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Himachal Pradesh High Court · body

2016 DIGILAW 468 (HP)

State of H. P. v. Des Raj

2016-04-12

DHARAM CHAND CHAUDHARY, SANDEEP SHARMA

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JUDGMENT : Dharam Chand Chaudhary, J. The State has come up in appeal against the judgment dated 16th June, 2011, passed by learned Special Judge, Fast Track Court, Chamba, District Chamba, in Session Trial No.12/2011, whereby the respondent, hereinafter referred to as ?the accused?, has been acquitted of the Charge under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter referred to as ?the Act?, in short. 2. The challenge to the impugned judgment is on the grounds, inter alia, that learned trial Judge has failed to appreciate the evidence available on record in its right perspective and recorded the findings qua acquittal of the accused in a perfunctory and slipshod manner and also on flimsy grounds. The testimony of the prosecution witnesses is stated to have been discarded without assigning any reason. 3. The present is a case where PW-13 ASI Jeet Singh has allegedly recovered Charas, weighing 2.550 Kgs. on 28.2.2011 at 12.15 p.m., near Petrol Pump, Banikhet, within the jurisdiction of Police Station, Dalhousie, in the presence of independent witnesses PW-2 Shri Purshotam and PW-3 Shri Vijay Kumar and also the official witnesses, PW-1 Constable Suneel Kumar and PW-4 Jaram Singh. Before that PW-13 ASI Jeet Singh had allegedly received a secret information around 11 a.m., to the effect that the accused a resident of village Khurla Kingra, Jallandhar, Punjab, a drug peddler, has gone towards Chamba side on 27.2.2011 on Scooter No.PB-08-Y-4842. Also that he used to carry Charas by hiding the same beneath the fuel tank of his scooter and that if Naaka is arranged, he can be nabbed alongwith Charas. The information so received was reduced into writing and forwarded to Superintendent of Police, Chamba, through PW-4 HHC Jaram Singh and PW-6 HHC Palwinder Singh. 4. PW-13 ASI Jeet Singh formed a Police Party comprising PW-1 Suneel Kumar and PW-4 HHC Jaram Singh and left for laying Naaka at Banikhet. PW-2 Purshotam and PW-3 Vijay Kumar were associated as independent witnesses, who met him near Petrol Pump at Banikhet. They both were apprised about the information he received. The Naaka was laid near Petrol Pump. It is at about 12.15 p.m., a scooter bearing registration No.PB- 08-Y-4842, being driven from Chamba side, arrived at the place of Naaka. The scooter was stopped. It was being driven by the accused. They both were apprised about the information he received. The Naaka was laid near Petrol Pump. It is at about 12.15 p.m., a scooter bearing registration No.PB- 08-Y-4842, being driven from Chamba side, arrived at the place of Naaka. The scooter was stopped. It was being driven by the accused. On inquiry, he disclosed his name as Desh Raj and also disclosed his address. He was apprised that a secret information has been received qua he was carrying Charas and that his personal search and also the search of the scooter is required to be conducted. The information was given to the accused orally as well as in writing. He was also informed that he may opt to give his personal search before a Magistrate or a gazetted officer. He, however, opted for being searched by the police itself. Consent Memo. Ext.PW1/A to this effect was prepared. The personal search of the accused was conducted vide memo. Ext.PW1/B. Nothing incriminating, however, was recovered during his personal search. Thereafter, search of the scooter was conducted in the presence of the witnesses vide memo. Ext.PW1/D. One bag light green in colour was found kept beneath the petrol tank of the scooter. On opening the bag, black coloured contraband in the shape of round and sticks was found kept therein. The same was smelling of Charas. The recovered contraband was weighed and found to be 2.550 kgs. Memo. Ext.PW1/F qua the articles recovered during personal search of the accused was prepared. Test Memo. Ext.PW9/C was also prepared. The accused was apprised about the offence he committed and the provisions of sentence for the same and also the grounds of arrest vide Memo. Ext.PW1/E. As per the option, he exercised, his wife Asha Kumari, was informed about his arrest. 5. The accused produced his driving licence Ext.P6 and RC of the scooter Ext.P5 before the Investigating Officer. The Charas recovered from the accused was sealed in a parcel, after separating a portion of it for the purpose of sample. Rukka Ext.PW13/A was prepared and sent to Police Station for registration of FIR through PW-4 HHC Jaram Singh. On receipt of the Rukka, FIR Ext.PW9/A was registered and the case file handed over to the Investigating Officer by PW-4 on the spot. 6. It is about 8.30 p.m., the accused alongwith Charas was brought to Police Station. Rukka Ext.PW13/A was prepared and sent to Police Station for registration of FIR through PW-4 HHC Jaram Singh. On receipt of the Rukka, FIR Ext.PW9/A was registered and the case file handed over to the Investigating Officer by PW-4 on the spot. 6. It is about 8.30 p.m., the accused alongwith Charas was brought to Police Station. The parcels containing Charas were deposited with the Additional SHO Viswas Kumar, who resealed the same with seal ?O? in the presence of PW-8 Constable Hem Raj. Memo. Ext.PW8/A was also prepared in this regard. Additional SHO had deposited the parcels containing the case property, sample seal, NCB forms etc. etc. with PW-12 Arun Kumar, MHC Police Station, Dalhousie, at about 8.40 p.m. MHC made necessary entries in the Malkhana Register. The abstract whereof Ext.PW12/A was produced in evidence. The sample parcel alongwith sample seals, NCB Forms and docket were handed over to PW-11 Constable Rajinder Kumar, vide RC No.24/11 and he was directed to deposit the same in Forensic Science Laboratory at Junga. The said witness had deposited the same in the laboratory and produced the receipt before MHC. Special Report Ext.PW5/B was also prepared and sent to Superintendent of Police, Chamba on receipt of Chemical Examiner's report Ext.PX. Since the sample sent for analysis was found to be the extract of cannabis and as such Charas, therefore, final report under Section 173 Cr. P.C. was filed against the accused in the trial Court. 7. Learned trail Judge, on consideration of the police report and the documents annexed therewith has framed the charge under Section 20 of the Act against the accused. 8. The prosecution was called upon to produce evidence in order to substantiate the charge against the accused. On finding that the present is not a case of no evidence, the accused was examined under Section 313 of the Code of Criminal Procedure. He, however, opted for not producing any evidence in his defence. 9. Learned trial Judge, on appreciation of the evidence available on record and also taking into consideration the arguments addressed on both sides, has arrived at a conclusion that the prosecution has failed to make out a case against the accused beyond all reasonable doubt and as a result thereof, the accused has been acquitted. 10. 9. Learned trial Judge, on appreciation of the evidence available on record and also taking into consideration the arguments addressed on both sides, has arrived at a conclusion that the prosecution has failed to make out a case against the accused beyond all reasonable doubt and as a result thereof, the accused has been acquitted. 10. There are two sets of witnesses examined by the prosecution in order to sustain the charge against the accused person i.e. PW-2 Purshotam and PW-3 Vijay Kumar, the independent witnesses; whereas PW-1 Constable Suneel Kumar, PW-4 HHC Jaram Singh and PW-13 ASI Jeet Singh, Investigating Officer, the official witnesses. The 3rd set of witnesses consists of PW-10 Inspector Govind Ram, SHO, Police Station, Dalhousie, who on receipt of the Chemical Examiner's report Ext.PX has prepared and filed the Challan in the Court; PW-5 HC Subhash Chand, Reader to S.P. Chamba; who had received the Special Report Ext.PW5/A and presented the same before S.P. at his residence on the same day at 3.10 p.m.; PW-6 HHG Palwinder who had taken the Special Report Ext.PW5/A to the Reader of S.P. PW5; PW-7 HHC Chaman Singh, who has proved the copy of Rapat Rojnamcha No.5 Ext.PW5/A; PW8 Constable Hem Raj in whose presence the case property was produced before Additional SHO by PW-13 ASI Jeet Singh, Investigating officer; PW-9 SI Viswas Kumar, is Additional SHO, who has proved the case qua re-sealing of the parcels containing recovered Charas, when produced before him and PW-12 is HC Arun Kumar, to whom PW-9 Viswas Kumar, Additional SHO, had entrusted the case property alongwith NCB-1 Form and the sample seal for safe custody in the Malkhana and it is he who forwarded one sample parcel to FSL, Junga, for chemical analysis alongwith NCB-1 Form through PW-11 Constable Rajinder Kumar. 11. The fact, however, remains that the prosecution case has not been supported by the so called independent witnesses PW-2 Purshotam and PW-3 Vijay Kumar, and as regards the official witnesses, PW-1 Constable Suneel Kumar and PW-4 Jaram Singh, they no doubt have supported the manner in which the search and seizure has taken place on the spot, however, on account of the independent witnesses having turned hostile to the prosecution as well as certain discrepancies found during investigation of the case, learned trial Judge, has acquitted the accused of the charge. 12. 12. The only question, needs consideration in this appeal is that learned trail Judge has failed to appreciate the evidence available on record in its right perspective and on that account, the findings of acquittal as recorded are perverse and the impugned judgment is not legally sustainable. 13. As noticed above, there are two sets of witnesses, i.e. independent and officials. The independent witnesses no doubt have admitted their presence on the spot, however, as per their version they were not present there at the time when search and seizure had taken place and rather at a stage when the contraband, allegedly Charas, was already lying there in a bag. PW-2 Purshotam while stating that the accused in their presence had disclosed his name as Raj Kumar, resident of Jallandhar before the Police, also admits the presence of accused on the spot. They, however, have not supported the prosecution case qua the manner in which the search and seizure has taken place on the spot and turned hostile. 14. The official witnesses no doubt have supported the case as disclosed from the perusal of the final report filed under Section 173 Cr. P.C. and the documents annexed therewith. However, in view of the evidence having come on record, by way of testimonies of the independent witnesses and the official witnesses, there emerge two possible views on record. It is well settled at this stage that in a case where on the basis of evidence available on record two possible views emerge on record, the view favouring the accused has to be believed and benefit of doubt to be given to him and not to the prosecution. Otherwise also, in the Act, there is provision of stringent punishment if an offender is found to have committed the offence. 15. Therefore, the proof to connect the accused with the commission of the offence must be beyond all reasonable doubt and the initial burden to bring the guilt home to an accused booked for the commission of an offence under the Act lies on the prosecution. In case the prosecution succeeds to prove the charge beyond all reasonable doubt against the accused, it is only in that situation that the presumption as envisaged under Sections 35 and 54 of the Act can be raised. In case the prosecution succeeds to prove the charge beyond all reasonable doubt against the accused, it is only in that situation that the presumption as envisaged under Sections 35 and 54 of the Act can be raised. We are drawing support to substantiate the findings so arrived at from the judgment of Apex Court in Noor Aga Vs. State of Punjab, (2008) 16 SCC 417 . This judgment reads: ?56. The provisions of the Act and the punishment prescribed therein being indisputably stringent flowing from elements such as a heightened standard for bail, absence of any provision for remissions, specific provisions for grant of minimum sentence, enabling provisions granting power to the Court to impose fine of more than maximum punishment of Rs.2,00,000/- as also the presumption of guilt emerging from possession of Narcotic Drugs and Psychotropic substances, the extent of burden to prove the foundational facts on the prosecution, i.e., 'proof beyond all reasonable doubt' would be more onerous. A heightened scrutiny test would be necessary to be invoked. It is so because whereas, on the one hand, the court must strive towards giving effect to the parliamentary object and intent in the light of the international conventions, but, on the other, it is also necessary to uphold the individual human rights and dignity as provided for under the UN Declaration of Human Rights by insisting upon scrupulous compliance of the provisions of the Act for the purpose of upholding the democratic values. It is necessary for giving effect to the concept of 'wider civilization'. The courts must always remind itself that it is a well settled principle of criminal jurisprudence that more serious the offence, the stricter is the degree of proof. A higher degree of assurance, thus, would be necessary to convict an accused. In State of Punjab v. Baldev Singh, (1999) 3 SCC 977, it was stated: "It must be borne in mind that severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed." [See also Ritesh Chakravarty v. State of Madhya Pradesh, JT 2006 (12) SC 416] 57. In State of Punjab v. Baldev Singh, (1999) 3 SCC 977, it was stated: "It must be borne in mind that severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed." [See also Ritesh Chakravarty v. State of Madhya Pradesh, JT 2006 (12) SC 416] 57. It is also necessary to bear in mind that superficially a case may have an ugly look and thereby, prima facie, shaking the conscience of any court but it is well settled that suspicion, however high may be, can under no circumstances, be held to be a substitute for legal evidence. 58. Sections 35 and 54 of the Act, no doubt, raise presumptions with regard to the culpable mental state on the part of the accused as also place burden of proof in this behalf on the accused; but a bare perusal the said provision would clearly show that presumption would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied, the legal burden would shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of accused on the prosecution is "beyond all reasonable doubt" but it is 'preponderance of probability' on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established. 59. With a view to bring within its purview the requirements of Section 54 of the Act, element of possession of the contraband was essential so as to shift the burden on the accused. The provisions being exceptions to the general rule, the generality thereof would continue to be operative, namely, the element of possession will have to be proved beyond reasonable doubt. 6. Whether the burden on the accused is a legal burden or an evidentiary burden would depend on the statute in question. The purport and object thereof must also be taken into consideration in determining the said question. It must pass the test of doctrine of proportionality. 6. Whether the burden on the accused is a legal burden or an evidentiary burden would depend on the statute in question. The purport and object thereof must also be taken into consideration in determining the said question. It must pass the test of doctrine of proportionality. The difficulties faced by the prosecution in certain cases may be held to be sufficient to arrive at an opinion that the burden on the accused is an evidentiary burden and not merely a legal burden. The trial must be fair. The accused must be provided with opportunities to effectively defend himself.? 16. Analyzing the given facts and circumstances of this case and also the evidence available on record, it is not proved beyond all reasonable doubt that the police party headed by PW-13 Jeet Singh had nabbed the accused at the place of occurrence in the presence of independent witnesses PW-2 Purshotam and PW-3 Vijay Kumar, as the said witnesses did not support this part of the prosecution case. 17. Similarly, the compliance of Section 50 of the Act, in the manner, as claimed, has also not been proved, because the independent witnesses irrespective of admitting their signatures on the consent memo. Ext.PW1/A, have not supported this aspect of the prosecution case nor the recovery of Charas in their presence vide seizure memo. Ext.PW1/D, because as per their version they arrived at the place of occurrence at such a stage, when the contraband, allegedly Charas, was allegedly lying there in a bag. The accused belongs to Punjab, whereas both the independent witnesses are residents of District Chamba. Being so, it cannot be said that they had acquaintance with each other and as such it cannot be said that the independent witnesses had helped the accused. Nothing is also on record, suggesting that they are persons of tainted character or undependable. Thus, due weightage has to be given to their version that they were not present at the spot, when search and seizure in the manner, as claimed by the prosecution, has taken place. Therefore, irrespective of the official witnesses having supported the prosecution case, the testimony of PW-2 Purshotam and PW-3 Vijay Kumar, has rendered the entire prosecution story highly doubtful. 18. Therefore, irrespective of the official witnesses having supported the prosecution case, the testimony of PW-2 Purshotam and PW-3 Vijay Kumar, has rendered the entire prosecution story highly doubtful. 18. It is again well settled that in a case where the independent witnesses have turned hostile to the prosecution, whereas the official witnesses have supported its case, the testimony of official witnesses should not be discarded, if otherwise inspires confidence. In that situation, the testimony of official witnesses is required to be scrutinized with all circumspection and precaution. In this regard also, we are drawing support from the judgment rendered by a co-ordinate Bench of this Court in State of H.P. Vs. Rajesh Dhiman and another, 2012 (3) Shim. LC 1583. 19. Now, if coming to the official witnesses, they are PW-1 Suneel Kumar and PW-4 HHC Jaram Singh. No doubt they have supported the prosecution case qua the manner, the search and seizure has taken place on the spot, however, their testimony in cross-examination leads to the only conclusion that they have improved their version in their statements recorded under Section 161 Cr. P.C, because in the statement of PW-1 Suneel Kumar recorded under Section 161 Cr. P.C., nothing is there that the bag containing Charas was recovered from the space beneath the fuel tank. He even was confronted also with his statement recorded under Section 161 Cr. P.C. He has also not stated before the police that the independent witnesses met the police party near petrol pump nor that the dickey of the scooter was opened by the accused. He has also not stated that PW13 ASI Jeet Singh informed him about the secret information he received. Nothing has also come in his statement that the independent witnesses had told the ASI that they had come to temple. 20. Similarly, in the statement of PW-3 recorded under Section 161 Cr. P.C., nothing has come therein that he had seen the bag from the hole meant for air and that the bag was concealed beneath the fuel tank. Nothing is also there in his statement that the accused was asked to open the dickey. Therefore, it is not safe to place reliance on their testimonies also. 21. P.C., nothing has come therein that he had seen the bag from the hole meant for air and that the bag was concealed beneath the fuel tank. Nothing is also there in his statement that the accused was asked to open the dickey. Therefore, it is not safe to place reliance on their testimonies also. 21. Otherwise also, it is well settled that the requirement of associating the independent witnesses during the search and seizure, is not a mere formality, but to ensure fairness in respect of search and seizure and ultimately to prove the manner in which the search and seizure allegedly taken place during the course of trial. We have drawn support in this regard from the judgment, again of our own High Court in State of H.P. Vs. Hanacho alias Stewart, Latest HLJ 2004 (HP) (DB) 642. 22. Consent of the accused has also not been obtained in accordance with law, as he was never apprised that he has a legal right of being searched before a Magistrate or a gazetted officer. The information to the effect whether he intends to give his search to a Magistrate or a gazetted officer given to the accused is not sufficient to infer the compliance of the provisions contained under Section 50 of the Act. 23. Another glaring discrepancy is non-compliance of Section 42 of the Act, because in the Rapat Rojnamcha Ext.PW5/A, nothing has come as to how the Investigating Officer PW-13 ASI Jeet Singh believed that the contraband was likely to be destroyed or pilferaged and that it is for this reason, it was not possible to obtain the search warrant. The reasons so recorded also seem to be not forwarded to the Superintendent of Police Chamba or any other superior police officer. No doubt the special report Ext.PW5/A was sent to the Superintendent of Police Chamba, however, it is not sufficient to infer the compliance of Section 42 of the Act. Therefore, such procedural lapses have also rendered the prosecution story highly doubtful. 24. The evidence, as has come on record by way of remaining prosecution witnesses, including the I.O., is formal and could have at the most been used as link evidence, had the prosecution been otherwise able to prove its case beyond all reasonable doubt. 25. Therefore, such procedural lapses have also rendered the prosecution story highly doubtful. 24. The evidence, as has come on record by way of remaining prosecution witnesses, including the I.O., is formal and could have at the most been used as link evidence, had the prosecution been otherwise able to prove its case beyond all reasonable doubt. 25. The crux of what has been said hereinabove, therefore, would be that the prosecution has miserably failed to persuade us to reverse the judgment of acquittal and convict the accused on the testimony of the official witnesses for the reason that since they have improved their earlier version while in the witness box vis-à-vis procedural discrepancies noticed supra, their version cannot be believed to be true and correct. As a matter of fact, the prosecution has miserably failed to bring the guilt home to the accused by producing cogent and reliable evidence. The present rather is a case where from the perusal of evidence, two possible views emerge on record and as per the settled principles in criminal administration of justice, the view which favours the accused should be believed to be correct and the benefit of doubt to be given to him. 26. The trial Court has appreciated the evidence available on record in its right perspective while recording the findings of acquittal against the accused. The findings so recorded cannot be said to be perverse or illegal. We thus find no reason to interfere with the impugned judgment and the same rather deserves to be upheld. For all the reasons recorded hereinabove, this appeal fails and the same is accordingly dismissed. Personal bonds furnished by the accused shall stand cancelled and surety bonds discharged.