Research › Search › Judgment

Himachal Pradesh High Court · body

2016 DIGILAW 2712 (HP)

State of Himachal Pradesh v. Pawan Kumar

2016-12-22

CHANDER BHUSAN BAROWALIA, DHARAM CHAND CHAUDHARY

body2016
JUDGMENT : Chander Bhusan Barowalia, J. The present appeal is preferred by the appellant/State under Section 378 of the Code of Criminal Procedure assailing the judgment of acquittal, dated 15.5.2009, passed by the learned Special Judge (3), Kangra at Dharamshala, District Kangra, H.P., in Sessions Trial No.29- D/VII/2006, of 2010, whereby the accused persons have been acquitted of the charges framed against them under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the Act’’). 2. Briefly stating, as per prosecution story, facts giving rise to the present appeal are that on 13.4.2005, a Police Party consisting of ASI, Kamal Chand, HC, Bhag Chand No.69, HC, Uttam Chand No.142, HHC, Janam Singh No.377, HHC, Tungal Singh No.733, Constable, Santosh Kumar No.279 and one Ramesh Kumar son of Harbans Lal r/o countryside House, Bhagsunag, laid a naka near Jogibara on Kharadanda Road and at about 7.30 AM a Maruti Van bearing No.HP-01-0654, came which was checked by them. The vehicle was driven by Tek Chand resident of Bhagyara, P.O. Jari, District Kullu, HP and other occupants disclosed their names, as Pawan Kumar resident of Mamleeg, District Solan, who was residing at Dharamkot, District Kangra and Ganga Ram resident of Malana, Tehsil and District Kullu. It has been alleged that Pawan Kumar had a bag in his lap and on suspicion, the bag was opened, which was containing Charas in polythene packets in the shape of tablets and balls and on weighing, it was found 505 grams. In another packet of the bag, an agreement, dated 19.10.2004, containing two sheets, which was between Kala Ram and Pawan Kumar, a copy of Jamabandi of Mohal Chohla qua Khatauni No.165 to 169, dated 6.10.2004, Jamabandi for the year 1997-98, Khatauni No.261, Mohal Chohla, dated 14.10.2004 were found. Two samples of Charas, each containing 25 grams, were drawn and put in two empty cigarette packets, which were sealed with seal impression ‘M’ (with 6 seals each) and the remaining 455 grams Charas was put in polythene packet and placed in the same very bag, which was put in a cloth parcel and sealed with seal impression ‘M’. It has been averred that ASI, Kamal Chand filled in NCB-I, in triplicate, and specimen impression of seal was also obtained separately and seal was handed over to Ramesh Kumar. It has been averred that ASI, Kamal Chand filled in NCB-I, in triplicate, and specimen impression of seal was also obtained separately and seal was handed over to Ramesh Kumar. The contraband material and other documents besides the vehicles were seized vide separate memorandum in the presence of the witnesses and a copy thereof was handed over to the accused persons. All the accused admitted the contraband, as Charas and ASI, Kamal Chand prepared rukka and sent the same to the Police Station through Constable Santosh Kumar where FIR No.78/05, dated 13.4.2005, was registered. Site plan was prepared and the statements of the witnesses were recorded by ASI, Kamal Chand, who handed-over the case property to the Station House Officer, Onkar Nath, who, in turn, resealed the same and sample seal impression “A” was taken and handed-over the same along with documents to MHC, Sushil. The sample was sent to the Laboratory for analysis and report was obtained. After completion of the investigations, the challan against the accused persons was put in the Court under Section 20 of the NDPS Act. 3. The accused persons in their statements, under Section 313 Cr.PC denied the prosecution case in its entirety and had not led any evidence in defence. After the completion of the trial, the learned trial Court acquitted the accused of the charges framed against them. 4. Heard. Mr. Virender Verma, Additional Advocate General has vehemently argued that the Court below has committed illegality in acquitting the accused persons and has not appreciated the evidence correctly and to its true perspective. The learned Court below has failed to appreciate that the prosecution has proved the guilt of the accused persons conclusively and beyond reasonable doubt and so the judgment of acquittal may be set aside and the accused persons be convicted. 5. On the other hand, learned counsel for the respondents/accused (hereinafter called the ‘accused’) have argued that the accused persons are innocent and the only conclusion, after appreciating the evidence on record, leads towards the innocence of the accused persons and there is no merit in the appeal and the same be dismissed and the accused persons be acquitted. 6. To appreciate the arguments of the learned counsel for the parties, we have gone through the record of the case in detail. 7. PW-1, ASI Bhag Chand stated that he remained posted as HC in Police Post, Forystgang. 6. To appreciate the arguments of the learned counsel for the parties, we have gone through the record of the case in detail. 7. PW-1, ASI Bhag Chand stated that he remained posted as HC in Police Post, Forystgang. He further deposed that on 13.4.2005 at about 2.20 a.m., he alongwith ASI Kamal Chand, HC Uttam Chand and HHC Tungal Singh and HHC Dharam Singh and Constable, Santosh Kumar were at Khara Danda Road Jogibara and performing the nakka bandi by checking the vehicles. At about 7.30 a.m., a taxi (Van) bearing No.HP-01K-0654 came from Dharamshala side and on checking the same, it was found that two persons were sitting in the rear seat and the occupants of the Car became perplexed during checking. On asking, they disclosed their names, as Pawan Kumar and Ganga Ram, resident of Solan and Kullu, respectively. The vehicle was being driven by Tek Chand. On checking the bag, it was found containing polythene packet, which was containing Charas and on weighing, it was found 505 grams and two samples were drawn, 25 grams each. The Charas was in the shape of tablets and balls. He has further stated that each sample was put in a packet and sealed with seal impression ‘M’ and the remaining Charas was also put in a packet and sealed with seal impression ‘M’ and was taken into possession vide memo Ex.PW1/A, which was signed by accused persons and Chander Bahadur, Uttam Chand and Ramesh Chand respectively. PW1 also identified Charas as P1, sample P2 and bag P3. He also admitted that nearby the nakka/place of occurrence, there were various houses and establishments and no person from the locality was associated. 8. PW-2, Constable Santosh Kumar stated that he was posted in the Police Post, Forsythgang and accompanied ASI, Kamal Chand and was one of the members of the police party and saw Taxi HP-01K-0654, which was stopped at the time of naka at Jogibara and saw the accused persons in that vehicle. He further stated that Pawan Kumar had a bag in which was a polythene bag, which on opening found containing Charas, which was 505 grams and samples were drawn in his presence and sealed on the spot. He further stated that Pawan Kumar had a bag in which was a polythene bag, which on opening found containing Charas, which was 505 grams and samples were drawn in his presence and sealed on the spot. He further stated that samples were taken in his presence and he was deputed by said Kamal Chand with the rukka, which he handed-over to the In charge, Police Station, Dharamshala. He also identified the accused persons and bag (P3) and Charas (P1). He further stated that various vehicles were checked and they remained at nakka for about 4-5 hours. He has also admitted that nearby the place of nakka, there were many houses and establishments. He also stated that Ramesh Kumar had come on the spot and he had brought weighing scale from the shop of a goldsmith. 9. PW-3, Chander Bahadur, who was running a shop of Goldsmith at Cantt. Road, Dharamshala Cantt. since his birth, has stated that he identified his signatures at place Ex.PW3/A on seizure memo Ex.PW1/A, but denied to have seen the occurrence and seizure of the contraband material. He also did not support the prosecution case. 10. PW-4, Ramesh Kumar stated that he was running a Guest House at Bhagsunag and he did not join the proceedings on 13.4.2005 at Jogibara. He also did not support the prosecution case even when he was cross-examined by the learned P.P. after being declared hostile. 11. PW-5, ASI Subhash Chand stated that he received Special report through HHC Gungal Singh on 14.4.2005, while he was working as a Reader to Superintendent of Police and he handed over the same to Kapil Sharma, the then Superintendent of Police and that the report has been exhibited as Ex.PW5/A and extract of register as Ex.PW5/B. 12. PW-6, HC Tungal Singh has stated that he was posted in Police Station, Dharamshala since the year 2006. He had handed-over the special report Ex.PW5/A to the office of Superintendent of Police, on 14.4.2005. 13. PW-7, SHO Prem Dass was posted at Police Station, Banjar and has prepared the challan. 14. PW-8, ASI Onkar Nath has stated that he was working as Investigating Officer at Police Station, Dharamshala. He has further stated that ASI, Kamal had handed-over three packets sealed with seal impression ‘M’ along NCB form along with same seal. After that, he had handed-over the material to PW10, Sushil Kumar, MHC. 14. PW-8, ASI Onkar Nath has stated that he was working as Investigating Officer at Police Station, Dharamshala. He has further stated that ASI, Kamal had handed-over three packets sealed with seal impression ‘M’ along NCB form along with same seal. After that, he had handed-over the material to PW10, Sushil Kumar, MHC. In his cross-examination, he stated that his seal was made of lead. He, at his own, prepared it and the seal was not allotted by the Government to him and he had lost the seal. 15. PW-9, Kamal Chand was the Investigating Officer, who headed the police party on 13.4.2005 and had laid a naka at Jogi Bara on Khara danda Road. He also proved copy of report Ex.PW9/A. He further stated that at about 7.30 a.m., a taxi Maruti Van bearing No. HP-01K-0654, which was driven by Tek Chand and two other persons, one Ganga Ram were sitting in rear seat. Pawan Kumar had on bag in his lap, which contained a polythene packet. On opening the same, Charas was found in the shape of tablets and balls. He further stated that he asked Chander Bahadur to bring weighing scale and weights. Charas was weighed, it was found 505 grams. He had deposed that Ramesh Kumar was already with the police party. Two samples, 25 grams each, were drawn. Each sample part was put in empty cigarette packet and each packet was put in a cloth packet and sealed with seal impression ‘M’. The remaining Charas was put in the polythene bag and thereafter put in a cloth parcel and was sealed with seal impression ‘M’. The material was taken into possession vide memo Ex.PW1/A, and the same was signed by the accused persons, Ramesh Kumar, Chander Bahadur, Bhag Chand and Uttam Chand. Specimen impression of seal ‘M’, Ex.PW9/B, was obtained by him and he also filled NCB forms Ex.PW9/C. He handed over the seal to Ramesh Kumar. The report of the Chemical Examiner is Ex.PW9/D. He also prepared ruka, Ex.PW9/F and site Plan Ex.PW9/E. He also sent Special report Ex.PW5/A, through Tungal Singh, HHC. He also proved statement of Chander Bahadur Ex.PW9/G. He handed over the case property along with other documents to PW8 Onkar Nath, SHO. He also identified the Charas P1, sample P2 and Bag P3. The other documents found in the bag were Ex.A1 to A3. He also proved statement of Chander Bahadur Ex.PW9/G. He handed over the case property along with other documents to PW8 Onkar Nath, SHO. He also identified the Charas P1, sample P2 and Bag P3. The other documents found in the bag were Ex.A1 to A3. He has deposed that F.I.R. (A4) was written by Sushil Kumar and also identified his signatures on the same. He also admitted that nearby the place of nakka, there were many houses and establishments. He has also admitted that he had not associated any witness from the locality nor tried to associate any Executive Magistrate. The Chemical Report is Ex.PW9/D. He denied that he had any prior information that the accused were bringing Charas in a vehicle. 16. PW-10, Sushil Kumar, has stated that he was posted as MHC at Police Station, Dharamshala. He has further stated that PW9, Karam Chand had deposited three packets sealed with seal impression ‘M’ with him and further resealed it with seal impression ‘A’ alongwith NCB forms. He has also admitted that he made entry in the Malkhana Register and sent the sample alongwith documents to the F.S.L. He further admitted that there was no entry in the Malkhana Register about the deposit of the NCB forms. 17. It has come on record that near the alleged place of recovery, there are many houses and shops and further at a distance of 1-2 Kms., there is Officer’s Colony at Chilgarhi, Dharamshala, where Executive Magistrates and high police officers are residing. No one amongst them was associated. PW-4, Chander Bahadur has specifically stated that he did not join the proceedings and no Charas was recovered by the police in his presence, though he was cross-examined at length by the learned Public Prosecutor after being declared hostile, but he denied all the suggestions put to him by the learned Public Prosecutor. PW-4, Uttam Chand was given-up by the prosecution. PW-3, Chander Bahadur has also stated that he is running a shop of Goldsmith at Cantt. Road, Dharamshala, since his birth. He also did not support the prosecution case and he has specifically stated that neither he was called by the police nor he knows what was recovered by the police. He was cross-examined at length by the learned Public Prosecutor after being declared hostile, but nothing favourable to the prosecution has come. Road, Dharamshala, since his birth. He also did not support the prosecution case and he has specifically stated that neither he was called by the police nor he knows what was recovered by the police. He was cross-examined at length by the learned Public Prosecutor after being declared hostile, but nothing favourable to the prosecution has come. He has also specifically stated that he has put his signatures due to the reason that he was having affinity with the police, as his shop was situated near the Police Station. He has also not identified any accused person and he has specifically denied that the seal was handed over to Ramesh Kumar by the police when he was cross-examined. Meaning thereby that he has not supported the recovery, sealing and taking of the samples by the police on the spot. 18. In these circumstances, when the independent persons, who were associated by the police have not supported the case of the prosecution at all, we have to consider whether the learned Court below has committed illegality in not convicting the accused persons on the basis of statements of the police witnesses to this effect. It is found that A.S.I., Bhag Chand has stated that the police party consisted ASI, Kamal Chand, HC, Uttam Chand, HHC Tungal Singh, HHC Dharam Singh and Constable Santosh Kumar, but he did not state that PW-3 and PW-4 were also with them. PW-2, Santosh Kumar, stated that he has gone to call Goldsmith and thereafter, he went to the Police Station. Even PW-4, Ramesh Kumar has denied his signature on Ex.PW-1/A. From the statement of the Police witnesses, the presence of PW3 and PW4 also becomes doubtful, resulting that the prosecution story with respect to search and seizure becomes suspicious. Further, it is in evidence of PW-8, ASI, Onkar Nath that he had resealed the samples and the remaining Charas with his own seal ‘A’, but he had not stated that he had also taken the specimen seal impression separately and handed over the same to the MHC. PW-10, ASI, Sushil Kumar has stated that the case property and samples were given to him by PW-9, ASI, Kamal Chand. Further, PW-10, Sushil Kumar has admitted that there is no mention in the Malkhana register that NCB forms were also deposited with him. 19. PW-10, ASI, Sushil Kumar has stated that the case property and samples were given to him by PW-9, ASI, Kamal Chand. Further, PW-10, Sushil Kumar has admitted that there is no mention in the Malkhana register that NCB forms were also deposited with him. 19. In these circumstances, the learned Court below has committed no illegality in not basing the conviction on the statement of police witnesses alone as their statements were contradictory and not inspiring confidence. 20. The result of the above discussion is that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. 21. 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/mis-appreciation of evidence on record, reversal thereof by High Court was not justified. 22. 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 proved its case beyond reasonable doubt. 23. In these circumstances, as the prosecution has failed to prove the guilt of the accused conclusively and beyond shadow of reasonable doubt, this Court finds that the learned trial Court has rightly dealt with the evidence and found the same to be not worthy of credence. We, thus, find no merit and substance to interfere with the well reasoned judgment, passed by learned Appellate Court and the appeal filed by the appellant is accordingly dismissed. 24. 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. 25. All the pending applications, if any, also stand disposed of.