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Himachal Pradesh High Court · body

2018 DIGILAW 1662 (HP)

Anil Kumar v. State Of H. P.

2018-09-13

SURESHWAR THAKUR

body2018
JUDGMENT Sureshwar Thakur, J. - The instant appeals stand directed, against, the verdict rendered by the learned Special Judge, Shimla, on 4.7.2015, in case No. 28-S/7 of 2014, whereunder, he returned findings of conviction, upon, the convicts, in respect of charges framed, under, Section 22 of the Narcotic Psychotropic Substance Act, and also they are sentenced, as under: "All the convicts shall undergo rigorous imprisonment for aterm of four years each and pay fine of Rs. 20,000/- each for commission of offence under Section 22 of NDPS Act. In default of payment of fine, the convicts shall further undergo simple imprisonment for al period of six months." 2. Briefly stated the case of the prosecution is that on 24.1.2014, HC Suresh Kumar (PW-16) along with HC Tek Singh . C. Karan Singh, C. Ranjan Singh had gone in a official vehicle bearing No. HP07A-0727, at place Gharatnala for exercising their routine patrolling duty. When the police party was present at Gharat Nala, then a Maruti car at about 12:15 p.m. appeared from Chaba side, which was stopped on signal by using search light. The vehicle was bearing registration No. CH01X-9919 on the back side, there was no number plate on front side. There were two persons found sitting inside the vehicle. On delineation, driver named himself to be Anil @ Anu, whereas other occupant sitting on the front seat of the vehicle named himself to be Kuldeep. During search of the vehicle there were recovery of one carton box, bearing mark CIPLA which was found opened and one cream colour gunny bag. On checking the carton box, 120 plastic bottles of REXCOF 100 ml each bottles were recovered containing codeine phosphate and 15 bottles RAXCOF were found from cream bag. Therefore, accused persons were found in conscious and exclusive possession of 135 bottles of REXCOF. The accused failed to produce any permit. The recovered bottles were kept as it is inside the carton box and thereafter, sealed into a plastic sack after using the seal impression "T". NCB form in triplicate were filled in. During course of investigation, accused persons revealed that they had purchased these bottles from one Gautam Bengali, who used to run medical store. The disclosure statement of accused Anil led the police party to place Oddi. On the basis of disclosure statement, investigating agency conducted search of clinic of Dr. NCB form in triplicate were filled in. During course of investigation, accused persons revealed that they had purchased these bottles from one Gautam Bengali, who used to run medical store. The disclosure statement of accused Anil led the police party to place Oddi. On the basis of disclosure statement, investigating agency conducted search of clinic of Dr. Gautam Bengali where there was recovery of 101 bottles of REXCOF weighing 100 ml. each containing codeine phosphate. Besides this, accused persons was also found in possession of 72 empty bottles of rancof, 9 empty bottles of Rexcof, 3 empty bottle of Relexof and one empty bottle of Rexcof 100 ml each. The case property were sealed into two carton boxes by seal impression. The seal sample was drawn. It was revealed that one of the carton box recovered from clinic of Dr. Gautam Bengali, was bearing the description "Pankaj Medical Store" to which accused Pankaj Sharma was also associated. Therefore, the accused persons were found in conscious and exclusive possession of 236 bottles of Rancof weighing 100 ml each and 85 bottles of used various categories such as Rexcof, Rancof, Recof and Relexcof. 3. On the basis of ruqua, FIR Ext. PW16/E was jotted down with P.S. Sunni, Shimla and endorsement qua the FIR is PW16/F. Investigating agency swung into action. All the recovered 120 bottles of Rexcof in carton boxes and 15 bottles in cream bag, totaling 135 bottles of Rexcof along with document , the vehicle bearing No. CH01X-8819 along with key, incriminating articles such as plastic sack, Ext. P-1, carton box P2, bottles P3 to P122, cream colour bag (P123), bottles P124 to P138 were taken in possession vide memo Ext. PW1/A. Seal sample was drawn on separate piece of cloth vide Ext. PW1/B. Site place of the place of occurrence Ext. PW16/G was prepared on the spot. The case property was produced before SI/SHO, who resealed the same by using the seal impression A and issued reseal certificate. The accused persons were arrested. During police custody, accused made disclosure statement to the Police that he has purchased Rexcof bottles from accused Dr. Gautam Bengali at Oddi. He could demarcate clinic and store from where he has purchased Rexcof bottles. On this, police party proceed towards place oddi. The accused persons were arrested. During police custody, accused made disclosure statement to the Police that he has purchased Rexcof bottles from accused Dr. Gautam Bengali at Oddi. He could demarcate clinic and store from where he has purchased Rexcof bottles. On this, police party proceed towards place oddi. There was recovery of 101 bottles sealed Rexcof bottles P228 to P328, kept inside the carton box P227 along with 72 empty bottles of Rancof P154 to P225, 9 empty bottles of Raxcof P-145 to P153 and one empty bottle of Rexcof kept inside. All these bottles were sealed into separate sacks P139 and P226 by using seal impression "M" and taken into possession vide memo Ext. PW3/C. Seal "M" was drawn on separate pieces of cloth. The Investigating agency also prepared side plan. During investigation, police party also taken into possession two invoices Ext. PW1/D and PW1/E, vide seizure memo Ext. PW1/C. Before conducting the search consent of the accused Dr. Bengali was also obtained vide memo Ext. PW3/A. The case property remained deposited with MHC PS Sunni along with Aks Sajra. The case property was taken into possession vide seizure memo Ext. PW1/A and PW3/C were sent to FSL Junga along with C. Pankaj. The special report PW10/A and PW12/A were sent to supervisory official. NCB form PW16/A and PW16/K were obtained. The re-seal certificates were also issued by SI/SHO Tara Singh. Photographs of the spot were clicked. 4. On conclusion of investigations, into the offences, allegedly committed by the accused, a report under Section 173 of the Code of Criminal Procedure was prepared, and, filed in the Court concerned. 5. The accused were charged by the learned trial Court, for theirs committing an offence punishable under Section 22 of the NDPS Act. In proof of the charge, the prosecution examined 16 witnesses. On conclusion of recording of prosecution evidence, the statements of the accused, under Section 313 of the Code of Criminal Procedure, were, recorded by the trial Court, wherein, the accused claimed innocence, and, pleaded false implication in the case. However, they did not lead any defence evidence. 6. On an appraisal of evidence on record, the learned trial Court, recorded findings of conviction, upon, the convicts/appellant herein. 7. The convicts are aggrieved by the judgment of conviction, recorded by the learned trial Court. However, they did not lead any defence evidence. 6. On an appraisal of evidence on record, the learned trial Court, recorded findings of conviction, upon, the convicts/appellant herein. 7. The convicts are aggrieved by the judgment of conviction, recorded by the learned trial Court. The learned counsel(s) appearing for the appellants, concertedly and vigorously contend qua the findings of conviction, recorded by the learned trial Court rather standing, not, based on a proper appreciation, by it, of the evidence on record, rather, theirs standing sequelled by gross mis-appreciation, by it, of the material on record. Hence, they contend qua the findings of conviction, being reversed by this Court, in, the exercise of its appellate jurisdiction, and, theirs being replaced by findings of acquittal. 8. On the other hand, the learned Additional Advocate General, has with considerable force and vigour, contended that the findings of conviction, recorded by the learned Court below, rather standing based on a mature and balanced appreciation, by it, of evidence on record, and, theirs not necessitating any interference, rather theirs meriting vindication. 9. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record. 10. Through recovery memos, respectively borne in Ext. PW1/A, and, in Ext. PW3/C, the apt psychotropic substance(s), as, stand respectively elucidated therein, hence stood recovered, from, the conscious and exclusive possession, of, convict Anil Kumar, and Kuldeep Kumar, and, from the conscious and exclusive possession, of, convict Gautam Kumar @ Dr. Bengali. A perusal of Ext. PW1/A, and, of, Ext. PW3/C, makes a disclosure qua, hence, recovery(s), standing effectuated thereunder(s), (i) of, 120 plastic bottles of Rexcof 100 ml each, carried in carton boxes (ii) and, of, 15 bottles of Rexcof, all seized psychotropic substance, were enclosed inside sack, Ext. P-1, (iii) and also, qua under, Ext. PW3/C, rather stood effectuated hence recovery(es) of 101 bottles of Rexcof weighing 100 ml each, containing codeine phosphate, and, of 72 empty bottles of Rancof, of, 9 empty bottles of Rexcof, besides of, 3 empty bottles of Relexof (iv) besides recovery, of, one empty bottle of Recof 100 ml each, also stood effectuated thereunder, and, cache whereof hence stood enclosed, respectively in Ext. P-139, and, in Ext. P-139, and, in Ext. P226, (v) AND thereon(s) seal impression(s), hence respectively carrying English alphabet "T", and, English alphabet "M" hence, stood respectively embossed thereon (vi) and, the specimen seals were thereafter hence handed over to HHC Tek Singh No. 114 (iv) The NCB forms, are respectively comprised in Ext. PW14/E, and, in Ext. PW 16/K, and, were drawn by the Investigating officer concerned, at the relevant site, qua respectively Ext. P-1, and qua Ext. P-139, and, Ext. P226, (vii) and apparently all the recitals borne therein, hence bear apt concurrence, vis--vis apt therewith descriptions, borne in Ext. PW1/A, and, in Ext. PW3/C (v) whereafter, the Station House Officer, upon receiving the seized substance(s), at, the Police Station concerned, hence embossed thereon, re-seal seal impression(s), respectively bearing English alphabet "A" and "V", seal impressions whereof stand reflected, as Ext. PW14/B, and, as Ext. PW16/A. The FSL concerned, upon, receiving the apt case property, sent, vis--vis it, for examination, hence rendered an affirmative opinion, qua the contents borne therein. The apt opinion(s) rendered by the FSL concerned, stand, respectively borne in Ext. PW16/N, and, in Ext. PW16/O, and the apt opinion(s), are, reproduced hereinafter: The prosecution, was, imperatively enjoined to prove, all the imperative incriminatory links, vis--vis, the apt incriminatory seizure(s) (i) commencing from preparation, of, Ext. PW1/A, and, of Ext. PW 3/C, at the relevant site(s) uptill, the production of the apt case property(s) in Court. (ii) Emphatically, at the stage of production, of, the apt case property(s) in Court, it is enjoined, to carry thereon, hence decipherable seal impression(s), and, also thereat the apt seal impression(s), were enjoined to make vivid display(s), vis--vis, theirs'' hence bearing the completest analogity, vis--vis, the description(s), of, the English alphabet(s), as stood respectively embossed upon Ext. P-1, and, upon Ext. P-139, and, upon Ext. P-226, at the time contemporaneous, vis--vis, the respective drawing(s), of Ext. PW1/A, and, of, Ext. PW3/C, importantly, at the site of occurrence, (iii) or in other words, the prosecution was enjoined to prove, the, imperative link, vis--vis, the apt recovery(s) made, respectively, under Ext. PW1/A, and, under Ext. PW3/C, bearing the apt connectivity, vis--vis, the production in Court, of the relevant seized substance(s). (iv) In the prosecution, hence, successfully establishing, qua, the imperative prosecutorial link(s), hence existing, interse the recovery of seized substance(s), at the site of occurrence, seizure(s) whereof occurred respectively, under Ext. PW1/A and under Ext. PW1/A, and, under Ext. PW3/C, bearing the apt connectivity, vis--vis, the production in Court, of the relevant seized substance(s). (iv) In the prosecution, hence, successfully establishing, qua, the imperative prosecutorial link(s), hence existing, interse the recovery of seized substance(s), at the site of occurrence, seizure(s) whereof occurred respectively, under Ext. PW1/A and under Ext. PW3/C, and vis--vis it/their production in Court, (v) rather also obviously enjoined, upon, the prosecution witnesses'' concerned, wheretowhom the case property was shown, to thereat hence render testification(s), vis--vis, the existence of apt concurrence(s), interse, the seal impressions, initially embossed thereon, at the site(s) of recovery, and, also vis--vis, the apt concurring therewith existence(s) thereon, reiteratedly at the stage, of, production(s) in Court, of, all recoveries, respectively made under Ext. PW1/A, and, under Ext. PW3/C. However, upon a reading, of, the testification of PW-1, who stepped into witness box, for proving Ext. PW1/A, (vi) it is apparent, qua, at the time of his rendering his deposition(s), his rather testifying, in his examination-in-chief, whereat, the apt case property, borne in Ext. PW1/A, hence stood shown to him, (vii) qua thereat, the, seals initially embossed, upon Et. P-1, being neither decipherable nor legible (viii) nor any echoings are borne in his testification(s), vis--vis, all recitals, borne in Ext. PW1/A, also bearing , the, completest similarity, vis--vis, the afore exhibit(s), at the stage, of, its being produced in Court, (ix) nor any echoing(s), are borne in his examination(s)- in-chief, qua the seal impression, as stood embossed, by the FSL concerned, rather thereat, hence also existing thereon. The effect thereof (x) is qua the lack of legibility, of, the English alphabet existing, on, the seal impression(s), initially embossed, and, existing, upon Ext. P-1, emphatically, at the stage contemporaneous, to, production, of, Ext. P-1, in Court, rather disabling the learned trial Judge, to gather a)the existence of analogity, and, similarity, interse, the English alphabet(s), hence occurring on the seal impression(s), as stood initially embossed, upon, Ext. P-1 xi) the aforesaid hence holds, the, apt concomitant effect, of, the Court being also defacilitated, to, gather whether Ext. P-1, at the stage of its production in Court, hence, appertaining to memo borne in Ext. PW1/A, (xii) contrarily, the learned trial Judge, despite, the afore handicaps rather besetting him, has inaptly concluded qua the prosecution establishing, the, imperative prosecutorial links, commencing from the seizure(s) of case property, recovered under memo Ext. P-1, at the stage of its production in Court, hence, appertaining to memo borne in Ext. PW1/A, (xii) contrarily, the learned trial Judge, despite, the afore handicaps rather besetting him, has inaptly concluded qua the prosecution establishing, the, imperative prosecutorial links, commencing from the seizure(s) of case property, recovered under memo Ext. PW1/A, at the site of occurrence, from, the respective conscious and exclusive possession, of, the accused concerned, uptill, the stage, of, the production, of, Ext. P-1, in Court. 11. The recoveries effectuated under, Ext. PW3/C, were enclosed in Ext. P-139 and in Ext. P-226, and, apt analogities, were also, at the stage, of, production thereof in Court, were enjoined to be existing thereon. In proof, of the afore imperative prosecutorial links, PW-16, stepped into witness box and though he has, in his examinationin-chief, deposed, vis--vis, seal(s) carrying thereon, hence English alphabests "M" and "V" obviously existing thereon, and, though thereat, the apt seals bear respectively English alphabets "M" and "V", and were also found intact, yet the seal of the FSL concerned, rather, was found broken. The sequelling effects thereof, are, even though, the afore analogity, hence existing interse, the production of Ext. P-139, and, of Ext. P-226, in Court, vis--vis recoveries thereof standing effectuated, at the site of occurrence, yet with law enjoining, existence, of, the completest interse similarity and analogity, interse apt seal impressions initially embossed thereon, vis--vis, the production, of, Ext. P-139, and, of Ext. P-226, in Court, (i) whereas the FSL seals, at the time of production, of, the afore exhibits in Court, rather being broken, hence the apt completest analogity is amiss, interse the production of Ext. P-139 and, of, Ext. P-226 in Court, vis--vis, its recovery at the site of occurrence (ii) thereupon, the imperative prosecutorial links, interse seizure of Ext. P-139 and, of, Ext. P-226, is wanting. (iii) Furthermore, at the time of production, of, Ext. P-139 and of Ext. P226, in Court, from amongst two seals, bearing respectively English alphabet "M" and "V", one was found intact, besides the FSL seal was broken, thereupon also, qua the afore exhibits, afore inference(s) are hence with re-enforced vigor, rather marshable. (iv) Conspicously, also when Pankaj Medical Store, wherefrom the afore seizure occurred, stands testified by PW-16, to employ Dr. P226, in Court, from amongst two seals, bearing respectively English alphabet "M" and "V", one was found intact, besides the FSL seal was broken, thereupon also, qua the afore exhibits, afore inference(s) are hence with re-enforced vigor, rather marshable. (iv) Conspicously, also when Pankaj Medical Store, wherefrom the afore seizure occurred, stands testified by PW-16, to employ Dr. Gautam Bengali (v) and with one Pankaj Sharma, standing acquitted, and, no appeal being filed by the State, for assailing the verdict of acquittal pronounced upon him, by the learned trial Judge, (v) thereupon, with PW-16 testifying qua convict Gautam Bengali, being employed, by one Pankaj Sharma, on a monthly salary of Rs. 4000/-, (vi) thereupon, the incriminatory role, encumbered upon Gautam Bengali, also concomitantly, hence ought to be both stagger and falter. 12. Furthermore, one HC Suresh Kumar, has assumed, the, dual role, of, a complainant, as well as, of an Investigating Officer. The assumption, of a dual role by HC Suresh Kumar, both as a complainant, as well as, an Investigating Officer, has been, in a judgment rendered by the Hon''ble Apex Court, in Mohan Lal versus The State of Punjab, bearing criminal appeal No. 1880 of 2011, rather hence deprecated, by, the Hon''ble Apex Court, and, in relevant paragraphs 14, and, 25 thereof, paras whereof stand extranced hereinafter: "14. In a criminal prosecution, there is an obligation cast on the investigator not only to be fair, judicious and just during investigation, but also that the investigation on the very face of it must appear to be so, eschewing any conduct or impression which may give rise to a real and genuine apprehension in the mind of an accused and not mere fanciful, that the investigation was not fair. In the circumstances, if an informant police official in a criminal prosecution, especially when carrying a reverse burden of proof, makes the allegations, is himself asked to investigate, serious dounts will naturally arise with regard to his fairness and impartiality. It is not necessary that bias must actually be proved. It would be illogical to presume and contrary to normal human conduct, that he would himself at the end of the investigation submit a closure report to conclude false implication with all its attendant consequences for the complainant himself. The result of the investigation would therefore be a forgone conclusion. 25. It would be illogical to presume and contrary to normal human conduct, that he would himself at the end of the investigation submit a closure report to conclude false implication with all its attendant consequences for the complainant himself. The result of the investigation would therefore be a forgone conclusion. 25. In view of the conflicting opinion expressed by different two Judges Benches of this Court, the importance of a fair investigation from the point of view of an accused as guaranteed constitutional right under Article 21 of the Constitution of India. It is considered necessary that the law in this regard be laid down with certainty. To leave the matter for being determined on the individual facts of a case, may not only lead to a possible abuse of powers, but more importantly will leave the police, the acused, the lawyer and the courts in a state of uncertainty and confusion which has to be avoided. It is therefore held that a fair investigation, which is but the very foundation of fair trial, necessarily postulates that the informant and the investigator must not be the same person. Justice must not only be done, but must appear to be done also. Any possibility of bias or a predetermined conclusion has to be exclused. This requirement is all the more imperative in laws, carrying a reverse burden of proof." Hence, a firm expostulation of law, stands pronounced (i) qua the aforesaid assumption, of, a dual role, by a police officer, both as a complainant, and as an Investigator, rather precluding a fair investigation, of the case, and, also jeopardizing fair trial of the case, (i) besides thereupon, an evident possibility of bias or rearing(s) of a predetermined conclusion, being a forgone conclusion, (ii) thereupon the apt recording, of, an verdict of conviction qua the accused, rather hence being vitiated, arising, from infraction of the constitutional guarantee, of, fair investigation. 13. Moreover, it has been propounded therein that it would be contrary, to, logic of normal human conduct, (i) that given the aforesaid assumption, of, an apt dual role, by, a Police officer both as an Investigating Officer, as well as of complainant, his hence making, upon, the apt completion of the apt investigation(s), any conclusion vis-a-vis the false implication of the accused. The aforesaid expostulation of law propounded therein, does, to the fullest and pointedly, rather applies to the facts at hand, (i) importantly when in consonance therewith, one HC Suresh Kumar, has hereat evidently assumed, the, dual role of an Investigating officer, as well as, of, a complainant, and, concomitantly in consonance therewith, the entire investigation, and trial of the accused, is, to be concluded to hence stand vitiated. 14. The learned Addl. A.G. has contended with much vigor, qua the judgment relied, upon, by the learned counsel for the appellants, not, erecting any firm nor any rigid principle (i) qua in all eventualities, the assumption, of, a dual role, by a Police officer, both as a complainant, and, as an investigator, leading to the ill-fate, of, the, prosecution case, hence perse foundering (ii) given in the judgment relied, upon, the learned counsel for the appellant, the, accused therein, in his statement, hence drawn under Section 313 Cr. P.C., rearing therein rather a specific plea of false implication, false implication whereof is elucidated therein, to, stand sparked by a dispute existing interse both, arising from the purchase of a tractor. He contends that when hereat there is no specific rearing(s), of, any bias by the accused, against the aforesaid police official, (iii) hence even if he has assumed the dual role, of, a complainant as well as of an investigator, hence perse thereupon, the investigation rather cannot be faulted. Even if, assumingly, the aforesaid trite factum, may validly hence constitute, the, apt distinguishing therefrom factual matrix, and, also prima facie, thereupon, the prosecution may be enabled to contend (iv) qua the afore rendered expostulation of law, borne therein rather not warranting any rigid application, vis-vis, all, scenarios, and, rather the mandate thereof hence, holding, the, fullest clout, only upon the Police Officer concerned, while his assuming, the, apt afore dual roles, also being specifically espoused by the accused, to carry investigation(s), rather with his nursing, a, pro-active bias against the accused. 15. 15. Nonetheless, even if assumingly the aforesaid latitude, and, an apt exception, may be culled out, from the expostulation of law, borne in the judgment (i) hence on anvil of the aforesaid excepting niche, rather the prosecution was also enjoined, to, prove qua the apt recoveries, as stood initially effectuated, under, apt memos, being efficaciously proven, to, conspicuously upto, the stage of production, of the apt case property in Court, hence hold the apt therewith prosecutorial links, ii) or at the stage of production of case property, in Court, it hence evidently holding the apt analogity, vis--vis, all the apt description(s), as embodied in the apt memos, wherethrough it stood recovered, at the site of occurrence (iii) and when for afore assigned hence reasons, all the prosecutorial links, rather stand hereat not firmly established, (iv)thereupon hence any submission, of, the learned Additional Advocate General, hence cannot be accepted. Conspicuously, when only upon evidently proven hence apt lack of apt connectivities, the might, of, the mandate, of, the afore rendered verdict of Hon''ble Apex Court, may prima-facie, be rather inapplicable. However, reiteratedly, contrarily hereat with the prosecution, for all the reasons'' assigned hereinabove, rather failing to firmly establish hence the, apt prosecutorial links, (iv) thereupon, the afore excepting niche, as culled out from an incisive surgical reading, of the judgment , rendered by the Hon''ble Apex Court, is obviously unrecoursable, by the learned Additional Advocate General, rather the might, of, the afore verdict is applicable with its fullest clout, vis--vis the facts hereat. 16. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court has not appraised the entire evidence on record in a wholesome and harmonious manner apart therefrom the analysis of the material on record by the learned appellate Court suffers from a perversity or absurdity of mis-appreciation and non-appreciation of evidence on record. 17. The appeal is allowed. The impugned judgment is quashed and set aside. Personal and surety bonds stand cancelled. Fine amount, if any, deposited by the convicts/accused, be refunded. Case property be destroyed after expiry of period of limitation. The convicts/appellants, if committed to judicial custody, are ordered to released forthwith. Release warrants, if required, be prepared forthwith, unless the accused are wanted in any other case. All pending application(s), if any, are disposed of.