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2020 DIGILAW 173 (HP)

Manohar Lal v. State Of Himachal Pradesh

2020-02-27

ANOOP CHITKARA, DHARAM CHAND CHAUDHARY

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JUDGMENT Anoop Chitkara, J. - Challenging the judgment of conviction for possessing 1 k.g. & 300 grams charas, convict Manohar Lal (appellant herein) has come up before this Court, by filing the present appeal under Section 374(2) of the Code of Criminal Procedure, 1973, through a Legal Aid Counsel. 2. The gist of the facts apposite to decide the present appeal, traces its origin to FIR No. 131 of 2015, dated 1.4.2015 (Ext. PW-13/A), registered under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (After now called NDPS Act), in Police Station Sadar, Chamba, Distt. Chamba, H.P. 3. On March 31, 2015, as per entry No. 68(A), recorded in the daily station diary (Ext. PW-9/A), police party comprised of HC-Vijay Singh (PW-12), Const. Amit Kumar (PW-2), and HHG Dalip Kumar (not examined), proceeded to set up a check post towards Parel bridge. They departed from the Police Station Sadar, Chamba, at 10.50 p.m., in the official vehicle, driven by HHG Ravinder Kumar (PW-4). The Officiating SHO of the Police Station, SI Sakini Kapoor (PW-13), recorded such entry. 4. At around 11.35 p.m., when the police party was present at Parel Bridge, then a bus run by the Himachal Road Transport Corporation, bearing registration No. HP73 4504, reached there. The police party signaled the bus to stop and started searching the passengers and their luggage. When the police checked the passenger sitting on seat No. 33, carrying a cloth bag on his lap, the said person became perplexed. This gesture and body language aroused suspicion in the mind of the search party. On inquiry about his identity, he disclosed his name as Manohar Lal (convict). After that, the police called the driver of the bus Himmat Kumar (PW-1), and Conductor Harish Chander (PW-3). In their presence, on opening the cloth bag, it contained a bedsheet, and inside the bed sheet, there was a hand-stitched cotton bag, which contained a polythene bag. Inside this polythene bag, police noticed contraband in the shape of sticks. On smelling it, the police, based on its experience, prima facie, detected it to be charas. 5. After that, the Investigating Officer HC Vijay Singh (PW-12) deputed the driver of the police vehicle, HHG Ravinder Kumar (PW-4), to bring the weighing scale from the police station, which was at a distance of about 6 km from the spot. On smelling it, the police, based on its experience, prima facie, detected it to be charas. 5. After that, the Investigating Officer HC Vijay Singh (PW-12) deputed the driver of the police vehicle, HHG Ravinder Kumar (PW-4), to bring the weighing scale from the police station, which was at a distance of about 6 km from the spot. On the receipt of the electronic weighing scale, the Investigating Officer HC Vijay Singh (PW-12) weighed the contraband, which measured to be 1kg & 300 grams. After that, the Investigating officer re-packed the charas, similarly right up to the main bag. The Investigating Officer (PW-12) placed the bag in a cloth parcel and sealed with five seal impressions of seal-X and prepared a search memo (Ext. PW-1/A). He filled up the NCB form (Ext. PW-9/F), and handed over the seal to Constable Amit Kumar (PW-2). He also obtained the specimen seal impression of seal-X, on a piece of cloth (Ext. PW-1/B). Constable Amit Kumar (PW-2) took photographs (Ext. PW-2/B & 2/C) of the search & seizure operation. The Investigating Officer (PW-12) further directed Constable Amit Kumar (PW-2) to go to the police station and report the offence. Upon this Constable, Amit carried Ruka (Ext. PW-5/A) to the Police Station Sadar Chamba, for the registration of FIR. The Investigating Officer (PW-12) also recorded the statements of the witnesses under Section 161 Cr.PC, and prepared spot map (Ext. PW-12/B). 6. On receipt of information at the police station, the Officiating SHO, SI Sakini Kapoor (PW-13) registered FIR (Ext. PW-13/A), and handed over its copy to Const. Amit Kumar (PW-2) for information to SI Vijay Singh (PW-12). 7. The Investigating Officer (PW-12) arrested the accused and produced the accused as well as the case property before SI Sakini Kapoor (PW-13), who resealed the parcel with three impressions of seal-M and prepared reseal memo (Ext. PW-10/B). After resealing, PW-13 handed over seal impression-M to Const. Arwind Thapa (PW-10). 8. On 1.4.2015, SI Sakini Kapoor (PW-13) deposited the sealed parcel, sample seals, seizure memo, resealing memo, and three copies of the NCB form with HC Dinesh Kumar (PW-9), who was posted as the MHC in the police station at the appropriate time. On receipt of the case property, HC Dinesh Kumar (PW-9) entered the case property at Sr. No. 666 of the Maalkhana Register, as per extracts (Ext. PW-9/B). On receipt of the case property, HC Dinesh Kumar (PW-9) entered the case property at Sr. No. 666 of the Maalkhana Register, as per extracts (Ext. PW-9/B). On the next day, i.e., 2.4.2015, he handed over the case property to Const. Avdesh Kumar (PW-7), along with Road Certificate No. 99/15 (Ext. PW-9/E), with a direction to deposit the same at the State Forensic Science Laboratory, Junga, for chemical analysis. Const. Avdesh Kumar (PW-7) took the case property to SFSL Junga and deposited it on 4.4.2015. On 1.5.2015 Const. Sher Singh (not examined), carried the case property, along with a report of chemical analysis (Ext. PX), from SFSL Junga, and handed over the same to the Investigating Officer. The Investigating Officer (PW-12) also prepared the special report (Ext. PW-5/B) and sent the same to the Superintendent of Police, Distt. Chamba through Lady Const. Sanjeepa (PW-8). 9. After completion of the investigation, the then SHO in Police Station Sadar, Chamba, SI Harnam Singh (PW-11) prepared the police report under Section 173(2) CrPC and presented the same before the Special Judge, Chamba, seeking prosecution of the accused. 10. The learned Special Judge took cognizance of the offence and supplied the copies of the police report to the accused in compliance with the provisions of Section 207 CrPC. 11. Vide order dated 1.8.2015, the learned Special Judge, Chamba proceeded to charge the accused under Section 20(ii)(C) of the NDPS Act, for possessing 1 kg &300 grams of charas, allegedly recovered from his exclusive and conscious possession, to which the accused did not plead guilty and claimed trial. 12. After the examination of the prosecution witnesses, in compliance with Section 313 CrPC, the Trial Court put the incriminating evidence to the accused, to which he denied all the incriminating circumstances. In answer to question twenty-four, accused stated that the police had foisted a false case against him on recovering the bag from the rack of the bus, which was not claimed by anyone. 13. The Court offered the accused to bring any evidence in support of his defence. However, he did not avail of his legal rights. Consequently, the trial court closed the evidence. The accused also did not file any written submissions as contemplated under Section 314 CrPC. 14. 13. The Court offered the accused to bring any evidence in support of his defence. However, he did not avail of his legal rights. Consequently, the trial court closed the evidence. The accused also did not file any written submissions as contemplated under Section 314 CrPC. 14. After hearing the arguments, the learned Special Judge, Chamba, accepted the prosecution evidence, and vide judgment dated 4.1.2017, passed in Sessions Trial No. 20 of 2015, titled as State of Himachal Pradesh vs. Manohar Lal, held the accused guilty. The Trial Court convicted the accused under Section 20(b)(ii)(C) of the NDPS Act, and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of rupees one lac. In default of payment of fine to further undergo rigorous imprisonment for one year. Challenging this judgment of conviction, the appellant has come up before this Court by filing the present appeal. 15. We have heard Mr. Debinder Ghosh, Advocate, learned legal aid counsel for the appellant-convict and Mr. Narender Guleria, learned Additional Advocate General for the respondent-State. We have also waded through the entire record. 16. A retrospection of the preceding paragraphs reveals that although the prosecution has proved all the steps leading from their departure from the Police Station up to the production of the case property in the Court during the trial, however, two aspects of the evidence need discussion. 17. The case of the prosecution is that they had entered the bus from the front as well as the rear portion simultaneously. The version of Const. Amit Kumar (PW-2) is that the Investigating Officer HC Vijay Singh (PW-12), had entered into the bus from the front door, whereas he along with HHG Dalip Kumar (not examined) had entered into the bus from the rear door. It has come explicitly in the evidence that at that time, the driver was sitting on his seat. The driver of the bus Himmat Kumar, who testified as PW1, stated in his cross-examination that at the time of checking, he was sitting on the driver seat, and the Police called him and the Conductor later on. This fact is corroborated even by the Investigating Officer (PW-12) in his cross-examination, wherein he stated that the driver was sitting on his seat, and the Conductor was issuing tickets to the passengers when he reached at seat No. 33. 18. This fact is corroborated even by the Investigating Officer (PW-12) in his cross-examination, wherein he stated that the driver was sitting on his seat, and the Conductor was issuing tickets to the passengers when he reached at seat No. 33. 18. Similarly, the Conductor of the bus Harish Chander, who testified as PW-3 stated that at the time of checking of the bus, he was in the middle portion and was issuing tickets. He said in his examination-in-chief that while checking the bus, the Police called him and the driver near seat No. 33. After that, the Police searched the bag of the accused and noticed charas in it. In cross-examination, PW-3 Harish Chander categorically stated that he could not tell from where the Police had lifted the bag prior to calling him to seat No. 33. 19. As per the version of the Investigating Officer HC Vijay Singh (PW-12), when they reached at seat No. 33, then the accused, who was sitting there, and was carrying bag on his lap, became frightened. On his becoming perplexed, suspicion arose in the mind of the Investigating Officer, and he alighted him along with the driver from the bus. According to this witness it was outside the bus that he conducted the search. Now there is no corroboration to the statement of this witness by the other three spot witnesses, namely the driver Himat Kumar (PW-1), conductor Harish Chander (PW-3), and the police official Const. Amit Kumar (PW-2). Even this version of checking the bag outside the bus does not get corroboration from the earlier version recorded in the search memo (Ext. PW-1/A), and the ruka (Ext. PW-5/A) as well as the special report (Ext.PW-5/B). Thus, this isolated version of the Investigating Officer (PW-12) that he had checked the bag outside the bus, is contrary to the all other evidence proved on record according to which the police had searched the bag inside the bus. 20. Even otherwise it is improbable that without noticing the contents of the bag the police would make the passenger alight the bus alongwith the driver and conductor. On the face of it, the testimony of the Investigating Officer (PW-12) is not credible. 21. Hc Vijay Singh, PW-12, the Investigating Officer, admitted in his cross-examination that the passengers were sitting on all the three seats bearing numbers 31, 32, and 33. On the face of it, the testimony of the Investigating Officer (PW-12) is not credible. 21. Hc Vijay Singh, PW-12, the Investigating Officer, admitted in his cross-examination that the passengers were sitting on all the three seats bearing numbers 31, 32, and 33. He acknowledged that apart from accused Manohar Lal, one 'Nikhal' was sitting on one of the seats bearing numbers 31 or 32. The Investigating Officer did not offer any explanation for not associating this co-passenger Nikhal. He was the most material witness because the police had called the driver and the conductor to seat No. 33 later on. This lapse would undoubtedly have an impact to prove whether the police recovered the bag containing charas from the lap of the accused or not. 22. Both the driver (PW-1) and the conductor (PW-3) did not support the case of the prosecution. The conductor namely Harish Chander (PW-3), in his cross-examination explicitly stated that the Police called him and the driver to seat No. 33 and clarified in the following terms - "It is correct that I cannot tell from where the police had lifted the bag prior to calling me to seat No. 33". After this testimony, the only evidence to connect the accused with the bag and to prove that the bag containing charas was on the lap of the accused, is that of the Investigating Officer (PW-12). At the time, the Investigating Officer noticed the bag on the lap of the accused, Const. Amit Kumar (PW-2) was searching passengers from the rear of the bus, and the driver and conductor were also not present. 23. The law is no more res Integra that the case set up by Prosecution would be proved only on the testimonies of Police officials, provided their testimonies inspire confidence and are believable. However, there is another aspect of the matter, which creates doubt on the credibility of the statements of the Investigating Officer (PW-12) and Const. Amit Kumar (PW-2). The Prosecution does not dispute that the passengers were sitting on all the seats of the bus, and it was full to its capacity. It has come in the evidence that no passenger was standing. Even if the police could not associate Nikhal, who was sitting on seat No. 31 or 32, still there is no explanation about not associating any other passengers as witnesses. 24. It has come in the evidence that no passenger was standing. Even if the police could not associate Nikhal, who was sitting on seat No. 31 or 32, still there is no explanation about not associating any other passengers as witnesses. 24. Another aspect that needs consideration is whether the Investigating Officer had ample time to complete the formalities like weighing the charas, preparing the parcels, stitching the cloth parcel, sealing the same with seals, preparing NCB form, fixing the specimen seal on the NCB form and writing seizure memo and Ruka within forty-five minutes to one and a half-hour. It assumes importance because nothing could proceed on the spot until the receipt of the weighing scale from the police station, which was at a distance of 6 to 7 km from the place of seizure. 25. According to conductor Harish Chander (PW-3), the bus remained at the spot for forty-five minutes. However, as per the statement of the driver Himmat Kumar (PW-1), the bus stayed at the place for one and a half hours. As per the version of the Investigating Officer (PW-12), it took them two hours and fifteen minutes to complete the proceedings at the spot. It has also come in the evidence that the Investigating Officer had deputed HHG Ravinder Kumar (PW-4) to bring the electronic weighing scale from the police station. The distance of the police station from the spot was 7 km. The Investigating Officer (PW-12) admitted the distance in his cross-examination. It has come explicitly in the cross-examination of the Investigating Officer that he wrote ruka (Ext. PW-5/A) at 1.30 a.m. As per the ruka, the time mentioned is 1.30 a.m., and the distance of the police station from the spot is 6 km. Before the preparation of ruka, the Investigating Officer had also prepared the seizure memo (Ext.PW-1/A). This seizure memo contains the signatures of the Driver Himmat Kumar (PW-1) and the Conductor Harish Chander (PW-3). 26. Another contradiction inferable from evidence is about the time for which the police had halted the bus on the spot. According to the conductor Harish Chander (PW-3), the bus stopped for forty-five minutes, and as per the driver Himat Kumar (PW-1), it halted for one and a half hours. 27. 26. Another contradiction inferable from evidence is about the time for which the police had halted the bus on the spot. According to the conductor Harish Chander (PW-3), the bus stopped for forty-five minutes, and as per the driver Himat Kumar (PW-1), it halted for one and a half hours. 27. The second aspect is that a bare look at the search memo (Ext.PW-1/A), even without any aid of a magnifying glass, reveals that the signatures of both the witnesses Himat Kumar (PW-1) and Harish Chander (PW-3) appears to have been obtained on blank paper, and the contents scribed later on. The handwriting seems to have overlapped the signatures, and especially the signatures of Harish Chander (PW-3) towards its end, and the signature of Himmat Kumar (PW-1) in its beginning, when it appears that the word "Shri" (in Hindi) has overwritten the signatures. 28. Similarly, the signatures of the accused are on the extreme bottom, whereas there was a lot of space above it for him to sign. Had police obtained the signatures after writing the document, then accused Manohar would not have signed just at the foot of the page, and signatures of both the witnesses would not have been done where they appear on the document. 29. A further perusal of this document reflects that on the top of the page, the font size is significant, and the spacing is huge, however, as one goes the page downwards, the font size, as well as the spacing, starts reducing, so as to make all the contents fit in to the space above signatures. 30. There is another defect in the seizure memo (Ext. PW-1/A). Initially, what was mentioned was 3' kgs & 300 grams, charas, but later on, the figure 3' was overwritten by figure 1'. Probably the police had only one blank paper with signatures of the witnesses and the accused; otherwise, they would have rewritten the entire document to overcome this material defect, which could have raised severe suspicion against the police team itself. 31. The result of the above analysis and discussion leads to an irrefutable conclusion that the Prosecution has failed to connect the bag to have been recovered from the conscious and exclusive possession of accused Manohar Lal. The Prosecution has miserably failed to prove its case beyond reasonable doubts, and the benefit must go to the accused. 32. 31. The result of the above analysis and discussion leads to an irrefutable conclusion that the Prosecution has failed to connect the bag to have been recovered from the conscious and exclusive possession of accused Manohar Lal. The Prosecution has miserably failed to prove its case beyond reasonable doubts, and the benefit must go to the accused. 32. Hence, for all the reasons mentioned above, the appeal is allowed. The judgment of conviction and sentence, dated 4th/11th January 2017, passed by Special Judge, Chamba Division, Chamba, H.P., in Sessions Trial No. 20 of 2015, titled as State of Himachal Pradesh vs. Manohar Lal, is set aside, and the accused is acquitted of the charged offence. The appellant Manohar Lal be set at liberty immediately, if not required in any other case after compliance of the provisions of Section 437-A CrPC. The fine amount, if deposited, be refunded to the accused. The Registry to prepare the release warrants, in the terms described above. The appeal stands disposed of, so also pending application(s), if any.