police officials was going from Naggar road towards Saran Gaon on foot for patrolling duty. While on patrolling duty, police party saw one person coming from village Saran towards Naggar side at an isolated place on foot. This person, as soon as he saw the police party, started running. He was carrying one pink colour red bag in his hand. On the basis of suspicion, this person was nabbed by the police who on inquiry disclosed his name as Hottam Ram. SI Onkar Singh tried to associate some local person before conducting search of the accused, however, no local person was available at the site because the accused was nabbed at an isolated place. Accordingly faced with this situation, SI Onkar Singh associated ASI Lal Chand and Constable Hira Lal as witnesses. Thereafter, they gave their personal search to accused and this was followed with the search of the bag which was being carried by the accused. The police party found one polythene envelope inside the bag which was being carried out by the accused. In this polythene envelope Charas in the shape of pancake and rectangles was kept. Said Charas was weighed with the help of traditional scale and it was found to be 1 Kg. 500 grams. Thereafter, Charas was put back in the same envelope, which envelope was placed back in the same bag and wrapped in a apiece of cloth. This parcel was sealed with seal impression ‘A’ at six places and thereafter, SI Onkar Singh filled up NCB I form in triplicate. The specimen of the seal was taken on the NCB I form as well as on a piece of cloth. Thereafter, the seal was entrusted to ASI Lal Chand. Recovery and seizure memo were also prepared which were signed by the accused and witnesses. A Rukka was sent to Police Station on the basis of which FIR was registered. The specimen of the seal was taken on the NCB I form as well as on a piece of cloth. Thereafter, the seal was entrusted to ASI Lal Chand. Recovery and seizure memo were also prepared which were signed by the accused and witnesses. A Rukka was sent to Police Station on the basis of which FIR was registered. SI Onkar Singh prepared the site plan and also recorded the statements of the witnesses. Accused was arrested at around 8.00 P.M. near Saran Gaon. Arrest Memo was prepared and information about the arrest of the accused was given to his son. Thereafter, SI Onkar Singh alongwith accused came to the Police Station and produced the case property before SI/SHO, who resealed the same with seal ‘K’. SI/SHO took samples of seal on pieces of cloth and also filled up relevant columns of NCB I form. The case property was deposited with MHC alongwith NCB form and sample seals. The case property was thereafter sent to FSL Junga alongwith other relevant documents. Chemical examination of the same revealed that the seized property was Charas. 3. After completion of the investigation, challan was filed in the Court and as a prima facie case was found against the accused, he was charged for commission of offence punishable under Section 20(b)(ii)(C) of Narcotic Drugs & Psychotropic Substances Act, to which, he pleaded not guilty and claimed trial. 4. In order to prove its case, prosecution in all examined 11 witnesses. 5. LC Meena Kumari entered the witness box as PW-1 and she deposed that on 06.07.2010 S.O. Onkar Singh had handed over special report to her with the direction to take the same to Dy. S.P. Manali, which direction was followed by her. 6. PW-2 HHC Sher Singh proved on record the receipt of special report which was handed over by Dy. S.P. Ashish Sharma to him. 7. PW-3 HC Gautam Chand proved on record that on 06.07.2010 MHC Police Station Manali handed over case property alongwith NCB I form and other relevant documents vide RC No. 148 of 2010 and he handed over the said case property and other relevant documents to dealing hand (at FSL Junga) on 07.07.2010. S.P. Ashish Sharma to him. 7. PW-3 HC Gautam Chand proved on record that on 06.07.2010 MHC Police Station Manali handed over case property alongwith NCB I form and other relevant documents vide RC No. 148 of 2010 and he handed over the said case property and other relevant documents to dealing hand (at FSL Junga) on 07.07.2010. In his cross-examination, he stated that the case property was handed over to him by MHC at about 9.00 P.M. and he boarded HRTC night bus to Shimla at 9.30 P.M. and reached the laboratory on the next day at 10.00 A.M. 8. MHC Sher Singh entered the witness box as PW-4 and he deposed the factum of his having received the case property from SI Om Prakash and thereafter sending the case property to FSL Junga through PW-3. 9. Inspector Om Prakash entered the witness box as PW-5 and deposed that on 04.07.2010 he was performing the duties of SHO Police Station Manali when at 9.00 P.M. SI Onkar Singh handed over one parcel sealed with six impressions of seal ‘O’ alongwith NCB I form in triplicate and sample seal which were resealed by him with seal ‘K’ by affixing four impressions thereon. He also stated that thereafter he had handed over the parcel, NCB I form and samples seal to MHC for depositing the same in Malkhana. 10. ASI Shiv Singh entered the witness box as PW-6 and stated that he had carried out the investigation in the matter after the transfer of SI Onkar Singh and also recorded the statements of MHC Sher Singh, SI Om Prakash, HHC Gautam, HHC Sher Singh and LC Meena. 11. HHC Gurdial Singh entered the witness box as PW-7 and stated that on 04.07.2010 he entered rapat No. 21 regarding departure of police party for the purpose of patrol duty towards Naggar. He also stated that on the same day at 11.00 P.M., he entered rapat No. 35 when SI returned back to Police Post. 12. Constable Hira Lal entered the witness box as PW-8 and stated that on 04.07.2010 he alongwith ASI Lal Singh, SI Onkar Singh, Constable Narender Kumar and Constable Nikhil Kaundal were going towards village Saran from Naggar side on foot and they saw a person coming from Saran side towards Naggar side, who was carrying pink colour bag in his right hand. When that person saw the police party he turned back. Police party apprehended the accused and when his antecedents were asked, he disclosed his name as Hottam Ram. This witness further stated that they apprehended the accused at an isolated place. SI Onkar Singh associated him and ASI Lal Singh as witnesses. He further stated that SI Onkar Singh gave his personal search to the accused and Memo Ext. PW8/A was prepared which contained his signatures. This witness further stated that thereafter Onkar Singh conducted the search of the bag which was being carried by the accused and the bag contained one polythene envelope in which Charas in pancake and rectangular shape was found. The same was weighed with the help of traditional balance which was in the kit of the Investigating Officer and the same was found to be weighing 1Kg. and 500 grams. This witness further deposed that thereafter the Charas was put back in the polythene envelope and the bag which were wrapped in a piece of cloth and parcel was sealed with seal impressions of seal ‘O’ at six places. SI filled the NCB form and parcel was taken into possession vide recovery memo Ext. PW8/B which he signed as a witness. He stated that the same was also signed by ASI Lal Chand and the accused. As per him, SI Onkar Singh prepared Rukka, which was handed over to him with the direction to take the same to Police Station Manali. PW-8 further stated that he handed over the Rukka to MHC Sher Singh and took back the case file to the spot. In his cross-examination, this witness stated that statement Ext. DB which was his statement recorded under Section 161 Cr.P.C. was in his own hand. He admitted that village Saran and Naggar are adjoining to Rorik Art Gallery. He stated that the police party started from P.P. Patlikuhl at 2.30 P.M. and they went upto Art Gallery in a private vehicle. He further stated in his cross-examination that they were three persons when they started from P.P. Patlikuhl and near Art Gallery, ASI Lal Chand and Constable Narender Kumar met them. He further stated that they walked for about 5 minutes, after they got down from the vehicle and ASI Lal Chand and Constable Narender met them near the Art Gallery. He admitted that in his statement Ext. He further stated that they walked for about 5 minutes, after they got down from the vehicle and ASI Lal Chand and Constable Narender met them near the Art Gallery. He admitted that in his statement Ext. DB it was not recorded that the accused was arrested in his presence and Memo to this effect was prepared. He further stated in his cross-examination that he scribed Ext. DB after the Rukka was taken by him to the Police Station. He stated that Rukka was handed over to him at 6.15 P.M. He walked some distance on foot and thereafter, took lift upto Chowk and then went in another vehicle to Police Station Manali, where he reached at 7.20 P.M. He stated that Police Station Manali was at a distance of about 24-25 KM from Naggar. He admitted that distance between Rorik Art Gallery was about 2.5 KM from Naggar Chowk. He stated that MHC handed over case file to him at 7.35 P.M. and he reached back at the spot alongwith the case file in between 8.00 to 8.20 P.M. by taking lift in a private vehicle. He admitted it to be correct that he was present at the Police Station at 7.50 P.M. 13. SI Onkar Singh entered the witness box as PW-9 and he also reiterated the factum of apprehending the accused on 04.07.2010 from whom Charas was recovered. This witness stated that the accused was arrested at an isolated place and he tried to search for local witnesses but no one was available there. He stated that he in these circumstances associated ASI Lal Chand and Constable Hira Lal as witnesses and thereafter, conducted the search and seizure. This witness stated that he checked the carry bag which was in the hand of the accused and found one polythene bag containing pancake and stick shape Charas in it. He weighed the Charas which was found to be 1Kg. 500 grams. Charas was again put back in the same polythene bag and thereafter placed in pink colour bag which was wrapped in white coloured cloth. The parcel was sealed with seal impressions of seal ‘A’ at six places and he also filled up NCB form in triplicate. This witness further stated that he prepared Rukka and handed over the same to Constable Hira Lal, which he took to Police Station. The parcel was sealed with seal impressions of seal ‘A’ at six places and he also filled up NCB form in triplicate. This witness further stated that he prepared Rukka and handed over the same to Constable Hira Lal, which he took to Police Station. This witness further deposed that he had drawn the sample of seal on pieces of cloth. He also stated that statements of the witnesses were recorded as per their versions. In his cross-examination, he stated that they went upto Naggar Chowk in a private vehicle. He further deposed that he could not tell the registration number of the vehicle, name of the driver or name of the owner of the vehicle. This witness further stated that police party went upto the spot on foot from Naggar Chowk. He also deposed that they stopped at Art Gallery for few minutes as they were on patrolling duty and many tourists were there at the Art Gallery. He further stated that they stopped at the Art Gallery at about 4.30 P.M. and started from there at 4.45 P.M. He further stated that they spotted the accused coming from village Saran side at a distance of about 20 meters. According to this witness, accused turned back and ran a distance of 10 meters before the accused was nabbed by them. This witness further deposed that he tried to locate and associate local panch witnesses from nearby locality but no one was available as the accused was apprehended at an isolated place. According to him, the accused was apprehended at a distance of 500 meters away from Art Gallery. He also stated that he did not go upto Art Gallery for search of panch witnesses. According to him, Charas was recovered at 5.10 P.M. and he handed over Rukka to Constable Hira Lal at 6.15 P.M. Incidentally, this witness says that statement of Hira Lal was dictated by him and scribed by Hira Lal himself. He also deposed that he had added FIR No. in Ext.PW4/D after receiving the case file. 14. On the basis of material produced on record by the prosecution, learned trial Court held that the prosecution had miserably failed to prove that 1Kg. 500 grams Charas were found from the conscious and exclusive possession of the accused. He also deposed that he had added FIR No. in Ext.PW4/D after receiving the case file. 14. On the basis of material produced on record by the prosecution, learned trial Court held that the prosecution had miserably failed to prove that 1Kg. 500 grams Charas were found from the conscious and exclusive possession of the accused. Accordingly, learned trial Court acquitted the accused for commission of offence under Section 20 of Narcotic Drugs & Psychotropic Substances Act. 15. Mr. V.S. Chauhan, learned Additional Advocate General argued that the judgment of acquittal returned by learned trial Court in favour of the accused is perverse and the findings so returned by learned trial Court are not based on the material produced on record by the prosecution. Mr. Chauhan argued that it stood proved from the material that was placed on record by the prosecution, both ocular as well as documentary, that the accused was found in exclusive and conscious possession of 1 Kg. 500 grams of Charas. According to Mr. Chauhan, the factum of the accused having been apprehended with the said narcotic was duly substantiated by the prosecution witnesses and there was no reason for learned trial Court to have disbelieved the cogent and reliable testimony of the prosecution witnesses. It was further argued by Mr. Chauhan that the inference drawn by learned trial Court to acquit the accused on the ground that no independent witness had been associated by the prosecution was not sustainable because learned trial Court failed to appreciate this aspect of the matter that as the accused was apprehended at an isolated place, it was not possible for the police to have had associated any independent witness. Mr. Chauhan further argued that even otherwise it stood substantiated from the testimony of the Investigating Officer and Hira Lal that the search and seizure had been done strictly as per the provisions of the NDPS Act. Mr. Chauhan further argued that learned trial Court had erred in not appreciating that there were no major contradictions and inconsistencies in the statements of prosecution witnesses. Minor inconsistencies if any in no manner impinged the trustworthiness of the said witnesses. On these basis, it was argued by Mr. Chauhan that the judgment of acquittal passed by learned trial Court was not sustainable in law and the same was liable to be set aside. 16. Mr. Minor inconsistencies if any in no manner impinged the trustworthiness of the said witnesses. On these basis, it was argued by Mr. Chauhan that the judgment of acquittal passed by learned trial Court was not sustainable in law and the same was liable to be set aside. 16. Mr. Ajay Chandel, learned counsel for the respondent, on the other hand, argued that there was neither any perversity nor any infirmity with the findings of acquittal returned by learned trial Court in favour of the accused. According to Mr. Chandel, the material produced on record by the prosecution did not prove beyond reasonable doubt that the accused was in fact apprehended by the police party with Charas. Mr. Chandel argued that the reason as to why no independent witness was associated by the Investigating Officer was that in fact the accused had not been apprehended by the police at all. According to him, the entire case of the prosecution was concocted and the accused was falsely implicated in the case. Mr. Chandel further argued that the testimony of the prosecution witnesses which comprised only of police witnesses was neither cogent nor the same was trustworthy. He further argued that there were many contradictions and inconsistencies in the same which created great doubt on the truthfullness of the case of the prosecution. Accordingly, he prayed that there was no merit in the present appeal and the same be dismissed. 17. We have heard learned counsel for the parties and also gone through the records of the case as well as the judgment passed by learned trial Court. 18. Admittedly, in the present case, no independent witness has been associated by the Investigating Officer in the search and seizure carried out at the spot by the Investigating Officer. The reason for this given by the Investigating Officer and other prosecution witnesses is that the accused was apprehended at an isolated place and because of this no independent witness could be associated. In our considered view, the said reason which has been putforth by the prosecution does not inspires confidence. The reason for this given by the Investigating Officer and other prosecution witnesses is that the accused was apprehended at an isolated place and because of this no independent witness could be associated. In our considered view, the said reason which has been putforth by the prosecution does not inspires confidence. It has come in the testimony of the Investigating Officer that the police party in fact had stopped at Rorik Art Gallery at 4.30 P.M. because lot of tourists were there and the police party left the said place at 4.45 P.M. This witness has further deposed that after the accused was apprehended and search was conducted, Charas was recovered at 5.10 P.M. This means that the accused was apprehended by the police party between 4.45 P.M. and 5.10 P.M. If the police party had apprehended the accused within 15 to 25 minutes of leaving Rorik art Gallery, it is not understood as to why no person of the police party was sent by the Investigating Officer to search for an independent witness. This shrouds the case of the prosecution with suspicion. We are not oblivious to the fact that it is not as if in each and every case independent witnesses have to be associated by the prosecution to prove its case but in our considered view, in the peculiar facts and circumstances of the present case, non-association of the independent witness creates serious doubts about the story as has been propounded by the prosecution. 19. As per prosecution, the search and seizure of Charas from the accused has been witnessed by Constable Hira Lal and ASI Lal Chand. Though, constable Hira Lal has entered the witness box as PW-8, however, ASI Lal Chand was not examined by the prosecution as a witness. As per PW-8 Constable Hira Lal, the police party which had apprehended the accused comprised of ASI Lal Singh, SI Onkar Singh, Constable Narender Kumar and Constable Nikhil Kaundal. However, except PW-8 Constable Hira Lal and Investigating Officer Onkar Singh, none of the other persons who were members of the police party were examined by the prosecution. Why no other member of the police party was examined by the prosecution to substantiate its case, could not be satisfactorily explained by the appellant/State. 20. Now coming to the testimony of Constable Hira Lal, who entered the witness box as PW-8. Why no other member of the police party was examined by the prosecution to substantiate its case, could not be satisfactorily explained by the appellant/State. 20. Now coming to the testimony of Constable Hira Lal, who entered the witness box as PW-8. This witness has stated that his statement recorded under Section 161 Cr.P.C. was written in his own hand. He has admitted in his cross-examination that it was not recorded in statement Ext. DB that the accused was arrested in his presence and Memo to this effect was also prepared. This witness has further deposed that after taking Rukka to the Police Station he reached the spot back alongwith the case file between 8.00 to 8.20 P.M. In the same breath, he has admitted it to be correct that he was present at Police Station Manali at 7.50 P.M. In other words, this witness wants this Court to believe that distance of 24-25 KM between Police Station Manali and Naggar was covered by this witness between 10 to 20 minutes. PW-9 SI Onkar Singh in his cross-examination has admitted that he had not gone upto Art Gallery to search for independent witnesses. He stated in his cross-examination that accused was apprehended at a distance of 500 meters from Art Gallery. Incidentally, in his cross-examination, Investigating Officer has stated that the statement of Hira Lal was dictated by him and the same was scribed by Hira Lal himself. Further, Hira Lal has stated in his cross-examination that he reached back at the spot alongwith case file between 8.00 to 8.20 P.M., whereas PW-9 in his cross-examination has stated that they started from the spot at 8.00 P.M. 21. NCB form is on record as Ext. PW4/D. A perusal of the same demonstrates that case FIR No. was already written on it in the same handwriting and with the same pen with which the other contents of the said form have been filled in. In the said NCB form, the date and time of the seizure has been mentioned as 4.7.2010 at 6.00 P.M. near village Saran. In the said NCB form, the date and time of the seizure has been mentioned as 4.7.2010 at 6.00 P.M. near village Saran. Against column No. 7 of the said form which pertains to date of dispatch by the officer to Police station, the date is mentioned as 04.07.2010 and time of discharge is mentioned as 9.00 P.M. However, a perusal of column No. 10 of the said form demonstrates that date and time and place of deposit of the case property with MHC has been mentioned as 04.07.2010 at 9.00 P.M. at Police station Manali. 22. In our considered view, the factum of the mentioning of FIR No. in the NCB form in the same ink and hand in which columns No. 1 to 8 had been filled up coupled with the fact that the time of dispatch and time of deposit of the case property with MHC is both 9.00 P.M., the case of the prosecution becomes highly suspicious. As we have already taken note of above, village Naggar is at a distance of 24-25 KM from Police Station Manali and as per PW-8, he started from the spot where the accused was allegedly apprehended by the police party for Police Station Manali alongwith Rukka at 6.15 P.M. and he reached there at 7.20 P.M. This witness further deposed that he reached back to the spot alongwithg the case file in between 8.00 to 8.20 P.M. In his cross-examination, PW-8 has stated that the file was handed over to him by the MHC at 7.35 P.M. This testimony of PW-8 is contrary to the daily diary entries for 04.07.2010 where arrival of PW-8 at Police station has been shown against entry No. 29 as 7.20 P.M. and his departure has been shown against entry No. 31 as 7.50 P.M. We have also taken note of the fact that it is highly improbable and impossible to cover a distance of about 24-25 KM within a period of 25 minutes in hilly terrain. 23. Besides this, there are other major discrepancies in the statements of PW-8 and PW-9. According to PW-8 Constable Hira Lal, he reached the spot in a private vehicle and thereafter, he scribed the statement Ext. DB under Section 161 Cr.P.C. and he has also stated that he was a witness to the arrest Memo. 23. Besides this, there are other major discrepancies in the statements of PW-8 and PW-9. According to PW-8 Constable Hira Lal, he reached the spot in a private vehicle and thereafter, he scribed the statement Ext. DB under Section 161 Cr.P.C. and he has also stated that he was a witness to the arrest Memo. The factum of alteration in the time of arrest in the arrest Memo has been admitted by the Investigating Officer PW-9, who stated that Hira Lal in fact had met the police about 1 KM away from the spot. This testimony of his also weakens the case of the prosecution because according to PW-8, he had scribed his statement Ext. DB at the spot and the accused was also arrested at the spot. PW-8 in his statement has also deposed that the Charas which was recovered from the accused was in the shape of pancake and rectangular. On the other hand, PW-9 in his statement has deposed that the Charas which was recovered from the accused was in the shape of pancake and stick shape. A perusal of NCB form demonstrates that the recovered Charas was in the shape of Chapati. All these discrepancies, inconsistencies and contradictions in the statements of the prosecution witnesses creates a serious doubt as to whether the accused was actually apprehended by the police in the mode and manner, as has been putforth by the prosecution and whether the Charas was actually recovered from the exclusive and conscious possession of the accused as prosecution wants this Court to believe. 24. A perusal of the judgment passed by learned trial Court demonstrates that all these aspects of the matter have been gone into in detail by learned trial Court and thereafter, learned trial Court has come to the conclusion that the prosecution was not able to prove its case against the accused beyond reasonable doubt. It was held by learned trial Court that the contradictions in the case of the prosecution led to two views including a view which is in favour of the accused. On these basis it was held by learned trial Court that when two views are possible then the view which favours the accused has to be taken. On these basis, the accused was acquitted by learned trial Court. 25. On these basis it was held by learned trial Court that when two views are possible then the view which favours the accused has to be taken. On these basis, the accused was acquitted by learned trial Court. 25. In our considered view, the findings so returned by learned trial Court are well founded and are borne out from the appreciation of the material placed on record by the prosecution. The evidence which has been produced on record by the prosecution both ocular as well as documentary does not prove beyond reasonable doubt that the accused in fact was apprehended by the police party on 04.07.2010 at village Saran in the mode and manner in which the prosecution wants this Court to believe, nor the prosecution has been able to establish beyond reasonable doubt that 1Kg. 500 grams Charas was recovered from the exclusive and conscious possession of the accused beyond reasonable doubt. Therefore, while upholding the findings returned by learned trial Court, we dismiss the present appeal being devoid of any merit. Bail bonds, if any, furnished by the accused are discharged.