Research › Search › Judgment

Uttarakhand High Court · body

2022 DIGILAW 48 (UTT)

Mukesh v. State of Uttarakhand

2022-03-22

RAVINDRA MAITHANI

body2022
JUDGMENT : RAVINDRA MAITHANI, J. 1. Present appeal is preferred against the judgment and order dated 20.08.2014, passed in Special Sessions Trial No. 04 of 2012, State vs. Mukesh, by the court of Special Judge, N.D.P.S. Act, Haridwar. By the impugned judgment and order, the appellant has been convicted under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the Act”) and sentenced to ten years rigorous imprisonment and a fine of Rs. 1 Lakh. It has further been directed that in default of payment of fine, the appellant shall undergo imprisonment for a further period of six months. 2. Facts briefly stated are as follows: PW-4 Head Constable, Hari Mohan was travelling in Lahori Express Train on 15.11.2011. He spotted a person with four bags. That person became uncomfortable when he noticed the presence of police personnel. He was the appellant. He was asked as to what he was carrying in these bags. He revealed that he was carrying Ganja. PW-4 Head Constable, Hari Mohan informed it to the Police Station Railway Station Haridwar. Thereafter, PW-1 Sub Inspector, Hari Singh Negi along with PW-2 Constable, Satendra Lal and PW-3 Police Constable, Gyan Chandra reached in the general coach, where the appellant had already been apprehended by PW-4 Head Constable, Hari Mohan. The appellant was deboarded from the train. The bags containing Ganja were weighed. It had 10 kg, 9 kg, 9.5 Kg and 11 kg Ganja respectively. 250 gm sample from each of the bags were taken. PW-1 Sub Inspector, Hari Singh Negi prepared the recovery memo Ex.A3. Based on which, chick FIR Ex.A7 was recorded at Police Station GRP, Haridwar on 15.11.2011 at 23:50 hours and a case was lodged. The samples were sent for forensic examination, which confirmed it Ganja. The Investigating Officer prepared the site plan Ex.A9 and after investigation, submitted charge sheet against the appellant under Section 8/20 of the Act. 3. On 25.02.2012, the appellant was charged for the offence under Section 8/20 of the Act, to which, he denied and claimed trial. 4. The samples were sent for forensic examination, which confirmed it Ganja. The Investigating Officer prepared the site plan Ex.A9 and after investigation, submitted charge sheet against the appellant under Section 8/20 of the Act. 3. On 25.02.2012, the appellant was charged for the offence under Section 8/20 of the Act, to which, he denied and claimed trial. 4. In order to prove the case, the prosecution examined nine witnesses, namely, PW-1 Sub Inspector, Hari Singh Negi, PW-2 Constable, Satyendra Lal, PW-3 Constable Police, Gyan Chandra, PW-4 Head Constable, Hari Mohan, PW-5 Head Constable, Sanjay Pundir, PW-6 Sub Inspector, Neelam Rawat, PW-7 Sub Inspector, Madan Singh Rautela, PW-8 Sub Inspector, Ganesh Singh and PW-9 Constable, Jagat Singh. 5. The appellant was examined under Section 313 of the Code of Criminal Procedure, 1973 (for short “the Code”). The appellant denied having possession of the bags containing Ganja. According to him, he was beaten in the police station and compelled to sign on the blank papers. The documents are false. According to the appellant, he was going to Punjab in search of work, but he has been falsely implicated. 6. After hearing the parties, by the impugned judgment and order, the appellant has been convicted and sentenced, as stated hereinbefore. Aggrieved by it, the appellant has preferred an instant appeal. 7. Heard learned counsel for the parties and perused the record. 8. Learned counsel for the appellant would argue that the prosecution has utterly failed to prove the case beyond reasonable doubt against the appellant. The appellant ought to have been acquitted of the charge, but the court below has committed an error in convicting and sentencing the appellant. It is argued that, in fact, it has not been proved by the prosecution that the bags were in the possession of the appellant. 9. Reference has been made to the statement of PW-4 Head Constable, Hari Mohan. In his cross examination, paragraph 2 in first sentence, he has stated that the bags were separately kept; they were below the seat and were unclaimed. It is argued that admittedly, there was a lot of crowd in the general coach. It further makes the prosecution case doubtful. 10. On the other hand, learned State counsel would argue that the commercial quantity of Ganja was recovered from the possession of the appellant. The forensic report has confirmed the contents as Ganja. It is argued that admittedly, there was a lot of crowd in the general coach. It further makes the prosecution case doubtful. 10. On the other hand, learned State counsel would argue that the commercial quantity of Ganja was recovered from the possession of the appellant. The forensic report has confirmed the contents as Ganja. The witnesses have proved the case. 11. PW-1 Hari Singh Negi is Sub Inspector, Police, who was deputed to the general coach by the Station House Officer. According to this witness, on 15.11.2011, at 9:37 PM, PW-4 Head Constable, Hari Mohan had informed the Station House Officer about the recovery of Ganja from a person. On this information, this witness was deputed to proceed to the coach. He proceeded along with PW-2 Constable, Satendra Lal and PW-3 Constable Police, Gyan Chandra. In the general coach, PW-4 Head Constable Hari Mohan was found seated along with the appellant and recovered articles. This witness questioned the appellant. The appellant confessed his guilt. He was given an option to be searched before the Gazetted Officer, to which, he denied. This witness has proved the consent letter Ex.A1. According to him, thereafter, all the four bags were searched. They contained 10 Kg, 9 Kg, 9.5 Kg. and 11 kg Ganja. The appellant was arrested. Recovery memo Ex.A3 was prepared. This witness proved the recovery of bags and Ganja as Exs.A1 to A8. This witness has also stated that he was told by the police of the concerned police station that the articles were destroyed by the rats in the Police Maalkhana. Thereafter, the leaked Ganja was further kept in four bags Exs.9 to 12. According to this witness, Ganja was sealed by this witness under his specimen. 12. PW-2 Constable, Satyendra Lal and PW-3 Constable Police, Gyan Chandra has also tried to corroborate the statement of PW-1 Sub Inspector, Hari Singh Negi. 13. In addition to it, PW-2 Constable, Satyendra Lal has also proved the specimen samples Ex.13 to Ex.21. 14. PW-4 Head Constable Hari Mohan is the person, who according to the prosecution had spotted the appellant; noticed his suspicious movement; intercepted and recovered Ganja from the appellant. He has stated about it in his examination-in-chief. 15. PW-5 Head Constable, Sanjay Pundir has proved certain police documents, including general diary entries and chik FIR. 16. 14. PW-4 Head Constable Hari Mohan is the person, who according to the prosecution had spotted the appellant; noticed his suspicious movement; intercepted and recovered Ganja from the appellant. He has stated about it in his examination-in-chief. 15. PW-5 Head Constable, Sanjay Pundir has proved certain police documents, including general diary entries and chik FIR. 16. PW-7 Sub Inspector, Madan Singh Rautela took the investigation initially and thereafter, the investigation was carried out by PW-6 Sub Inspector, Neelam Rawat. They have stated about it. 17. Finally, it is PW-8 Sub Inspector, Ganesh Singh, who conducted investigation and prepared site plan Ex.A9. He has also stated about the Forensic Science Laboratory Report Ex.A10 and proved the charge sheet Ex.A11. 18. PW-9 Constable Police, Jagat Singh is the Maalkhaana In-charge. According to him, the recovered Ganja was kept in the Maalkhaana safely by him and on 20.11.2011 samples were sent at Forensic Science Laboratory, Dehradun. 19. The core question is as to whether the Ganja was recovered from the appellant? 20. It is a criminal case. The prosecution has to establish the case beyond reasonable doubt. Suspicion howsoever cannot substitute for proof. 21. In the case of Ashish Batham vs. State of M.P. (2002) 7 SCC 317 , the Hon’ble Supreme Court observed that “Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between “may be true” and “must be true” and this basic and golden rule only helps to maintain the vital distinction between “conjectures” and “sure conclusions” to be arrived at on the touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record.” 22. It is also one of the golden rules of the criminal jurisprudence of this country that benefit of doubt is always leans in favour of an accused. 23. In the case of State of Rajasthan vs. Raja Ram, (2003) 8 SCC 180 , the Hon’ble Supreme Court observed that “The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted.” 24. Section 3 of the Indian Evidence Act, 1872 (for short “the Evidence Act”) defines the word “proved.” According to it, “a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.” 25. Section 114 of the Evidence Act, further permits the court to raise presumption with regard to the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. 26. The attending circumstances have great role in appreciation of evidence. 27. It is a case that in a general coach, police was travelling, when they spotted the appellant with the bags, who became uncomfortable after noticing the police. It was a general coach. PW-2 Constable, Satendra Lal has categorically stated in his cross examination that there were about 150 passengers in the general coach. It does not need any explanation to say that it was crowded coach. 28. When police personnel reached in the coach on the information having been supplied by PW-4 Head Constable, Hari Mohan, they found that the appellant had already been arrested with Ganja, by PW-4 Head Constable, Hari Mohan. PW-2 Constable, Satendra Lal has stated that the appellant was on his seat and below his seat, there were four bags. According to this witness, when they reached in the compartment, they did not find any bag with the appellant. 29. The most important witness of the recovery is PW-4 Head Constable, Hari Mohan. It is this person, who initially, apprehended the appellant. In his examination-inchief, he has stated about it and told that when they entered into the general coach, they noticed that the appellant became uncomfortable. Thereafter, he was asked about the bags and then he revealed that he was carrying Ganja. But, in paragraph 2 of his cross examination, PW-4 Head Constable, Hari Mohan has totally demolished the prosecution case. He has stated that the bags were not with the appellant. They were kept separate. They were below the seat. They were unclaimed. Thereafter, he was asked about the bags and then he revealed that he was carrying Ganja. But, in paragraph 2 of his cross examination, PW-4 Head Constable, Hari Mohan has totally demolished the prosecution case. He has stated that the bags were not with the appellant. They were kept separate. They were below the seat. They were unclaimed. Now, in a crowded general coach, there are four bags below a seat, many persons seated, how could the appellant be connected with the bags? PW-4 Head Constable, Hari Mohan has himself stated that the bags were separately kept and they were unclaimed. There is no other person to tell that, in fact, it is the appellant, who was carrying those bags. It was not a secluded place, it was much crowded place flooded with the railway employees, staff and others. Based on the statement of PW-4 Head Constable, Hari Mohan, it cannot be said that the bags belonged to the appellant. It is, in fact, not proved that the appellant was in possession of four bags. 30. Who sealed those bags? Who kept them in Maalkhana? How they were sent for forensic examination? PW-1 Sub Inspector, Hari Singh Negi has stated that he sealed the bags with his own seal. Interestingly, PW-9 Constable, Jagat Singh tell the court that he was in Maalkhana and he kept the recovered Ganja safely. In his cross examination, he confirms that the rats had damaged the bags and he had reported the matter to the senior officers. PW-9 Constable, Jagat Singh has not stated that he had opened the seal and sealed them again. 31. In his cross examination, PW-1 Sub Inspector, Hari Singh Negi was asked about the seal on the bags which were produced before the court. He tells that the specimen seal was not on record. It was placed on record, when this witness was examined. In his examination, page 9, bottom paragraph, PW-1 Sub Inspector, Hari Singh Negi has stated that the bags which were brought before the court did not bear his seal. Even he could not tell the court as to who sealed those bags. In page 10 of his examination, in bottom paragraph, PW-1 Sub Inspector, Hari Singh Negi has further stated that he had sent the samples under his seal. He has also stated as to what was inscribed in his specimen seal. Even he could not tell the court as to who sealed those bags. In page 10 of his examination, in bottom paragraph, PW-1 Sub Inspector, Hari Singh Negi has further stated that he had sent the samples under his seal. He has also stated as to what was inscribed in his specimen seal. According to it, “H.S. Negi” is inscribed in his seal. In his seal, “UAP” is not legible. There is a FSL report on record, which is Ex.A10. According to it, one parcel sealed with “monogram UAP” was received at the FSL for examination. But, it is not the seal of PW-1 Sub Inspector, Hari Singh Negi. As stated, PW-1 Sub Inspector, Hari Singh Negi has stated that his seal was inscribed with “H.S. Negi” and in his seal “UAP” is not legible. Whereas, in the FSL report Ex.A10 the seal is with “monogram UAP.” Now, the question is who changed the seal? As stated, according to PW-1 Sub Inspector, Hari Singh Negi, he had sealed the bags when he recovered Ganja from the appellant. But, in the court, when the bags were produced, they did not bear his seal. Who changed the seal? There is no reply to it. Even the Court put this question to learned State counsel. He also has no reply. The chain of custody is totally broken. In fact, it also demolishes the prosecution case. 32. In view of the foregoing discussion, this Court is of the view that the prosecution has utterly failed to prove the charge under Section 8/20 of the Act against the appellant. The appellant deserves to be acquitted of the charge. Accordingly, the appeal deserves to be allowed. 33. The appeal is allowed. 34. The impugned judgment and order dated 20.08.2014, passed in Special Sessions Trial No. 04 of 2012, State vs. Mukesh, by the court of Special Judge, N.D.P.S. Act, Haridwar is set aside. 35. The appellant is in jail. Let he be released forthwith if not wanted in any other case subject to his furnishing a personal bond and two sureties under Section 437A of the Code to the satisfaction of the court concerned. 36. Let a copy of this judgment along with Lower Court Record be transmitted to the Court below for compliance.