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2017 DIGILAW 194 (HP)

State Of Himachal Pradesh v. Sandeep Kumar

2017-03-16

DHARAM CHAND CHAUDHARY, DHARAM CHAND CHAUDHARY

body2017
JUDGMENT Chander Bhusan Barowalia, J. —The present appeal has been preferred by the appellant/State (hereinafter referred to as "the appellant") challenging the judgment, dated 22.12.2012, passed by the learned Special Judge, Shimla, H.P., in Sessions Trial No. 19- S/7 of 2011, whereby both the accused/respondents (hereinafter referred to as "the accused") were acquitted for the offence punishable under Section 20 of Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as "NDPS Act"). 2. Succinctly, the facts giving rise to the present appeal, as per the prosecution story, are that on 24.06.2011, around 6:00 p.m., police received secret and reliable information that accused persons are likely to purchase charas. Police personnel, acting on the tip off, went in the area of Chichi Ghati and Nangal Devi (Theog) and about 7:30 p.m. vehicle (Taxi Van) bearing registration No. HP07B-0242 was stopped. Two persons were traveling in the vehicle and they were asked to remain seated. Police associated passers by, namely, Shri Bal Krishan and Shri Arun Verma, as independent witnesses. On inquiry, accused, who was driving the vehicle, disclosed his name as Pradeep Kumar and the other disclosed his name as Rahul Kumar. Accused persons were informed qua their rights under Section 50 of the NDPS Act. Police personnel also gave their personal search in presence of independent witnesses and in this regard memo Ex. PW-2/B was prepared. The accused persons opted for the search of their vehicle and qua this memo, Ex. PW-2/A, was prepared, which was signed by the accused as well as the independent witnesses. Thereafter, on search of the vehicle, a cream colour plastic bag, on which "Inder Di Hatti, Shop No. 18, Chandigarh" was written, was recovered. The said plastic bag was kept near the feet of accused Rahul Kumar, who was sitting on the front seat. The said plastic bag contained black stick and round shaped material which was further wrapped in a transparent plastic sheet. The recovered material was taken into possession vide recovery memo, Ex. PW-2/F. Personal search of the accused persons was also conducted and in this regard memos, Ex. PW- 7/A and Ex. PW-7/B, were prepared. During the personal search of accused Rahul Kumar, Voter Identity Card, having his photo thereon, was recovered. According to this card, his name was Sandeep Kumar and not Rahul Kumar. Separate seizure memo, Ex. PW-2/F. Personal search of the accused persons was also conducted and in this regard memos, Ex. PW- 7/A and Ex. PW-7/B, were prepared. During the personal search of accused Rahul Kumar, Voter Identity Card, having his photo thereon, was recovered. According to this card, his name was Sandeep Kumar and not Rahul Kumar. Separate seizure memo, Ex. PW-2/C, qua taking into possession of Voter Card of accused Sandeep Kumar, was prepared, which was signed by the independent witnesses. Recovered contraband was weighed through electric scale kept in the I.O. kit and on weighment the same was found to be 1 kg 200 grams. The contraband was wrapped in a piece of cloth and sealed with seal impression ''R''. Facsimile seal impression was taken on a separate piece of cloth, Ex. PW-2/D. Sample seal was handed over to independent witness, Shri Bal Krishan. NCB form, in triplicate, was prepared and copy of NCB form is Ex. PW-1/D. Documents of the vehicle were also taken into possession. Rukka, Ex. PW- 7/C, recovered contraband, seizure memos, facsimile seal and NCB Forms were sent to Police Station through Constable Govind Kumar for registration of FIR. On the basis of rukka, Ex.PW-7/C, FIR, Ex. PW-1-F, was recorded. 3. In order to prove its case, the prosecution examined as many as seven witnesses. The statements of the accused, under Section 313 Cr.P.C., were recorded. No defence witness was produced by the accused. 4. The learned Court below, vide its judgment dated 22.12.2012, acquitted both the accused for the offence punishable under Section 20 of NDPS Act, however, accused Sandeep Kumar was convicted under Section 419 IPC and was sentenced to undergo simple imprisonment for three years and to pay fine of Rs. 25,000/- (rupees twenty five thousand) and in default of payment of fine he was further ordered to undergo simple imprisonment for six months. Hence the present appeal. 5. Accused Sandeep Kumar separately assailed the judgment of his conviction by filing Criminal Appeal No. 9 of 2013, and vide judgment dated 12.06.2013, rendered in therein, he has been acquitted, so the only question which remains for adjudication before this Court is qua acquittal of the accused persons for the offence punishable under Section 20 of the NDPS Act. 6. We have heard the learned Additional Advocate General for the appellant/State and M/s. R.R. Rahi and B.R. Sharma, Advocates, for respondents No. 1 and 2, respectively. 6. We have heard the learned Additional Advocate General for the appellant/State and M/s. R.R. Rahi and B.R. Sharma, Advocates, for respondents No. 1 and 2, respectively. 7. The learned Additional Advocate General has argued that the findings arrived at by the learned Trial Court qua acquittal of both the accused for the offence punishable under Section 20 of the NDPS Act are wrong, as the learned Court below has failed to appreciate that the prosecution has proved the guilt of the accused persons by leading cogent and reliable evidence. He has prayed that the judgment of acquittal of the accused under Section 20 of the NDPS Act may be set aside and the accused persons may be convicted. 8. Conversely, the learned counsel for the accused have argued that there are material contradictions in the statements of the prosecution witnesses which render the prosecution story doubtful, so no interference in the judgment of acquittal under Section 20 of NDPS Act is required. 9. In order to appreciate the rival contentions of the parties, we have gone through the record carefully. 10. PW-1, HC Balbir Singh, has deposed that on 24.06.2011, around 6 p.m., Inspector Minakshi Bhardwaj (PW- 7) received information that two persons are coming with charas. Entry in this regard had been made by this witness through CIPA, printed copy whereof is Ex. PW-1/A. Thereafter a police team, headed by PW-7, Inspector Minakshi Bhardwaj, went towards Nangal Devi, Theog. PW-1 made an entry qua departure of the police team, printed copy whereof is Ex. PW- 1/B. He has further deposed that on 25.06.2011 PW-5, Inspector Tenzin deposited with him a parcel sealed with seal impressions ''R'' and ''T'' along with sample seals ''R'' and ''T'', NCB form (in triplicate) copy of seizure memo and reseal certificate for being deposited in the malkhana. Ex. PW-1/C is the copy of entry made in the malkhana register. He has handed over the parcel along with sample seals ''R'' and ''T'', NCB form, reseal certificate and copy of FIR to Constable Raghubir Singh (PW-4) vide RC No. 44 of 2011 for being deposited in FSL Junga for chemical analysis. On the same day, PW-4 deposited the case property in FSL Junga and receipt was handed over to him. As per the testimony of this witness, he has registered FIR, Ex. PW-1/F, on the basis of rukka. On the same day, PW-4 deposited the case property in FSL Junga and receipt was handed over to him. As per the testimony of this witness, he has registered FIR, Ex. PW-1/F, on the basis of rukka. This witness in his cross examination has deposed that no receipt was issued qua deposit of the case property in malkhana, however, self stated that entry with respect to said case property was made in the malkhana register. He has denied that the case property was not deposited with him. He feigned ignorance as to who was present along with the SHO at that time of resealing of the parcel. 11. PW-2, Constable Govind Singh, deposed that on 24.06.2011 he along with Constable Joginder and Driver Brij Lal accompanied Inspector Minakshi (PW-7) towards Theog in vehicle No. HP-07B-0324. Near Nangal Devi a van coming from Chichighat to Nangal Devi was spotted and was signaled to stop. Accused persons were traveling in the van. Two persons, who were passers by, namely, Bal Krishan and Arun Verma, were associated and in their presence accused disclosed their names Pradeep Kumar and Rahul. He has further deposed that accused were apprised by PW-7 of their right to be searched before a gazetted officer or a Magistrate, however, accused opted to be searched by the police personnel. In this regard, consent memo, Ex. PW-2/A, was prepared, which was signed by the accused and the independent witnesses. Police personnel, vide memo Ex. PW-2/B, gave their personal search, thereafter, PW-7, Inspector Minakshi, searched the vehicle. As per this witness, accused Pradeep Kumar was sitting on driver seat and accused Rahul was sitting on the front seat. A bag, which was lying near the legs of accused Rahul, having words "Inder Di Hatti Shop No. 18 Chandigarh" written over it, was found. The bag contained black colour substance, which was identified by PW-7 as charas. Memo, Ex. PW-2/C, was prepared in this regard. Recovered contraband was weighed through electronic scale of I.O. and the same was found to be 1 kg 200 grams. PW-2 has further deposed that personal search of the accused was also conducted and from the pocket of accused Rahul Voter Identity Card, Ex. P-1, was recovered. As per Ex.P-1 the real name of the accused was Sandeep Kumar son of Shashi Pal. PW-2 has deposed that he has prepared the memo, Ex. PW-2 has further deposed that personal search of the accused was also conducted and from the pocket of accused Rahul Voter Identity Card, Ex. P-1, was recovered. As per Ex.P-1 the real name of the accused was Sandeep Kumar son of Shashi Pal. PW-2 has deposed that he has prepared the memo, Ex. PW-2/D, in this regard, which was signed by independent witnesses and accused. Thereafter, recovered contraband was wrapped in cloth parcel and was sealed with ten seal impressions of seal ''R'' and the sample seal impression was taken separately on pieces of cloth, one of which is Ex. PW- 2/E. Seal after its use was handed over to witness Bal Krishan. Vehicle along with charas was taken into possession vide memo Ex. PW-2/F, which was signed by him, witnesses and accused persons. As per this witness, rukka, mark ''A'' along with case property, seizure memo, sample seals, NCB forms in triplicate were handed over to him by PW-7 for being taken to Police Station for registration of FIR and he handed over the same to SHO Tenzin (PW-5). On the basis of rukka, FIR was registered and case property was resealed by SHO with four seal impression of seal ''T'' and facsimile seal was taken on a separate piece of cloth. He has further deposed that thereafter the file was given to him by the SHO and he returned to the spot. On 25.06.2011 PW-7, Inspector Menakshi, handed over special report to him, which he, around 2:30 p.m., handed over to Deputy Superintendent of Police, Crime Branch. Endorsement in this regard is encircled in red on Ex. PW-2/G, which is hand written and signed by Deputy Superintendent of Police, Vijay Sharma. PW-2 in his cross-examination deposed that Ex.P-2, polythene bag and charas, Ex. P-3, were recovered from the possession of the accused. He has denied that he was not present on the spot and prior to their reaching the spot, police officials were present there and charas was also with them. 12. PW-3, Head Constable Pradeep Kumar, deposed that he was working as Reader to Deputy Superintendent of Police, State CID, Bharari, Shimla, since 2009. He has denied that he was not present on the spot and prior to their reaching the spot, police officials were present there and charas was also with them. 12. PW-3, Head Constable Pradeep Kumar, deposed that he was working as Reader to Deputy Superintendent of Police, State CID, Bharari, Shimla, since 2009. As per this witness, on 24.06.2011, around 6:15 p.m., PW-7, Inspector Menakshi, gave him information under Section 42(2) of the NDPS Act and he carried the information on the same day to the residence of Deputy Superintendent of Police, Crime.Deputy Superintendent of Police endorsed the information in his hand writing and also signed the same. He has further deposed that Ex. PW-3/A, which is copy of the information, is true and correct, as per the original. In his cross-examination, he has denied that no information was given to him by Inspector Minakshi (PW-7). PW-4, Constable Raghubir Singh, deposed that when he was posted in Police Station State CID, Bharari, Shimla, on 25.06.2011, HC Balbir Singh (PW-1) handed over to him a cloth parcel, which was sealed with ten seal impressions of seal ''R'' and four seal impressions of seal ''T'' along with sample seals ''R'' and ''T'', NCB form (in triplicate), copy of seizure memo, reseal certificate and copy of FIR No. 15 of 2011, vide RC No. 44, dated 25.06.2011. On the same day, he deposited the case property in FSL, Junga, for being chemically analysed. He has further deposed that on his return, he handed over the receipt to MHC. As per this witness, case property was not tampered with by anyone tillthe time it remained in his custody. In his cross-examination, he has denied that no case property was handed over to him and he did not deposit the same in FSL, Junga. 13. PW-5, Inspector Tenzin, deposed that on 25.06.2011 Constable Govind Singh (PW-2) of Police Station State CID, Bharari gave him rukka mark ''A'' and a cloth parcel, which was sealed with ten seal impressions of seal ''R'' along with NCB forms (in triplicate), copy of seizure memo, sample seal ''R''. As per this witness, the seals were intact. He has further deposed that the parcel contained 1 Kg 200 grams charas and he handed over rukka mark ''A'' to MHC for registration of FIR. FIR No. 15/2011, dated- 25.6.2011, was registered on the basis of rukka. As per this witness, the seals were intact. He has further deposed that the parcel contained 1 Kg 200 grams charas and he handed over rukka mark ''A'' to MHC for registration of FIR. FIR No. 15/2011, dated- 25.6.2011, was registered on the basis of rukka. He resealed cloth parcel with four seal impressions of seal ''T'', and sample seals were drawn on a separate peace of cloth, one of which is Ex. PW-5/A. He has also issued resealing certificate, Ex. PW-5/C, and filled colums in NCB form. This witness is his cross-examination denied that he made wrong entries in the NCB form qua the date and time. He has also denied that he has not handed over the case property to MHC. 14. PW-6, Bal Krishan, who was allegedly associated as independent witness by the police personnel, deposed that he is an Advocate by profession and also member BDC, Deorighat. He has further deposed that police informed him that they had recovered charas from the vehicle of the accused. As per this witness, police was already in possession of the charas and the same was not weighed in his presence. This witness was declared hostile and was also subjected to exhaustive cross-examination. During his cross-examination by the learned Public Prosecutor he identified his signatures and signatures of his nephew on the memo. He has further stated that no charas was recovered in his presence. He has also denied that accused persons are acquainted with him and he is deposing falsely just to help them. Lastly, he has deposed that no search was conducted in his presence. 15. PW7, Inspector Minakshi (Investigating Officer) deposed that on 24.06.2011, around 6:00 pm, she received secret and reliable information that two persons are likely to purchase charas. As per the witness, there was every likelihood of the contraband being destroyed, therefore, she prepared reasons of belief under Section 42 (2) of the NDPS Act and handed over the same to Reader to Deputy Superintendent of Police. She has further deposed that, thereafter she in the company of Constable Gobind (PW2), Joginder and Driver, Brij Lal, went towards Theog in vehicle No. HP07B-0324. Entry, qua their departure, was entered in the computer, copy of which is Ex. She has further deposed that, thereafter she in the company of Constable Gobind (PW2), Joginder and Driver, Brij Lal, went towards Theog in vehicle No. HP07B-0324. Entry, qua their departure, was entered in the computer, copy of which is Ex. PW-1/A and copy of departure report is Ex.PW1/B. She has further deposed that around 7:30 p.m. when they reached 700- 800 meters behind Nangal Devi, they saw a vehicle, bearing Registration No. HP01A-0242, coming from Chichighat. The said vehicle was signaled to be stopped. There were two occupants in the vehicle. Two independent witness were associated by them, namely Bal Krishan and Arun Verma. As per this witness accused Sandeep cheated by impersonation and disclosed his name as Rahul. PW-7 apprised the accused of their right to be searched by a gazetted officer or a Magistrate, however, they opted to be searched by the police personnel. She prepared memo, Ex. PW2/A, which was signed by the independent witnesses and the accused. Accused Sandeep, signed on the memo as Rahul, however, later on it was revealed that his original name was Sandeep. As per this witness, police personnel gave their personal search is presence of the independence witnesses and memo, Ex. PW2/B, was prepared in this regard, however, nothing incriminating was found. She searched the vehicle in presence of the witnesses and near the legs of accused Sandeep a polythene bag, on which words "Inder Di Hatti shop No. 18 Chandigarh", was written, was recovered, which contained charas enveloped in a plastic sheet. Recovered contraband was sealed in a cloth parcel having seal impressions ''R'' and sample seal was taken on a separate piece of cloth, which is Ex. PW-2/D. Documents of the vehicle, that is, Driving Licence, Registration Certificate, Permit, Insurance etc., Ex. PZ-1 to Ex. PZ-7, were taken into possession. She has further stated that she filled in the NCB form (in triplicate) and seal after its use was handed over to witness Bal Krishan and receipt memo, Ex. PW-6/A, was prepared. Vide memo, Ex. PW-2/F, the case property was taken into possession. As per her statement, the vehicle was owned by Deepak Kumar and Pradeep Kumar, however, during the investigation it was unearthed that Deepak Kumar had died. Accused Sandeep cheated by way of personation. Rukka, Ex. PW-6/A, was prepared. Vide memo, Ex. PW-2/F, the case property was taken into possession. As per her statement, the vehicle was owned by Deepak Kumar and Pradeep Kumar, however, during the investigation it was unearthed that Deepak Kumar had died. Accused Sandeep cheated by way of personation. Rukka, Ex. PW-7/A, which bears her signatures, was prepared and the same along with parcel of charas, recovery memo of charas, sample seal, NCB form were sent, through Constable Govind Kumar, to Police Station for registration of FIR. She has stated that on rukka, Ex. PW-7/A, endorsement of FIR, Ex. PW-7/D, was signed by SHO Tenzin Shsani. She also prepared special report, Ex. PW-2/G, under Section 57 of the NDPS Act and sent the same, through Constable Govind, to Deputy Superintendent of Police Crime. Accused were arrested by preparing grounds of arrest, Ex. PW-7/F and Ex. PW-7/G, and their relatives were informed. She identified cloth parcel, Ex. P-2, polythene, Ex. P- 3 and charas, Ex. P-4. Report of chemical analysis of the recovered contraband was also received and she prepared the final report on 27.07.2011. She has further stated that CIPA certificate, Ex. PL, was prepared by her, which she admitted to be correct, as per the original. In her cross-examination she denied that no vehicle was stopped and the accused were compelled to sign the documents without plausible explanation thereof. She has also denied that no charas was recovered from the vehicle in which the accused were traveling and she prepared the memos twice. 16. After exhaustively discussing the prosecution evidence, now the same needs to be examined and scrutinized in a right perspective. As per the prosecution story, charas was allegedly recovered from the possession of the accused while they were transporting the same in a vehicle bearing registration No. HP-01A-0242 and they were intercepted by the police. Seizure memo of charas, Ex. PW-2/F, clearly demonstrate that the recovery was witnessed by PW-2, Constable Govind (official witness), PW-6, Bal Krishan and Arun Verma (independent witnesses). Manifestly, PW-2, constable Govind has supported the prosecution case, however, independent witness, Bal Krishan (PW-6) did not support the prosecution case and he denied that search was conducted in his presence. PW-6 has also denied that charas was recovered from the exclusive and conscious possession of the accused in his presence. Manifestly, PW-2, constable Govind has supported the prosecution case, however, independent witness, Bal Krishan (PW-6) did not support the prosecution case and he denied that search was conducted in his presence. PW-6 has also denied that charas was recovered from the exclusive and conscious possession of the accused in his presence. This witness was declared hostile and was also subjected to cross-examination, but nothing fruitful came out. Surprisingly, the prosecution did not examine the other independent witness, that is, Arun and he was given up on the ground that he was won over by the accused. Thus, it clear that the case of the prosecution did not get much needed support from the only examined independent witness (Bal Krishan, PW-6). The above discussion of PW-2, Constable Govind Singh and PW-6, Bal Krishan, leaves this Court in a situation where two views qua the guilt of the accused are possible and it is well settled that where two views are possible, the view favouring the accused must be accepted. 17. In the present case, the statement of the police witnesses becomes doubtful when the sole independent witness (PW-6) examined by the prosecution, who is not an ordinary person but a well educated man and also a public representative, did not support prosecution case. At the same point of time, non-examination of second independent witness also demonstrates that the recovery is defective. The net result of the above discussion is that the prosecution has failed to prove the guilt of the accused beyond the shadow of reasonable doubt. 18. PW-1, HC Balbir, PW-3, HC Pradeep Kumar and PW- 4, Constable Raghubir Singh, are link witnesses and their evidence needs no further discussion as the chain of events, qua their part, stands established. PW-7, Inspector Minakshi, is Investigating Officer in the instant case, thus she cannot be termed as an independent witness. Therefore, again the pendulum swings towards the statements of PW-2, Constable Govind (official witness), and PW-6, Bal Krishan (independent witness), which are contradictory with each other. PW-6, Bal Krishan, in clear and unequivocal terms stated that he was told by the police that they have recovered charas and the same was already in their possession. As per his statement, charas was not recovered and weighed in his presence. PW-6, Bal Krishan, in clear and unequivocal terms stated that he was told by the police that they have recovered charas and the same was already in their possession. As per his statement, charas was not recovered and weighed in his presence. Thus, in a nut shell, it will not be unsafe to observe that recovery of contraband has not been clearly established in the case in hand. There is ample evidence available on record, which castes a shadow of doubt on the recovery portion of the prosecution story. In the present case, recovery of contraband from the exclusive and conscious possession of the accused persons goes unproved and unestablished. The whole story of the prosecution rests on recovery of contraband from the exclusive and conscious possession of the accused persons and in the absence of any comprehensive support from independent witness, viz., PW-6, Bal Krishan, the recovery part not only becomes weak, but it renders the whole prosecution story unreliable, when the statement of official witnesses are contradictory and not inspiring confidence. 19. It has been held in K. Prakashan v. 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. 20. The Hon''ble Supreme Court in T. Subramanian v. 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. 21. In view of the above discussion, the inescapable conclusion is that the prosecution has failed to prove the guilt of the accused conclusively and beyond the shadow of reasonable doubt. Thus, we are of the considered view that the appeal sans merits and deserves dismissal. Accordingly, the appeal is dismissed. Pending application(s), if any, stand(s) disposed of accordingly.