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Himachal Pradesh High Court · body

2018 DIGILAW 733 (HP)

Ravinder Kumar v. State of H. P.

2018-04-24

SURESHWAR THAKUR

body2018
JUDGMENT : Sureshwar Thakur, J. The instant appeal stands directed by the accused/convict, against, the judgment rendered by the learned Special Judge, Chamba, upon, Sessions trial No. 5 of 2015, whereon, he returned findings of conviction, against, the accused/convict in respect of charges framed, under, Section 20 (b) (ii) (B) of the ND & PS Act AND consequently sentenced him, to, undergo five years’ rigorous imprisonment AND to pay a fine of Rs.20,000/- and in default, he was sentenced to undergo simple imprisonment for six months. 2. The facts relevant to decide the instant case are that on 5.1.2015, ASI Rajesh Kumar Investigating Officer, CID Unit, Chamba along with ASI Pawan Kumar (PW1), HC Som Prakash, HHC Ajay Kumar and HHC Surinder Kumar was on patrolling duty and detection of drugs cases at Baroti Chowk at Dharagala link road at about 5:20 PM. The accused on seeing the police party got scared and started moving in the other direction. On suspicion, the accused was apprehended. ASI Rajesh Kumar had constituted a search party by associating the police officials and apprised the accused of his right to be searched either by the gazetted officer or a Magistrate. Accused consented to be searched by the police officials. Memo Ext. PW1/A was prepared. Police party had offered themselves to be searched by the accused. Memo Ext. PW1/B was prepared. Nothing incriminating was recovered from the police officials. The police party searched the bag of the accused. On opening the bag, a white envelop (Ext. P-3) found containing in it a black coloured substances in the form of sticks and balls. It was identified to be cannabis (Ext.P-4). With the help of electronic scale, the cannabis was weighed and it was found to be 750 gms. The cannabis was then put back in the same envelope, which in turn was put in carry bag Ext. P-2 and then packed in a cloth parcel (Ex. P-1) and sealed with six seal impression “T”. NCB-I form Ext. PW4/C was prepared in triplicate. Seal impression T was put on NCB forms. The seal after use was handed over to ASI Pawan Kumar. The parcel containing cannabis was seized vide memo Et. PW1/D. Rukka Ext. PW8/A was prepared and it was handed over to HHC Ajay Singh with the direction to fax it to Police Station, State CID, Bharari, District Shimla for registration of the case. FIR Ext. The seal after use was handed over to ASI Pawan Kumar. The parcel containing cannabis was seized vide memo Et. PW1/D. Rukka Ext. PW8/A was prepared and it was handed over to HHC Ajay Singh with the direction to fax it to Police Station, State CID, Bharari, District Shimla for registration of the case. FIR Ext. PW4/A was registered. Investigation was conducted by ASI Rajesh Kumar. Accused was arrested and arrest memo Ext. PW1/E was prepared. The case property consisting ofa parcel, NCB-I form in triplicate and sample of seal “T” was handed over to Inspector Virender Chauhan (PW-7) for resealing the parcel. The parcel was resealed with six seals of impression “C”. Sample seal “C” was taken on a piece of cloth Ext. PW7/B and reseal certificate Ext. PW4/K was prepared. Case property along with documents was then handed over to MHC Parkash Chand. MHC had made entry in the register of Malkhana at sr. No. 294, copy of which is Ext.PW4/B and deposited them in Malkhana. The case property along with documents was handed over to HHC Gopal Singh (PW-5) on 7.1.2015 with the direction to carry these to State FSL,Junga, vide RC No. 9 of 2015, copy of which is Ext. PW4/C. The report of FSL is Ext. PX, in which it was shown that the exhibit was an extract of cannabis and sample of charas. Statements of the witnesses were recorded as per their version and after completion of the investigation, challan was prepared and it was presented before the Court. 3. 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. 4. The accused was charged by the learned trial Court, for, his committing offence (s) punishable under Section 20 of the ND & PS Act. In proof of the charge, the prosecution examined 8 witnesses. On conclusion of recording of prosecution evidence, the statement of the accused, under, Section 313 of the Code of Criminal Procedure, was, recorded by the trial Court, wherein, the accused claimed innocence, and, pleaded false implication in the case. However, no defence evidence was adduced by the accused. 5. On an appraisal of evidence on record, the learned trial Court, recorded findings of conviction against the accused/appellant herein. 6. However, no defence evidence was adduced by the accused. 5. On an appraisal of evidence on record, the learned trial Court, recorded findings of conviction against the accused/appellant herein. 6. The accused/appellant is aggrieved by the judgment of conviction recorded by the learned trial Court. The learned Counsel appearing for the accused/appellant, has, concertedly and vigorously contended qua the findings of conviction recorded by the learned trial Court 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, he contends 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. 7. On the other hand, the learned Additional Advocate General, has also with considerable force and vigour, contended that the findings of conviction recorded by the Court below standing based on a mature and balanced appreciation, by it, of evidence on record, and, theirs not necessitating interference, rather theirs meriting vindication. 8. 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. 9. The Investigating Officer concerned, through, recovery memo borne in Ext.PW1/D, hence effectuated, from, the conscious and exclusive possession of the convict, recovery, of, charas weighing 750 grams. In sequel to recovery of the aforesaid quantum of contraband, hence standing effectuated, from the purported conscious and exclusive possession, of, the accused, the Investigating Officer concerned, prepared NCB form, (i) form whereof stands comprised in Ext. PW4/D “wherein” revelations occur, of, his “embossing upon” the bulk parcel (s) comprised in Ext. P-1, six seals of English Alphabet “” (ii) also echoings occur in Ext.PW 4/K, of, thereafter Ext. P-1 standing re-sealed, by the SHO concerned, at the Police Station concerned, with six seals, carrying English Alphabet “C”. The aforesaid exhibit containing therein “the” bulk of charas, exhibit whereof stood seized under Ext.PW 1/D (iii) “from the” purported conscious and exclusive possession, of, the accused “stood” under a road certificate comprised, in Ext.PW-4/C, hence sent for analysis to the FSL concerned. The FSL Junga purveyed its report thereon, report whereof is comprised in Ext. PX, wherein it recorded a firm opinion, of, the contents enclosed in the aforesaid bulk parcel “sent to it” for analysis, holding ingredients of charas. The FSL Junga purveyed its report thereon, report whereof is comprised in Ext. PX, wherein it recorded a firm opinion, of, the contents enclosed in the aforesaid bulk parcel “sent to it” for analysis, holding ingredients of charas. Apart therefrom, the prosecution for establishing the charge, to which the accused stood subjected to, relied upon the depositions’, of, official witnesses. Even though, the testification (s), rendered by the official witnesses’ concerned, do not, make any marked underscorings, vis-à-vis existence of any rife a) interse contradiction (s) in their respectively rendered testification (s) nor reveal, of theirs, hence, rendering testification (s) with occurrence therein, of, blatant intrase contradictions, borne in their respective examinations-in-chief, vis-à-vis their respective cross-examination (s); C) importantly, with theirs at the stage of production of case property in Court, whereat, it stood shown to the prosecution witnesses’ concerned, hence rather making forthright, and, candid echoing (s), of, it bearing analogity, on all fronts, vis-à-vis its seizure, made, under memo Ext. PW1/D, d) thereupon, evident display (s), of, all the apposite linkage (s), on all fronts, interse the recovery of the case property, at the site of occurrence, under memo Ext. PW1/D, vis-à-vis its production in Court, e) hence renders the prosecution case, to, achieve success. 10. Be that as it may, though, for all the aforesaid reasons, this Court would be constrained to affirm findings of conviction, pronounced by the learned trial Court, upon the accused, yet for the reasons to be assigned hereinafter, this Court rather is prodded to form a formidable conclusion, of, the findings of conviction, hence warranting reversal by this Court. 11. (i) On production of Ext. P-1 in Court, whereat it stood shown to PW-1 (a) their occurring reflection (s), of it, carrying thereon, embossing, of, six seal (s) at four places, seals whereof are echoed to carry thereon English alphabet “T”, however, at two places the seal impression (s) were found to be broken. However, as apparent, from, a reading of Ext. PX, exhibit whereof comprises the report of the FSL, Junga, qua (i) the latter also embossing thereon, the seal, of, the FSL. Consequently, in consonance therewith, also thereat, especially during the course of recording of the deposition of PW-1, by the learned trial Court, to whom Ext. P-1 stood thereat hence shown, an imperative reflection was enjoined to occur, of, Ext. P-1, also carrying the seals of FSL. Consequently, in consonance therewith, also thereat, especially during the course of recording of the deposition of PW-1, by the learned trial Court, to whom Ext. P-1 stood thereat hence shown, an imperative reflection was enjoined to occur, of, Ext. P-1, also carrying the seals of FSL. Contrarily, lack of any reflection (s), during, the recording of the testification, of PW-1, qua Ext. P-1 carrying thereon also the seals of the FSL, (i) rather constrains, this Court to conclude that hence, Ext. P-1, at the stage of its production, obviously remaining un-connected, with the report of the FSL, borne in Ext. PX, (ii) also besides hence the imperative connectivity interse its recovery under memo Ext. PW1/D, from, the purported conscious and exclusive possession of the accused, vis-à-vis its production in Court, being also visibly snapped, dehors its carrying therein the contraband, purportedly recovered, under memo Ext. PW1/D, from the conscious and exclusive possession of the accused, rather some other case property being produced before the learned trial Court, (iii) besides it constrains this Court, to conclude that hence the apposite link interse the recovery memo, borne in Ext. PW1/D, vis-à-vis, the opinion of the FSL, borne in Ext. PX, also hence not standing efficaciously proven. In aftermath, it is also concluded, that the prosecution rather miserably failing to establish, that Charas, if any, recovered under memo, Ext. PW1/D, being formidably proven to be hence Charas. 12. Further more, the factum of, as disclosed by PW-2, in his cross-examination, of, a the liquor vend being available at a distance of 200 mtrs. from the site of occurrence and it being manned, (i) thereupon the persons manning the liquor vend were peremptorily, enjoined to be associated as independent witnesses, vis-à-vis the relevant proceedings, (ii) conspicuously hence when the aforesaid infirmity may, prima-facie, be eroded, (iii) yet, evidently, no efforts were made by the Investigating Officer, to solicit them, as independent witnesses, vis-a-vis the relevant proceedings, (iv) omissions’ whereof, are construable to be both deliberate and intentional, for hence facilitating the Investigating Officer concerned, to carry skewed/slanted investigation (s). Also, the aforesaid deliberate omissions, rather lend aggravated momentum, to the aforesaid inferences, of the prosecution not establishing the relevant connectivity interse the recovery of case property, under recovery memo, borne in Ext. PW1/D, from the purported conscious and exclusive possession of the accused, vis-à-vis its production in Court. 13. Also, the aforesaid deliberate omissions, rather lend aggravated momentum, to the aforesaid inferences, of the prosecution not establishing the relevant connectivity interse the recovery of case property, under recovery memo, borne in Ext. PW1/D, from the purported conscious and exclusive possession of the accused, vis-à-vis its production in Court. 13. 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. 14. The appeal is allowed. The impugned judgment is quashed and set aside. The accused is acquitted. Case property be destroyed after the expiry of the period of limitation, for filing an appeal. Fine amount, if deposited by the accused be forthwith refunded to him. Personal and surety bond (s) be forthwith discharged.