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2016 DIGILAW 2652 (HP)

Balle Ram v. State of H. P.

2016-12-14

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. The instant appeal stands directed against the impugned judgment of 21.7.2008 rendered by the learned Special Judge, Hamirpur in Sessions trial No. 13/07, whereby the learned trial Court convicted the appellants (hereinafter referred to as “accused”) for theirs committing an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the Act”) also sentenced them as follows :- “……………..to undergo rigorous imprisonment for two years and to pay a fine in a sum of Rs.25,000/- each and in default of payment of fine, they shall further undergo simple imprisonment for four months.” 2. Brief facts of the case are that as per rapat No.36 of 30.1.2007 ASI Rajinder Paul alongwith some other police officials left the police station at 12.45 a.m. in a Government vehicle towards Bhareri-Ladraur etc. side for patrolling duty. When they were returning to the police station at about 4.30 a.m. and reached Bailag Ghat, one vehicle bearing registration No. HP-01H-2710 was found parked on the road side. The accused persons were found to be sitting in the same. On seeing the police party they got frightened. They were questioned by the police. They disclosed theirs names and addresses. On suspicion the vehicle was got checked. On checking, one polythene envelope was recovered from the back of accused Balle Ram and Durga Dass. The words “Yarkey Boot House, Lower Dhalpur, Kullu” were inscribed on the same. Inside the polythene envelope, one handkerchief was found. It was opened. There was another polythene wallet inside. It was containing charas. On weighment the charas was found to be 600 grams. Two samples of 25 grams each were separated from the same. After completing all codal formalities and on conclusion of the investigation into the offence, allegedly committed by the accused challan was prepared and filed in the Court. 3. The accused stood charged by the learned trial Court for theirs committing an offence punishable under Section 20 of the Act to which they pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined 9 witnesses. On closure of prosecution evidence the statements of the accused under Section 313 of the Code of Criminal Procedure were recorded in which they pleaded innocence and claimed false implication. They chose not to lead any evidence in defence. 5. 4. In order to prove its case, the prosecution examined 9 witnesses. On closure of prosecution evidence the statements of the accused under Section 313 of the Code of Criminal Procedure were recorded in which they pleaded innocence and claimed false implication. They chose not to lead any evidence in defence. 5. On an appraisal of the evidence on record, the learned trial Court returned findings of conviction against the accused for theirs committing an offence punishable under Section 20 of the Act. 6. The learned counsel appearing for the accused has concertedly and vigorously contended qua the findings of conviction recorded by the learned trial Court standing not based on a proper appreciation of evidence on record rather theirs standing sequelled by gross mis-appreciation of material on record. Hence he contends qua the findings of conviction being reversed by this Court in the exercise of its appellate jurisdiction and theirs being replaced by findings of acquittal. 7. The learned Deputy Advocate General has with considerable force and vigor contended qua the findings of conviction recorded by the Court below standing based on a mature and balanced appreciation of evidence on record and theirs not necessitating interference rather meriting vindication. 8. This Court with the able assistance of the learned counsel on either side has with studied care and incision evaluated the entire evidence on record. 9. Under memo Ex.PW-1/B recovery of charas holding a weight of 600 grams stood effectuated from vehicle bearing registration No. HP-01H-2710, vehicle whereof stood at the relevant time occupied by all the accused. Recovery of the aforesaid relevant item of contraband stood effectuated from the rear seat of the vehicle aforesaid. The learned trial Court while imputing credence to the testimonies of the prosecution witnesses, it pronounced an order of conviction upon the accused. Recovery of the aforesaid relevant item of contraband stood effectuated from the rear seat of the vehicle aforesaid. The learned trial Court while imputing credence to the testimonies of the prosecution witnesses, it pronounced an order of conviction upon the accused. A thorough perusal of the testimonies of the PWs underscores the trite factum qua each in their respective testimonies communicating qua the reflections borne on Ex.PW-1/B a version unbereft of any taint of any inter-se contradictions occurring in their respective examinations-in-chief vis-à-vis their respective cross-examinations also a studied perusal of their respective testifications do not unveil qua theirs respectively therein revealing a version qua the relevant occurrence with any blemish of any intra-se contradictions occurring respectively therein, thereupon it was apt for the learned trial Court to record a conclusion qua the prosecution succeeding in proving the charge against the accused. 10. However the gravamen of the entire prosecution case rested upon the prosecution unfailingly clinching the trite factum probandum qua the sample Ex.P-2 drawn from the seized bulk of charas at the relevant site of occurrence whereon an opinion stood recorded by the FSL embodied in Ex.PW-7/B qua its apposite affirmative opinion borne thereon qua the sample charas borne on parcel Ex.P-2 also standing unfailingly connected with its drawl occurring from the relevant bulk charas seized at the site of occurrence from the alleged conscious and exclusive possession of the accused. 11. A thorough besides an incisive perusal of the record unveils qua the communications embodied in NCB form comprised in Ex. PW-1/C making a graphic unfoldment therein qua the sample parcel of charas borne on Ext.P-2 whereon the FSL concerned recorded its apposite affirmative opinion borne on Ex. PW-7/B standing at the relevant site of occurrence sealed with seal impression holding thereon English alphabet ‘D’ also Ext.PW-1/C underscores qua Ext.P-2 on its standing re-sealed by the SHO concerned at the police station concerned its holding thereon resealed impressions displaying seal impressions of English alphabet ‘H’. Though the seal impressions borne on sample parcel Ex.P-2 throughout the stages whereat it stood dispatched to the FSL concerned for the latter recording an opinion thereon besides upto the stage when Ex. P-2 after its standing subjected to examination thereat evinced from the FSL concerned an affirmative opinion on Ex. P-2 also at the stage when Ex. Though the seal impressions borne on sample parcel Ex.P-2 throughout the stages whereat it stood dispatched to the FSL concerned for the latter recording an opinion thereon besides upto the stage when Ex. P-2 after its standing subjected to examination thereat evinced from the FSL concerned an affirmative opinion on Ex. P-2 also at the stage when Ex. P-2 emanated therefrom hence hold evident concurrence with the display in NCB Form Ext.PW-1/C qua the seal impressions respectively embossed thereon, thereupon conspicuously with visible concurrence standing displayed inter se Ext.PW-1/B and Ext.PW-1/C qua Ex. P-2 in congruity thereof holding four seals thereon bearing English Alphabet ‘D’ also its holding thereon 4 resealed impressions bearing English alphabet ‘H’. However, dehors the aforesaid concurrence occurring inter-se the relevant factum of seal impressions borne on Ex. P-2 at the stage whereat Ex.PW-1/C stood prepared besides at the stage whereat the contents of Ex. P-2 stood received for examination at the FSL concerned, besides when Ex. P-2 emanated therefrom would yet not coax this court to conclude nor would lean this court to infer therefrom qua the opinion formed by the FSL depicted in Ex.PW-7/B where within unfoldments occur qua Ext.P-2 holding Charas there within, holding the apposite connectivity vis-à-vis Ext.P-2 unless also at the stage contemporaneous to the production of Ext.P-2 in Court for its standing shown to the material prosecution witnesses, it also thereat displayed congruity vis-à-vis the apposite reflections displayed in Ex.PW-1/C also enunciated in Ex.PW-7/B vis-à-vis the English alphabets borne on all the seals as stood embossed thereon whereupon alone the opinion of the FSL concerned recorded in Ext.PW-7/B would stand concluded to be vis-à-vis the relevant seizure of bulk charas effectuated from the alleged conscious and exclusive possession of the accused by the Investigating Officer concerned in the manner unfolded in Ex. PW-1/B. However for resting the aforesaid factum probandum of compatibility qua the aforesaid factum probandum existing at the stage whereat sample parcel Ext.P-2 stood produced in Court, an allusion to the testimony of PW-2, to whom Ext.P-2 stood shown in Court by the PP concerned is imperative wherewith in he has articulated qua sample parcel comprised in Ex.P-2 on its standing shown to him in Court besides holding thereon seal impressions embossed thereon by the FSL its also holding thereon seal impression ‘B’. 12. 12. The aforesaid communications made by PW-2 at the stage whereat sample parcel Ex.P-2 stood shown to him in Court whereupon an affirmative opinion comprised in Ex.PW-7/B stood recorded by the FSL concerned unveils an open dichotomy existing inter se it vis-à-vis the underscorings manifested in Ex.PW-1/C besides in Ex.PW-7/B qua the seal impressions borne thereon, underscorings occurring wherewith in contradictorily enunciate qua on the two samples of charas as stood drawn from the bulk charas seized at the relevant site of occurrence seal impressions bearing English alphabet ‘D’ standing respectively embossed thereon also each sample of charas on standing resealed at the police station concerned theirs thereat standing embossed with resealed seal impressions bearing English alphabet ‘H’. With the aforesaid apt dichotomy qua the factum probandum standing unfolded, the concert of the prosecution to efficaciously nail the charge against the accused qua the affirmative opinion recorded by the FSL concerned comprised in Ex.PW-7/B standing invincibly connected with sample parcel Ex.P-2 at the material stage when it stood produced in Court, is to obviously stand concluded to both stagger as well as founder. Since the FSL in its apposite report comprised in Ext.PW-7/B opined qua it holding Charas nonetheless with the opinion aforesaid formed/rendered thereupon by the FSL concerned standing for reasons afore-stated not preeminently at the paramount crucial stage whereat Ex.P-2 stood produced in Court hence linking its apposite affirmative opinion vis-à-vis Ext.P-2 also coaxes an inference from this Court qua at the paramount apposite stage of the production of Ext.P-2 in Court its not holding there within Charas also this Court is leaned to form an opinion qua the contents of Ext.P-2 standing not efficaciously linked to theirs standing drawn from the bulk of charas seized at the site of occurrence from the conscious and exclusive possession of the accused by the Investigating Officer concerned. Besides an inference stands erected qua the case property standing tampered with. 13. Besides an inference stands erected qua the case property standing tampered with. 13. The learned Deputy Advocate General has from his records produced before this Court a piece of cloth whereon seal impressions stand embossed wherefrom he contends qua on a circumspect perusal of seal impressions occurring thereon a misleading disclosure qua the English alphabet occurring thereon emanating there from also a circumspect reading thereof making a disclosure qua the seal impressions ‘B’ or ‘D’ occurring thereon being readable in any manner wherefrom he contends qua the aforesaid misleading decipherments arising from misleading disclosures qua the precise English alphabet borne thereon also hence constraining PW-2 to on Ex. P-2 standing produced before the learned trial Court whereat it stood shown to him to make a statement qua its holding thereon seal impression ‘B’. However the aforesaid submission holds no weight given the presence of the learned PP before the learned Court concerned at the time contemporaneous to its production thereat besides at the time contemporaneous to its standing shown to PW-2 whereupon an obligation stood cast upon him to hold PW-2 to re-examination for evincing from him a clarification qua the precise English alphabet held in the seal impressions borne on Ex.P-2. However, the PP omitted to make the aforesaid endeavor whereupon at this stage the address made here before by the learned Deputy Advocate General holds no succor nor vigor, it merely standing anvilled on seals impression existing on a piece of cloth produced here before unbereft of apposite clarifications standing assayed from PW-2 by the learned PP concerned at the stage whereat he deposed there before,. Contrarily the mere factum of arousal/existence of misdecipherments qua the precise English alphabet borne on seal impressions occurring on a piece of cloth produced before this Court by the learned Deputy Advocate General would not per se beget in consonance therewith any inference qua the seal impressions in congruity therewith also standing borne on Ext.P-2 nor also he can contend qua on a circumspect perusal of Ex.P-2 any purported mis-leading decipherments also emanating therefrom qua the relevant factum. 14. The learned counsel for the accused rests his contention upon Ex.PW-7/C, an abstract of malkhana register wherewith at Sr. 14. The learned counsel for the accused rests his contention upon Ex.PW-7/C, an abstract of malkhana register wherewith at Sr. No.3 thereof exists a portrayal qua the FSL purveying its apposite opinion qua the sample parcel sent thereat for analysis rendering hence the subsequent narrative therein qua an opinion standing pronounced thereupon on its standing dispatched to FSL concerned, to beget a conclusion qua the report of the FSL embodied in Ex.PW-7/B loosing its vigor. However the aforesaid submission appears to hold no weight significantly when the MHC concerned who had proven Ex.PW-7/C stood omitted by the learned defence counsel to stand subjected to an apt cross-examination qua the facet aforesaid also when for reasons afore-stated the date of dispatch unfolded in Ex.PW-1/C of parcel Ex.P-2 to FSL concerned also the apposite reflections thereto borne on the report of the FSL comprised in Ex.PW-7/B holds absolute tandem intra se each, whereupon this Court is constrained to conclude qua the existence of the aforesaid dichotomies inter-se narrations at Sr. No. 3 and 4 of Ex.PW-7/C being construable to merely arise from a pure clerical error. 15. The crux of the above discussion is of the prosecution not adducing cogent and emphatic evidence in proving the guilt of the accused. The appreciation of the evidence as done by the learned trial Court suffers from an infirmity as well as a perversity. Consequently, reinforcingly, it can be formidably concluded that the findings recorded by the learned trial Court merit interference. 16. In view of above discussion, the appeals are allowed and the impugned judgment of 21.7.2008 rendered by the learned Special Judge, Hamirpur is set aside. The accused are acquitted of the offence charged. The fine amount, if any, deposited by the accused is ordered to be refunded to them. Bail bonds, if any, furnished by the accused are discharged. Records be sent down forthwith.