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Himachal Pradesh High Court · body

2016 DIGILAW 2283 (HP)

State of Himachal Pradesh v. Chalman

2016-10-27

AJAY MOHAN GOEL, SANJAY KAROL

body2016
Ajay Mohan Goel, J. By way of this appeal, appellant-State has challenged the judgment passed by the Court of learned Special Judge-II, (Additional Sessions Judge), Kullu, in Sessions Trial No. 66-of 2014 (2013), dated 03.01.2015, vide which, learned Trial Court acquitted the present respondent (hereinafter referred to as ‘accused’) for commission of offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances, Act (in short ‘NDPS Act’). 2. The case of the prosecution in brief was that on 08.07.2013, at around 5:00 a.m., when a police party headed by SI Sher Singh consisting of Head Constable Brij Bhushan, Constable Bhim Sen and Constable Ashok Kumar was on nakabandi duty at Kainchi Mour near Chharod Nala, District Kullu, accused was seen coming from Bhuntar side on foot and as soon as, the accused saw the police party, he turned back and tried to get away. SI Sher Singh asked the accused to stop who threw the Pithu bag (rucksack) carried by him, however, he was nabbed by SI Sher Singh with the help of other police officials. On enquiry, accused disclosed his name as Chalman, resident of Nepal and when he was asked as to what were the contents of ‘Pithu’ (rucksack) bag carried by him, he got perplexed and could not gave a satisfactory reply. On this SI Sher Singh got suspicious that accused might be carrying some contraband and as the place was secluded and isolated, he opened the bag of accused in the presence of Head Constable Brij Bhushan and Constable Bhim Sen and from inside the said bag, besides other things, one red coloured carry bag was found, from which five pan caked shaped black coloured substance were recovered and on checking, same were found to be cannabis/charas. The recovered charas was weighed with the help of an electronic scale and it was found to be 1 Kg. 140 grams and thereafter charas was again put inside the same red coloured carry bag and said carry bag was sealed in a cloth parcel with three seals having impression ‘C’. The ‘pithu’ bag alongwith other articles was also put in a separate parcel and both the parcels were taken into possession vide memo Ext. PW5/B which was signed by the witnesses as well as the accused. Thereafter, NCB forms were filled by the Investigator. The ‘pithu’ bag alongwith other articles was also put in a separate parcel and both the parcels were taken into possession vide memo Ext. PW5/B which was signed by the witnesses as well as the accused. Thereafter, NCB forms were filled by the Investigator. Sample of seal was taken on a separate piece of cloth as well as on NCB form Ext. PW3/B and the seal after use was handed over to Constable Bhim Sen. Ruka Ext. PW5/C was prepared by the I.O. and was sent through Constable Bhim Sen to the Police Station, Kullu for the registration of FIR, on which FIR Ext. PW6/B was registered. Accused was arrested and after his arrival at Police Station, I.O. handed over the case property alongwith sample seal, NCB-1 form and relevant documents to ASI/SHO Bala Ram who resealed the case property with three seals of seal impression ‘C’. The case property was deposited in the Malkhana and subsequently it was sent for chemical analysis to State Forensic Science Laboratory, Junga. Report of the expert, established the sample as the extract of cannabis and sample of charas. During the course of investigation, the investigating officer prepared site plan, recorded the statements of witnesses under Section 161 of the Code of Criminal Procedure (for short ‘Cr.P.C’). After the completion of investigation, challan was filed in the Court and as a primafacie case was found against the accused, accordingly, he was charged for commission of offence punishable under Section 20 of the NDPS Act, to which he pleaded not guilty and claimed trial. 3. Learned trial Court on the basis of material both ocular as well as documentary produced on record by the prosecution acquitted the accused by holding that it could not be said that the prosecution had succeeded in discharging the burden of proof and in fact had failed to prove that on the relevant date, time and place, the accused was found in exclusive and conscious possession of 1 Kg. and 140 grams of charas unauthorizedly as the entire case of the prosecution was shrouded under the shadow of doubt and benefit deserved to be given to the accused. While arriving at the said conclusion, learned Trial Court found that there was no cogent and satisfactory explanation given by the prosecution as to why no independent witness was associated with the search and seizure of the contraband. While arriving at the said conclusion, learned Trial Court found that there was no cogent and satisfactory explanation given by the prosecution as to why no independent witness was associated with the search and seizure of the contraband. Learned trial Court took note of the fact that there were discrepancies and contradictions in the statement of prosecution witnesses as PW5 Constable Bhim Sen stated that the police party reached the spot at 4:30 a.m. whereas as per PW8 Sub Inspector Sher Singh, police party reached the spot at 5:15 a.m. Learned trial Court also took note of the fact that whereas as per PW5 Constable Bhim Sen after the police party reached the spot at 4:30 a.m. no vehicle was checked till 5:00 a.m. as no vehicle passed through that particular area, whereas as per PW8 SI Sher Singh the accused was immediately noticed by them after reaching the spot at around 5:15 a.m. Learned Trial Court also took note of the fact that whereas PW5 Bhim Sen stated that the documents were prepared by the Investigator on the road side whereas PW8 SI Sher Singh stated that he had prepared said documents while sitting in the vehicle. Learned trial Court also observed that it had come in the statement of PW5 Constable Bhim Sen that abadi was situated near Chharod Nala but no person was sent to call local witnesses from the said abadi, whereas PW8 SI Sher Singh in addition to having admitted that Chharod Nala was a populated place admitted that no person was sent to call witnesses as there was no abadi situated within a distance of two kilometers from the spot. It was on these bases that the learned trial Court disbelieved the case of the prosecution and acquitted the accused of commission of offence punishable under Section 20 of the NDPS Act. 4. We have heard the learned Additional Advocate General as well as Mr. Vijay Arora, who on our request assisted us as amicus curiae. We have also gone through the records of the case as well as the judgment passed by the learned trial Court. 5. 4. We have heard the learned Additional Advocate General as well as Mr. Vijay Arora, who on our request assisted us as amicus curiae. We have also gone through the records of the case as well as the judgment passed by the learned trial Court. 5. The genesis of the case of the prosecution in fact is that on the fateful day, the police party had left the police post to lay down nakabandi at Chharod Nala and for this purpose, police party left the police post at 3:30 a.m. in a private vehicle of one of the Head Constable namely HC Brij BHushan. Incidentally, HC Brij Bhushan, who as per prosecution was part of the police party, was not examined by the prosecution. He was rather given up by the learned Public Prosecutor on 04.09.2014. A perusal of rapat Ext. PW2/A demonstrates that it is not mentioned therein that as to why the police party left for the purpose of nakabandi at such early hours in a private vehicle. There is no mention therein that as to what was the urgency for proceeding to lay down a naka in such early hours of the morning. It is further not mentioned in the rapat that no government vehicle was available to proceed for the place where the naka was to be laid. This Court is not suggesting that a police party cannot proceed to lay a naka in a private vehicle at odd hours or it is necessary to mention same in the rapat but these points gain importance and relevance in the peculiar facts and circumstances of the present case. The search, recovery and seizure of the contraband from the accused have been done by the investigating officer in the presence of PW5 Constable Bhim Sen and Head Constable Brij Bhushan. Though Constable Bhim Sen entered the witness box as PW5, Head Constable Brij Bhushan has not been examined by the prosecution. Constable Bhim Sen who entered the witness box as PW5 in his cross examination has admitted that there was vehicular movement from Bhuntar to Jari even in the night time. He further stated in his cross examination that they had reached the spot in the private vehicle of Head Constable Brij Bhushan around 4:30 a.m. He further stated that till 5:00 a.m., they had checked no vehicle, as no vehicle passed through there during that period. He further stated in his cross examination that they had reached the spot in the private vehicle of Head Constable Brij Bhushan around 4:30 a.m. He further stated that till 5:00 a.m., they had checked no vehicle, as no vehicle passed through there during that period. He further stated that they remained at the spot for about one hour. He further stated that the bag was thrown by the accused towards river side which was near to the kachha gola of the road. He also stated that the documents were prepared by SI Sher Singh on the road side. This witness further deposed that the seal which was handed over to him by the I.O. had not been brought by him as the same was lost by him. He further admitted in his cross examination that abadi was situated in Chharod Nala but no person was sent to call local witnesses from the said abadi. He also stated that accused was not arrested even at the time when he left with rukka to Police Station. 6. SI Sher Singh, who entered the witness box as PW8 stated in his cross examination that they had left the police post at 3:30 a.m. in the private vehicle owned by HC Brij Bhushan. He admitted that Chharod Nala was a populated area but stated that he has not sent any police official to call for independent witnesses from the locality as there was no abadi situated at the distance of two kilometers. He further stated in his cross examination that police party reached the spot at 5:15 a.m. and as soon as police party reached the spot, accused was immediately noticed by them. He further stated that accused was nabbed by all the police officials. He stated that he does not remember as to who picked up the bag from the spot. He also stated in his cross examination that seizure memo and other documents were prepared by him inside the vehicle. 7. A perusal of the statements of PW5 Constable Bhim Sen and PW8 SI Sher Singh demonstrates that there are inconsistencies and contradictions in the statement of these two witnesses. He also stated in his cross examination that seizure memo and other documents were prepared by him inside the vehicle. 7. A perusal of the statements of PW5 Constable Bhim Sen and PW8 SI Sher Singh demonstrates that there are inconsistencies and contradictions in the statement of these two witnesses. Whereas as per PW5, the police party reached the spot at around 4:30 a.m. and for about half an hour, no vehicle was checked by them as no vehicle passed through that particular area, however, according to PW8 SI Sher Singh, the police party reached the spot at around 5:15 a.m. and immediately after reaching the spot, the accused was nabbed by them. PW5 has admitted in his cross examination that there was vehicular traffic on the road in issue even in the night time. This witness has admitted that there was abadi near Chharod Nala i.e. near the spot where accused was apprehended. He also admitted that no witness was sent to call local witnesses from the said abadi. While PW5 Constable Bhim Sen stated that documents etc. were filled up by PW8 SI Sher Singh on the road side, however, PW8 SI Sher Singh deposed that he filled the documents while sitting inside the vehicle. Further the justification which has been given by PW8 for not associating any independent witness is that the place where the accused was nabbed was the secluded and isolated one and there was no abadi within the distance of two kilometers. No explanation or justification has been given by him as to why no person was sent to call independent witnesses when a vehicle was available with the police party and the distance of abadi area from the spot was two kilometers which could not be said to be a far off distance in a vehicle to have had associated independent witnesses. This Court is not oblivious of the fact that it is not as if in each and every case the version of prosecution has to be believed only if the story of prosecution is corroborated by independent witnesses but in the present case when it was possible for the prosecution to have had associated independent witnesses, had any effort in this regard really been made by the police party, then the non-joining of the independent witnesses does creates suspicion in the mind of the Court and the doubts so created obviously have to go in favour of accused. Further, there is no plausible explanation given by the prosecution as to why Head Constable Brij Bhushan who was the member of police party and in whose vehicle allegedly the police party proceeded for the spot from the police post was not examined in the Court. 8. All these facts when taken together cast a grave suspicion on the veracity of story of the prosecution. Not only this, statements of PW5 Constable Bhim Sen and PW8 SI Sher Singh neither appear cogent or reliable nor do they seem to be trustworthy. The contradictions in the testimonies of these two main witnesses shrouds the case of the prosecution with suspicion and it becomes doubtful as to whether accused was actually apprehended at the spot in the mode and manner in which prosecution wants this Court to believe and whether contraband was actually recovered from the exclusive and conscious possession of the accused or not. 9. Another important aspect of the matter is that a perusal of NCB form which is on record as Ext. PW3/B demonstrates that column No. 8 of the same was kept as blank where sample of seal used by the Investigating Officer at the time of seizure of property has to be embossed. The factum of same not being embossed there creates doubts about the case property having been sealed by the Investigating Officer on the spot by using the seal having impression ‘C’ and whether the entire procedure was in fact followed by the Investigating Officer pertaining to seizure of the case property. In these circumstances, it becomes doubtful as to whether recovery of case property was made from the accused at the spot as is the version of the prosecution. 10. The spot map which is on record as Ext. In these circumstances, it becomes doubtful as to whether recovery of case property was made from the accused at the spot as is the version of the prosecution. 10. The spot map which is on record as Ext. PW8/A nowhere mentions as to where is Chharod Nala. As per the case of the prosecution, accused was nabbed by the police while on nakabandi at Kainchi Mour near Chharod Nala. As we have already discussed above, it has come on record that Chharod Nala was a populated area. The non depiction of Chharod Nala on the spot map also creates doubt as to whether spot map which is placed on record as Ext. PW8/A clearly depicts the spot in issue or not. 11. Therefore, in our considered view, the above discussion clearly and categorically demonstrates that the search, recovery and seizure of the contraband cannot be said to have been explained by the prosecution satisfactorily proved beyond reasonable doubt and it cannot be said that the prosecution on the basis of material on record was able to prove its case against the accused beyond reasonable doubt. 12. We have also gone through the judgment passed by the learned trial Court and a perusal of the same demonstrates that the learned trial Court has taken into consideration the entire evidence adduced by the prosecution and after extensive analysis of the same, learned trial Court came to the conclusion that the prosecution was not able to prove its case against the accused beyond reasonable doubt. According to us also the conclusion arrived at in this regard by the learned trial Court cannot be faulted with. In our considered view also, the evidence produced on record both ocular as well as documentary by the prosecution cannot be said to have had proved the case of the prosecution against the accused beyond reasonable doubt. 13. Therefore, keeping in view the fact that the appellant-State has not been able to point out any perversity or infirmity with the findings so recorded by the learned trial Court and as the accused has the benefit of acquittal in his favour, we do not find any merit in the present appeal and the same is accordingly dismissed. Pending application(s), if any, also stands disposed of. We place on record appreciation for the assistance rendered by learned amicus curiae in the adjudication of the present appeal.