Research › Search › Judgment

Himachal Pradesh High Court · body

2017 DIGILAW 774 (HP)

State Of Himachal Pradesh v. Chand Singh

2017-07-06

CHANDER BHUSAN BAROWALIA, TARLOK SINGH CHAUHAN

body2017
JUDGMENT Tarlok Chauhan and C.B. Barowalia, JJ. - The present appeal has been preferred by the appellant/State (hereinafter referred to as "the appellant") laying challenge to the judgment, dated 27.12.2008, passed by the learned Special Judge, Mandi, H.P., in Sessions Trial No. 33 of 2007, whereby the accused/respondents (hereinafter referred to as "the accused persons") were acquitted for the offence punishable under Section 20/29-61-85 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "NDPS Act"). 2. Precisely, the facts giving rise to the present appeal, as per the prosecution story, are that on 28.04.2008, police set up a ''nakka'' at place Pungh, Sundernagar. Around 12:30 (midnight) a maruti car, bearing registration No. HR-26AP- 6589, came from Mandi side and was stopped for checking. In the said car four persons were traveling and they divulged their names as Chand Singh, Bhola Puri, Rakesh Yadav and Subhash Chand (the accused persons). On checking the vehicle, the police found a polythene packet in the back side of the seat cover of the driver seat. The said recovered polythene packet contained charas in the shape of ''chapaties'' and on weighing the same it was found to be 900 grams. The police took samples on the spot from the recovered charas for chemical analysis, which were sealed and the remaining charas was also sealed separately. Rukka, Ex. PW-5/B, was sent through HHC Hukum Chand, to police station, whereupon FIR, Ex. PW-5/B, was registered. The case property was resealed and deposited in the malkhana. Spot map, Ex. PW-6/A, was prepared and statements of witnesses were recorded. After completion of investigation and on receipt of report from the Chemical Examiner, Ex. PW-6/D, challan was presented in the Court. 3. The prosecution, in order to prove its case, examined as many as seven witnesses. Statements of the accused persons were recorded under Section 313 Cr.P.C., 1973 wherein they denied the prosecution case and claimed innocence. No defence evidence was led by the accused persons. 4. The learned Trial Court, vide impugned judgment dated 27.12.2008, acquitted the accused persons for the offence punishable under Section 20/29-61-85 of the NDPS Act, hence the present appeal. 5. We have heard the learned Assistant Advocate General for the appellant/State and the learned counsel for the respective respondents. 6. No defence evidence was led by the accused persons. 4. The learned Trial Court, vide impugned judgment dated 27.12.2008, acquitted the accused persons for the offence punishable under Section 20/29-61-85 of the NDPS Act, hence the present appeal. 5. We have heard the learned Assistant Advocate General for the appellant/State and the learned counsel for the respective respondents. 6. The learned Assistant Advocate General has argued that the learned Court below has failed to take into consideration the fact that the prosecution has proved the guilt of the accused persons beyond reasonable doubt. He has further argued that the present is a fit case where the judgment of acquittal is required to be interfered with in order to subserve the ends of justice, as the findings recorded by the learned Court below are perverse and the learned Court below has not considered the statements of the official witnesses, which are reliable and trustworthy, in their right and true perspective. He has further argued that the recovery has been conclusively established on record and the presence of the accused persons on the spot further fortifies the prosecution case. Conversely, the learned counsel appearing for respondents No. 1, 2 and 4 has argued that the prosecution has not been able to establish the guilt of the accused persons beyond the shadow of reasonable doubt, as the recovery of the contraband has not been proved from the accused persons. He has further argued that the sole examined independent witness has not supported the case of the prosecution and the other independent witness has not been examined. The statements of the official witnesses are contradictory. The learned counsel appearing for respondent No. 3 has argued that the findings recorded by the learned Trial Court are as per the law, as the prosecution has failed to prove the guilt of the accused persons beyond the shadow of reasonable doubt, and the same need no interference. 7. In order to appreciate the rival contentions, we have gone through the record carefully and in detail. 8. PW-1, Shri Yogesh Kumar, Clerk in the office of Agriculture Produce Marketing Committee, Pungh, Sundernagar, who is an independent witness, deposed that on 28.04.2008 he alongwith one Vinod Kumar was performing night duty at A.P.M.C. Barrier at Pungh. 7. In order to appreciate the rival contentions, we have gone through the record carefully and in detail. 8. PW-1, Shri Yogesh Kumar, Clerk in the office of Agriculture Produce Marketing Committee, Pungh, Sundernagar, who is an independent witness, deposed that on 28.04.2008 he alongwith one Vinod Kumar was performing night duty at A.P.M.C. Barrier at Pungh. As per the version of this witness, the police had set up a nakka at Pungh and about 12:30 a.m. a maruti car, bearing registration No. HR-26AP- 6589, came from Mandi side. The vehicle was stopped and on checking 10 to 12 small poly packets were found in the back side seat cover of the driver seat. This witness has categorically stated that he did not know what was there in the poly packets. Police seized the poly packets and took the accused persons and vehicle to the police station. Vinod Kumar also went to the Police Station on the scooter of the police. This witness was declared hostile and subjected to exhaustive cross-examination. He, in his cross-examination, denied that contraband was weighed in his presence. He has also denied that two samples of 25 grams each were separated from the recovered charas and sealed in his presence in separate parcels. He has denied that police conducted sealing, sampling and recovery proceedings on the spot. 9. PW-2, HC Raj Kumar, deposed that on 28.04.2008, at about 4:30 a.m., PW-6 Inspector/SHO Jagdish Chand, deposited with him three sealed parcels, sealed with seal impression ''N''. He has further deposed that out of the three parcels, two were sample parcels and one bulk parcel along with N.C.B. form filled in triplicate and sample seal impression. He entered the case property in Malkhana Register at Sr. No. 1408 and the same was kept in safe custody. On 29.04.2008 he handed over to Constable Sohan Singh No. 248, vide RC No. 34/08, a sample of parcel along with N.C.B. form, sample seal having impression ''N'' and other documents for depositing the same in Forensic Science Laboratory, Junga. After depositing the case property, receipt was handed over to him by Constable Sohan Singh. Attested copy of relevant abstract of Malkhana Register and copy of RC are Ex. PW-2/A and Ex. PW-2/b, respectively. As per the version of this witness, the case property remained safe and intact under his custody. After depositing the case property, receipt was handed over to him by Constable Sohan Singh. Attested copy of relevant abstract of Malkhana Register and copy of RC are Ex. PW-2/A and Ex. PW-2/b, respectively. As per the version of this witness, the case property remained safe and intact under his custody. PW-3, Constable Sohan Singh, deposed that on 28.04.2008 MHC Raj Kumar handed over to him the case file, which he gave to SHO. On 29.04.2008 MHC Raj Kumar handed over to him a sample parcel along with NCB form, sample seal impression and other documents for depositing in Forensic Science Laboratory, Junga. He deposited the case property on the same day and on return handed over the receipt to MHC Raj Kumar. He has further stated that the case property was not tampered with under his custody. 10. PW-4, HC Sarwan Singh, deposed that on 28.04.2008, around 12:30 a.m., he alongwith other police personnel was present at Pungh, where they had set up a nakka. He has further stated that a maruti car, bearing registration No. HR-26AP-6589, came from Sundernagar side and the same was stopped for checking. There were four persons in the vehicle, including the driver, and they divulged their names as Chand Singh, Bhola Puri, Rakesh Yadav and Subhash Chand. The vehicle was checked and a polythene bag was recovered from the back side of the seat cover of the driver, Chand Singh. As per the version of this witness, the recovered bag was checked in the presence of witnesses and the same was found containing cannabis (charas) in the shape of chapaties. The charas was weighed with the weights and scale, which were carried by the SHO in his investigation kit, in presence of witnesses, i.e., Vinod Kumar and Yogesh Kumar (PW-1), and the same was found 900 grams. This witness has fortified the prosecution case to the extent of drawing of samples from the recovered contraband. Specimen seal impression, Ex. PW-1/A, was signed by Shri Yogesh Kumar (PW-1), Shri Vinod Kumar and the accused persons. He has further stated that SHO filled in the NCB form. Copy of seizure memo was given to the accused persons. Rukka was sent to the Police Station, Sundernagar, through HHC Hukam Chand, for registration of a case. Specimen seal impression, Ex. PW-1/A, was signed by Shri Yogesh Kumar (PW-1), Shri Vinod Kumar and the accused persons. He has further stated that SHO filled in the NCB form. Copy of seizure memo was given to the accused persons. Rukka was sent to the Police Station, Sundernagar, through HHC Hukam Chand, for registration of a case. As per this witness, in presence of independent witnesses Yogesh Kumar and Vinod Kumar, personal search of the accused persons was separately carried out. Poly bag, Ex. P-3, and residue charas, Ex. P-4, were the same. 11. PW-5, SI Prem Lal, deposed that on 29.04.2008, around 03:15 a.m., HHC Hukam Chand brought rukka, which was prepared by SHO, Jagdish Chand, whereupon FIR, Ex. PW- 5/A, was registered, which bears his signatures. This witness has further deposed that his endorsement on rukka, Ex. PW- 5/B, is in circle ''B''. 12. PW-6, Inspector Jagdish Chand, deposed that on 28.04.2008, around 12:30 a.m., he alongwith other police personnel had set up a nakka at place Pungh. This witness reiterated the prosecution story qua recovery of cannabis, sampling, seizure etc. He has further stated that he prepared the spot map, Ex. PW-6/A, which bears his signatures. The marginal notes were shown by him and he had also shown the correct position of the spot. He has informed the accused persons qua the grounds of their arrest, vide memos, Ex. PW- 1/C-1 to Ex. Pw-1/C-4, which bear signatures of witnesses Yogesh Kumar and Vinod Kumar. The accused persons were formally searched in presence of the witnesses. Subsequently, the accused persons and the case property were brought to the police station. The case property alongwith the NCB form (in triplicate) and specimen seal impression was handed over to MHC and he kept the same in the Malkhana. He recorded the statements of the witnesses. PW-7, HC Sanjeev Kumar, deposed that on 28.04.2008, around 10:20 a.m. S.D.P.O., Sundernagar, handed over to him Special Report, Ex. PW-7/A, for keeping the same in record. He had made an entry in the Special Report cases register at Sr. No. 38 and kept the Special Report in safe custody. 13. He recorded the statements of the witnesses. PW-7, HC Sanjeev Kumar, deposed that on 28.04.2008, around 10:20 a.m. S.D.P.O., Sundernagar, handed over to him Special Report, Ex. PW-7/A, for keeping the same in record. He had made an entry in the Special Report cases register at Sr. No. 38 and kept the Special Report in safe custody. 13. In the instant case, the prosecution has only examined independent witness PW-1, Yogesh Kumar, who was working as a Clerk in the Agriculture Produce Marketing Committee, Pungh, and on 28.04.2008 he was doing his duty at A.P.M.C. Barrier at Pungh, the place from where the alleged contraband was recovered from the accused persons. PW-1 (Yogesh Kumar) has deposed that on 28.04.2008 he along with one Vinod Kumar (another independent witness, who was not examined by the prosecution) was on night duty at Pungh Barrier. Around 12:30 a.m. a maruti vehicle, bearing registration No. HR-26AP-6589, came from Mandi side, which was stopped for checking. On checking, 1012 poly packets were found on the back side seat cover of the driver. However, this witness has deposed that he did not know what was in the poly packets. Meaning thereby, this witness has not supported the prosecution story to the extent of recovery, sampling, sealing and parcelling of the contraband. This witness was declared hostile and subjected to exhaustive cross-examination, but nothing favourable to the prosecution has come. The other independent witness, Vinod Kumar, was not examined by the prosecution and no plausible explanation has come for his non examination. Manifestly, in the case in hand, the independent witnesses were not witnesses of chance, they were the persons who were discharging their official duties on the barrier where the nakka was set by the police. Now, the only question which requires consideration is that in the absence of non examination of an independent witness, i.e. Vinod Kumar, and unsupportive statement of another independent witness, i.e., PW-1, Yogesh Kumar, can conviction of the accused persons be based on the statements of the other official prosecution witnesses? This aspect has to be examined in the light of the statement of the official witnesses, as referred hereinabove. PW2, HC Raj Kumar, has deposed with regard to deposit of the case property and sending the same to Forensic Science Laboratory, Junga, for chemical analysis. The police party had searched only one vehicle and no other vehicle was searched. This aspect has to be examined in the light of the statement of the official witnesses, as referred hereinabove. PW2, HC Raj Kumar, has deposed with regard to deposit of the case property and sending the same to Forensic Science Laboratory, Junga, for chemical analysis. The police party had searched only one vehicle and no other vehicle was searched. Thus, the factum of having prior or beforehand information qua the transportation of charas cannot be ruled out. In the event of having prior information with the police, the entire recovery is hit with mandatory provisions, as contemplated in the NDPS Act. The statement of PW-6 is not trustworthy qua checking of other vehicles. There are contradictory versions with respect to scale and weights, which, as per the prosecution, were used to weigh the recovered contraband. 14. The prosecution has failed to explain why other official eye witness HHC Hukam Chand, Constables Rakesh Kumar and Hari Singh were not examined by them. PW-6, Inspector Jagdish Chand, while appearing in the witness-box has not stated anything that where he weighed the charas and how two samples of charas, 25 grams each, were taken out. PW-4, HC Sawaran Singh, deposed that the recovered charas was weighed with the help of scale and weights carried by the SHO in his investigation kit in the presence of independent witnesses Yogesh Kumar and Vinod Kumar, but independent witness Vinod Kumar was not examined by the prosecution and no plausible reason has been assigned for his non-examination. On the other hand other independent witness, PW-1 Yogesh Kumar, had not supported the prosecution case. 15. As per PW-4, HC Sawaran Singh, the recovered substance was weighed with the help of scale and weights carried by the SHO. In these circumstances, when nothing qua denomination of weights has come on record, the weighing of the recovered contraband and separation of two samples, each 25 grams, becomes suspicious and the place where the contraband was weighed has also become doubtful. 16. The story of the prosecution qua sealing of the samples also becomes doubtful, as it emanating from the evidence that the seal after its use was handed over to Yogesh Kumar (PW-1), but Yogesh Kumar, while deposing in the Court, stated that seal was not handed over to him. He has also deposed that no sealing was done in his presence. He has also deposed that no sealing was done in his presence. This witness, in his cross-examination, has deposed that except the vehicle of the accused persons, no other vehicle was checked by the police on that day. He has further deposed that the parcels were already sealed and his signatures were taken at his residence on the subsequent morning. Thus, in the present case, the prosecution has failed to prove the recovery of the alleged charas from the conscious and exclusive possession of the accused persons. The statements of the official witnesses are contradictory and do not inspire confidence, thus conviction of the accused persons cannot be based upon these conflicting statements. The only examined independent witness, Yogesh Kumar (PW-1) did not support the prosecution case and the other independent witness (Vinod Kumar) has not been examined by the prosecution. 17. In a nut shell, the prosecution has failed to prove beyond reasonable doubt recovery of 900 grams of cannabis (charas) from the exclusive and conscious possession of the accused persons, thus the findings recorded by the learned Trial Court cannot be said to be perverse and the same are not the outcome of mis-appreciation of the evidence which has come on the record. 18. In view of what has been discussed hereinabove, it is clear that the prosecution has failed to prove its case beyond the shadow of reasonable doubt and thus the accused persons cannot be held liable for the commission of the offence, as alleged by the prosecution. 19. It has been held in K. Prakashan vs. P.K. Surenderan (2008) 1 SCC 258 , that when two views are possible, the 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 vs. 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 the discussion made here in above, the natural corollary which has emerged is that the prosecution has failed to prove the guilt of the accused persons beyond the shadow of reasonable doubt. 21. In view the discussion made here in above, the natural corollary which has emerged is that the prosecution has failed to prove the guilt of the accused persons beyond the shadow of reasonable doubt. Thus, we are of the considered view that there is no occasion to interfere with the well reasoned judgment of the learned Trial Court, as such the appeal, which sans merits, deserves dismissal and is accordingly dismissed. Pending application(s), if any, stand(s) disposed of accordingly.