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2016 DIGILAW 1950 (HP)

State of H. P. v. Madan Lal

2016-09-09

CHANDER BHUSAN BAROWALIA, DHARAM CHAND CHAUDHARY

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JUDGMENT : Chander Bhusan Barowalia, J. The present appeal is maintained by the appellant/State against the judgment of acquittal dated 18.01.2011, passed by the learned Additional Sessions Judge, Ghumarwin, District Bilaspur, H.P., in Sessions Trial No.1/3, of 2009, whereby the accused, who was charged under Sections 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985, has been acquitted. 2. Briefly stating the facts giving rise to the present appeal, as per the prosecution story, are that on 20.12.2006, at about 7.30 AM, Rajinder Kumar, Inspector(PW9), along with ASI Hari Ram (PW1), Constable Amarjeet Singh (PW2), HHC Kuldeep Singh No.30, Constable Suneel Kumar, No.420 and Constable Amarjeet No.1 were present at Kaller More along with Driver Raj Kumar No.447, in connection with Nakkabandi. It has been alleged that at about 7.30 AM, a private bus of Rama Bus Service having registration No.HP-69-0110, came from Daloh, which was signaled to stop, the same was driven by Yashpal and the Conductor of the bus was Ramesh Kumar. The police party searched the bus and the passengers. The accused was stated to be sitting on seat No.1 of the bus and was having a polythene bag on his lap, which he was holding in his both hands. On asking, he disclosed his name as Madan Lal son of Hardiyal Singh, resident of village Palasa, Tehsil Ghumarwin. The polythene bag, which was being carried by the accused, was searched by the Investigating Officer, it was found to have containing Charas in the form of sticks. Weighing scale and weights of 500 grams, 200 grams and 50 grams were taken from the shop of Parkash Chand situated at a distance of 6-7 feet from the spot and recovered charas was weighed, which was found to be 750 grams. Two samples 25 grams each were drawn from the sticks and were kept in two plastic containers and remaining charas was put into the same polythene bag and was packed with a cloth. Samples packets were also packed with cloth and sealed with seal bearing impression ‘R’. Two seals were affixed on sample having impression ‘R’ and five seals of impression ‘R’ were affixed on the parcel containing bulk quantity. NCB forms, in triplicate, were stated to be filled-in on the spot and all the three cloth parcels were taken into possession vide seizure memo Ext. Two seals were affixed on sample having impression ‘R’ and five seals of impression ‘R’ were affixed on the parcel containing bulk quantity. NCB forms, in triplicate, were stated to be filled-in on the spot and all the three cloth parcels were taken into possession vide seizure memo Ext. PW-1/A duly signed by witness Yashpal (Driver), Ramesh Kumar (Conductor) and ASI Hari Ram and copy of the seizure memo was supplied to the accused free of cost, who also appended his signatures, as token of receipt. 3. PW9 Rajinder Kumar, scribed rukka Ext.PW-2/A, which was sent to Police Station for registration of FIR through Constable Amarjeet Singh (PW-2), who later on came to the spot with the case file. The Investigating Officer inspected the spot and prepared site plan Ext. PW-9/A and specimen of seal was also taken on the NCB forms in column No.8 and Investigating Officer also recorded the statements of witnesses Ramesh Kumar and Yashpal Ext.PW-9/B and Ext.PW-9/C respectively. The accused was arrested and information regarding his arrest was given to his father Hardial Chand. The Investigating Officer sent the special report Ext.PW-3/A to the Superintendent of Police, Bilaspur, H.P. through Constable Chander Kant(PW-3). The Chemical Examiner’s report Ext.PW-9/D was procured by the investigating Officer. 4. It has further been alleged that from the year 2005 to 2007, PW-6 ASI Shamsher Singh remained posted as MHC in P.S., Talai. On 20.12.2006, Inspector/SHO Rajinder Kumar deposited three cloth parcels, out of which, two parcels contained 25 grams of charas, as sample, were sealed with seal bearing impression ‘R’ at two places and third parcel was containing 700 grams of the remaining charas and bearing five seals of seal impression ‘R’ along with NCB forms in triplicate and MHC entered these parcels at Sr. No.360 in the Malkhana register, extract of which is Ext.PW-6/A. The MHC sent one sample of the charas to CFSL, Chandigarh through Constable Chander Kant (PW-3), which was deposited by Constable Chander Pal in CFL, Chandigarh on 22.16.2006, after obtaining its receipt on the R.C., which was returned to MHC PW-6, Shamsher Singh. PW-5 ASI Nanak Chand, who remained posted as Reader to the Superintendent of Police, Bilaspur in the year 2006-2007, on 20.12.2006, received Special Report and handed-over the carbon copy with receipt to Constable Chander Kant and made an entry at Sr. PW-5 ASI Nanak Chand, who remained posted as Reader to the Superintendent of Police, Bilaspur in the year 2006-2007, on 20.12.2006, received Special Report and handed-over the carbon copy with receipt to Constable Chander Kant and made an entry at Sr. No.21 of the Special Report Register maintained in the office of Superintendent of Police, Bilaspur. S.I. Sohan Lal(PW-7) received rukka, Ext.PW-2/A, through Constable Amarjeet Singh on 20.12.2006, which was sent by Inspector/SHO Rajinder Kumar at 11.20 A.M. on the basis of which, FIR Ext.PW-7/A, was registered at the Police Station, Talai. The report of the Chemical Examiner Ext.PW-9/D reveals that Ext.A-1 is sample of Charas. 5. To prove its case, the prosecution examined as many as 09 witnesses. PW1 SI Hari Ram and PW2 Constable Amarjeet Singh, the members of the Police Party, who checked the bus and recovered 750 grams of Charas from the polythene bags being carried by the accused while he was travelling in Bus No.HP-69-0110 and was sitting on seat No.1. PW3 LHC Chander Kant, who brought the special report from the spot, handed-over the same to the Superintendent of Police, Bilaspur and also deposited the sample of Charas in CFSL, Chandigarh on 22.12.2006. PW4 Parkash Chand from whose shop the scale and weights have been alleged to be brought by the police for weighing Charas, was declared hostile by the prosecution. PW5 ASI, Nanak Chand the then Reader to the Superintendent of Police, Bilaspur, who received the Special Report and entered it into the Special Report Register at Sr. No.21. PW8 ASI Shamsher Singh, the then MHC in Police Station, Talai with whom the case property was deposited by the Investigating Officer, who sent the sample of Charas through Constable Chander Kant to CFSL, Chandigarh. PW7 S.I. Sohan Singh, registered FIR Ext.PW-7/A on 20.12.2006 on the basis of rukka Ext. PW-2/A. PW8 Ramesh Kumar, who was the Conductor of the bus in question, was declared hostile by the prosecution. PW9 Rajinder Kumar investigated the case. 6. The accused was examined under Section 313 Cr.P.C., which he denied the prosecution case and stated that nothing was recovered from his possession and that he has been invoked in false and frivolous case by the prosecution. In defence, he has led no evidence. 7. We have heard the learned counsel for the parties and have also gone through the record. 8. In defence, he has led no evidence. 7. We have heard the learned counsel for the parties and have also gone through the record. 8. The learned Additional Advocate General has argued that the findings recorded by the Court below are against the facts on record and the Court below has misconstrued the evidence as the prosecution has proved the guilt of the accused beyond shadow of reasonable doubt. He has further argued that the prosecution has proved the guilt of the accused beyond reasonable doubt and so the appeal be allowed. 9. On the other hand, learned counsel appearing for the respondent has argued that none of the witnesses has supported the prosecution case and that the recovery of the Charas is not proved and the appellant is falsely implicated in this case. He has further argued that the judgment of the learned Court below is just, reasoned and no interference is required by this Court. In rebuttal, the learned counsel for the appellant has argued that the accused was found with narcotic charas weighing 750 grams and the possession of the same was fully proved and the accused is liable to be convicted. 10. To appreciate the arguments addressed by the learned counsel for the parties, we have gone through the record in detail. 11. PW9 Rajinder Kumar, Investigating Officer as well as PW1 Hari Ram, S.I. and PW2 Constable Amarjeet Singh had stated that at about 7.30 AM on 20.12.2006, when they were present at Kaller More and has put a nakkabandi, there was a private bus of Rama Bus Service, bearing registration No.HP-69-0110, came from Daloh side and the bus was stopped. The bus was being driven by driver Yashpal and the Conductor of the Bus was Ramesh Kumar. As per these witnesses, the bus and passengers were searched by the police party. The accused, who was sitting on seat No.1 of the bus, was having a polythene bag on his lap, which he was holding with his both hands and when the polythene bag was searched, it was found containing Charas in the form of sticks. As per these witnesses, the bus and passengers were searched by the police party. The accused, who was sitting on seat No.1 of the bus, was having a polythene bag on his lap, which he was holding with his both hands and when the polythene bag was searched, it was found containing Charas in the form of sticks. The accused disclosed his name, as Madan Lal son of Hardial, resident of village Plasla, Tehsil Ghumarwin, District Bilaspur, H.P. It is alleged that weighing scale and weights of 500 grams, 200 grams and 50 grams respectively were taken from the shop of Parkash Chand, which was situated at a distance of 6-7 feet from the spot and recovered Charas was weighed, which was found to be 750 grams. Two samples each weighing 25 grams from all the sticks were drawn and kept in two plastic containers made into a cloth parcel and sealed with two seals of seal impression ‘R’ and the specimen of the seal Ext. PW-1/A was taken on separate piece of cloth and seal was handed-over to witness Yashpal after use. NCB forms in triplicate were filled in at the spot and all the three clothes parcels were taken into possession vide seizure memo Ext.PW-1/A, which was duly signed by witnesses Yashpal, Ramesh Kumar and ASI Hari Ram and the copy of seizure memo supplied to the accused free of costs. PW-9, Rajinder Kumar, Investigating Officer scribed rukka Ext.PW-2/A, which was sent to Police Station for registration of FIR through PW-2 Constable Amarjeet Singh. The Investigating Officer scribed the spot and prepared spot map Ext.PW-9/A and specimen of seal impression ‘R’ was also taken on NCB form in column No.6 and the investigator also recorded the statements of Ramesh Kumar (Ext.PW-9/B) and Parkash Chand (Ext.PW-9/C) and also sent Special Report Ext.PW-3/A to the Superintendent of Police, Bilaspur, H.P. through Constable Chander Kant and procured the report of the Chemical Examiner (Ext.PW-9/D) and also placed on record the copy of Roznamcha Ext. PW-9/E and deposited all the three parcels and NCB form with MHC Shamsher Singh (PW-6) whereas he entered all these parcels at Sr. No.360 in the Malkhana Register, which is Ext. PW-9/E and deposited all the three parcels and NCB form with MHC Shamsher Singh (PW-6) whereas he entered all these parcels at Sr. No.360 in the Malkhana Register, which is Ext. PW-6/A. One of the sample of Charas marked as A-1 was sent by PW6 ASI Shamsher Singh to CFSL, Chandigarh through PW-3, Chander Kant, who deposited the said sample in C.F.S.L. Chandigarh on 22.12.2006 and obtained its receipt Ext.PW-6/B on the R.C., which was returned to the MHC. PW7 S.I. Sohan Singh registered FIR Ext.PW-7/A on the basis of rukka Ext. PW-2/A, dated 20.12.2006. PW8 Ramesh Kumar, Conductor of the bus, in question, has deposed that four years ago in the winter season he was working as Conductor of the Bus and Yashpal was the driver. He further deposed that the bus was not stopped on the way by anybody at Kaller More and this witness was declared hostile by the prosecution. PW-4 Parkash Chand has also deposed that he was not aware about the facts of the case and this witness was also declared hostile by the prosecution. 12. ASI Nanak Chand (PW-5) has deposed that on 20.12.2006, Constable Cjhander Kant brought the Special Report of this case to him at 4.00 PM and on receiving the Special Report, handed-over the carbon copy with receipt to him and made an entry at Sr. No.21 of the Special Report Register maintained in the office of Superintendent of Police, Bilaspur, which was signed by the then Superintendent of Police, Bilaspur. Special Report (Ext.PW-3/A), was put by him before the Superintendent of Police on the same day, which was signed by him. 13. PW9 Rajinder Kumar, stated that the weighing scale and weights of 500 grams, 200 grams and 50 grams were taken from the shop of Parkash Chand and the recovered Charas was weighed, which was found to be 750 grams. In his statement, he has further deposed that PW1 S.I. Hari Ram and PW2 Constable Amarjeet Singh, both members of the police party were present on the spot and at the same time also he has further stated that the scale and weights were procured from the shop of Parkash Chand and the Charas recovered from the possession of the accused was weighed and the same was found to be 750 grams. But it is a matter of surprise that none of these witnesses, including the Investigating Officer mentioned the name of a person, who brought the scale and weights from the shop of said Parkash Chand nor any of the witness examined by the prosecution in this case has deposed that they brought the scale and weights from the shop of Parkash Chand. Parkash Chand, while appearing in the witness box as PW-4 deposed that his father was running a tea stall at Kaller More and he did not sit in the shop of his father and he is not aware about the facts of the case and this witness has been declared hostile by the prosecution also. Though the witness was cross-examined at length, but during the cross-examination, the witness categorically stated that no person came to the shop and demanded scale and weights. He denied that he gave weights of 500 grams, 200 grams and 50 grams and scale to the S.H.O, Police Station, Talai. The witness has denied that the accused is known to him and he deposed falsely to save the accused. He even denied the suggestion that the accused is his relative. In fact there is no evidence on record to prove as to who and from whom the scale and weights were borrowed as name of the said witness was not disclosed by the Investigating Officer nor by any other official witnesses of the raiding party. The name of the person who brought the scale and the weights was not disclosed by the above three official witnesses that who brought the weights and scales from the shop of Parkash Chand. Now, when Parkash Chand appeared as witness in the witness box as PW4, stated that he did not sit in the shop of his father and his father only sits in the shop. Therefore, he has not supported the case of the prosecution. PW4 was also declared hostile by the learned Public Prosecutor. He has specifically stated in the cross-examination that no person came to the shop and demanded scales and weights. He further denied that he gave the weighing scale and weights of 500 grams, 200 grams and 50 grams to S.H.O., Police Station, Talai. So, the link evidence is missing in this case. 14. He has specifically stated in the cross-examination that no person came to the shop and demanded scales and weights. He further denied that he gave the weighing scale and weights of 500 grams, 200 grams and 50 grams to S.H.O., Police Station, Talai. So, the link evidence is missing in this case. 14. It has been alleged that Yashpal Driver of the bus, in question, was given up as neither he was able to speak nor able to understand the question put to him. Further that PW8 Ramesh Kumar, who was the Conductor of the bus did not support the case of the prosecution and was declared hostile. S.I. Hari Ram (PW1) testified as under: “Out of the charas sticks recovered from the possession of the accused, two samples each weighing 25 grams were drawn, which were put into two small plastic boxes. The remaining charas was put into the same polythene bag and thereafter the same was packed with a cloth and sample packets were packed with cloth and sealed with seal bearing impression-R. Two seals each were fixed on the sample and four seals were affixed on the bulk. As per the testimony of PW-9 Rajinder Kumar each sample parcel of 25 grams was sealed with two seals having impression of letter-R of English alphabet. Whereas the bulk parcel of the charas was sealed with five seats of having seal impression-R. Whereas, as per the testimony of PW-1 S.I. Ram who is one of the signatory of seizure memo Ext.PW-1/A, the bulk parcel of charas was sealed with four seals of seal impression-R whereas in the seizure memo Ext.PW-1/A, it is recorded that the bulk charas was sealed with five seals of seal impression-R.” 15. So far as the recovery is concerned, one of the independent witnesses i.e. the driver of the bus was not examined and the other witness PW8, Conductor of the bus has also not supported the prosecution case, nothing has come in favour of the prosecution that he was cross-examined at length by the learned P.P. after being declared hostile. In cross-examination, PW8 has admitted that Ext.PW-1/A bears his signatures as witness. Thereafter, he denied his signature on Ext.PW-1/A, and further denied that the contents of seizure memo Ext.PW1/A were read over to him by the police. He has stated that he cannot read Hindi. In cross-examination, PW8 has admitted that Ext.PW-1/A bears his signatures as witness. Thereafter, he denied his signature on Ext.PW-1/A, and further denied that the contents of seizure memo Ext.PW1/A were read over to him by the police. He has stated that he cannot read Hindi. The prosecution has not led any evidence or made any application to prove the signature of PW8 Ramesh Kumar on the seizure memo Ext. PW1/A, which goes to show that the link evidence is missing in this case. when PW8 has denied his signature on the seizure memo. The net result of above discussion is that one of the independent witness has not been examined. The other independent witness has denied his signature on the recovery memo and has not also otherwise supported the prosecution case. The link evidence is missing as the shopkeeper from whom the weights and scale were taken, has denied that it was taken from him. In these circumstances, the findings recorded by the Court below that the prosecution has failed to prove its case beyond reasonable doubt cannot be said to be in any way vitiated, as the prosecution has failed to prove its case conclusively and beyond the shadow of reasonable doubt. 16. It has been held in K. Prakashan Vs. P.K. Surenderan (2008) 1 SCC 258 , that when two views are possible, appellate Court should not reverse the judgment of acquittal merely because the other view was possible. When judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non consideration/ misappropriation of evidence on record, reversal thereof by High Court was not justified. 17. The Hon’ble Supreme Court in T. Subramanian Vs. State of Tamil Nadu, (2006) 1 SCC 401 , has held that where two views are reasonably possible from the very same evidence, prosecution cannot be said to have its case beyond reasonable doubt. 18. In these circumstances, we find no illegality in the judgment passed by the learned Court below, as the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. 19. In view of the aforesaid decision of the Hon’ble Supreme Court and discussion made hereinabove, we find no merit in this appeal and the same is accordingly dismissed. All the pending applications, if any, also stand disposed of.