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2017 DIGILAW 1030 (HP)

State Of H. P. v. Anish Mohammad

2017-09-06

SANDEEP SHARMA

body2017
JUDGMENT Sandeep Sharma, J. (Oral) - Since in both the aforesaid criminal Appeals, challenge has been laid to common judgment dated 06.1.2009, passed by the learned Sessions Judge, Hamirpur, HP, in Criminal Appeal Nos. 73 of 2008 and 84 of 2008, as such, they are being taken up together and disposed of by a common judgment. 2. Instant criminal Appeals filed under Section 378 of the Cr.PC, are directed against the judgment of acquittal dated 06.1.2009, passed by the learned Sessions Judge, Hamirpur, H.P. in Appeal Nos. 73 of 2008 and 84 of 2008, reversing the judgment of conviction dated 20.9.2008, passed by learned Judicial Magistrate, 1st Class, Barsar, District Hamirpur, HP, in Excise Case No. 19-III-2006, whereby the respondents-Accused were sentenced to undergo rigorous imprisonment for a period of one year each and fine of Rs. 5000/- each, for having committed offence punishable under Section 61(1) (a) of the Punjab Excise Act, as applicable to the State of Himachal Pradesh (in short "the Act"). 3. In nutshell, case of the prosecution as emerge from the record is that on 28.2.2006, at around 1:20 am, when ASI Parkash Chand alongwith Constable Dhanbir Singh and HHG Kuldip Singh, were on Naka at place called Dandroo, one Mahindra Pick-up Jeep bearing No. HP-23B-4034 came from Padhar side towards Dandroo in a high speed. As per prosecution story, aforesaid vehicle was intercepted and on its search, Accused namely Anish Mohammad was found driving the said Jeep, whereas another Accused namely Inder Singh was sitting with him. On search, police party recovered 24 cartons of English Liquor ''XXX Rum Black Jack'' brand, each carton containing 12 bottles, whereas 45 cartons of country liquor ''Lal Kila'' brand contained 12 bottles each (total 69 cartons). As per the story of prosecution, since Accused failed to produce any valid permit/licence for carrying/transportation of the aforesaid liquor cartons, as mentioned above, same were taken into custody. As per its own story of the prosecution, three bottles out of Black Jack XXX Rum and three bottles out of country liquor Lal Quila brand were taken as sample for chemical analysis and thereafter, property was sealed with seal impression ''P'' and same were taken into possession vide recovery memo Ext.PW1/A. Police also took into possession vehicle along with its documents vide memo Ext.PW1/B. Separate seal impression of seal ''P'' on a piece of cloth Ext.PW5/B was also taken. Subsequent to aforesaid recovery, rukka Ext.PW5/C was sent to the Police Station, on the basis of which, FIR Ext.PW3/A came to be registered against the Accused persons. Police after investigation of case, presented challan in the competent court of law. 4. Learned Judicial Magistrate, 1st Class, Barsar, District Hamirpur, H.P., on being satisfied that prima-facie case exists against the Accused, charged them under Section 61(1) (a) of the Act, to which they pleaded not guilty and claimed trial. Subsequently, the learned trial Court on the basis of material adduced on record by prosecution held the Accused guilty of having committed offence punishable under Section 61(1) (a) of the Act and accordingly, convicted and sentenced them as per the description given supra. However fact remains that charge under aforesaid section was dropped against the coAccused namely Subhash Chand for want of evidence, as a result of which he came to be acquitted of aforesaid offence. 5. Being aggrieved and dis-satisfied with the judgment of conviction recorded by the learned trial Court, the Petitioner-Accused preferred an Appeal under Section 374 Cr.PC before the learned Sessions Judge, Hamirpur, H.P. Learned Sessions Judge, vide judgment dated 6.1.2009, allowed the Appeal preferred by the Accused persons, as a result of which, the judgment of conviction passed by the learned trial Court, came to be set-aside. In the aforesaid background, present criminal Appeal has been filed by the State before this Court against the acquittal of the respondents-Accused, seeking therein conviction of the respondents-Accused after setting aside the judgment of acquittal passed by the learned Sessions Judge. 6. Mr. M.L. Chauhan, learned Additional Advocate General vehemently argued that the impugned judgment of acquittal having been passed by the learned Sessions Judge is not sustainable in the eye of law as the same is not based upon the correct appreciation of the evidence adduced on record by the prosecution and as such, same deserves to be quashed and set-aside. While referring to the impugned judgment passed by the court below, Mr. Chauhan, contended that bare perusal of the impugned judgment suggests that the learned court below has not appreciated the evidence in its right perspective, as a result of which, erroneous findings have come on record. Mr. Chauhan, further contended that the court below has not discussed the evidence of the prosecution in its right perspective and gave no finding on merits of the case. Mr. Chauhan, further contended that the court below has not discussed the evidence of the prosecution in its right perspective and gave no finding on merits of the case. He further contended that learned Sessions Judge, discarded the testimony of prosecution witnesses for untenable reasons in the absence of any proof of enmity and no reasons were assigned for not taking into consideration their versions. Mr. Chauhan, while inviting attention of this Court to the evidence led on record by the prosecution argued that prosecution proved its case beyond reasonable doubt that 69 cartons of liquor (24 cartons of Black Jack XXX Rum and 45 cartons of country liquor Lal Kila) were recovered from the conscious possession of the Accused, who were admittedly sitting in the Mahindra pick-up jeep at the time of the recovery and as such, there was no scope left for the court below to upset the findings recorded by the learned trial Court. With the aforesaid submissions, Mr. Chauhan, contended that the respondents-Accused deserve to be convicted after setting aside the judgment of acquittal recorded by the learned Sessions Judge. 7. Mr. Tara Singh Chauhan, learned counsel representing the respondents-Accused supported the impugned judgment of acquittal passed by the learned Sessions Judge. He, while inviting attention of this Court to the impugned judgment of acquittal passed by the Court below strenuously argued that there is no illegality and infirmity in the same and same is based upon the correct appreciation of the evidence available on record. With a view to refute the aforesaid contentions having been made by the learned Additional Advocate General, Mr. Tara Singh Chauhan, learned counsel, argued that none of the prosecution witness supported the case of the prosecution, rather all the so called witnesses stated nothing with regard to the alleged recovery effected from the conscious possession of the respondent-Accused. Lastly, Mr. T.S. Chauhan, contended that if the story put forth by the prosecution is believed that 69 cartons of liquor were recovered, no conviction, if any, could be recorded against the Accused persons, solely for the reason that only six bottles out of 69 cartons (three samples from XXX Rum and three from country liquor) were sent for the chemical examination. T.S. Chauhan, contended that if the story put forth by the prosecution is believed that 69 cartons of liquor were recovered, no conviction, if any, could be recorded against the Accused persons, solely for the reason that only six bottles out of 69 cartons (three samples from XXX Rum and three from country liquor) were sent for the chemical examination. While placing reliance upon the judgments dated 29.5.2017, passed by this Court in Criminal Appeals No. 620 and 777 of 2008, learned counsel stated that since three bottles of XXX Rum and three bottles of country liquor ''Lal Kila'', were sent for chemical analysis, only six bottles can be presumed to be recovered from the possession of the Accused persons. In the aforesaid background, Mr. Tara Singh prayed for dismissal of the instant Appeal being devoid of any merit. 8. I have heard the learned counsel for the parties and carefully gone through the record. 9. While hearing the arguments having been made by the learned counsel for the parties, this Court had an occasion to peruse the impugned judgment as well as evidence led on record by the prosecution, perusal whereof certainly not suggests that prosecution was able to prove its case beyond reasonable doubt, rather, this Court after having gone through the statements having been made by the prosecution witnesses has no hesitation to conclude that recovery of liquor from the Accused was not proved and as such, there is no illegality and infirmity in the judgment passed by the learned Sessions Judge. 10. In the case at hand, prosecution with a view to prove its case beyond reasonable doubt, examined as many as five witnesses, whereas respondents-Accused in their statements recorded under Section 313 Cr.PC denied the case of the prosecution and claimed themselves to be innocent, however, they did not lead any evidence in their defence despite sufficient opportunities having been afforded to them. 11. PW1 Danvir Singh, while stating in his examination-in-chief that ''Tralla'' was checked in his presence by the police party, wherein 29 cartons of liquor were recovered, categorically admitted in his cross-examination that he did not know for what purpose, he was deputed from the police station. He also stated in his examination-in-chief that 5-10 vehicles had passed/crossed before the interception of the offending ''tralla'' at the spot. He also stated in his examination-in-chief that 5-10 vehicles had passed/crossed before the interception of the offending ''tralla'' at the spot. Aforesaid witness also stated that cartons of liquor allegedly recovered from the Accused were taken into possession vide memo Ext.PW1/A. He also identified the cartons Ext.P1 to Ext.P69 in the Court. 12. PW2 HHC Ajit Singh stated that on March 7, 2006 MHC Raj Kumar handed over to him the sample bottles of this case, which he had deposited on the next date at CTL, Kandaghat in safe position. Importantly, aforesaid witness in his cross-examination specifically admitted that he had only taken the sample bottles to CTL and nothing else. 13. PW3 HC Raj Kumar, who happened to be MHC at Police station Barsar at that relevant time, also stated that case property of this case including six sample bottles were deposited with him on 28.2.2006 by the Investigating Officer and thereafter, he had sent the sample bottles on 7.3.2006 vide RC No. 30/2006 through HHC Ajit Singh to CTL, Kandaghat. He like PW2 also admitted in his cross-examination that only sample bottles were sent to CTL. 14. PW5 ASI Parkash Chand, who at that relevant time was heading the police party deposed before the court below that offending vehicle (Tralla) was checked in his presence, wherein 69 cartons of liquor without any licence or permit were recovered. He in statement categorically stated that six bottles were separated (three samples from XXX Rum and three from country liquor). Aforesaid witness further stated that aforesaid sample bottles were sealed with seal impression ''P'' and thereafter seal impression ''P'' was also taken separately on a piece of cloth. As per this witness, case property and ''Tralla'' were taken into possession vide memo Ext.PW1/A and Ext.PW1/B, respectively. He categorically admitted in his cross-examination that no independent witness was associated at the spot as it was not required. Interestingly, aforesaid witness (PW5) in his cross examination admitted that some bottles were empty when they were shown in the Court. 15. Conjoint reading of statements having been made by the aforesaid prosecution witness clearly suggests that vehicle being driven by the respondent-Accused namely Anish Mohammad was intercepted on 27/28.2.2006 by police party headed by PW5 ASI Parkash Chand. Interestingly, aforesaid witness (PW5) in his cross examination admitted that some bottles were empty when they were shown in the Court. 15. Conjoint reading of statements having been made by the aforesaid prosecution witness clearly suggests that vehicle being driven by the respondent-Accused namely Anish Mohammad was intercepted on 27/28.2.2006 by police party headed by PW5 ASI Parkash Chand. Perusal of Rojnamcha Rapat Ext.PW5/A suggests that on 27.2.2006, ASI Karam Singh recorded in the Rapat Rojnamcha that information has been received on VHF Set that vehicle No. 4757, Marshal, was coming towards Barsar and accordingly, naka should be put to check it. After recording aforesaid Rapat in Rojnamacha, police party headed by PW5, Parkash Chand left the police station in vehicle No. HP-22-5642 towards Dandroo, Mehre and Jyoli. 16. In the case at hand, neither ASI Karam Singh, who was first person to receive information with regard to illegal transportation of liquor by the respondent-Accused, was cited as prosecution witness nor any of the prosecution witnesses in their statements, as have been discussed above, disclosed/revealed factum, if any, with regard to the receipt of prior information on VHF, as recorded by the ASI Karam Singh in Rapat Rojnamacha, Ext.PW5/A. 17. Similarly, all the material prosecution witnesses, while deposing before the court below that 69 cartons of liquor were recovered, categorically stated that six bottles were separated out of 69 cartons allegedly recovered from the conscious possession of the respondents-Accused. PW2, PW3 and PW5 stated before the court below that only six bottles, which were separated at the time of taking possession of the case property Ext.PW1/A, were sent to CTL Kandhaghat for chemical examination. 18. Though, this Court after having carefully perused the evidence led on record by the prosecution sees no reason to differ with the finding recorded by the learned Sessions Judge that prosecution failed to prove its case beyond reasonable doubt but even otherwise also, entire recovery allegedly effected by the police stands vitiated on account of the fact that only six bottles (three of XXX Rum and three of country liquor) out of the total alleged recovery from the Accused were sent for chemical analysis and as such, there is recovery of only six bottles, which is admittedly within the permissible limits. At this stage, it would be profitable to refer to the judgment passed by this Court in case titled "Surender Singh vs. State of H.P.", Latest HLJ 2 (2013) 865, which reads as under:- "26. In the instant case, it be also noticed that there is yet another major flaw in the investigation by the police. Assuming that the contraband was actually recovered by the police party, police did not take samples from all the boxes. Samples only from few bottles out of some of the boxes, which they had opened, were taken. None of these witnesses have deposed that the remaining boxes were sealed; from outside appeared to be of the same make or brand; bearing serial numbers; the date of manufacture; or the place and the name of the manufacturer. All that these witnesses have deposed is that boxes of alcohol, as described above, were found in the vehicle. Inside the boxes could be anything. Police could not prove that the remaining boxes actually contained liquor. The samples cannot be said to be representative in character. 27. In similar circumstances, this Court in Mahajan vs. State of Himachal Pradesh, (2003) Cr.L.J. 1346; State of H.P. vs. Ramesh Chand, Latest (2007) 2 HLJ 1017 ; Dharam Pal and another vs. State of Himachal Pradesh, (2009) 2 Shim. LC 208; and State of Himachal Pradesh vs. Kuldeep Singh & others, (2010) 2 Him.L.R. 825, acquitted the Accused, as prosecution could not prove, beyond reasonable doubt, as to what was actually there in the remaining boxes. 28. As per version of PW-1, outside the boxes ''Sirmour No. 1'' was printed which version stands denied by PW-7. In the instant case, there is nothing on record to show that the remaining boxes were in fact containing liquor. Quantity of the remaining bottles of the boxes from which samples were drawn has also not been proved to be liquor. These aspects have not been considered by the Courts below. The cumulative effect is that the prosecution has failed to prove the charge against the Accused, beyond reasonable doubt and as such judgments of the Courts below are not sustainable in law." 19. Reliance is also placed on the judgment passed by this Court State of HP vs. Jagjit Singh, Latest HLJ (2008) (HP) 919, wherein this Court has observed in paras 6 and 7 as under:- "6. Reliance is also placed on the judgment passed by this Court State of HP vs. 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 subsection (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." 20. Apart from above, it also emerge from the record that as per statement of Investigating officer, ASI Parkash Chand, seal impression used to seal the samples was taken separately on a piece of cloth and thereafter, such seal impression was sent to CTL Kandaghat, for its comparison with the sample bottles to avoid possibility of tempering. Aforesaid witness though stated that seal impression was taken on a piece of cloth but he nowhere stated that he deposited the seal impression with MHC Raj Kumar (PW3). PW3 also nowhere stated that seal impressions were deposited with him by the I.O. Similarly HHC PW2 Ajit Singh, who had allegedly taken the samples to the CTL Kandaghat, did not state something specific with regard to the taking of seal impressions to the CTL Kandaghat, for comparison with seal on the samples. PW3 also nowhere stated that seal impressions were deposited with him by the I.O. Similarly HHC PW2 Ajit Singh, who had allegedly taken the samples to the CTL Kandaghat, did not state something specific with regard to the taking of seal impressions to the CTL Kandaghat, for comparison with seal on the samples. PW, HHC, Ajit Singh, in his cross examination, categorically admitted that save and except sample parts, he was not handed over anything else by the HHC Raj Kumar to be deposited in CTL Kandaghat and as such, this Court sees no illegality and infirmity in the finding recorded by the learned Sessions Judge, that there is no link evidence on the file to suggest that seal, if any, was sent to CTL Kandaghat alongwith samples to compare the seals on the samples sent for chemical examination. Though in the dockets, Ext.PX and Ext.PY, it is mentioned that seal impressions were being sent separately to the laboratory, but none of the PWs, especially Ajit Singh, who had taken samples to CTL stated that he had taken seal impressions to the CTL Kandaghat for comparison of seal on the sample parts. 21. At the cost of repetition, it may be stated that HHC Ajit Singh (PW2) categorically admitted in his cross-examination that save and except samples, he was not handed over anything else by PW3 to be deposited at CTL Kandaghat. In the instant case, there appears to be no evidence with regard to handing over of seal impressions separately to CTL Kandaghat and as such, possibility of samples having been tempered cannot be ruled out. 22. Similarly, this Court after perusing the evidence available on record is compelled to conclude that prosecution has failed to prove recovery of liquor from the conscious possession of the Accused. As clearly emerge from the record, neither there is any seal nor any tag of FIR on the case property coupled with the fact that seal was not produced before Court below, as a result of which, story of prosecution has rendered unreliable and untrustworthy. 23. In this regard, reliance is placed on judgment rendered by the Hon''ble Apex Court in State of Rajasthan vs. Gopal, (1998) 8 SCC 449 , relevant paras of the aforesaid judgments is reproduced herein below: "2. 23. In this regard, reliance is placed on judgment rendered by the Hon''ble Apex Court in State of Rajasthan vs. Gopal, (1998) 8 SCC 449 , relevant paras of the aforesaid judgments is reproduced herein below: "2. In passing the order of acquittal, the High Court has noted that the seizure of the narcotic substance was doubtful because the seal on the sample sent for chemical analysis could not be compared with the seal on the seized article kept in the Police Malkhana because the seal on the sample sent to analyst could not be produced in the Court for verification. Even the seal which was put on the seized article kept in the Police Malkhana could not be ascertained excepting the word "Ajmer". It may be stated here that since the said article had been seized on the railway platform according to the prosecution case, the seal of the Stationmaster had been used, but the Stationmaster was not examined to prove whether the seal put on the sized article and kept in the Police Malkhana really contained the seal of the Stationmaster." 24. Reliance is also placed on judgment passed by our own High Court in Nanha vs. State of H.P., Latest HLJ (2011) (HP) 1195. Paras No. 7 to 9 are extracted herein below:- "7. Adverting to the points urged by learned counsel appearing for the appellant that the seal used has not been produced in court, we note that this Court in Criminal Appeal No. 308 of 1996, decided on October 21, 2009, State of H.P vs. Tek Chand, reported in Latest HLJ (2010) (HP) 497, Holds- "9 PW1 Hukam Chand, MHC, with whom the case property was deposited by PW 4 Ravinder Singh, also did not say that any specimen seal impression has been deposited along with parcel containing the samples and the bulk Charas. It is only PW2 HC Raj Sigh, who took over the charge of MHC from PW1 Hukam Chand, who stated that he sent one of the two samples along with sample seals to the Chemical Examiner, through Constable Mani Ram. Mani Ram who was examined as PW3, did not say that any specimen seal impressions were also carried by him along with the sample. He simply stated that he carried one sealed parcel which was handed over to him PW2 HC Raj Singh. Mani Ram who was examined as PW3, did not say that any specimen seal impressions were also carried by him along with the sample. He simply stated that he carried one sealed parcel which was handed over to him PW2 HC Raj Singh. On the docket with which the sample was sent to the Chemical Examiner i.e. Ext.PC, facsimiles of the seals used in sealing the parcels are not there. That means specimen impressions of the seals used in sealing the sample parcels, which was sent to the laboratory, were not available with the Chemical Examiner, for comparison with the seal impressions on the parcel containing sample. Therefore, the report Ext. PC cannot be said to have been sufficiently linked with the samples allegedly separated from the recovered stuff. 8. Adverting to the facts on record, we find from Ext. PW-8/A that the facsimile of the seal not having been affixed on this document. Further we also note that PW-5 Constable Yoginder Singh states; "All the parcels were sealed with seal ''D'' initially. The seal ''S'' was made of some metal. The seal has not been brought by me today as the same has been lost. No report qua missing of the seal was lodged by me with anyone. 9. The seal was in possession of the prosecution as established form the evidence of PW-7 Constable Ramesh Kumar, who says that he had deposited this in the Kandaghat Laboratory. What happened to the seal after that is not clear neither it is clear as to why the facsimile is not affixed on the NCB form." 25. Consequently, in view of the detailed discussion made herein above as well as law referred herein above, this court sees no illegality and infirmity in the judgment passed by the learned Sessions Judge, which appears to be based upon the proper appreciation of evidence adduced on record and as such, same is upheld. Accordingly, the present Appeals are dismissed being devoid of any merits.