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2016 DIGILAW 715 (HP)

Raj Kumar v. State of Himachal Pradesh

2016-05-07

SANDEEP SHARMA

body2016
JUDGMENT : Sandeep Sharma, J. By way of present Criminal revision filed under Section 397 read with Section 401 of the Code of Criminal Procedure, petitioner has challenged the judgment dated 12.5.2009, passed by learned Additional Sessions Judge Fast Track Court, Shimla in Criminal Appeal No.2-S/10 of 2007, whereby, he has set aside the judgment dated 13.10.2006, passed by learned Chief Judicial Magistrate, Shimla, H.P. in Criminal Case No.118/3 of 2005. 2. Briefly stated, the facts of the case are that on 11.7.2005, at about 10:45 PM, while a police party headed by ASI Harnam Singh (PW-3) were present at Lower Bazar, Shimla, the present petitioner (in short “accused”) carrying a bag on his shoulder was seen coming from Subzi Mandi side towards Lower Bazar. On seeing the police party, the accused tried to run away and police got suspicious, however, accused was apprehended and after checking, he was found to be carrying 12 sealed bottles of country liquor marka “Suroor” in his bag. Each bottle was found to be containing 750ml country liquor. Since accused failed to produce any licence or permit for keeping 12 bottles of country liquor in his possession, police took him in custody as well as 12 bottles of country liquor, which were recovered from his bag. As per prosecution story, two bottles were opened and one sample was separated from each so unsealed bottles. All the three samples were sealed with seal impression “A” and remaining recovered bottles were also sealed with same seal and taken into possession by the police. After apprehending the accused, ruqua was sent to the police station, on the basis of which FIR Ex.PW3/B, was registered against the accused. Site plan EX.PW3/C of the spot was prepared and the statements of the witnesses were also recorded. The sample, which was sent for chemical examination were opined to be country liquor. Police after completion of the investigation, presented the challan in the Court. 3. The court of learned Chief Judicial Magistrate, charged the accused for the commission of the offence punishable under Section 61(1)(a) of Punjab Excise Act, as applicable to the State of HP, to which accused pleaded not guilty and claimed trial. 4. Police after completion of the investigation, presented the challan in the Court. 3. The court of learned Chief Judicial Magistrate, charged the accused for the commission of the offence punishable under Section 61(1)(a) of Punjab Excise Act, as applicable to the State of HP, to which accused pleaded not guilty and claimed trial. 4. Respondent-State feeling aggrieved with the impugned judgment dated 13.10.2006, passed by learned trial Court filed an appeal under Section 378 of the Code of criminal Procedure against the impugned judgment of acquittal dated 13.10.2006 passed by the learned trial Court. Court of learned Additional Sessions Judge, Fast Track Court, Shimla allowed the appeal preferred by the respondent-State and vide impugned judgment dated 12.5.2009, quashed and set aside the impugned judgment dated 13.10.2006 passed by the learned trial Court and the accused was held guilty for the commission of the offence punishable under Section 61(1)(a) of the Act, and was sentenced to undergo rigorous imprisonment for a period of six months and to pay fine of Rs.5000/- and in default to undergo rigorous imprisonment of a period of two months. 5. Mr. T.C. Sharma, learned counsel representing the petitioner vehemently argued that the impugned judgment passed by learned Lower Appellate Court is not sustainable as the same is not based upon correct appreciation of the evidence on record. He forcibly contended that bare perusal of the evidence available on record, nowhere suggests that the present petitioner is the guilty of the offence against which, he was charged. Learned Lower Appellate Court has not appreciated the evidence available on record in its right perspective and has only swayed away by the fact that 12 bottles of liquor were recovered. He strenuously argued that learned Lower Appellate Court has committed grave illegality while not acknowledging the defence taken by the accused in his statement recorded under Section 313 Cr.P.C, that he has been falsely implicated solely for the reason that he had refused to become a witness in some other case at the behest of the police. During arguments, he also took this Court through entire evidence with a view to point out that no independent witnesses were associated by the police in the investigation at the time of alleged recovery of country liquor from the bag of the accused. Mr. During arguments, he also took this Court through entire evidence with a view to point out that no independent witnesses were associated by the police in the investigation at the time of alleged recovery of country liquor from the bag of the accused. Mr. Sharma, learned counsel appearing on behalf of the petitioner also informed the Court that though petitioner has already undergone sentence imposed by the learned lower Appellate Court but since there is stigma of conviction/sentence imposed by the learned lower Appellate Court, he intends to argue the present revision petition on merits. 6. On the other hand, Mr. Rupinder Singh Thakur, learned Additional Advocate General appearing on behalf of the respondent-State stated that no interference of this Court is warranted in the facts and circumstances of the present case because perusal of the impugned judgment passed by learned lower Appellate Court below appears to be based on correct appreciation of the evidence available on record. He stated that it stands proved that 12 bottles of country liquor were recovered from the possession of the accused-petitioner and all the prosecution witnesses unequivocally stated that the bottles were recovered from the bag of the petitioner-accused and, as such, prosecution has been able to prove its case beyond reasonable doubt. He also argued that this Court has very limited jurisdiction while exercising the power under section 397 of the Code of Criminal Procedure. 7. I have heard the learned counsel representing the parties and have carefully gone through the record made available. 8. True, it is that while exercising the power under Section 397 of Criminal Procedure Code, this Court has very limited power to re-appreciate the evidence led by both the parties. But in the present case, where the judgment passed by learned Chief Judicial Magistrate, acquitting the accused of the charge framed against him has been set aside by the learned Additional Sessions Judge, Fast Track Court, Shimla. It would be apt in the interest of justice to critically examine the evidence available on record that too solely with a view to ascertain that judgment passed by learned Lower Appellate Court is not perverse and same is based upon correct appreciation of evidence on record. It would be apt in the interest of justice to critically examine the evidence available on record that too solely with a view to ascertain that judgment passed by learned Lower Appellate Court is not perverse and same is based upon correct appreciation of evidence on record. In the present case, learned Additional Sessions Judge, Fast Track Court, Shimla vide impugned judgment dated 12.5.2009 held the present petitioner guilty of having committed the offence under punishable under Section 61(1)(a) of the Act and has sentenced the petitioner to undergo rigorous imprisonment for a period of six months and to pay fine of Rs. 5000/-, which has already been undergone by the present petitioner, as has been stated by the learned counsel representing the petitioner and aforesaid fact has been not disputed by the learned Additional Advocate General appearing on behalf of the respondent-State. 9. As far as scope of power of this Court while exercising revisionary jurisdiction under Section 397 is concerned, the Hon’ble Apex Court in Krishnan and another Versus Krishnaveni and another, (1997) 4 Supreme Court Case 241; has held that in case Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its judicial process or illegality or sentence or order. The relevant para of the judgment is reproduced as under:- “8. The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/ incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order.” 10. In the present case, prosecution examined four witnesses to prove the charge against the petitioner-accused. PW-1, Sh. Vishan, who delivered the sample in the office of C.T.L. Kandaghat. Admittedly, as per the report of chemical examiner, the samples which were sent, were found to be of country liquor. 11. HHC Purshotam Chand, PW-2 deposed that police party headed by ASI, Harnam Singh (PW-3) had recovered 12 bottles of country liquor from the possession of the accused. However, in his cross-examination, he also admitted the existence of residential houses near the place of alleged recovery. It has also come in his statement that aforesaid recovery was effected from the possession of the accused near a public path i.e. road leading to Subzi Mandi from Lower Bazar. Judicial note of the fact is taken by the Court that the aforesaid road is very busy and on both sides of the road there are number of residential houses and shops. 12. PW-3, ASI Harnam Singh, who conducted the investigation also, deposed that he had conducted the personal search of the accused at Lower Bazar, Shimla, wherein the bag, which was being carried by the accused was checked and 12 bottles of country liquor marka “Suroor” was recovered from the exclusive and conscious possession of the accused. 13. PW-4, Lal Singh also deposed that the case property was deposited with him at police station, Sadar, Shimla. These are only four prosecution witnesses, who were relied upon by the prosecution to prove the case of alleged recovery of 12 bottles of country liquor from the exclusive and conscious possession of the accused during checking of his bag on 11.7.2005. PW-4, Lal Singh also deposed that the case property was deposited with him at police station, Sadar, Shimla. These are only four prosecution witnesses, who were relied upon by the prosecution to prove the case of alleged recovery of 12 bottles of country liquor from the exclusive and conscious possession of the accused during checking of his bag on 11.7.2005. In the present case admittedly no independent witness was associated by the police during the alleged recovery of 12 bottles of country liquor. 14. PW-1, Vishal stated that almost 1½ years, back he was working as Constable in Police Station, Sadar Shimla. As per his statement, his role is very limited because only on 13th July, 2005, MHC police station had handed over three bottles containing 750 ml each of country liquor marka “Suroor” sealed with seal impression “A” for chemical examination to be deposited at C.T.L Kandaghat, which had deposited by him on the same day. However, he specifically denied that he ever remained associated with the investigation. 15. PW-2, HHC Purshotam Chand, stated that around 10:45 PM when he was on duty, ASI Harnam Singh and Constable Mahender Singh, one person was coming from Subzi Mandi side carrying one bag. He called him but he tried to run away but he was apprehended. Lateron, this person disclosed his name as Raj Kumar and on his search, 12 bottles of country liquor were recovered from his bag. In his cross-examination, this witness admitted that where this alleged recovery was effected is a residential area and between Mehru Halwai till Shere Punjab, there are 4-5 dhabas. He also admitted that at the point of incident there is liquor vend/shop. If the statement of this witness read in its entirety he has rendered no explanation for not associating any independent witness at the time of recovery, especially in view of the fact that the area from where the alleged recovery was effected is residential and very crowded place. 16. As per prosecution story, the alleged recovery of country liquor was effected on 11.7.2005, at about 10:45 PM. 16. As per prosecution story, the alleged recovery of country liquor was effected on 11.7.2005, at about 10:45 PM. As has been observed above by this Court while taking judicial note that the area from which this recovery was effected is very crowded because it is main bazaar of Shimla, where there are shops in ground floors and in the first floor majority of residential houses, meaning thereby that police could always associate independent witness at the time of incident. 17. It has come in the statement of PW-2 that there are number of hotels between Mehru Halwai to Subzi Mandi i.e approximately 100 meters area. It can be safely presumed that in city like Shimla, which is tourist place, hotels and Dhabas are opened till 11.30 PM. So, in the aforesaid circumstances, it is difficult to understand that why no independent witness was available at the relevant time and, as such, police without associating independent witness proceeded with the matter and effected the alleged recovery. Moreover, perusal of the statements of prosecution witnesses, nowhere suggests that any efforts whatsoever, were made by the investigating Officer to associate any independent witness at the time of the incident, rather they claimed the instant recovery is a chance recovery. If for the sake of arguments, it is accepted that it was chance recovery then also in view of the fact that area where the recovery was effected is residential area having numbers of shops, dhabas and hotel near the place of incident, police party could always associate independent witness to dispel the notion of bias and false recovery as has been stated by the accused in his statement under Section 313 Cr.P.C. Even perusal of the ruqua Ex.PW3/A sent by ASI, Harnam Singh to the SHO Police station, Sadar intimating therein the recovery of 12 bottles of country liquor, there is no mention with regard to any attempt made by the investigation officer to associate the independent witness at the relevant time. All the prosecution witnesses i.e. PW-2 and PW-3, who were actually in the police party have only stated that on the personal search of the accused at Lower Bazar Shimla, 12 bottles of country liquor was recovered from the exclusive and conscious possession of the accused-petitioner and there is no independent witness save and except above these police officials to prove the alleged recovery on the date of incident. Even perusal of the statement of PW-2, HHC Purshotam Chand reveals that at the time of incident on 11.7.005, Constable Mahender Singh was also with him at the time of duty meaning thereby he was also present at the time of alleged recovery but there is no record to suggest that said constable Mahender Singh was ever associated with the investigation carried out in the present case. It is also not understood that when constable Mahender Singh, who as per the statement of PW-2 was also with the police party at the time of recovery, why he was not cited as prosecution witness? 18. Moreover, all the witnesses cited by the prosecution in the present case are admittedly police officials and there are no independent witnesses, to corroborate the statements made by the prosecution witnesses. No doubt, the version of the official witnesses in the present case cannot be brushed aside solely for the reason that no independent witness was associated in the present case. 19. But in the present case, where the alleged recovery has been totally denied or disputed by the present petitioner and a specific defence has been taken that the bottles were recovered from some hotel, wherein he was asked to become a false witness of the police and on his refusal, he was falsely implicated, statements made by the prosecution witnesses, are required to be read very carefully and cautiously. As has been stated above, this was not the place where the police party could take a stand that no independent witness was available easily and there was any apprehension that the accused would have ran away from the place with 12 bottles of liquor, if they had waited for associating independent witness in the present case. It is not the case of the prosecution that they did not wait for independent witness because there was every apprehension that the accused will run away from the place of the incident. Rather all the prosecution witnesses have been silent on the aspect of associating independent witness. Admittedly in the present case, ASI Harnam Singh, PW-3 was the complainant and simultaneously he was the person, who investigated the matter. Rather all the prosecution witnesses have been silent on the aspect of associating independent witness. Admittedly in the present case, ASI Harnam Singh, PW-3 was the complainant and simultaneously he was the person, who investigated the matter. Though, there is no specific bar as has been repeatedly held by the Hon’ble Apex Court but where entire story of recovery effected from the person of the present petitioner-accused is surrounded by suspicion for the reasons stated hereinabove, learned trial court has rightly concluded that it would not be proper to place reliance upon the statements of police officials without there being any corroboration from the independent witness. Perusal of the judgment passed by the first appellate Court suggests that court has failed to acknowledge the specific defence taken by the accused in his statement under Section 313 Cr.P.C. where he had specifically stated that he has been falsely implicated in the case solely for the reasons that he had refused to become a witness to the recovery of liquor, which was allegedly recovered from some hotel. If the impugned judgment passed by learned first appellate Court is read in its entirety, no discussion, whatsoever with regard to the aforesaid aspect put forth by the accused. 20. True, it is that evidence of the police official which cannot be discarded solely for the reason that they are police officials and same are required to be given some weight age but as has been noticed above, that the present facts and circumstances of the case, where the alleged recovery of 12 bottles of country liquor was effected from the area, which is admittedly very crowded residential place/bazaar of tourist like city Shimla and it is on record that area where this recovery was effected numbers of hotels and dhabas, which are usually remains open till 11.30 PM. 21. There is another glaring discrepancy, which admittedly first Appellate Court has failed to notice. As per the story of the prosecution that after recovery of 12 bottles of alcohol, three bottles were separated as sample and same were sealed with seal impression ‘A’. 21. There is another glaring discrepancy, which admittedly first Appellate Court has failed to notice. As per the story of the prosecution that after recovery of 12 bottles of alcohol, three bottles were separated as sample and same were sealed with seal impression ‘A’. These three bottles were only sent for chemical analysis, meaning thereby that there is only effective recovery of three bottles because remaining nine bottles were never sent for chemical analysis and, as such, it cannot be said that those bottles were containing country liquor more than the permissible quantity without the permit or licence. Rather, it was incumbent upon the prosecution to prove that the accused was in actual and conscious possession of the illicit liquor in excess of the prescribed limit. If the recovery, if any, of the three bottles is proved, then offence becomes bailable and the proceedings as well as any recovery effected stands vitiated. in State of HP v. Jagjit Singh, Latest HLJ 2008 (HP) 919 wherein this Court has observed in paras 6 and 7 as under:- “6. At the very outset, I would like to say that neither the non-compliance of sub-section (6) of Section 100 of the Code of Criminal Procedure will render the search illegally nor the respondent can be acquitted on this sole ground. However, in the instant case the regrettable feature is that as per the case of the prosecution 72 pouches of country liquor of “Gulab” brand country liquor containing 180 ml. each were recovered from the possession of the respondent. Admittedly, one pouch of 180 ml. out of the recovered quantity was retained as a sample, which was of licit origin as opined by the Chemical Analyst. 7. There is nothing on record to show that the remaining 71 pouches alleged to have been recovered from the respondent also contain the country liquor more than the permissible quantity without the permit or licence. Before the respondent could be convicted for the offence charged, it was incumbent upon the prosecution to prove that the respondent was in actual and conscious possession of the licit liquor in excess of the prescribed limit.” 22. Before the respondent could be convicted for the offence charged, it was incumbent upon the prosecution to prove that the respondent was in actual and conscious possession of the licit liquor in excess of the prescribed limit.” 22. In the aforesaid peculiar circumstances, this Court is of the view that police should have associated independent witness, which could be easily available in the area where the alleged recovery was effected, rather there is nothing on record to suggest that police had even made an attempt to associate any independent witness. Now, if it is viewed from another angle, the accused specifically took a stand that recovery was effected from the hotel and while he was passing through the area he was asked to become a witness and mere on his refusal, police implicated him falsely in the present case, the version put forth by the prosecution cannot be relied upon solely on the evidence of the police officials. 23. In totality, the facts and circumstances of the present case, I have no hesitation to conclude that the judgment passed by the learned First Appellate Court is not based on the correct appreciation of the evidence available on record and hence the same is quashed and set-aside. Accused is acquitted of the charge. His bails bonds are discharged. The fine amount, if any, deposited by the petitioner-accused be refunded to him. The present criminal revision stands disposed of, so also pending applications, if any.