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2018 DIGILAW 1140 (HP)

State of H. P. v. Kundan Lal

2018-06-21

CHANDER BHUSAN BAROWALIA, TARLOK SINGH CHAUHAN

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JUDGMENT : Chander Bhusan Barowalia, J. 1. The present appeal is maintained by the appellant/State, laying challenge to judgment dated 20.07.2010, passed by learned Special Judge, Fast Track Court, Kullu, District Kullu, H.P., in Sessions Trial No. 06 of 2010, whereby the accused/respondent (hereinafter referred to as “the accused”) was acquitted for the commission of offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as “ND&PS Act”). 2. Succinctly, the facts giving rise to the present case can be summarized thus: On 24.10.2009 a police party was at place Jari in connection with investigation of FIR No. 397 of 2009. Police personnel received secret information that accused is involved in selling of narcotics. On the way, the police associated independent witnesses, i.e., Smt. Saraswaati Devi and Shri Dot Ram. An intimation in compliance of Section 42 of the Act was reduced into writing and the same was sent, through Constable Sanjay Kumar, to Additional Superintendent of Police, Kullu. After receipt of the information, the Additional Superintendent of Police made an endorsement thereon and HC Nirat Singh made an entry at Sr. No. 73 in the register. SI Onkar Singh along with the independent witnesses went to the shop of the accused, where the accused was present. Firstly, SI Onkar Singh gave his personal search to the accused, but nothing incriminating was found. Subsequently, search of the shop and residential room of the accused was conducted and a polythene bag was recovered, which was kept in a trunk. The said bag was checked and it was found to have contained charas in ball shape. On weighment, the recovered contraband was found to be 500 grams. The contraband was taken in possession and sealed with six seals having impression ‘H’. Facsimile seal was taken on a separate piece of cloth and seal, after its use, was handed over to Constable Munish Kumar. Photographs of the spot were also taken. Rukka was prepared and it was sent to police station, through HC Mukesh Kumar, whereupon FIR registered by ASI Rattan Chand and the case file was handed over HC Mukesh Kumar. Site plan was prepared and the statements of the witnesses were recorded. NCB form, in triplicate, was filled in on the spot. Photographs of the spot were also taken. Rukka was prepared and it was sent to police station, through HC Mukesh Kumar, whereupon FIR registered by ASI Rattan Chand and the case file was handed over HC Mukesh Kumar. Site plan was prepared and the statements of the witnesses were recorded. NCB form, in triplicate, was filled in on the spot. The accused was arrested and the case property was produced before ASI Rattan Chand, who resealed the same with four seals having impression ‘E’ and the seal impression was taken on a separate piece of cloth. ASI Rattan Chand filled in the relevant columns of NCB form and the case property along with other documents was entrusted in the custody of MHC Ram Krishan qua which he made an entry at Sr. No. 221 of the malkhana register. On 25.10.2009 Constable Kishan Chand took the case property along with the documents to FSL, Junga, and after deposit of the same in FSL, Junga, receipt was handed over to MHC Ram Krishan. A special report was prepared and on 25.10.2009 and it was submitted before Additional Superintendent of Police, who after endorsing the same, handed over the same to HC Nirat Singh. HC Nirat Singh made an entry at Sr. No. 74 qua the special report in the register. Forensic analysis report demonstrated that the sample of contraband contained 46.88% W/W resin and thus it was charas. After completion of investigation, challan was presented in the Court. 3. The prosecution, in order to prove its case, examined as many as ten witnesses. Statement of the accused was recorded under Section 313 Cr.P.C., wherein he pleaded that he was present in the shop as salesman and a polythene containing charas was found outside the shop. Investigating Officer inquired about the polythene and when he feigned his ignorance an altercation took place and a false case foisted on him. The accused, in his defence, examined Shri Makund Lal as defence witness. 4. The learned Trial Court, vide impugned judgment dated 20.07.2010, acquitted the accused for the offence punishable under Section 20 of the ND&PS Act, hence the present appeal preferred by the State. 5. The learned Additional Advocate General has argued the impugned judgment is based on hypothetical reasoning, surmises and conjectures and the learned Trial Court has failed to appreciate the evidence, which has come on record, to its right perspective. 5. The learned Additional Advocate General has argued the impugned judgment is based on hypothetical reasoning, surmises and conjectures and the learned Trial Court has failed to appreciate the evidence, which has come on record, to its right perspective. He has argued that the prosecution has proved the guilt of the accused beyond the shadow of reasonable doubt. Conversely, the learned counsel for the respondent has argued that the judgment of acquittal has been passed by the learned Trial Court after appreciating the evidence, which has come on record, to its true perspective, thus the judgment of acquittal, as passed by the learned Trial Court, needs no interference and the appeal be dismissed. 6. In rebuttal, the learned Additional Advocate General has argued that after re-appreciating the evidence the accused be convicted, as the learned Trial Court has failed to appreciate the evidence correctly and the appeal be allowed. 7. In order to appreciate the rival contentions of the parties we have gone through the record carefully. 8. In the case in hand, as alleged, police associated two independent witnesses, i.e. Smt. Saraswati Devi (PW-1) and Shri Dot Ram, but only Smt. Saraswati Devi was examined in the Court. PW- 1, Smt. Sraswati Devi, deposed that on 24.10.2009, at about 11:00 a.m., she was called by the police at Baladhi, at the shop of Mukund Lal Gopi Chand. As per this witness, she was asked by the police to become a witness, as they had recovered charas from outside the shop. She deposed that in a room some charas was being weighed and some was being sealed. On the asking of the police, she signed some documents. Photographs were also taken in her presence. She further deposed that accused used to work in the shop of Mukund Lal. This witness was declared hostile and subjected to exhaustive cross-examination, however, nothing favourable to the prosecution could be elicited from her. This witness, in her cross-examination, has categorically stated that accused is resident of village Seun, which is 12-13 kilometers far away from village Baladhi. The accused has also examined Shri Mukund Lal (DW-1), who has fortified the fact that accused lives in village Seund, which is at a distance of 13-14 kilometers from village Baladhi. He has further deposed that he is owner of the shop and the room and the accused is salesman in his shop. 9. The accused has also examined Shri Mukund Lal (DW-1), who has fortified the fact that accused lives in village Seund, which is at a distance of 13-14 kilometers from village Baladhi. He has further deposed that he is owner of the shop and the room and the accused is salesman in his shop. 9. Undisputedly, the only independent witness, who was examined by the prosecution, did not support the prosecution case. Now, in order to establish the guilt of the accused, the testimonies of key official prosecution witnesses is to be looked into, as the other independent witness, i.e. Shri Dot Ram, was not examined by the prosecution. 10. In the present case, the statement of Investigating Officer, who was examined as PW-10, is full of suspicions. PW-10, SI Onkar Singh, admitted in his cross-examination that accused is resident of village Seund and one Mukund Lal is the owner of the shop (from where the alleged contraband is alleged to have been recovered). Another prosecution witness, Constable Munish Kumar (PW-2) categorically deposed in his cross-examination that accused was salesman in the shop. PW-3, HC Mukesh Kumar, in his cross-examination, deposed that owner of the shop and building was Mukund Lal. Now, it stands proved that from the shop where the alleged recovery of contraband was made was owned by Shri Mukund Lal (DW-1) and the accused was working as a salesman in the shop. The prosecution has tried to prove that the room was being used by the accused as his residence, but nothing has come on record which could remotely point out towards this fact. In contrast to this, there is evidence on record which establish this fact that accused is resident of village Seund, which is 12-13 kilometers away from village Baladhi, and he used to come to the shop daily. PW-1, Smt. Saraswati Devi and DW-1 Shri Mukund Lal unambiguously deposed to this effect that accused is resident of village Seund, which is 12-13 kilometers away from village Baladhi. DW-1 has deposed that accused used to work in his shop as salesman and his village is Seund, which is 13-14 kilometers from village Baladhi. The accused used to come daily to his shop from village Seund. DW-1 has deposed that accused used to work in his shop as salesman and his village is Seund, which is 13-14 kilometers from village Baladhi. The accused used to come daily to his shop from village Seund. Thus, from the testimonies of PW-1, Smt. Saraswati Devi (only examined independent witness) DW-1 Shri Mukund Lal (owner of the shop from where the alleged recovery of contraband was made) and even from the testimonies of official prosecution witnesses, it is amply proved that accused was neither owner nor in possession of the shop and he used to come to the shop daily from his village, which is 12-13 kilometers away from village Baladhi. Thus, the prosecution has miserably failed to establish on record that the premises from where the alleged contraband was recovered was owned and possessed by the accused and he was in exclusive and conscious possession of the contraband. In the wake of the above facts and circumstances, it is more than safe to hold that prosecution has failed to establish even remotely that the contraband was recovered from the conscious and exclusive possession of the accused, as the prosecution has failed to prove that the room from where the recovery was effected was owned or possessed by the accused. 11. The police could have associated local inhabitants of the area in order to prove the fact that the room from where the alleged recovery of contraband was effected, was occupied exclusively by the accused, but the only independent witness, i.e., PW-1, Smt. Saraswati Devi, does not support the prosecution case. DW-1, Shri Mukund Lal (owner of the shop) categorically deposed that accused does not reside in the room in question. 12. PW-3, HC Munish Kumar, deposed that the room was bolted, but PW-2 Constable Munish Kumar and PW-10 SI Onkar Singh, have deposed that the room was locked and the key was provided by the accused. There is clear glaring variance even in the versions of the official prosecution witnesses, thus it cannot be accepted that the room was locked and the key was provided by the accused. There is clear glaring variance even in the versions of the official prosecution witnesses, thus it cannot be accepted that the room was locked and the key was provided by the accused. Moreover, if the key was provided by the accused to the police and the room was locked, then it is no doubt an important fact, which the police should have mentioned in the in rukka, but non-existence of this fact in the rukka gives air to the presumption that the story qua giving of key of the locked room by the accused is just an afterthought and the same cannot be believed. 13. Now, as per the site plan, the room above the shop was locked and the recovery was effected from the room, which was adjoining this locked room, thus recovery was not effected from the room located above the shop of the accused. There is variance in the statements of the official prosecution witnesses, which makes their testimonies doubtful. The prosecution case lacks support from the only examined independent witness, PW-1, Smt. Saraswati Devi. So, it is clear that the prosecution has miserably failed to prove the recovery of contraband from the exclusive and conscious possession of the accused. 14. As discussed hereinabove, the prosecution has failed to prove the recovery of alleged contraband from the conscious and exclusive possession of the accused, so other evidence qua sampling, sealing etc. needs no discussion, hence deliberately left. 15. 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. 16. In Chandrappa vs. State of Karnataka, (2007) 4 SCC 415 , the Hon’ble Supreme Court has culled out the following principles qua powers of the appellate Courts while dealing with an appeal against an order of acquittal: “42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: 1. An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. 2. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: 1. An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. 2. The Code of Criminal Procedure, 1873 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. 3. Various expressions, such as, ‘substantial and compelling reasons’, ‘good and sufficient grounds’, ‘very strong circumstances’, ‘distorted conclusions’, ‘glaring mistakes’, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of ‘flourishes of language’ to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. 4. An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. 5. If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial Court.” 17. In view of the settled legal position, as aforesaid, and on the basis of material, which has come on record, it is more than safe to hold that the prosecution has failed to prove the guilt of the accused beyond reasonable doubts and the findings of acquittal, as recorded by the learned Trial Court, needs no interference, as the same are the result of appreciating the facts and law correctly and to their true perspective. Accordingly, the appeal, which sans merits, deserves dismissal and is dismissed. 18. In view of the above, the appeal, so also pending applications, if any, stands disposed of.