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2023 DIGILAW 316 (HP)

State of Himachal Pradesh v. John Peter

2023-05-29

JYOTSNA REWAL DUA

body2023
JUDGMENT : Jyotsna Rewal Dua, J. 1. Learned Additional Advocate General has placed on record copy of communication dated 20.05.2023 from the office of Superintendent of Police, Mandi, District Mandi. As per this communication, the petitioner had attempted service upon the respondent, i.e. John Peter, at his available address. It turned out that the respondent is no more residing at that address and had left the place in question in the year 2021. The relevant portion of the communication about service upon the respondent is as under:- “Kindly refer to your good office letter No. Cr. Revision No.418/2022-12577 dated 11-04-2023, received in this office on 29-04-2023, on the subject captioned above, wherein directed to file fresh steps (Correct Address) for the services of respondent i.e. (John Peter S/o Sh. Joun Peter OKK R/o Lagaosh Nigeria, at present C/o E-54, Tiwari Building Chankya, Place New Delhi-59 within one week. In this regard, it is submitted that the SHO Police Station Sunder Nagar was directed to comply the aforesaid orders. That as per the report submitted by the SHO PS Sunder Nagar, District Mandi, HP, HHC Hans Raj No.312 of Police Station Sunder Nagar was further deputed to find the correct address of John Peter. During the compliance HHC Hans Raj visisted the Tiwari Building Chankya, in New Delhi, where the House holder namely Sh. Pawan Tiwari S/o Late Sh. Raja Ram Tiwari, R/o B.91 New Janakpuri 110059 was present. Sh. Pawan Tiwari recorded in his statement that John Peter used to live in his building in the year 2021. During the year 2021 he was got arrested by the Police of Police Station Sunder Nagar. After getting arrested John Peter neither returned back to his place nor contacted him. Contact number of John Peter is also not known to him (recorded statement of Sh. Pawan Tiwari is attached herewith for your ready reference). This is for your kind perusal and further necessary direction please.” 2. At this stage, with the consent of learned Additional Advocate General for the petitioner, the matter was heard in order to see the substance in the revision petition preferred by the petitioner for ascertaining the necessity of taking compulsive steps for service of the respondent. 3. FIR No.255/2021 was registered on 26.09.2021 at Police Station Sundernagar, District Mandi. The prosecution case in the aforesaid FIR was that:- 3(i). 3. FIR No.255/2021 was registered on 26.09.2021 at Police Station Sundernagar, District Mandi. The prosecution case in the aforesaid FIR was that:- 3(i). On 26.09.2021, a police party was on routine patrol duty in the area of its jurisdiction. The police officials had put a naka at place Pungh Fore-lane. At about 5:30 am, a private Volvo Bus came from Harabagh side, which was signalled to stop. The police officials boarded the bus for the purpose of routine checking. There were 34 passengers inside the bus. On seeing the police personnel, the persons sitting on Seat Nos.25 and 26 appeared perplexed and scared. The person occupying Seat No.25 disclosed his name as Amit Kumar and the person on Seat No.26 gave his name as Rahul Bhatia. The person occupying seat No.25 was holding a backpack. On inquiry, they disclosed that the said backpack belongs to both of them. The police officials deemed it fit to carry out search of the bag. Search was carried out in accordance with law. During search, heroin weighing 63.10 gms was recovered from the bag. The recovery led to registration of the FIR and arrest of Amit Kumar and Rahul Bhatia. 3(ii). During investigations, accused Rahul Bhatia disclosed that he can identify the person from whom the contraband was procured. His statement to that effect was recorded under Section 27 of the Indian Evidence Act. On this basis, a police team proceeded at the given address of that person to Delhi. On 28.09.2021, at the instance and identification of accused Rahul Bhatia, the place was identified where the contraband was allegedly handed over to the accused persons. Accused Rahul Bhatia statedly identified John Peter (respondent herein), from whom he had allegedly purchased the contraband. The respondent-John Peter was stated to be residing in that place on rent. The respondent was arrested on 29.09.2021. 3(iii). The trial proceeded. The petitioner presented the charge-sheet. Vide order dated 02.04.2022 passed by the learned Trial Court, accused John Peter (respondent herein) was discharged for commission of offence under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘NDPS Act’). Charge was framed under Sections 21 and 29 of the NDPS Act against accused persons Rahul Bhatia and Amit Kumar. Aggrieved against discharge of the respondent-John Peter, the State has preferred the instant revision petition. 4. I have heard learned Additional Advocate General for the petitioner-State. Charge was framed under Sections 21 and 29 of the NDPS Act against accused persons Rahul Bhatia and Amit Kumar. Aggrieved against discharge of the respondent-John Peter, the State has preferred the instant revision petition. 4. I have heard learned Additional Advocate General for the petitioner-State. 5. It is not in dispute that no recovery of any kind of contraband was effected from the respondent-John Peter. The respondent was implicated only on the basis of statement of co-accused Rahul Bhatia. It is not in dispute that but for the statement of co-accused Rahul Bhatia, there is no other evidence whatsoever linking the respondent-John Peter to the contraband recovered by the Investigating Agency. In (2021) 4 SCC 1 , titled Toofan Singh Versus State of Tamil Nadu, Hon’ble Apex Court held that a statement made by accused under Section 67 of the Act will be inadmissible in trial. In AIR 2022 SC 5110 (Subramanya versus State of Karnataka), it was held that “confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the Court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence. In criminal trial, there is no scope for applying the principle of moral conviction or grave suspicion. In criminal cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of a co-accused person, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the Court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt.” From the above judgment, it is clear that statement made by co-accused Rahul Bhatia is not legally admissible evidence. As observed earlier, even the petitioner does not dispute that but for the confessional statement of co-accused Rahul Bhatia, there is no other evidence, which links the contraband to the respondent-John Peter. Hence, the impugned order dated 02.04.2022 passed by the learned Trial Court, discharging the respondent-John Peter from the offences under Sections 21 and 29 of the NDPS Act, is in order. This revision petition, therefore, fails and is accordingly dismissed alongwith pending miscellaneous application(s), if any. Hence, the impugned order dated 02.04.2022 passed by the learned Trial Court, discharging the respondent-John Peter from the offences under Sections 21 and 29 of the NDPS Act, is in order. This revision petition, therefore, fails and is accordingly dismissed alongwith pending miscellaneous application(s), if any. In the given circumstances, there is no necessity of making any further attempt of service upon the respondent.