Himachal Pradesh High Court
State Of Himachal Pradesh vs Chet Ram on 27 November, 2015
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.: 756 of 2008 Reserved on: 20.11.2015 Date of Decision: 27.11.2015 .
State of Himachal Pradesh .....Appellant.
Versus
Chet Ram ...Respondent.
of
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
rt The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? Yes.
For the Appellant: Mr. Ramesh Thakur, Asstt.
Advocate General For the respondent: Mr. Arvind Sharma, Advocate. _________________________________________________________________ Per Sureshwar Thakur, Judge
1. This appeal is directed against the judgement of acquittal rendered on 12.09.2008 by the learned Special Judge, Mandi, H.P. in Sessions trial No.25 of 2008, whereby he acquitted the accused/respondent herein for his having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as NDPS Act).
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2. The prosecution story, in brief, is that SHO Dharam Singh, alongwith ASI Sita Ram, HHC Ghanshyam, .
C.Virender Kumar, C.Murari Lal, was on patrol duty at place Sawla on Kanda road. At about 8.30 p.m. a person after seeing the police party, tried the move backwards and on of the direction of SHO Dharam Singh ASI Sita Ram, HHC Ghanshyam, Virender and Murari that person was captured rt and brought before him, who made an inquiry qua his name whereupon he disclosed his name as Chet Ram.
Dharam Singh SHO apprised the accused that he was carrying cannabis and enquired from the accused whether he intended to be searched by a Gazetted Officer or a Magistrate. However, the accused consented to be searched by the police present on the spot. Consent memo of the accused was obtained in Ext.PW-1/A which was also signed by the witnesses. Thereafter, SHO and the police officers offered themselves to be searched by the accused and accused searched the police party in presence of Pradhan and memo Ext.PW-1/B was prepared.
Thereafter, accused Chet Ram was searched in presence of ::: Downloaded on - 15/04/2017 19:23:55 :::HCHP Cr.Appeal No.756 of 2008.
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Pradhan. The accused had wrapped a paper in his body and cannabis was found in the said paper. Constable .
Virender was sent to bring scale and weights. The recovered charas was weighed and the same was found to be 5-½ kg. The cannabis was in the shape of sticks. Two of sample parcels of 25 grams each were taken out for sample purpose. Remaining bulk cannabis was kept in a rt carry bag and put in sealed parcel alongwith wrapping papers. The sample parcels and bulk parcel were sealed with seal D. Thereafter seal impression was also obtained on memo Ext.PW-3/A. Ruka was sent to the P.S. through HHC Ghanshyam. The NCB forms were filled in triplicate.
Grounds of arrest was also conveyed to the accused vide memo Ext.PW-3/B. SHO deposited the case property with H.C.Khem Chand. Thereafter, FSL's report was obtained which proved that the parcel containing extract of cannabis and sample of charas.
3. After completion of necessary investigations into the offence allegedly committed by the accused/respondent herein, a report under Section 173 of ::: Downloaded on - 15/04/2017 19:23:55 :::HCHP Cr.Appeal No.756 of 2008.
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the Code of Criminal Procedure was filed by the Investigating Officer before the Court concerned.
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4. The accused/respondent herein was charged by the learned trial Court for his having committed an offence punishable under Section 20 of the NDPS Act, to which he of pleaded not guilty and claimed trial.
5. In proof of its case, the prosecution examined rt as many as 11 witnesses. On closure of prosecution evidence, the statement of the accused under Section 313 Cr.P.C. was recorded by the Court, in which he claimed false implication besides pleaded innocence. In defence, the accused/respondent did not choose to examine any witness.
6. On an appraisal of evidence on record, the learned trial Court acquitted the accused for his having committed an offence punishable under Section 20 of the NDPS Act.
7. The State of H.P. is aggrieved by the findings of acquittal recorded in favour of the accused/respondent herein by the learned trial Court. The learned Assistant ::: Downloaded on - 15/04/2017 19:23:55 :::HCHP Cr.Appeal No.756 of 2008.
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Advocate General appearing for the appellant/State has concerted to vigorously contend before this Court qua the .
findings of acquittal recorded by the learned trial Court being not based upon a proper appreciation of evidence on record, rather theirs being sequelled by gross mis-
of appreciation of material on record. Hence, he contends qua the findings of acquittal recorded by the learned trial rt Court in favour of the accused being reversed by this Court in the exercise of its appellate jurisdiction and be replaced by findings of conviction.
8. On the other hand, the learned defence counsel with considerable force and vigour has contended that the findings of acquittal recorded by the learned Court below are based on a mature and balanced appreciation of evidence on record hence theirs not necessitating interference, rather meriting vindication.
9. This Court with the able assistance of the learned counsel on either side, has with studied care and incision, evaluated the entire evidence on record.
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10. Recovery of charas weighing 5 kilograms & 500 grams was effected from the accused while its being .
wrapped in a paper tethered/strapped to his body whereover he was adorning a shirt covered by a jacket.
Charas weighing 5.500 kilograms as recovered in the of aforesaid manner from the alleged conscious and exclusive possession of the accused was taken in possession under rt memo Ext.PW-1/C. Even though the prosecution witnesses deposed in tandem and in harmony in proof of each of the links in the chain of circumstances commencing from the proceedings relating to its search, seizure and recovery till the consummate link comprised in the rendition of an opinion by the FSL on the specimen parcels sent to it for analysis hence portraying proof of unbroken and unsevered links, in the entire chain of circumstances, hence it is argued that when the prosecution case stands established, it would be legally unwise for this Court to acquit the accused.
11. Besides when the testimonies of the official witnesses, unravel the fact of theirs being bereft of any ::: Downloaded on - 15/04/2017 19:23:55 :::HCHP Cr.Appeal No.756 of 2008.
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inter-se or intra-se contradictions hence, they are espoused to enjoy credibility for sustaining thereupon findings of .
conviction against the accused/respondent. Apparently, proof of the prosecution case is endeavoured to be sustained on the strength of the unblemished testimonies of of the police witnesses. A close and studied perusal of the depositions of the police witnesses underscores the factum rt of theirs having therein neither given a version qua the factum of recovery of contraband from the purported exclusive and conscious possession of the accused inconsistent with the manner thereof recited in F.I.R.
Ext.PW-10/A, for begetting a conclusion of hence their testimonies in their respective examinations in chief being ridden with any vice of embellishments or improvements vis-à-vis their previous statements recorded in writing nor also when their versions qua the alleged occurrence deposed by them in their respective examinations in chief stand not contradicted by versions thereof comprised in their respective cross examinations, necessarily when their testimonies are not ridden with any vice of inter se ::: Downloaded on - 15/04/2017 19:23:55 :::HCHP Cr.Appeal No.756 of 2008.
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contradictions for hence rendering them to be blemished and unworthy of credence besides when their respective .
depositions are not afflicted with any vice of intra se contradictions rather when they have respectively rendered a deposition qua the manner of recovery of charas from the of alleged conscious and exclusive possession of the accused bereft of any disharmony or inconsistency, gives leverage rt to an inference of hence the prosecution having sustained the charge against the accused of charas weighing 5.500 Kgs. having under memo Ext.PW-1/C stood recovered from his conscious and exclusive possession while its being wrapped in a paper tethered/strapped to his body whereover he was adorning a shirt covered by a jacket.
12. Be that as it may, given the manner of recovery of charas from the alleged conscious and exclusive possession of the accused inasmuch as it having come to be recovered from the accused while its being wrapped in a paper tethered/strapped to his body whereover he was adorning a shirt covered by a jacket necessarily hence, when its recovery stood effectuated with its being wrapped ::: Downloaded on - 15/04/2017 19:23:55 :::HCHP Cr.Appeal No.756 of 2008.
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in a paper inextricably strapped his body in event thereof compliance by the Investigating Officer with the mandatory .
provisions of Section 50 of the NDPS Act was imperative, inasmuch as his being enjoined to under an apposite consent memo elicit from the accused, his consent for his of personal search being carried out either by a Magistrate or a Gazetted Officer or by the police official eliciting his consent.
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13. Before proceeding to pronounce upon the factum of the Investigating Officer having complied with the statutory mandatory requirement envisaged in Section 50 of the NDPS Act for validating its recovery in the manner propounded by the prosecution, it is incumbent upon this Court to render a pronounciation qua the factum of the mere non association of independent witnesses in the apposite proceedings eroding, diluting or dwindling the depositions of the official witnesses qua its recovery having stood effected under memo Ext.PW-1/C. Even if assumingly the participation of independent witnesses in the apposite proceedings remained unsolicited by the ::: Downloaded on - 15/04/2017 19:23:55 :::HCHP Cr.Appeal No.756 of 2008.
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Investigating Officer yet especially when for reasons aforestated their respective testimonies on oath are free .
from any taint whereupon their testimonies may have been rendered to be not holding any evidenciary formidability nor also when their testimonies are not outsable given the of imminent fact of no stark contradictions qua the prosecution version emanating on an incisive discernment rt of their testimonies, as a corollary this Court is constrained to conclude that the mere non solicitation by the Investigating Officer of independent witnesses in the apposite proceedings would not render the prosecution case to capsize.
14. Dehors the above the cynosure of the prosecution case is constituted in the factum of the investigating officer having under consent memo comprised in Ext.PW-1/A elicited the consent of the accused to his holding his personal search wherebefore the accused had foregone the options recited therein of his having a legal right to be personally searched before a Magistrate or a Gazetted Officer, yet the validity of his ::: Downloaded on - 15/04/2017 19:23:55 :::HCHP Cr.Appeal No.756 of 2008.
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personal search by the Investigating Officer preceding recovery of cannabis weighing 5.500 kilograms, has to be .
fathomed from apt evidence personificatory of his having meted compliance with the mandatory statutory requirements embedded in Section 50 of the NDPS Act.
of With PW-1 associated as an independent witness by the investigating officer to the drawing by him of Ext.PW-1/A rt on anchorage therein of a recital of the accused having recorded his consent in writing to the investigating officer holding his personal search, the prosecution concerts to impute sanctity to it, having in his deposition comprised in his cross-examination made an unequivocal disclosure therein of PW-11 having not in his presence inquired from the accused whether he intended to be searched by the SHO or not rather disrobes the sanctity of the recital in Ext.PW-1/A of the accused having meted his signatured consent to the recitals enclosed in Mark-b of Ext.PW-1/A which scribed recitals articulate the factum of willingness of the accused to the investigating officer holding his personal search. The factum of the disclosure aforesaid in the ::: Downloaded on - 15/04/2017 19:23:56 :::HCHP Cr.Appeal No.756 of 2008.
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cross-examination of PW-1 gives immense strength to an inevitable derivable sequel therefrom of SHO Dharam Singh .
having conducted the personal search of the accused under an ingeniously invented consent memo Ext.PW-1/A besides gives leverage to a deduction of his having of conducted the personal search of the accused even when the latter remained unintimated by the accused qua his rt holding his personal search. As a corollary with Ext.PW-
1/A having stood construed to be ingeniously doctored/invented by SHO Dharam Singh hence renders it to be stripped of its legal efficacy. The imminent fact of the signatures of the accused existing in circle B of Ext.PW-
1/A in endorsement of the recitals existing thereabove communicative of his meteing consent to the Investigating Officer holding his personal search would not per se constitute rendition of a scribed consent by the accused to the Investigating Officer unless the prosecution had led unflinching evidence comprised in the report of a handwriting expert connotative of the recorded recitals in circle-B of Ext.PW-1/A disclosing the fact of the accused ::: Downloaded on - 15/04/2017 19:23:56 :::HCHP Cr.Appeal No.756 of 2008.
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having consented to the Investigating Officer holding his personal search, having stood scribed by the accused.
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Imperatively, when the prosecution has abstained to adduce into evidence the report of the handwriting expert concerned portraying therein of his, on his comparing the of writings/recitals scribed in circle-B of Ext.PW-1/A portraying the consent of the accused to the I.O. holding rt his personal search magnified by his purported signatures existing thereunder with the admitted writings of the accused, being constrained to draw therefrom an opinion of both hence standing scribed by the accused.
Consequently, abstentions in the aforesaid regard by the prosecution fosters a conclusion of the recitals scribed in circle-B unveiling the factum of the accused consenting to under his purported signatures existing below them the Investigating Officer holding his personal search, standing not scribed by the accused. In aftermath with PW-1 in his cross-examination deposing the accused in his presence having not conveyed his consent to SHO Dharam Singh holding his personal search whereupon this court has been ::: Downloaded on - 15/04/2017 19:23:56 :::HCHP Cr.Appeal No.756 of 2008.
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led to inevitably draw an inference of SHO Dharam Singh having proceeded to hold his personal search even when .
the accused had not conveyed his consent to him for his conducting it, necessarily abstentions in the aforesaid regard by the prosecution gives galvanized strength to the of inference aforesaid. In trite the personal search of the accused held by SHO Dharam Singh is to be construed to rt be infracting the mandatory statutory provisions engrafted in Section 50 of the NDPS Act. Consequently, the personal search of the accused having stood not carried out by the Investigating Officer in pursuance to a proven recorded besides scribed consent of the accused purportedly displayed in circle-B of Ext.PW-1/A whereunder though the purported signatures of the accused exist yet the existence of purported signatures of the accused under a scribed recital manifesting the factum of his acquiescing to the investigating officer holding his personal search, is hence of no avail to the prosecution in propagating the factum of compliance hence to the mandatory statutory requirement embedded in Section 50 of the NDPS Act having stood ::: Downloaded on - 15/04/2017 19:23:56 :::HCHP Cr.Appeal No.756 of 2008.
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meted by the Investigating Officer especially when recitals in circle-B of Ext.PW-1/A portraying his consent to the I.O .
holding his personal search have been for reiteration not proved to be in the handwritings of the accused. With the personal search of the accused as held by the Investigating of Officer hence suffering invalidation, as a corollary it is open for this Court to sustain a deduction of the Investigating rt Officer having not in sequel to his holding a legally besmirched purported personal search of the accused recovered in pursuance thereto the cannabis as hence fallaciously concerted to be propagated in the F.I.R inasmuch as of it having been recovered from the accused while its being wrapped in a paper tethered/strapped to his body whereover he was adorning a shirt covered by a jacket. Ensueably not only the genesis of the prosecution version gets eroded rather this Court is prodded to conclude qua the Investigating Officer having planted charas/cannabis weighing 5.500 kilograms upon the accused.
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15. Be that as it may, it was also incumbent upon the prosecution to fortifyingly establish the factum .
probandum in as much as the case property produced before the trial Court being linkable to its recovery standing effectuation from the alleged conscious and exclusive of possession of the accused in the manner espoused by the prosecution. The germane besides apt material for rt forming a conclusion qua the case property as produced in Court being linkable to the apposite stage of its recovery from the alleged conscious and exclusive possession of the accused in the manner propagated by the prosecution, stood embedded in the apposite descriptive entries qua it, recorded in the Malkhana register of the police station concerned. Imperatively at the stage contemporaneous to its production in Court by the learned PP for its being shown to the PWs (a) the former was enjoined to produce in Court either the abstract of the malkhana register personificatory of narrations or descriptions compatible or congruous to the one borne on Ex.PW-1/C as shown to the prosecution witnesses (b) or he was obliged to elicit from ::: Downloaded on - 15/04/2017 19:23:56 :::HCHP Cr.Appeal No.756 of 2008.
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the PWs to whom the case property stood shown in Court by him communications portraying the factum of it being .
carried by them on its being handed over to them by an authorized official after its retrieval by the latter from the Malkhana concerned whereupon it stood handed over by of them to the learned PP for facilitating on its production by him in Court emanation of apposite elicitations from them rt unveiling the factum of it being the case property as attributed by the prosecution to the accused (c) even in the face of the aforesaid omission the learned PP at the time of production of case property Ext.P-2 & Ex.P-5 in Court, for its being shown to the PWs for theirs deposing qua it being the very same property as was recovered from the alleged conscious and exclusive possession of the accused in the manner as propagated by the prosecution to yet gain muscle was obliged to on its production in Court by him besides prior to its being shown to the PWs communicate before it the factum of his having received it from an empowered official after its retrieval by the latter from the Malkhana concerned.
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16. However, a close and circumspect reading of the testimonies of PW-1, PW-3, PW-4 and PW-11 to whom .
the case property on its production in Court by the learned PP was shown omits to unfold (a) the factum of either at the stage contemporaneous to its production in Court by of the learned PP for its being shown to the PWs aforesaid he divulged to the trial Court the factum of his having received rt it from an authorized officer on its retrieval by the latter from the Malkhana concerned (b) nor is there any emanation in the deposition of all PWs aforesaid of theirs having received it from an authorized official on its retrieval by the latter from the malkhana concerned, (c) besides there is no communication by all in their recorded depositions on oath of theirs carrying with them at the time of recording their depositions in court during course whereof the learned PP showed them case property Ext.P-2 and Ex.P-5, the relevant abstract of the malkhana register wherefrom compatibility intra-se descriptions or narrations borne thereon on its comparison with the abstract of the malkhana register could stand either ::: Downloaded on - 15/04/2017 19:23:56 :::HCHP Cr.Appeal No.756 of 2008.
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disinterred or fathomed, for as a corollary rendering a conclusion of the case property as produced in the Court .
being the one as stood recovered from the conscious and exclusive possession of the accused.
17. The summom bonum of the above discussion is of of the omissions aforesaid countervailing the propagation of the prosecution of case property Ext.P-2 and Ex.P-5 rt produced in Court by the learned PP for its being shown to PWs being relatable to the contraband recovered from the alleged conscious and exclusive possession of the accused under memo Ex. PW-1/C. The crux of the above discussion is of the prosecution having not adduced cogent and emphatic evidence in proving the guilt of the accused.
18. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court below has appraised the entire evidence on record in a wholesome and harmonious manner apart therefrom the analysis of the material on record by the learned trial Court does not suffer from any perversity or absurdity of mis-
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rather it has aptly appreciated the material available on record.
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19. In view of the above, we find no merit in this appeal which is accordingly dismissed. In sequel, the impugned judgement is affirmed and maintained. Record of of the learned trial Court be sent back forthwith.
( Rajiv Sharma )
rt Judge.
27th November, 2015. ( Sureshwar Thakur ) ™ Judge.
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