Himachal Pradesh High Court
Sarwan Dass vs State Of Himachal Pradesh on 18 August, 2017
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA.
Cr. Appeal No.244 of 2016
Reserved on: 10.8.2017.
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Decided on: August 18, 2017.
Sarwan Dass ...Petitioner.
Versus
State of Himachal Pradesh ...Respondent.
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Coram:
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting? 1 No
For the Appellant : Mr. Ajay Kochhar and Mr. Vivek Sharma,
Advocates.
For the Respondent: Mr. V. S. Chauhan, Addl. A.G. with Mr. J. S.
Guleria, Asstt. A.G.
_________________________________________________________
Justice Tarlok Singh Chauhan, Judge:
Appellant stands convicted and sentenced to undergo rigorous imprisonment for 10 years and to pay fine of `1,00,000/-by the learned Special Judge-II, Shimla, H.P. on 3/5.5.2016 in Sessions Trial No. 13-S/7 of 2015 for having committed offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short the 'Act').
2. The brief facts as per the prosecution are that:
i. On 18.11.2014 at about 4.00 p.m., vide rapat No.21 (Ex.PW-3/A), SI/SHO, Sanjeev Kumar (PW-8) alongwith HC Rukam Chand, HHC Brij 1 Whether reporters of the local papers may be allowed to see the judgment? yes ::: Downloaded on - 19/08/2017 23:56:00 :::HCHP 2 Lal (PW-6), HHC Shishi Ram (PW-7) had left the police station for routine traffic checking and .
patrolling duty in their official vehicle alongwith the driver HHG Trilok Singh towards Chirgaon Bazar, Shimla, Andhra Power Project etc. At about 5.30 p.m., when the police party reached at place Andhra at some distance from Andhra Power House, they noticed one person with a carry bag in his right hand, who on seeing the police party fled from the road/spot. On suspicion, IO/SHO Sanjeev Kumar (PW-8) alongwith police officials apprehended the appellant.
ii. Subsequently, the police party checked the bag wherein another red colour carry bag in which black stick shaped articles were found. On smelling and from experience the black article was opined to be Charas. On delineation, the person named himself to be Sarwan Dass son of Sh. Kalgi Ram, resident of Village Jhanjhwani, Post Office, Kanthli, Tehsil Chirgaon, District Shimla. Thereafter, the charas was weighed and the same was found to be 4 KG. The appellant ::: Downloaded on - 19/08/2017 23:56:00 :::HCHP 3 was asked to produce any permit or licence qua the recovered articles, but he failed.
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iii. Thereafter, the recovered contraband i.e. 4 KG, charas was kept inside the bag and sealed into a sealed parcel by using the seal impression "T".
NCB form in triplicate were filled in and the seal sample was drawn on a separate piece of cloth (Ex.PW-6/B). The sealed parcel containing 4 KGs. Charas alongwith the NCB form and seal sample were taken into possession vide separate seizure memo (Ex.PW-6/A). The seal after its use was handed over to HHC Brij Lal (PW-6).
iv. Thereafter, the rukka (Ex.PW-7/A) was prepared. At about 6.15 p.m., the rukka alongwith the case property, NCB form and seal sample was sent to Police Station, Chirgaon, through HHC Shishi Ram. Site plan (Ex.PW-
8/B) was also prepared. On the basis of rukka, FIR (Ex.PW-5/A) was registered by PW-5 HC Jagat Ram, who also made an endorsement qua the FIR on the back of rukka (Ex.PW-5/B). The special report (Ex.PW-2/A) was sent to Dy. S.P. Headquarter, which was entered into the diary register (Ex.PW-2/B). The case property ::: Downloaded on - 19/08/2017 23:56:00 :::HCHP 4 remained deposited with MHC, Police Station, Chirgaon vide entry No. 221. The case property .
was sent to FSL, Junga. The statements of the witnesses were recorded as per their version and the appellant was arrested.
v. After the completion of investigation, the challan was presented in the Court of learned Special Judge-II, Shimla, who framed the charge under Section 20 of the Act, to which the appellant pleaded not guilty and claimed to be tried.
vi. The prosecution examined as many as eight witnesses and closed its evidence. The statement of accused under Section 313 Cr.P.C.
was recorded in which he pleaded his innocence. He denied the entire version of the prosecution story and raised a plea that the prosecution case has been foisted falsely against him and he does not lead any evidence in defence.
vii. After the conclusion of the trial, the learned Court below convicted and sentenced the accused, as aforesaid, vide judgment dated 3/5.5.2016. Aggrieved by the impugned judgment of conviction and sentence, the ::: Downloaded on - 19/08/2017 23:56:00 :::HCHP 5 appellant has filed the instant appeal before this Court.
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3. Learned counsel for the appellant has vehemently argued that the judgment passed by the learned Court below is based on surmises and conjectures and, therefore, not sustainable in the eyes of law. Whereas, learned Additional Advocate General would support the judgment.
We have heard learned counsel for the parties and have gone through the records of the case.
4. However, before proceeding to determine the merits of the case, we must bear in mind that the drug abuse is a social malady. The drug addicts eat into the vitals of the society, but drug trafficking not only eats into the vitals of the economy of a country but illicit money generated by drug trafficking is often used for illicit activities. The constitution Bench of the Hon'ble Supreme Court in State of Punjab vs. Baldev Singh (1999) 6 SCC 172 has observed as follows:-
"4. Drug abuse is a social malady. While drug addiction eats into the vitals of the society, drug trafficking not only eats into the vitals of the economy of a country, but illicit money generated by drug trafficking is often used for illicit activities including encouragement of terrorism. There is no doubt that drug trafficking, trading and its use, which is a global phenomena and has acquired the ::: Downloaded on - 19/08/2017 23:56:00 :::HCHP 6 dimensions of an epidemic, affects the economic policies of the State, corrupts the system and is detrimental to the future of a country. It has the effect of producing a .
sick society and harmful culture. Anti-drug justice is a criminal dimension of social justice. The United Nations Conventions against Illicit Trafficking in Narcotic Drugs and Psychotropic Substances which was held in Vienna, Austria in 1988 was perhaps one of the first efforts, at an international level, to tackle the menace of drug trafficking throughout the comity of nations. The Government of India has ratified this Convention."
5. If we see the effect of the drugs in the society, then lacs of young people are becoming addict to drugs which is ultimately ruining the young generation. Drugs are destroying the wealth of the nation and where there is a conflict between an individual and the society at large, then the law has always given primacy to the society, the State and the nation.
6. The menace of drug has taken dangerous dimensions in the Society and, therefore, the spread of this menace must be cured with iron hand.
7. Learned counsel for the appellant has formulated the following points for his arguments:
1. Prosecution could not place on record any explanation that how the FIR No. was written on spot on the parcel when it was admitted case of the prosecution that the case property was sent alongwith Rukka from the spot to the police station.
2. Prosecution could not place on record clinching and trustworthy evidence to show that the case ::: Downloaded on - 19/08/2017 23:56:00 :::HCHP 7 property before reaching the laboratory was kept in safe custody.
3. Non-association of independent witnesses though available.
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4. Evidence on record further suggests that it was all a paper work done in the police station to show the apprehension of the appellant in the manner as alleged by the prosecution.
5. Material contradictions in the prosecution case regarding the proceedings conducted after leaving the police station, distance of the spot from bazaar, bridge and police station, direction in which the appellant is alleged to have run after seeing the police as alleged, carrying of rukka etc.
6. Prosecution could not connect FSL report Ext.
PW-8/C with the alleged contraband in question.
Point No.1: Prosecution could not place on record any r explanation that how the FIR No. was written on spot on the parcel when it was admitted case of the prosecution that the case property was sent alongwith Rukka from the spot to the police station.
8. It is the case of the prosecution that the case property was sent with the rukka through HHC Shishi Ram (PW-7) and he returned to the spot after depositing the case property with PW-5 HC, Jagat Ram, who is alleged to have deposited the same at serial No. 221 in Malkhana Register, Ex.PW-5/D. However, in case the statement of PW-6 HHC, Brij Lal, who was a witness of spot is seen, he has categorically stated that FIR was written on sealed parcel at the spot and the relevant extract of his statement is reproduced below:
".....FIR number on sealed parcel and seizure memo Ext.PW-6/A were written by the I.O. FIR ::: Downloaded on - 19/08/2017 23:56:00 :::HCHP 8 No. were written on the spot after receiving the case file. The sealed parcel Ex.P-1 and seizure memo were available on the spot when the case .
file was received."
However, when confronted, he on being cross-examined has categorically stated "it is correct that the case property was sent to the police station as per rukka. It is correct that no one was knowing about the FIR number till the case file was received. I cannot say that how the FIR number on sealed parcel Ex.P-1 and NCB form came to be entered. Self stated that it was the I.O., who can say so."
9. Now, in case the testimony of Investigating Officer PW-8 is seen, he has categorically stated "The FIR No. 74 on NCB form Ex.PW-5/F, seizure memo, Ex.PW-6/A and parcel Ex.P-1 is not written in my hand. It has not come in the statement of any witnesses that they have written the FIR number on abovesaid documents and parcel. It is correct that the writing on the parcel Ex.P-1 is not in my hand. It has not come in the statement of any of the witnesses that either of them had written the writing on parcel Ex.P-1."
10. The depositions extracted above, leaves no room for doubt that no proceedings as alleged were conducted at the spot or else there was no occasion for the number of FIR to figure on the sealed parcel Ex.P-1 and NCB form, which certainly creates grave and serious doubts about the ::: Downloaded on - 19/08/2017 23:56:00 :::HCHP 9 presence of police officials on the spot and the proceedings allegedly conducted by them on the spot.
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Point No.2: Prosecution could not place on record clinching and trustworthy evidence to show that the case property before reaching the laboratory was kept in safe custody.
11. As per the case of the prosecution, the case property was deposited with MHC PW-5 HC Jagat Ram, who sent the same through PW-1 C. Abhishek for depositing the same with FSL, Junga on 19.11.2014 and the same was deposited on 20.11.2014. Now in case the statement of PW-5 is seen, he has categorically stated that at the time of deposition of the case property, there was no FIR written on the same. Even the Investigating Officer while appearing as PW-8 states that he did not write the FIR number on the case property and he further stated that no person claimed during investigation to have written FIR on the case property as is evident from the statements extracted above.
12. In addition to the above, it would be noticed that PW-1 C. Abhishek has categorically stated that on the intervening night of 19/20.11.2014 he stayed in the Police Station Sadar, Shimla and further admitted that there was no entry to this effect in the daily diary and he had also not deposited the case property in the Malkhana nor informed the I.O. at any point of time regarding depositing of the case ::: Downloaded on - 19/08/2017 23:56:00 :::HCHP 10 property. This would be clearly evident from his deposition, the relevant extract whereof is quoted below:
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"The case property remained in my custody on the intervening night of 19/20.11.2014. The same was not deposited anywhere in the Malkhana. I stayed at Police Station, Sadar, Shimla. The Malkhana is housed at PS Sadar, Shimla. I did not enter my arrival or departure in daily diary register at P.S. Sadar, Shimla."
13. In this background, now if one would advert to the statement of PW-5 HC Jagat Ram with whom the case property was alleged to have been deposited, he has specifically stated regarding non-recording of the FIR number on the case property in the following manner:
"At the time of depositing the case property in Malkhana, as mentioned in Ext.PW-5/D, the case FIR No. was not recorded on the case property."
14. Therefore, in such circumstances, the further question that arises for consideration is that who in fact recorded the FIR number on the NCB form Ex.PW-5/F, seizure memo Ex.PW-6/A and parcel Ex.P-1. The Investigating Officer, PW-8 has specifically stated that the entries appearing in these documents/parcel have not been written by him and he further categorically deposed that during the course of investigation it had not come in the ::: Downloaded on - 19/08/2017 23:56:00 :::HCHP 11 statement of any witnesses that they had written the FIR number on the above said documents and parcel, as is .
evident from his statement, the relevant portion whereof reads thus:
"The FIR No. 74 on NCB form Ext.PW-5/F, seizure memo Ext.PW-6/A and parcel Ext.P-1 is not written in my hand. It has not come in the statement of any witnesses that they have written the FIR number on abovesaid documents and parcel."
15.r All these assumes importance in view of the fact that the colour of the bags in which the contraband was alleged to have been recovered when sent to FSL, is admittedly different from the one described by FSL in its report. We would deal with this aspect of the matter in the later part of the judgment.
Point No.3: Non-association of independent witnesses though available.
16. The appellant had raised before the trial Court a plea of non-joining of independent witnesses, however, the same has been cursorily rejected by observing that "the police party is under no obligation to associate independent witnesses while going on patrolling duty. Once a chance recovery is effected, it is useless to associate independent witnesses, as the witness cannot be the witness to the possession, which is a very material and relevant piece of ::: Downloaded on - 19/08/2017 23:56:00 :::HCHP 12 evidence in the search and seizure case." Thereafter, the plea has been negated after placing reliance upon the judgment .
of the Hon'ble Supreme Court in Kulwinder Singh vs. State of Punjab, 2015 Cri.L.J., 3160.
17. As regards the recovery, the statements of three witnesses PW-6 HHC Brij Lal, PW-7 HHC Sheshi Ram and PW-8 I.O. Sanjeev Kumar, who allegedly were on the spot are relevant. It would be noticed that all three witnesses have stated that the appellant had fled away on seeing the police party, which raised the suspicion in their mind that he may be carrying some contraband. Yet the independent witnesses were not associated, even though, they were available. This is clearly admitted by HHC Brij Lal, who in his deposition clearly states as under:
"The shops of Chirgaon bazaar are located up to the bridge. The distance between the bridge and the spot is approximately 1 KM. It takes 2 minutes to reach the spot from the bridge in a vehicle."
Further not only this, in his further cross-examination, he has deposed in the following manner:
"The power house remained open around the clock. The employees used to be there in the power house. It is correct that none of the independent witnesses though available were not associated."::: Downloaded on - 19/08/2017 23:56:00 :::HCHP 13
And thereafter he has admitted that many people and vehicles had crossed from the spot as is evident from his .
further cross-examination, which reads thus:
"Many people and vehicles had crossed from the spot till we remained there. It is the I.O. who can tell whether any person was associated or not."
18. Even the Investigating Officer, PW-8 has categorically admitted the presence of the independent witnesses at the alleged spot by stating "It is correct the Andhra Project Works through out the day and employees were there. No efforts were made to associate any independent witnesses either from the Andhra Project or from the bazaar."
19. There is no explanation on record as to why no independent witnesses despite being available were associated especially when it is the case of the prosecution that on seeing the police officials, the appellant had tried to flee away raising reasonable suspicion in the mind of the police party that the appellant may be carrying some contraband.
20. Similar issue has come up before the Hon'ble Supreme Court in a recent judgment in case titled Krishan Chand vs. State of H.P., Cr. Appeal No. 186 of 2017, ::: Downloaded on - 19/08/2017 23:56:00 :::HCHP 14 decided on 21.4.2017 wherein the Hon'ble Supreme Court observed as under:
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"15. From the evidence which has come on record, it is quite clear that the place, where the accused is alleged to have been apprehended, cannot be said to be an isolated one as the house of Govind Singh PW-2 is situated on the edge of Patarna bridge. Thus the version of the complainant PW-6 that independent witnesses could not be associated as it was an isolated place does not inspire confidence. Moreover, from r the evidence of Govind Singh PW-2 the case of the prosecution regarding apprehension of the accused, at Patarna bridge, while being in possession of bag containing 7 Kgs of charas, becomes highly doubtful because had he been so apprehended, by the police, this fact was to come to his notice, for the reason, that his house is situated at the edge of the bridge in which he resides, along with his family.
16. The complainant PW-6 is not the scribe/author of the various memos including the entries as made in column Nos. 2 and 7 of NCB form. It has been stated by Umesh Kumar PW-4 that the complainant had prepared the search memo of witnesses, seizure memo, arrest memo, seal of H and NCB form in his own ::: Downloaded on - 19/08/2017 23:56:00 :::HCHP 15 hand. The above version had been contradicted by the complainant PW-6 himself.
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17. In our opinion, the High Court failed to appreciate that the harsher is the punishment, the more is the strictness of proof required from the prosecution and that failing to associate independent witnesses at the time of recovery created a dent in the case of prosecution.
18. As rightly pointed out by the counsel for the appellant that the High Court failed to appreciate that in the absence of r independent witnesses, the evidence of the police witnesses must be scrutinized with greater care especially when police witnesses contradicted themselves on the issue as to in whose hand writing the seizure memo, the arrest memo, consent memo and the NCB form were written and the evidence adduced by the prosecution is not reliable."
21. No doubt, it is settled law that the testimonies of official witnesses cannot be rejected on the ground of non-
corroboration by independent witnesses. However, the same must inspire confidence and should be consistent with the case set up by the prosecution. In case there are material contradictions, which goes to the root of the case and make the prosecution case highly doubtful, then this Court would ::: Downloaded on - 19/08/2017 23:56:00 :::HCHP 16 obviously be circumspect and placing reliance on such testimony.
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22. The learned Court below seems to have gone astray in little realizing that in the facts and circumstances when independent witnesses were available, the non-
association thereof does cast a serious dent about the prosecution story, particularly, in view of what has already been observed above. The non-association of any independent witnesses in the background of the serious discrepancies found in the evidence of the prosecution does cast a doubt on the entire prosecution story.
Point No.4: Evidence on record further suggests that it was all a paper work done in the police station to show the apprehension of the appellant in the manner as alleged by the prosecution.
23. It would be noticed that the Investigating Officer, PW-8 in his cross-examination has admitted that except from NCB form, no other document or statement was written by him as is evident from the following:
"Except the NCB form none of the seizure memo, Rukka, spot map, statement of witnesses and the other documents prepared are in my hand writing. Self stated it was got written by me from the police officials accompanying me. It has not come in the statement of any police official accompanying me that they have written any of ::: Downloaded on - 19/08/2017 23:56:00 :::HCHP 17 the documents of their own or under my directions."
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24. Undoubtedly, it is not mandatory for the Investigating Officer to fill up all the forms and documents, but then there should have been some reference in the statements of official witnesses recorded under Section 161 Cr.P.C. as to which one of them had written the documents and at whose instance and dictation.
25. This aspect of the matter has already been dealt with in the earlier part of the judgment while dealing with point No.2, when the Investigating Officer in his cross-
examination is conspicuously silent qua all these facts and had been trying to establish the documents had been prepared by the accompanying police officials. However, as observed earlier, there is virtually no evidence on record to show which one of the police officials in fact had done the paper work at the spot and in absence of such evidence, this Court has no hesitation to conclude that the entire paper work was done lateron in the police station and no proceedings whatsoever conducted at the spot as alleged by the prosecution.
26. That apart, it would be noticed that there are material contradictions in the statements of PW-6, PW-7 and PW-8, who were alleged to be present on the spot with ::: Downloaded on - 19/08/2017 23:56:00 :::HCHP 18 regard to the proceedings conducted after leaving the Police Station on the relevant date as also with regard to the .
distance of the spot from Chirgaon bazaar, bridge and police station, direction in which the appellant is alleged to have run after seeing the police party as alleged, carrying of rukka and moreover, there is no explanation whatsoever given for not placing arrest memo of the appellant on record.
Point No. 5: Material contradictions in the prosecution case regarding the proceedings conducted after leaving the police station, distance of the spot from bazaar, bridge and police station, direction in which the appellant is r alleged to have run after seeing the police as alleged, carrying of rukka etc.
27. It would be noticed that the learned Court below without discussing in detail the statements of the witnesses, more particularly, PW-6, PW-7 and PW-8 has simply rejected the plea of contradictions as under:
"27......The test of cross-examination is to be conducted on the part of witnesses in order to test the veracity or to impeach the credibility on the part of witnesses. The testimonies of witnesses to be read in Juxta position after clubbing the examination-in-chief and cross- examination. Thereafter, the testimonies of witnesses is required to be scrutinized on the touch stone of reliability quotient in order to assess the consistency involved in a witness. Admittedly, (PW-6), (PW-7) and (PW-8) are police officials. However, there is no rule of law that the ::: Downloaded on - 19/08/2017 23:56:00 :::HCHP 19 testimonies of police witnesses is required to be discarded merely on account of official stature bore by the party. The only rule of caution .
requires that the testimonies of witnesses to be scrutinized with care and caution. Therefore, the testimonies of police official is required to be scrutinized with greater care and caution. Firstly, it needs to be emphasized that the court is to look into the aspects that whether the testimony of witness is free from blemish or not. Secondly, the witness who is hailing from police department is carrying the substance or his testimony is carrying some treacherous remarks. It is equally settled that the credibility of witness, after subjecting it to be consistent and reliable, based on their truthfulness and trustworthiness possibility of passing conviction solely on the testimony of complainant or judicial official cannot be ruled out, however, the court needs to scrutinize their testimonies with due care and caution. I had an occasion to dealt with testimonies of (PW-6), (PW-7) and (PW-8) in details. On careful scrutiny of testimonies of these witnesses it cannot be stated that their testimonies are free from blemish and not bearing treacherous remarks. It is satisfactorily proved that the testimonies of (PW-6), (PW-7) and (PW-8) are quite natural, consistent, cogent and convincing, as none of these witnesses have any element on inimical or hostility towards the accused persons so as to deposed falsely against him. I find a ring of truth attached to the ::: Downloaded on - 19/08/2017 23:56:00 :::HCHP 20 testimonies of (PW-6), (PW-7) and (PW-8). The statements of witnesses should be seen to find out that whether it is having ring of truth or .
whether the same is satisfactory or not. There is no principle of law that the testimonies of police official cannot be relied upon in the absence of corroboration by independent witnesses. It is settled law that the presumption of truth attaches to be officials, who perform their duties also applies to the police officials as well and it is not proper to doubt the testimonies of police officials without any good ground. It is not the spirit of judicial approach to doubt the testimonies of r police official because they are interested in the success of the case."
28. As regards the proceedings conducted after leaving the Police Station, PW-6 has categorically stated that the patrolling party had gone to Chirgaon bazaar in official vehicle No.HP-68-1866 and thereafter headed towards Andhra Power House. While at Chirgaon bazaar, they had challaned some vehicles and stayed there for 45 minutes.
Whereas, PW-7 had stated that the patrol party had gone to Chirgaon bazaar on foot and remained in the market for about 1-1½ hours. Whereas, the Investigating Officer, PW-8 states that the police party remained in Chirgaon Bazar from 4.00 to 5.30 p.m. and had gone on foot and was patrolling ::: Downloaded on - 19/08/2017 23:56:00 :::HCHP 21 as well as traffic checking. He did not remember how many vehicles were challaned on that date.
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29. As regards the distance of the spot from bazaar, bridge and police station, different versions have come up in the statements of PW-6 and PW-8. While PW-6 maintained that the distance between Chirgaon Bazar and alleged place of occurrence was approximately 3 KMs and the distance between the bridge and the spot is approximately 1 KM, which would take about 2 minutes to reach the spot from the bridge in a vehicle. Whereas, PW-8 has stated that the distance of the Chirgaon Bazar near bridge and the place of the apprehension of the appellant was around 1½ KM and it could have taken 15-20 minutes to call for independent witnesses from the end of the bazaar which was at a distance of 1½ KM from the spot and he denied the suggestion that this distance could be covered in vehicle within 2-3 minutes. However, at this stage, in case the rukka is perused, the distance of the spot and the police station has been shown to be about 2 KM.
30. As regards the direction in which the appellant is alleged to have run after seeing the police party, different versions have been put-forwarded by PW-6 and PW-8, who were alleged to be present on the spot. However, before adverting to their statements, it would be noticed that as per ::: Downloaded on - 19/08/2017 23:56:00 :::HCHP 22 the spot map Ext.PW-8/B point 'B' has been shown as the road leading to Andhra river and point 'X' on the road has .
been shown as the place where the appellant was alleged to have been apprehended. As per rukka, the appellant made an attempt to run from the road towards the downside, whereas all the spot witnesses have not only given contradictory versions to each other, but their deposition is also contrary to the spot map.
31. Adverting to the statement of PW-6, it would be noticed that he has categorically stated that the appellant on seeing the police vehicle, had run towards Andhra river and while being cross-examined, he stated that the appellant had been apprehended at about 8-10 steps away from the road and further stated that the appellant had gone along to the road and not towards the down side. As regards, PW-7, he has categorically stated in his examination-in-chief that the appellant on seeing the police vehicle had run towards the downside of the road and while being cross-examined, he has stated that the appellant had run about 6-8 steps towards Andhra river down side. Whereas, PW-8 has stated that on seeing the police party, the appellant had started running towards Andhra River down the road and was apprehended there.
::: Downloaded on - 19/08/2017 23:56:00 :::HCHP 2332. As regards the carrying of rukka as per the prosecution, the same was carried by PW-7 to the Police .
Station. However, different versions have appeared in the evidence as to how he went from the spot. PW-6 has categorically stated that he was not in a position to state as to whether the person carrying rukka went on foot or by vehicle to the police station. As regards PW-7 himself, he has stated that he had left to the police station from the spot by taking lift. However, entirely different version has come in the statement of I.O. PW-8, who has stated that the police official who had left with the rukka had gone on foot from the spot.
33. As regards the arrest memo, admittedly the same has not come on record and this fact stands admitted by the I.O. in his cross-examination. There is no explanation as to why such an important document has not come on record.
34. However, at this stage, learned Additional Advocate General would argue that minor discrepancies, inconsistencies or insignificant embellishments does not affect the core of the prosecution case and, therefore, should not be taken to be a ground to reject the prosecution evidence.
::: Downloaded on - 19/08/2017 23:56:00 :::HCHP 2435. Undoubtedly, there cannot be any quarrel with the aforesaid submission. It is well settled in law that minor .
discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the Court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness about a witness. It is only the serious contradictions and omissions like in the instant case, which materially affect the case of the prosecution but not every contradiction or omission.
Point No.6: Prosecution could not connect FSL report Ext.PW-8/C with the alleged contraband in question.
::: Downloaded on - 19/08/2017 23:56:00 :::HCHP 2536. At this stage, learned counsel for the appellant would vehemently argue that even if all the points as have .
been earlier argued are kept aside for a moment, even then, the prosecution has not been able to connect the FSL report Ext.PW-8/C with the alleged contraband in question.
Sheet anchor of the argument is that as per the report of FSL, the contraband sent for examination was found in orange coloured carry bag which was contained in a multi coloured zip carry bag.
37. It would be noticed that it was never the case of the prosecution that the bag which the appellant was allegedly holding in the right hand was multi coloured zip carry bag or the contraband was recovered in an orange coloured carry bag that in turn had been kept in a multi coloured bag. At this stage, it would be relevant to make reference to the colour of the bags as described in ruka Ext.PW-7/A, Special report Ext.PW-2/A, wherein the colour of the bags is written as "Lal" meaning "red'.
38. PW-8, the I.O. in his statement has categorically admitted that the colour of the bag being carried by the appellant at the time of his apprehension was red in colour and no multi coloured bag had been seized in the present case. At this stage, it would be apt to reproduce the relevant portion of his statement which reads thus:
::: Downloaded on - 19/08/2017 23:56:00 :::HCHP 26"It is correct that in Rukka Ext.PW-7/A, special report Ext.PW-2/A, FIR Ext.PW-5/A, the colour of the bag allegedly being carried by the accused at .
the time of his apprehension is written as red in colour. It is correct that it has not been mentioned in these documents that the colour of the bag was red and yellow. No multi coloured bag has been seized in the present case."
39. Notably, there is no explanation whatsoever placed on record by the prosecution that as to how orange and multi coloured zip bag was found at the time of examination in FSL when the admitted case of the prosecution was that the colour of these bags which contained the alleged contraband was "red". Therefore, in the given circumstances, even if it is assumed that some substance was recovered from the appellant, the same cannot be connected with the report of the FSL Ext. PW-8/C to conclude that the same was charas.
40. An identical question came up before this Court in Cr. Appeal No. 70 of 2013 titled State of H.P. vs. Lal Singh and another, decided on 3.8.2017 wherein this Court observed as under:
"11. It would be noticed that one of the major reasons for disbelieving and rejecting the entire story of the prosecution was that as per the testimony of the prosecution witnesses, accused Tilak Raj was carrying a bag on his shoulder and on search of the ::: Downloaded on - 19/08/2017 23:56:00 :::HCHP 27 bag, the contraband was alleged to have been recovered from it. It is further case of the prosecution that the bag along with charas was repacked in the .
same manner in a cloth parcel and thereafter sent for chemical examination to the FSL, Junga. However, in the report of the FSL, Ext.PA, there was no mention about any bag, which according to the learned Special Judge did cast serious doubt about the entire story of the prosecution, rather indicating that the bag might have been tampered with. This position is not even disputed by the learned Additional Advocate General. However, what is more intriguing is that after the case property, alleged to have been returned to the Police Station concerned with the specimen seal of the FSL after its analysis, the bag again resurfaced and was even exhibited as Ext. P2.
12. Once this is the admitted position, then in such circumstance, no fault can be found with the findings returned by the learned Special Judge when he held that the prosecution had failed to connect the report, Ext.PA with the alleged contraband, which cast serious doubt on the entire story of prosecution story, which goes to the root of the case.
13. An identical case came up before a learned Single Judge of this Court in Bhumika vs. State of Himachal Pradesh, 2012(3) Shim. L.C. 1395, wherein it was observed as under:-
"13. The prosecution is obliged to prove that the stuff recovered from the accused reached the Forensic Science Laboratory intact till its examination and it was not tampered with. As already stated above, the prosecution case, the whole stuff was sealed with six seals of "A" on the spot after its recovery, in the same "Pithu- Bag" from which it was recovered. It was ::: Downloaded on - 19/08/2017 23:56:00 :::HCHP 28 sealed and after using the seal it was handed over to none else than Head Constable Chaman Lal, one of the members of the police-
.
party. The accused after her arrest, as per report, was sent to judicial lock-up and the case property remained with the police and Head Constable Chaman Lal with whom seal was entrusted. He was also posted in the same Police Station. Surprisingly, when the case property reached the Forensic Science Laboratory, though the seals used on the parcel were found intact and tallied with the NCB forms. It was opened but the "Pithu-Bag"
was not found in the parcel. Where it had gone, there is no explanation. The analysis report Ext.PW7/B shows the total weight of the parcel 2.010 Kg and the weight of the polythene wrappers 0.038 Kg. The actual total weight of the parcel is 1.972 Kg. Thus, if the recovered stuff, on the spot was 2 Kgs. and it was resealed in the bag by making it a parcel, then where is the "Pithu Bag"?
14. The story did not end here. The case property is stated to have been returned to the Police Station concerned with the specimen seal of the FSL after its analysis. In the statement of PW2 HHC Mast Ram the parcel was exhibited. It contained five seals of "A", five seals of "T" and five seals of FSL. As per the Court observations, there were only 18 seals impressions on the said parcel Ext.P1 and three of them were not legible. The contents of the parcel were opened on 12.9.2011 and the contents were exhibited in the statement of PW5 Constable Umesh ::: Downloaded on - 19/08/2017 23:56:00 :::HCHP 29 Kumar. But, the learned trial Court did not observe the condition of the parcel nor about the seal impressions nor the learned Public .
Prosecutor had made any request to this effect.
Since it was marked as Ext.P1 this parcel was produced by the learned Public Prosecutor and was allowed to be opened. On opening it, a green coloured rucksack upon which "Diesel" was printed, was found containing black substance in polythene. The "Pithu-Bag" which was not earlier found by the Assistant Chemical Examiner when the parcel sent to him was opened, it is not understandable as to how it reappeared when it was opened and r exhibited to PW5 aforesaid and according to this witness these items were recovered from the possession of the accused. To the similar effect is the statement of PW6 Lady Constable Chandra Devi, but in her cross-examination she stated that the exhibited pieces of the alleged stuff were more than the quantity which was recovered for which there is no explanation how the number of the pieces had increased. After closure of evidence on 12.9.2011 the case property was resealed with the seal of the Court and handed over to Naib Court, as per zimini order dated 12.9.2011."
14. We see no reason to differ with the aforesaid view, therefore, in the given circumstances, even if it is assumed that something was recovered from the possession of the accused Tilak Raj, the same cannot be connected with the report of the FSL, Ext.PA to conclude that the same was charas, as alleged."
::: Downloaded on - 19/08/2017 23:56:00 :::HCHP 3041. Notably, one of the grounds agitated before the learned Court below was that the original seal mark "T" had .
not been produced on record. However, the learned Court below simply rejected the contention only on the ground that PW-6 has stated that he had lost the seal, which in our considered view was not a sufficient ground to reject the contention, particularly when it has come in the statement of PW-1 C. Abhishek that he had stayed in the Police Station Sadar, Shimla on the intervening night of 19/20.11.2014, but this fact was neither entered in the daily diary nor was the I.O. informed about this. Not only this, he further deposed that the case property had not been deposited in the Malkhana on that date and that the case property during that time remained in his custody and moreover, he further stated that he had not informed the I.O. at any time regarding the deposition of the case property.
42. That apart, as already observed above, it has specifically come in the statement of PW-5 H.C. Jagat Ram that at the time of depositing the case property in Malkhana, as mentioned in Ext.PW-5/D, the case FIR number had not been recorded on the case property. Additionally, PW-8, who is the Investigating Officer in the case has specifically stated that FIR No. 74 on NCB form Ext.PW-5/F, seizure memo ::: Downloaded on - 19/08/2017 23:56:00 :::HCHP 31 Ext.PW-6/A and parcel Ex.P-1 were not written by him and what is equally important that he has specifically stated that .
during the course of investigation, none of the witnesses had claimed that they had written the FIR number on the above documents and parcel.
43. What appears to have been ignored by the Court below is that the prosecution, as observed earlier, could not even connect the FSL report Ext.PW-8/C with the alleged contraband in question. Moreover, in absence of the original seal, it would be extremely difficult for this Court to compare the specimen of the seal upon the case property/parcels and in the instant case which assumes greater significance as admittedly the colour of the bags in which the appellant was alleged to be carrying the contraband and those sent for chemical examination, admittedly do not tally. Therefore, in such circumstances, non-production of original seal in the Court is definitely fatal to the case of the prosecution.
44. Additionally, what we find from the record and which is rather disturbing is that the learned Court below immediately after recording the statement of the appellant under Section 313 Cr.P.C., proceeded to reserve the judgment on 28.4.2016. It is the specific case of the appellant that he was not even heard in the matter and judgment thereafter came to be pronounced on 3.5.2016.
::: Downloaded on - 19/08/2017 23:56:00 :::HCHP 3245. The learned Court below appears to be oblivious and has failed to appreciate that before imposing harsh .
punishment whereby the appellant has been sentenced to undergo rigorous imprisonment for terms of 10 years and to pay a fine of `1,00,000/- and in default to further undergo simple imprisonment for a period of one year, the least that the appellant was required to be afforded was a hearing that was both adequate and meaningful.
46. For all the reasons stated above, we find merit in this appeal and the same is allowed and the judgment of conviction and sentence dated 3/5.5.2016 passed by learned Special Judge-II, Shimla, H.P. in Sessions Trial No. 13-S/7 of 2015, is set-aside as the prosecution has failed to prove its case beyond all reasonable doubts. Appellant be released forthwith, if not wanted in any other case. Registry is directed to prepare the release warrant forthwith.
Tarlok Singh Chauhan), Judge (Chander Bhusan Barowalia) August 18, 2017. Judge (GR) ::: Downloaded on - 19/08/2017 23:56:00 :::HCHP