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2019 DIGILAW 250 (HP)

State Of H. P. v. Jinia Changmai

2019-03-12

DHARAM CHAND CHAUDHARY, VIVEK SINGH THAKUR

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JUDGMENT : DHARAM CHAND CHAUDHARY, J. 1. Judgment dated 4.7.2018 passed by learned Special Judge-II, (Additional Sessions Judge), Kullu, in Sessions Trial No.01 of 2016 is under challenge in the present appeal. 2. On the previous date, record of the case was requisitioned from learned trial Court. The same has since been received. A perusal of the record reveals that the accused, 24 years of age, belonging to Namrup, Sector 6, District Dibrugarh, Assam was intercepted on 28.10.2015 by the Police of Police Station Bhunter, District Kullu at Traffic Checking Post (TCP), Bajaura. PW-9 HC Sunil Kumar, HC Vinay, LHC Vinay Kumar and Constable Urmila Thakur were on duty at the Check Post. The police party stopped the Volvo Bus bearing No.UP-22-T3431 of Amole Bus Service, which was on its way to Delhi from Manali, for checking. The bus was being driven by Mr. Pankaj Rana and its conductor was Abdul Khan. They both were associated and the Police party started conducting checking of the bus. When PW-9 and PW-1 Urmila Thakur reached at seat No.11 found that the accused is occupying the said seat. On inquiry she disclosed her name and other antecedents. A black coloured rucksack kept by her on lap was taken from her. It was checked by PW-1 Lady Constable Urmila Thakur in the presence of PW-9 HC Sunil Kumar. In middle portion of the rucksack, apart from the towel and T-Shirt, one Knicker of Jean was recovered. In the pockets of the Knicker two packets were recovered, in which black coloured substance (Ex.P-5) in round shape wrapped in transparent polythene was recovered. On checking the same it was found charas. It was weighed and found to be 135 grams. After observing sampling and sealing process, the recovered charas was taken into possession vide seizure Memo Ex.PW-1/B. Rukka Ex.PW-9/A was prepared by PW-9 HC Sunil Kumar, on the basis of which FIR Ex.PW-9/B was registered in the Police Station. The accused was arrested and information of her arrest given to her friend Ms. Divya Gupta. The I.O. PW-9 had recorded the statements of the witnesses and also prepared spot map Ex.PW-9/F. The accused was brought to Police Station along with charas recovered from her. After resorting to resealing process the parcel containing the recovered charas, was handed over to PW-5 HC Gian Chand, the then MHC, Police Station, Bhunter. Divya Gupta. The I.O. PW-9 had recorded the statements of the witnesses and also prepared spot map Ex.PW-9/F. The accused was brought to Police Station along with charas recovered from her. After resorting to resealing process the parcel containing the recovered charas, was handed over to PW-5 HC Gian Chand, the then MHC, Police Station, Bhunter. The said witness has entered the parcel containing the recovered charas in the Malkhana Register, the extract whereof is Ex.PW-5/B. The case property later on was forwarded to Forensic Science Laboratory for testing. After testing the same it was found charas. The report of chemical examiner is Ex.PW-9/H. 3. On completion of the investigation, the Police has prepared the challan and filed the same in the Court. Learned Special Judge on going through the challan and documents annexed thereto and finding a prima facie case for the commission of the offence punishable under Section 20 of the NDPS Act having been made out against the accused, framed charge against her accordingly. She, however, not pleaded guilty and claimed trial. 4. The prosecution in order to sustain the charge against the accused has, therefore, examined Constable Urmila Thakur PW-1, who had checked the rucksack, which the accused was carrying in her lap. PW-4 LHC Vinay Kumar, present on the spot at the relevant time. PW-8 Pankaj Rana is the driver of the Volvo bus stopped for checking by the Police. The remaining prosecution witnesses are Police officials, who remained associated in the investigation of the case in one way or the other. PW-3 Rajesh Kumar Booking Clerk has proved the Ticket Ex.PW-1/F, which was recovered from the accused when intercepted by the Police. The accused in her statement recorded under Section 313 Cr.P.C. has denied the incriminating circumstances appearing against her in the prosecution evidence being incorrect as according to her she is innocent and implicated falsely in this case. 5. On completion of the record, learned trial Judge has proceeded to hear arguments in the matter. The accused ultimately was acquitted of the charge framed against her as in the opinion of learned trial Judge, the prosecution was not able to prove its case beyond all reasonable doubt. 6. Learned Deputy Advocate General submits that cogent and reliable evidence produced by the prosecution has erroneously been brushed aside and not appreciated in its right perspective. The accused ultimately was acquitted of the charge framed against her as in the opinion of learned trial Judge, the prosecution was not able to prove its case beyond all reasonable doubt. 6. Learned Deputy Advocate General submits that cogent and reliable evidence produced by the prosecution has erroneously been brushed aside and not appreciated in its right perspective. It has been pointed out that irrespective of the independent witness PW-8 has turned hostile to the prosecution, its case finds full corroboration from the testimony of Lady Constable Urmila Thakur and LHC Vinay Kumar PW-4. The support to the prosecution case, according to learned Deputy Advocate General, can be drawn from the testimony of the I.O. The accused, therefore, is stated to be acquitted of the charge wrongly and illegally. 7. On taking into consideration the submissions made by learned Deputy Advocate General and going through the record, it would not be improper to conclude that the prosecution has failed to prove beyond all reasonable doubt that charas weighing 135 grams has been recovered from the conscious and exclusive possession of the accused,. The only eye witness PW-8 Pankaj Rana examined by the prosecution has turned hostile and not supported the prosecution case at all. The conductor of the bus namely Abdul Khan though was cited as witness, however, not examined. No doubt, Urmila Thakur, PW-1 has stated that charas weighing 135 grams was recovered from the rucksack the accused allegedly was carrying in her lap, however, careful reading of her statement reveals that the same is not consistent and rather contradictory also. 8. Admittedly, the accused was travelling in the bus in question. She had occupied its seat No.11. On seat No.12 someone-else was sitting. As a matter of fact, the said occupant would have thrown some light qua the manner in which the charas has been recovered from the accused. The I.O., however, to the reasons bes known to him, has not opted for associating the said passenger during the course of the investigation conducted in this case. The evidence as has come on record by way of testimonies of Urmila Thakur PW-1 and Vinay Kumar PW-4 reveal that the same is not cogent and reliable and rather contradictory and inconsistence. As a matter of fact, both of them have contradicted the prosecution case on all material aspects, therefore, it is not safe to place reliance thereon. 9. The evidence as has come on record by way of testimonies of Urmila Thakur PW-1 and Vinay Kumar PW-4 reveal that the same is not cogent and reliable and rather contradictory and inconsistence. As a matter of fact, both of them have contradicted the prosecution case on all material aspects, therefore, it is not safe to place reliance thereon. 9. On the other hand, it is not known that the accused was dealing in the business of Narcotic Drugs and Psychotropic Substances. As per the prosecution case, as find mentioned in the Report under Section 173 Cr.P.C., the accused allegedly told the I.O. that she herself consumed charas. Therefore even if the prosecution story is believed to be true, it seems to be not a case where the accused can be said to be dealing in the business of charas. The present, therefore, is a case where the testimony of the prosecution witnesses i.e. PW-1 Urmila Thakur and PW-4 Vinay Kumar is not sufficient to bring the guilt home to the accused. The evidence as has come on record by way of testimony of the remaining prosecution witnesses (official) may have been used as link evidence, however, had the prosecution otherwise been able to prove beyond all reasonable doubt that the charas was recovered from the conscious and physical possession of the accused. The same, as such, need not to be discussed to overload the judgment unnecessarily. 10. In view of what has been said hereinabove, we find no merit in this appeal and the same is accordingly dismissed. Pending applications, if any, shall also stand disposed of.