Himachal Pradesh High Court
Hem Raj And Another vs State Of Himachal Pradesh on 12 July, 2019
Author: Anoop Chitkara
Bench: Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr.MMO No.45/2019Reserved on : 19.6.2019 Date of decision : 12th July,2019 Hem Raj and another ... Petitioners.
Versus State of Himachal Pradesh ...Respondents Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge. Whether approved for reporting?1 No. For the Petitioners : Mr. Kulbhushan Khajuria, Advocate.
For the Respondent : Ms. Ritta Goswami, Additional Advocate General and Ms. Divya Sood, Deputy Advocate General for the State.
Anoop Chitkara, Judge The present criminal revision petition is filed under Section 482 of the Code of Criminal Procedure for quashing of order dated 5.1.2019, passed by learned Special Judge, Chamba Division Chamba, H.P., in Criminal Miscellaneous Application No.30/2019 (Main Case No.8/2015), titled as State of Himachal Pradesh vs. Hem Raj, which has been annexed as Annexure P-7 in the petition.1
Whether reporters of Local Papers may be allowed to see the judgment?::: Downloaded on - 29/09/2019 00:43:32 :::HCHP
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2. The next prayer in this petition is that the .
Superintendent of Police, Chamba, may be directed to produce the hard disk of 1 TB capacity, containing the CCTV footage of Tunnuhatti barrier, for the dates 22.12.2014 from 12:00 am to 23.12.2014 till 12:00 pm, with further direction to send the said hard disk for scientific analysis.
3. This case has now assumed a chequered history.
The prosecution filed a charge-sheet under Section 173 of the Code of Criminal Procedure against the petitioners, for commission of offences punishable under Sections 20, 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act'). This charge-
sheet was filed before the learned Special Judge (Sessions Judge), Chamba, District Chamba, H.P.
4. It appears that initially one Pinku asked for information under RTI relating to CCTV coverage of video camera installed at Tunnuhatti Police barrier. This information was sought for video recording from 22.12.2014 to 23.12.2014.
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5. The RTI was sought from S.D.P.O., Dalhousie, .
District Chamba, and vide official letter No.910/59 dated 14.2.2016, the S.H.O., Police Station, Chamba, informed the S.D.P.O., Dalhousie, Chamba that the storage capacity of CCTV footage is only for 15 days and thereafter history of records keep on deleting from the system. It was further stated that no footage of CCTV camera, for the required dates, is available. This letter has been placed in this petition as Annexure P-5 (colly).
6 Vide another office letter dated 1.3.2017, issued by the Public Information Officer-cum-Sub Divisional Police Officer, Sub Division, Dalhousie, District Chamba to Shri Hem Raj Thakur (Petitioner No.1), it was informed that as per the report of Incharge, Tunnuhatti barrier, the footage for the period 21.12.2014 to 22.12.2014, was not available because of limited back-up capacity and, hence, it could not be provided.
7. Feeling aggrieved by the non-supply of the requisite information, petitioner filed the present petition ::: Downloaded on - 29/09/2019 00:43:32 :::HCHP ...4...
under Section 482 of the Code of Criminal Procedure in this .
Court, which was registered as Cr.MMO No.192 of 2017.
8. Vide order dated 23.6.2017, a Co-ordinate Bench of this Court ordered as follows:-
"4. This Court, after having carefully perused reply, especially para 2, is of the view that no prejudice, whatsoever would be caused to the prosecution, in case Incharge Police Post Tunnu Hatti District Chamba, is allowed to be re-
examined on the aforesaid point.
5. Accordingly, order dated 31.5.2017, passed by Special Judge, Chamba, District Chamba, HP in Cr. Misc. Application No.150/2017, in ST No.08/2015, is set aside. Incharge Police Post Tunnu Hatti, is allowed to be re-examined on specific question, as mentioned above, on the date to be fixed by the learned trial Court. Petition is disposed of. Pending application(s), if any are also disposed of."
9. Thereafter, it can be inferred from Annexure P-4 (colly) that another application, filed by the petitioner under Section 311 of the Code of Criminal Procedure, was rejected by learned Special Judge, Chamba, District Chamba, H.P., in ::: Downloaded on - 29/09/2019 00:43:32 :::HCHP ...5...
Criminal Miscellaneous Application No.150 of 2017, in ST .
No.08/2015, titled as Hem Raj vs. the State of Himachal Pradesh.
10. Aggrieved against this order of rejection, petitioner again filed a petition under Section 482 of the Code of Criminal Procedure in this Court, which was registered as Cr.MMO No.454 of 2017. Vide order dated 8.12.2017, a Co-
Ordinate Bench of this Court, ordered as follows:-
"4. Accordingly, in view of the fair stand taken by the learned Additional Advocate General, this Court without going into the correctness of the order, passed by learned Special Judge, Chamba, deems it fit to grant one more opportunity to the petitioners/accused to re-examine the SHO, Kirpal Singh. The petitioners/accused shall examine above named person on 15.12.2017, so that no further delay is caused. However, it is made clear that in case the petitioners/accused fails to re-
examine the aforesaid witness i.e. SHO Kirpal Singh, on the given date, no further opportunities shall be afforded by the Court."
11. The petitioner has placed on record another order passed by a Co-ordinate Bench of this Court in Cr.MMO ::: Downloaded on - 29/09/2019 00:43:32 :::HCHP ...6...
No.40/2018, titled as Hem Raj and Anr. vs. State of Himachal .
Pradesh. Vide order dated 23.4.2018, learned counsel for the petitioner was permitted to withdraw the petition with liberty to file appropriate proceedings in an appropriate Court of law, in accordance with law.
12. The petitioner has placed on record order dated 14.6.2018, passed in an application under Section 91 of the Code of Criminal Procedure (Annexure P-3), wherein, directions were sought to be given to the S.H.O. and Incharge of Tunnuhatti barrier to produce CCTV coverage of Tunnuhatti barrier of 22.12.2014 at 12:00 am to 23.12.2014 till 12:00 am. with camera and hard disk.
13. The learned Special Judge, Chamba, vide order dated 14.6.2018, disposed of the said application, in the following terms:-
"5. earlier also while disposing of such an application moved by the accused, this Court vide order dated 5.12.2017 has held that on the basis of a report furnished by the P.C. Solutions, Chamba, that the storage memory of the CCTV camera can only retain a footage for the last five ::: Downloaded on - 29/09/2019 00:43:32 :::HCHP ...7...
days and the proposed footage would not be in existence. Now, even after re-examination of the .
then Station House Officer, Police Station, Chowari (PW12), it is evident that the required CCTV footage is not available as it remains stored in the memory of the CCTV camera only for a limited period. Thus, it would be a futile exercise to order production of CCTV footage for the period from 21.12.2014 to 22.12.2014, the camera and the hard disk installed at Traffic Check Post, Tunuhatti.
It appears that the applicants/accused are moving similar applications on one pretext or the other and the matter is hanging fire since long. The perusal of zimini orders would reveal that for the first time, the case was listed for arguments way back on 3.10.2016, but the same could not be heard till date as time and again applications for leading additional evidence for the production of CCTV camera etc are being moved. The charge-sheet in this case has been filed on 25.2.2015. The alleged occurrence of the present case is dated 22.12.2014 and since then both the applicants/accused are in custody being found in commercial quantity of contraband. As similar prayers of the applicants/ accused stand rejected by this Court on three occasions and, therefore, ::: Downloaded on - 29/09/2019 00:43:32 :::HCHP ...8...
now they cannot be permitted to agitate the matter again and again on same and similar lines.
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Hence, this application under Section 91 of the Code of Criminal Procedure being devoid of substance merits dismissal and is accordingly dismissed. Be tagged with the main case file for record after due registration and completion."
14. The petitioner filed another application dated 14.11.2018 in the Court of learned Special Judge, Chamba, in which directions were sought for the prosecution to produce the hard disk of 1 TB that was deposited by the I.O. in the Maalkhana. It was stated in this application as follows:-
(a) That while conducting investigation in case FIR No.140/2014 dated 22.12.2014 under Sections 20, 25 and 29 of the NDPS Act, registered in Police Station, Chowari, District Chamba, H.P, the I.O. had taken in possession the hard disk of the camera installed at Tunnuhatti barrier at the time of alleged incident. It is further submitted that the capacity of the hard disk was 1 TB which is inferable from the reply filed by the prosecution on 17.5.2017 in an application moved by the accused petitioner under Section 311 of the Code of Criminal Procedure and reply to the application ::: Downloaded on - 29/09/2019 00:43:32 :::HCHP ...9...
under Section 91 of the Code of Criminal Procedure.
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(b) That during trial, when the sealed parcel containing the hard disk was opened then, the capacity of the hard disk was 250 G. bytes and not 1 TB. The number of hard disk and the make was also mentioned.
(c) It was further stated that as per the laboratory, the CCTV footage dated 22.12.2014 and 23.12.2014 could not be found on the questioned hard disk-I.
(d) It is further submitted that there is tampering and in stead of 1 TB hard disk, some different hard disk with capacity of 250 G. bytes, was produced. Finally, it was prayed that the prosecution be directed to produce the hard disk of 1 TB.
(e) The Police, through S.H.O. Police Station, Chuwari, filed reply to this application.
(f) Paragraph-5 of the reply reads as follows:-
"That the contents of Para No.5 of the application are admitted to the extent that the Hon'ble High Court of Himachal Pradesh vide judgment dated 11.09.2018 allowed the application under Section 91 Cr.P.C. and set aside the order passed by this ::: Downloaded on - 29/09/2019 00:43:32 :::HCHP ...10...
Hon'ble Court and direction was given to Superintendent of Police Chamba to produce hard .
disk of the camera installed at Tunhatti barrier on the date of alleged incident before this Hon'ble Court on 25.09.2018. In furtherance of order passed by the Hon'ble High Court of Himachal Pradesh and according to the direction of Superintendent of Police Chamba Camera was taken in possession by the replying respondent through seizure memo from K.H.C. store and sealed parcel was handed over to the Superintendent of Police Chamba who produce the same in this Hon'ble Court on 25.09.2018. On the receipt of letter No. D.A. CBA/2018-175 dated 15.11.2018 from office of the District Attorney Chamba, fact finding enquiry was ordered to be conducted by the Additional Superintendent of Police, Chamba, H.P. (Enquiry report enclosed). On enquiry, it has been revealed that a Vivotech Brand Camera attached with one Lenovo PC & Monitor and a 32 GB Memory card was installed at TCP Tunuhatti during the month of August- September, 2012 and this Camera was working properly till 18.03.2015 and it is implied that CCTV footage for 22/23/12/2014 if any must have been recorded in the Hard disc of this camera. Further it ::: Downloaded on - 29/09/2019 00:43:32 :::HCHP ...11...
has also been revealed from the Daily Diary Report No.8 dated 08.06.2015 wherein it has been lodged .
that no recording of CCTV Camera was being stored for many days due to fault in the hard disc, therefore, a new hard disc due installed on dated 08.06.2015 by the service engineer Sh. Gagan Rana who also reported that old date has been deleted due to technical fault in the hard disc. This implies that the video footage of dated 22.12.14 was also deleted in the damaged old hard disc. Thereafter, cameras installed at TCP Tunuhatti have been replaced by the outsource agencies time to time due to technical faults up gradation of technology and damaged hard disc are not deposited by the servicing firms in the KHC store and are destroyed on account of their zero scrap value. As per record available system have been changed time to time and it is inferred that hard disc which was last deposited from TCP Tunuhatti has been produced before the Ld. Court on 25.09.2018."
(g) Paragraph 7 of the reply to this application is very crucial which reads as follows:-
"That in reply to para No.7 of the application, it is submitted that cameras installed at TCP Tunuhatti have been replaced by the outsource agencies ::: Downloaded on - 29/09/2019 00:43:32 :::HCHP ...12...
time to time due to technical faults or upgradation of Technology and damaged hard discs are not .
deposited by the servicing firms in the KHC store and are destroyed on account of their zero scrap value."
15. It would be relevant to extract the relevant paragraphs No.7 and 8 of the impugned order dated 5.1.2019 passed by learned Special Judge, Chamba, Division Chamba, H.P. in Cr.MA No.30/2019, titled as State of H.P. vs. Hem Raj, which read as follows:-
"7. I have perused the case record. Time and again, the applicants/accused are dilly dallying the matter in controversy by filing applications either on the pretext of Section 311 Cr.P.C. or under the provisions of Section 91 Cr.P.C. Despite various unsuccessful attempts on the part of the applicants so as to obtain the CCTV footage, approaches the Court with new pleas. Admittedly with the intervention of the Hon'ble High Court, Superintendent of Police, Chamba produced the hard disk in the presence of applicants duly represented by their counsel Shri Madan Ravat, Advocate on 25.9.2018. It was sealed in a sealed parcel by affixing the seal impression of 'D&SJ, ::: Downloaded on - 29/09/2019 00:43:32 :::HCHP ...13...
CBA'. The sealed parcel was sent to Director, State FSL, Junga to retrieve data, if any, in the hard disk .
for the period from 22.12.2014 to 23.12.2014 through special messenger. The alleged parcel was obtained by Document and Photo Division, State FSL, Junga, wherein the sealed parcel was found intact. It is only after the expert opinion that CCTV footage of dated 22.12.2014 and 23.12.2014 could not be found on the questioned hard disk, the applicants approaches this Court with another application. As a corollary of events, the applicants firstly approached the Court with CCTV footage, which request was negated by this Court. Thereafter, the applicants again approached the Court for examination of SHO, Police Station Chowari and expert CCTV footage. The said application was also dismissed. In third attempt, the accused approached this Court for additional defence evidence to prove CCTV footage from hard disk. The application being devoid of merits was again dismissed.
8. Next, the Court was approached with direction to SHO to produce CCTV footage for the period from 22.12.2014 to 23.12.2014. The application was again dismissed. It is only with the intervention of the Hon'ble High Court, CCTV ::: Downloaded on - 29/09/2019 00:43:32 :::HCHP ...14...
footage was produced by Superintendent of Police, Chamba appearing in the Court in person. Now, it .
is only after the negative report of Document and Photo Division, FSL Junga, the applicants come to the Court with another application. This Court opines that the applicants are in the habit of filing applications after applications just to prolong the matter for the reasons best known to them. The merits of the application deserves dismissal. Hence, the same is hereby dismissed. Be tagged with the main case file after due completion."
16. I have heard learned counsel for the parties, gone through each and every page of the petition and also considered the law in this regard.
17. The petitioner is facing a trial under the NDPS Act, which provides one of the most stringent punishment of all laws. His defence is that CCTV footage absolves him of the offence as well as disproves the case set up by the prosecution. The consistent stand of the prosecution is that the memory of hard disk was only for 15 days wherein after it would be automatically overwritten. If this fact is proved to be scientifically correct, then accused would have lost the vital ::: Downloaded on - 29/09/2019 00:43:32 :::HCHP ...15...
evidence because of lack of technology. The prosecution .
cannot be blamed if this electronic record is automatically deleted, because a few years before, there were no CCTV cameras and such kind of defence is unthinkable. In the entirety of facts and circumstances of the case, it would be in the interest of equity and justice that an inquiry is conducted in this regard by a competent Officer of the Science and Technology Department of the Government of Himachal Pradesh. This prayer needs redressal because the delay is only affecting the accused, both of whom, as per memo of parties, are in judicial custody.
18. Therefore, this Court directs the Secretary (Science and Technology) to the Government of Himachal Pradesh, to appoint some Expert(s), who should have done at least B.Tech. or B.E. in Computer Science/IT/Software Engineering, to conduct an inquiry, keeping in view the hard disk which was installed at Tunnuhatti barrier on 22.12.2014 to 23.12.2014. The Inquiry Officer(s), so appointed, shall give findings that the video recordings of said dates of CCTV ::: Downloaded on - 29/09/2019 00:43:32 :::HCHP ...16...
cameras installed at Tunnuhatti barrier, District Chamba, were .
available on the hard disk till which date, without being automatically overwritten. Such findings shall be given by considering the make and capacity of such hard disk and other brochures, instructions, manuals and other data that may be procured by the Inquiry Officer(s), by any source whatsoever. While giving the final inquiry report, he shall annex all those documents, which he relies upon to arrive at his/her findings. The Superintendent of Police, Chamba, is directed to make available all the records, purchase bills and brochures etc. alongwith hard disk and CCTV System to the Expert(s), so appointed by the Secretary (Science and Technology) to the Government of Himachal Pradesh. It is further directed that the Station House Officer of Police Station, Dalhousie, District Chamba, shall file a supplementary Challan and status report before the learned trial Court placing on record this inquiry report. The Inquiry Officer(s) shall supply one signed copy of the report to the Superintendent of Police, Chamba, to enable him to forward the same to the Station House officer concerned and one ::: Downloaded on - 29/09/2019 00:43:32 :::HCHP ...17...
copy each to petitioners namely Hem Raj and Kulwant Singh .
and he shall send one copy by registered post to learned Special Judge/District Judge, Chamba, District Chamba.
19. It is expected that this inquiry shall be completed on or before 14.8.2019. All the reports shall be forwarded to the aforesaid persons or or before 30.8.2019. The Secretary (Science and Technology) to the Government of Himachal Pradesh and the Superintendent of Police, Chamba, are directed to provide all assistance to such Inquiry Officer(s), including arrangements for their stay, boarding, lodging and traveling etc. Accordingly, the petition stands disposed of in the aforesaid terms. All pending application(s), if any, also stand disposed of.
(Anoop Chitkara), Judge.
12th July, 2019(KS) ::: Downloaded on - 29/09/2019 00:43:32 :::HCHP