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Himachal Pradesh High Court · body

2017 DIGILAW 33 (HP)

State Of Himachal Pradesh v. Shiv Ram

2017-01-10

AJAY MOHAN GOEL, SANJAY KAROL

body2017
JUDGMENT Ajay Mohan Goel, J. (Oral)—By way of this appeal, the State has challenged the judgment passed by the Court of learned Special Judge-II (Additional Sessions Judge), Kullu in Sessions Trial No. 52 of 2014 (2012) dated 25.02.2015, vide which learned trial Court has acquitted the accused for commission of offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985. 2. The case of the prosecution was that on 16.06.2012 at around 1:30 p.m., Station House Officer, Police Station, Kullu (PW-7) Inspector Sher Singh received a secret information that accused was selling charas in his Khokha near Regional Hospital, Kullu. On the receipt of said information, a police party headed by PW-5 Sub Inspector Gaurav Bhardwaj and consisting of Head Constable Gian Chand, Whether the reporters of the local papers may be allowed to see the Judgment? Constable Ramesh and Constable Povinder Kumar reached Regional Hospital, Kullu where accused was found in one Khokha. Accused had both his legs amputated and was sitting on the counter and at that relevant time, one Bhupender Singh, son of Shri Arjun Singh was also found inside the Khokha, who was having tea there. Investigating Officer, Gaurav Bhardwaj (PW-5) associated Bhupender Singh, Constable Ramesh Kumar (PW-1) and Constable Povinder in the course of search and seizure and asked the name of the accused, who disclosed his name as Shiv Ram. Thereafter, the Investigating Officer gave his personal search to the accused in the presence of the above-mentioned persons vide memo Ex. PW1/A and in the presence of the said witnesses, he conducted search of the Khokha/Dhaba, which was being run by the accused. As per the prosecution, during the course of the said search, when cushion with the support of which accused was sitting on the counter was checked, one transparent polythene envelope was recovered from there and when the said polythene envelope was opened, ball shape and stick shape black colour substance was found inside the said envelope which was found to be charas. The recovered charas when weighed was found to be 235 grams. The said charas was put inside the polythene envelope, which envelope was placed inside a cloth parcel and codal formalities of sealing and seizure of case property were undertaken by the Investigating Officer. NCB-1 form in triplicate was filled by him and thereafter, he prepared ruqua Ex. The recovered charas when weighed was found to be 235 grams. The said charas was put inside the polythene envelope, which envelope was placed inside a cloth parcel and codal formalities of sealing and seizure of case property were undertaken by the Investigating Officer. NCB-1 form in triplicate was filled by him and thereafter, he prepared ruqua Ex. PW5/A, which was sent through Constable Ramesh to Police Station, Kullu, on the basis of which FIR Ex. PW7/A was registered. 3. After completion of the codal formalities, which included preparation of spot map and recording the statements of the witnesses, the case property as well as accused were taken to Police Station. In the Police Station, SHO Sher Singh (PW-7) resealed the parcel and the sealed parcel along with other relevant documents and case property were handed over to MHC Ram Krishan. The same were thereafter sent to SFSL Junga through Constable Ramesh Kumar (PW-1) and as per the report of the SFSL, the recovered substance was found to be charas. 4. After completion of investigation, challan was filed in the Court and as a prima facie case was found against the accused, accordingly he was charged for commission of offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985, to which he pleaded not guilty and claimed trial. 5. Learned trial Court on the basis of evidence produced on record by the prosecution both ocular as well as documentary, held that prosecution had failed to prove that on the relevant date, time and place, accused was found in exclusive and conscious possession of 235 grams charas unauthorisedly. Learned trial Court held that in fact the case of the prosecution was shrouded under the shadow of doubt and accordingly benefit of doubt deserved to be given to the accused. Learned trial Court held that neither the prosecution was able to substantiate from the statements of PW-1 and PW-5 that in fact contraband was recovered from the conscious possession of the accused in the mode and manner in which the prosecution wanted the Court to believe nor there was any cogent explanation as to why the only independent witness Bhupender Singh was not examined in the Court by the prosecution. Learned trial Court also held that though the State had examined PW-4 Shri Piar Chand, who was working as Teh-Bazari Clerk in Municipal Council, Kullu to prove that the Khokha from which the contraband was recovered belonged to the accused, however, testimony of this witness did not prove the same. On these bases, learned trial Court acquitted the accused. 6. Feeling aggrieved by the judgment so passed by the learned trial Court, the State has filed this appeal. 7. We have heard Mr. V.S. Chauhan, learned Additional Advocate General for the State and Mr. Vijay Arora, learned counsel for the respondent and have also gone through records of the case as well as the judgment passed by the learned trial Court. 8. A perusal of the evidence produced on record by the prosecution both ocular as well as documentary, demonstrates that the alleged Khokha from which the contraband was allegedly recovered by the police party from the possession of the accused was at a short distance of about 400 metres from Police Station, Kullu. If that was so, there is no cogent explanation which has come forth from the prosecution as to why when the police party went to the Khokha of the accused with a positive information that he was selling charas from his Khokha, no reliable independent witnesses were taken along by the police party for the purpose of search and seizure. Admittedly, it is not a case of chance recovery, therefore, in these circumstances, the factum of the Investigating Officer not associating any independent witnesses with the alleged recovery of charas from the nearby area save and except one Bhupender Singh, who as per the prosecution was having tea in the Khokha of the accused, raises serious doubts over the story of the prosecution, because neither Bhupender Singh was examined by the prosecution during the course of trial nor any cogent explanation has come forth as to why the only independent witness who was associated by the Investigating Officer was not examined before the learned trial Court. This, in our considered view, shrouds the case of the prosecution with suspicion and creates serious doubts over the veracity of the version of the prosecution. 9. This, in our considered view, shrouds the case of the prosecution with suspicion and creates serious doubts over the veracity of the version of the prosecution. 9. Though this Court is not oblivious to the fact that it is not as if in the absence of independent witnesses, the case of the prosecution can not be believed, but if independent witnesses could have been associated easily by the police and then either independent witnesses are not associated or the only independent witness who was allegedly associated is not examined by the prosecution, then obviously the same creates serious doubts over the veracity of the case of the prosecution. It also calls upon this Court to go through the testimonies of the police witnesses minutely in order to conclude as to whether the statements of the police witnesses are cogent, reliable and trustworthy so as to be made basis for convicting the accused. This is more so keeping in view the fact that the accused at this stage has got the benefit of being acquitted by the learned trial Court and it is settled law that when accused has the benefit of acquittal by one Court, then generally the judgment of acquittal is not to be interfered with until and unless there is perversity in the findings so returned by the learned lower Court. 10. In this background, when we go through the statement of PW-1 Constable Ramesh Lal, who was part of police party and also one of the witnesses to the search and seizure, and the statement of Investigating Officer (PW-5) Sub Inspector Gaurav Bhardwaj, we find that there are inconsistencies and contradictions in the statements of these two witnesses. According to PW-1, when the raid was conducted in the Khokha of the accused by the police party, no other person was there except Bhupender, however, a perusal of the statement of the Investigating Officer reveals that he has stated that there was one little boy in the Dhaba who was deployed by the accused to assist him for the purpose of selling tea etc. He has also deposed in cross-examination that the said boy was in the Khokha at the relevant time, however, he did not ask the name and address of the said boy. This contradiction in the statements of PW-1 and PW-5 has not been satisfactorily explained by the prosecution. He has also deposed in cross-examination that the said boy was in the Khokha at the relevant time, however, he did not ask the name and address of the said boy. This contradiction in the statements of PW-1 and PW-5 has not been satisfactorily explained by the prosecution. Besides this, whereas as per PW-1, the Khokha of the accused from where the contraband was recovered, was covered with iron sheets from three sides and its front portion was open, but it has not so come in the statement of PW-5 who has only deposed that the Khokha was roofed with tarpaulin. 11. Besides this, from the material produced on record by the prosecution, it cannot be said that the prosecution was able to establish that in fact the accused was having a Khokaha or that the accused in fact was in exclusive possession of a Khokha from which contraband was recovered by the prosecution in the mode and manner it wants this Court to believe. A perusal of the statement of PW-4 Piar Chand demonstrates that this witness who was working as Teh-Bazari Clerk in the Municipal Council, Kullu and used to collect cess etc. from Akhara Bazaar up to entire Dhalpur has stated that there was no record of any Khokha in respect of the accused in the Municipal record. This witness further deposed that he has not seen any illegal Khokha of the accused in the land of the Municipality near Regional Hospital, Kullu. Though he was declared as a hostile witness, however, a perusal of the cross-examination of this witness by the learned Public Prosecutor demonstrates that nothing could be elucidated from his cross-examination by the Public Prosecutor to further the case of the prosecution. In fact in his cross-examination, this witness has denied that accused had encroached upon the land of Municipal Council and had installed a Khokha on the land of Municipality near Regional Hospital, Kullu. In fact in his cross-examination, this witness has denied that accused had encroached upon the land of Municipal Council and had installed a Khokha on the land of Municipality near Regional Hospital, Kullu. Therefore, in our considered view, in the absence of prosecution having been able to demonstrate on record beyond reasonable doubt that in fact there was a Khokha, legal or illegal, which was in exclusive possession of the accused and the police party had recovered contraband from the conscious and exclusive possession of the accused, the accused cannot be convicted for commission of offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 merely on the basis of suspicion, because it is settled law that no matter howsoever strong suspicion may be, it cannot be a substitute for proof. 12. We have also gone through the judgment passed by the learned trial Court. A perusal of the same demonstrates that the learned trial Court has taken into consideration the entire evidence placed on record by the prosecution and after dealing with the same in detail, it has returned the findings of acquittal in favour of the accused. During the course of arguments, learned Additional Advocate General could not point out from the records as to what was the perversity with the findings so returned by the learned trial Court. 13. Therefore, while concurring with the judgment of acquittal passed in favour of the accused by the learned trial Court, we dismiss this appeal being devoid of any merit.