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Himachal Pradesh High Court · body

2016 DIGILAW 2188 (HP)

STATE OF HIMACHAL PRADESH v. BOBBY

2016-10-06

AJAY MOHAN GOEL, SANJAY KAROL

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JUDGMENT : Ajay Mohan Goel, J. 1. By way of this appeal, State has challenged the judgment passed by the Court of learned Special Judge, Chamba Division, Chamba, in Sessions Trial No. 28 of 2012 dated 07.12.2012, vide which, learned trial Court has acquitted the accused for commission of offence punishable under Section 20 of Narcotic Drugs & Psychotropic Substances Act, hereinafter referred to as the NDPS Act, on the ground that the prosecution had failed to prove its case against the accused beyond reasonable doubt. 2. The case of the prosecution was that on 06.04.2012 police party headed by PW-12 HC Madho Ram was on patrol towards Chil Bangla and while on its way back when the said party reached near Sukrai Gala at around 4.45 P.M. one person i.e. the accused was noticed coming from Chil Bangla along with bag. When the said person saw the police party, he got perplexed and started to run back. He was apprehended at the spot by HC Madho Ram with the help of other police officials. On inquiry, he disclosed his name as Bobby. As PW-12 Madho Ram had suspicion that the accused might be carrying some narcotic, he accordingly apprised the accused of his right of being searched before a Magistrate or a Gazetted Office and vide Ext. PW1/A, accused consented to be searched by the police party. Further, as per the prosecution, search was carried in the presence of Constable Parveen Kumar and LHC Krishan Lal. Red bag being carried by the accused was searched from which one blue bag tiffin cover was recovered and from inside tiffin cover, one polythene packet was recovered, inside which Charas was kept in the shape of sticks which on weighing was found to be 1Kg. and 50 grams. Further, as per the prosecution, Rukka Ext. P4/A was sent by HC Madho Ram through Constable Kuldeep Kumar, on the basis of which FIR was registered. After completion of all the codal formalities, accused was arrested and contraband was taken into possession. Thereafter, police party left for Police Station where the case property was deposited with the MHC. It was thereafter sent to the FSL, Junga and as per the FSL report Ext. PA, the contraband found in the possession of the accused was an extract of cannabis and sample of Charas. 3. Thereafter, police party left for Police Station where the case property was deposited with the MHC. It was thereafter sent to the FSL, Junga and as per the FSL report Ext. PA, the contraband found in the possession of the accused was an extract of cannabis and sample of 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 of Narcotic Drugs & Psychotropic Substances Act, to which, he pleaded not guilty and claimed trial. 4. As learned trial Court acquitted the accused, the judgment so passed by learned trial Court has been assailed by way of this appeal. 5. We have heard learned counsel for the parties and have also gone through the records of the case as well as judgment passed by learned trial Court. 6. In the present case, no independent witness was associated by the police party in the course of investigation. This Court is not oblivious to the fact that it is not as if in each and every case where contraband is recovered independent witnesses have to be associated but this Court has to satisfy itself as to whether independent witnesses were not associated in the present case because the accused was apprehended at some secluded place where independent witnesses were not available or is it that though independent witnesses could have been associated had an effort been made in this regard by the Investigating Officer, however, no effort was made to associate any independent witnesses. 7. Recovery of the contraband has as per the prosecution taken place in the presence of Constable Parveen and Constable Krishan Lal by PW-12 HC Madho Ram. Though, Constable Parveen entered the witness box as PW-1, however, Constable Krishan Lal was not examined by the prosecution and he was given up on 18.10.2012. 8. A perusal of the statement of PW-1 Constable Parveen demonstrates that according to him, when the police party reached Sukrai Gala it noticed the accused going towards Chil Bangla. In his cross-examination, this witness stated that distance between Drada and Challa is around 3 K.M. He further stated that accused was spotted about 30- 40 mtrs. away and it was day light. He further stated that the accused was spotted near Sukrai Gala. In his cross-examination, this witness stated that distance between Drada and Challa is around 3 K.M. He further stated that accused was spotted about 30- 40 mtrs. away and it was day light. He further stated that the accused was spotted near Sukrai Gala. He further stated that he did not know that there was one house of Bias Dev near Sukrai Gala. He further stated that he remained at the spot with the police party and returned back around 8.00-9.00 P.M. He also stated that people did not use the road from Challa to Chil Bangla and distance between from Sukrai Gala to Challa was 2-2 K.M. He further stated that there were 3-4 shops at Challa. He also stated that he did not remember the time when Constable Kuldeep had left the spot with Rukka. He further stated that it was not very dark when Constable Kuldeep left with Rukka. He further stated that Investigating Officer had tried to look for any independent witness but he did not get one. He also admitted that Investigating Officer had not sent anyone to look out for independent witness. 9. Constable Kuldeep Kumar, who was part of the police party and entered the witness box as PW-2, stated that the accused was apprehended at Sukrai Gala at around 6.00 P.M. He further stated that Investigating Officer handed over Rukka to him on the spot and sent him for handing over the same to Police Station for registration of the FIR. In his cross-examination, he stated that he remained at the spot only for 10-15 minutes. This witness further stated that distance between Drada to Chil Bangla was around 1 KM and from Drada to Challa was also 1 KM. He further stated that he did not know that four villages were there in between Challa and Chil Bnagla or that there was house of Bias Dev at Sukrai Gala. 10. A perusal of the statements of PW-1 and PW-2 demonstrates that whereas as per PW-1, accused was apprehended at around 4.45 P.M., however as per PW-2 accused was apprehended at around 6.00 P.M. Further, PW-1 has stated that he did not remember that Constable Kuldeep left the spot with Rukka but according to him, it was not very dark when Constable Kuldeep left with Rukka. PW-2 has stated that he in fact remained at the spot only for 10-15 minutes. PW-2 has stated that he in fact remained at the spot only for 10-15 minutes. Both these witnesses have not denied the factum of the house of one Bias Dev being near Sukrai Gala. They have simply feigned ignorance. Similarly, it has also come in the testimony of PW-1 during his cross-examination that Investigating Officer did not send anyone to search for independent witness and it has come in the testimony of PW- 2 that distance between Drada to Chil Bangla and from Drada and Challa was just around 1 KM. Therefore, besides their being inconsistencies and contradictions in the testimony of PW-1 and PW-2 one more fact which emerges is this that no effort in fact was made by the Investigating Officer to associate any independent witness during the course of investigation and the version of the prosecution that this was not done because accused was apprehended at secluded place perhaps does not seem to be correct because it has come in the testimony of PW-2 that habitation was not that far off. 11. Now, we will refer to the testimony of PW-12 Madho Ram. In his cross-examination, he stated that the police party had gone to Chill Bangla through shortcut from the main road. However, he admitted that it was not so recorded in the statement of the witnesses that the police party had taken shortcut to go to Chil Bangla. He further stated that he had I.O. kit with him but the IO kit was not mentioned in the DDR. He tried to further clarify by saying that it was his personal IO kit. He further admitted in his cross-examination that IO kit was given to him by the Government and it was correct that he had not specifically given the list of articles recovered from the two witnesses. He also admitted it to be correct that he had not reflected in Memo Ext. PW1/B that the search of IO kit had been effected. In his cross-examination, he stated that he did not try to look for independent witnesses which he thereafter qualified by saying that the spot was isolated. This witness also stated that Rukka was sent by him after about two hours after completing all formalities and he stated it to be incorrect that Constable Kuldeep had remained on the spot only for 10- 15 minutes. 12. This witness also stated that Rukka was sent by him after about two hours after completing all formalities and he stated it to be incorrect that Constable Kuldeep had remained on the spot only for 10- 15 minutes. 12. In our considered view, if the version of PW-12 is to be believed that Rukka was sent after completion of all formalities which took between 2 to 3 hours after the accused was apprehended then PW-2 has deposed incorrectly in the Court. On the other hand, if the statement PW-2 is to be believed then the Investigating Officer has not stated correct facts in the Court. Be that as it may, the fact remains that in the statements of PW-1, PW-2 and PW-12, there are inconsistencies and contradictions. The case as has been set up by the prosecution neither inspires confidence nor the accused can be convicted on the basis of the statements of the witnesses whose testimonies are neither cogent nor reliable or trustworthy. 13. A perusal of the judgment passed by learned trial Court demonstrates that besides other aspects of the matter, learned trial Court has also taken note of the contradictions and inconsistencies in the statements of PW-1, PW-2 and P-12. In our considered view, the findings which have been returned by learned trial Court to the effect that in the absence of any independent witness and in view of inconsistencies in the statements of official witnesses, it could not be said that the prosecution was able to prove its case against the accused beyond reasonable doubt are correct finding. 14. In our considered view also, on the basis of the evidence which has been placed on record by the prosecution, it cannot be said that the prosecution was able to establish beyond reasonable doubt that on 06.04.2012 at around 4.45 P.M., the accused was apprehended by the police party in exclusive and conscious possession of Charas weighing 1 Kg. and 50 grams. The evidence produced on record by the prosecution is neither cogent nor it inspires any confidence nor it seems to be reliable so as to be made basis for the conviction of the accused. 15. It is settled law that in exceptional circumstances, the Appellate Court for compelling reasons can reverse a judgment of acquittal passed by the trial Court if the findings so recorded by the Court are perverse. 15. It is settled law that in exceptional circumstances, the Appellate Court for compelling reasons can reverse a judgment of acquittal passed by the trial Court if the findings so recorded by the Court are perverse. However, it is also settled law that an acquittal by Court below bolsters presumption of innocence in favour of the accused and, therefore, judgment of acquittal should be reversed only in exceptional circumstances. We do not find that there is either any exceptional circumstance in the present case or the findings recorded by the trial Court are perverse so as to compel us to interfere with the judgment of acquittal returned by the trial Court. 16. Accordingly, in view of the discussion held above, we do not find any perversity in the findings recorded by learned trial Court and therefore, while upholding the judgment of acquittal passed by learned trial Court, the present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged.