Himachal Pradesh High Court
Paramjit Singh & Pamma vs Of on 16 September, 2023
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. A. No. 1 of 2017 a/w Cr. A. No. 54 of 2017 .
Reserved on: 14.09.2023
Date of decision: 16.09.2023
Cr. A. No. 1 of 2017
Paramjit Singh & Pamma ...Appellant
Versus
of
State of Himachal Pradesh ...Respondent
Cr. A. No. 54 of 2017
Bharpoor Singh @ Bhura
rt ...Appellant
Versus
State of Himachal Pradesh ...Respondent
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Ranjan Sharma, Judge. Whether approved for reporting? Yes.
For the Appellant(s) : Mr. N. S. Chandel, Sr. Advocate with Mr. Pranav Sharma, Advocate, for the appellant in Cr. A. No. 1 of 2017 Ms. Sheetal Vyas, Advocate, for the appellant in Cr. A. No. 54 of 2017 For the Respondent: Mr. I. N. Mehta, Mr. Y. W. Chauhan, Sr. Addl. A.G. with Ms. Sharmila Patial, Addl. A.G. and Mr. J. S. Guleria, Dy.
A.G. Tarlok Singh Chauhan, Judge.
Since both the appellants were jointly tried and thereafter convicted and sentenced under Sections 15 and 29 of the Narcotic Drugs and Psychotropic Substances Act (for ::: Downloaded on - 16/09/2023 20:35:50 :::CIS 2 short the 'ND&PS Act'), their respective appeals were clubbed and have been heard together and are being disposed of by way of a common judgment.
.
2. The prosecution case in brief is that on 22.11.2013, at about 6:00 a.m., a police party headed by SI Chain Singh, Additional Station House Officer, Indora was on patrolling duty alongwith ASI Prem Kumar, ASI Mahinder of Kumar, and other police officials when a secret information was received that a truck red in colour bearing registration rt No.HR-37B-3190 owned by appellant Bharpoor Singh loaded with apple cartons is coming from Jammu towards Milwan Mukerian and huge quantity of poppy straw is also being transported in the said truck in cartons.
3. On this, information under Section 42(2) of the Act was sent to DSP, Nurpur. The independent witnesses Janak Raj and Satpal Singh were associated alongwith photographer Roshan Lal and thereafter nakka was laid down at Milwan. The aforesaid truck came on the spot and the same was signalled to be stopped in the presence of DSP Rajeev Attri. The truck was being driven by the appellant Paramjit Singh and appellant Bharpoor Singh was also sitting in the truck. The police party gave their personal search to the appellant and after informing the appellant regarding contraband in the truck, consent memo was prepared. The truck was searched ::: Downloaded on - 16/09/2023 20:35:50 :::CIS 3 and during the course whereof 710 cartons containing apples, 16 cartons and 3 bags containing poppy straw were recovered. On weighing poppy straw was found to be 80 kg .
750 grams. The poppy straw so recovered was sealed with seal impression "H". The specimen of seal was obtained on a separate piece of cloth. The Investigating Officer filled up NCB form in triplicate. The seal after use was entrusted to witness of Satpal Singh. The poppy straw was taken into possession vide separate memo. The appellants were found possessing poppy rt straw without any licence or permit. Rukka along with case property was sent to Police Station, Indora, on the basis of which FIR was registered. The Investigating officer prepared the site plan and recorded the statements of the witnesses and arrested the appellants. The case property was produced before the SI/SHO Manohar Lal, P.S. Indora, who resealed the case property with seal "A". The facsimile of seal "A" was also taken on a separate piece of cloth. The SHO Manohar Lal filled up the relevant columns of NCB form in triplicate. Reseal certificate was obtained. 710 apple cartons were auctioned on the application of its owner Asif Shah and sale proceed was deposited in the Treasury. The case property was sent to FSL Junga for chemical examination. On the receipt of FSL Report, charge-sheet was presented against the appellants.
::: Downloaded on - 16/09/2023 20:35:50 :::CIS 44. The Court on finding a prima facie case and sufficient grounds to presume that the appellants have committed the offence under Sections 15 and 29 of the .
ND&PS Act, framed charges to which the appellants pleaded not guilty and claimed to be tried.
5. The prosecution in order to bring home the guilt of the appellants, has examined as many as 20 witnesses, of besides pressing into service documentary evidence on record.
6. rt After closure of the prosecution evidence, the statements of the appellants under Section 313 of Cr.P.C. were recorded, wherein they denied the prosecution case and claimed to be innocent. The appellant Bharpoor Singh tendered documents Ext.D1 and Ext.D2 and envelope Ext.D3 in his defence.
7. The learned Special Judge after evaluating the evidence, convicted the appellants and sentenced them to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 1,00,000/- and in default of fine to further undergo rigorous imprisonment for a period of two years.
8. Aggrieved by the conviction and sentence passed by the learned Special Judge-II, Kanga at Dharamshala, District Kangra, the appellants have filed the instant appeals.
::: Downloaded on - 16/09/2023 20:35:50 :::CIS 59. It is vehemently argued by Shri N. S. Chandel, learned Senior Advocate duly assisted by Shri Pranav Sharma, learned Advocate, representing the appellant Paramjit Singh .
and Ms. Sheetal Vyas, learned Advocate, representing the appellant Bharpoor Singh @ Bhura, that there are major contradictions on all aspects, arrest of the appellants, recovery etc. The inconsistencies, discrepancies and of contradictions in the statements make the prosecution case highly improbable, thereby the entire warp and woof of the rt prosecution case is unacceptable being highly discrepant. The evidence is not only highly improbable but also repletes with material inconsistencies and contradictions, which speaks volume against the authenticity of the prosecution case. The testimonies of the witnesses are highly unreliable and equally untrustworthy and are required to be brushed aside. The learned Court below without appreciating the evidence available on record in its right perspective has convicted the appellants for the offence punishable under Sections 15 and 29 of the ND& PS Act.
10. On the other hand, Mr. J. S. Guleria, learned Deputy Advocate General while arguing in support of the judgment argued that normal discrepancies in evidence are bound to be there in every case, which are due to errors of observations, normal errors of memory due to lapse of time, ::: Downloaded on - 16/09/2023 20:35:50 :::CIS 6 due to mental disposition and since these normal discrepancies do not corrode the credibility of the party's case, the same can conveniently be ignored. In such circumstances, .
the learned Special Judge has not errored in convicting and sentencing the appellants and these findings being in accordance with law call for no interference.
We have heard learned counsel for the parties and of have gone through the records of the case.
11. At the outset, it may be observed that there cannot rt be any doubt that while appreciating the evidence on record, the Court is required to exercise due diligence though the standard of such exercise would be of a prudent person.
12. The Court has to bear in mind the facts and circumstances, the nature of the crime, where the same was committed, the quality of evidence, nature of the witnesses, their level of understanding and power of perception and reproduction. The quest must be to find out the truth from the evidence on record.
13. At the same time, it must remain in the mind that there cannot be a prosecution case with a cast iron perfection.
Nonetheless, obligation lies on the court to analyze, sift and assess the evidence on record, with reference to trustworthiness and truthfulness of the prosecution witnesses, by a process of sincere judicial scrutiny adopting the yard stick ::: Downloaded on - 16/09/2023 20:35:50 :::CIS 7 of settled principles of appreciation of the evidence. What is to be insisted upon is proof beyond reasonable doubt.
14. The contradictions, infirmities which might have .
been pointed out in a prosecution case, necessarily be assessed at the yardstick of probability. Unless, infirmities and contradictions are of such a nature which undermine the root of the evidence and go to the core of the prosecution case, of overemphasis may not be applied to such minor contradictions and infirmities.
15. rt To judge the credibility of the evidence of a witness, one has to look into his evidence, and if any discrepancies is found in the ocular account of the witnesses not affecting the root of the case, the witness may not be labeled as not credit worthy.
16. Even honest and truthful witnesses may differ in some details, which may not be related to the core of the prosecution case and therefore evidence therefore must be appreciated keeping in mind the power of observation, retention and reproduction, as well as the human conduct and the occurring incidents in ordinary course of nature.
17. However, at the same time, if there are major inconsistencies, omissions or contradictions, touching upon the very substratum of the case, the same cannot be brushed aside or ignored.
::: Downloaded on - 16/09/2023 20:35:50 :::CIS 818. The learned counsel for the appellants have put-
forth the following points in support of their arguments:-
(I) Initiation of proceedings itself suspicious .
(ii) Compliance of Section 42 of the ND&PS Act is a farce
(iii) Seal not proved on record (Iv) Sealing of the case property not proved
(v) Case property not connected with the appellants.
of
(vi) Testimonies of the witnesses not reliable
(vii) Non deposit of sample seal in Malkhana creates serious doubt.
rt
(viii) Deliberate association of two stock witnesses
(ix) The testimony of PW-20 Asif Shah is highly doubtful Point No. (i) Initiation of proceedings itself suspicious & Point No. (ii) Compliance of Section 42 of the ND&PS Act are farce The points No. (i) & (ii) are taken up together being inter-connected with each other.
19. As per the version of PW4 ASI Prem Kumar, PW6 HHC Kewal Krishan and I.O. PW18 SI Chain Singh, a secret information was received at 6:00 a.m. at Kathgarh that a truck bearing No. HR-37B-3190 of red colour, whose owner was Bharpoor Singh was carrying apple and some of the boxes were containing popply husk. There was another person, who was sitting in the truck, and the same was coming from Jammu towards Milwan and if checked would lead to recovery ::: Downloaded on - 16/09/2023 20:35:50 :::CIS 9 of huge quantity of contraband/poppy husk. Meaning thereby, that the truck was still in transit and could have come to the place of recovery only after it had crossed the States of J&K, .
Punjab and thereafter entered Himachal Pradesh, if not stationary. Yet, the I.O. on receiving this information, deputed PW6 HHC Kewal Krishan for sending information under Section 42 of the ND&PS Act to PW16 Dy. S.P. Rajeev Attri. At the same of time itself, Hawaii rukka was prepared and sent through C. PW3 HHC Sanjeev Kumar for the registration of FIR and rt thereafter the Investigating Officer claimed to have proceeded to Milwan.
20. The FIR in the instant case was not registered after effecting the recovery, rather was lodged simply on the basis of a secrete information, which in itself casts serious doubt regarding the prosecution case because Section 154 of the Cr.P.C. only visualises the situation where a Police Officer receives an information in relation to commission of cognizable offence, that is bound to register an FIR, subject to certain conditions so provided in the Code itself. One of such condition being that the offence is committed in the jurisdiction of the police station and if the offence is committed beyond its jurisdiction, the SHO will inform the concerned police station.
::: Downloaded on - 16/09/2023 20:35:50 :::CIS 1021. This aspect assumes importance because as per PW4 ASI Prem Kumar and PW18 SI Chain Singh, the nakka was laid at Milwan at 7:45 a.m. As per the FIR the truck in .
question, which was loaded with apple boxes, was coming from Jammu and Kashmir side and proceeding towards Milwan Mukerian. As per the case of the prosecution, it was at 6:00 a.m. that the secret information was received, meaning of thereby, that the truck in question, was probably not within the jurisdiction of the police station Indora and as such, the rt registration of the FIR is shrouded with suspicion.
22. What further fortifies our view is the fact that the prosecution has placed on record photographs and in three of the photographs where the truck number is visible, shows that these were clicked in the dead of the night, whereas as per the story of the prosecution, as stated by the Investigating Officer, nakka was laid only at 7:45 a.m. when the sun had already risen at 6:50 a.m.
23. Here it also needs to be noticed that as per the I.O. PW18 ASI Chain Singh, he has sent the information under Section 42 of the ND&PS Act to the PW16 Dy. S.P., Rajeev Attri. PW12 HC Ashok Kumar posted as a Reader in SDPO office, deposed that the information under Section 42(2) of the ND&PS Act that sent through HHC Kewal Krishan was seen by the Dy.S.P. and thereafter he went to the spot. In his cross-
::: Downloaded on - 16/09/2023 20:35:50 :::CIS 11examination, he stated that the information under Section 42(2) of the ND & PS Act was received at 7:55 a.m. and it is only thereafter the Dy. S.P. would have proceeded to the spot, .
but when the Dy. S.P. Rajeev Attri examined in the Court, he stated that on 22.11.2013 at around 7:55 a.m. he received an information that the appellants had been nabbed alongwith contraband at kathgarh alongwith Vehicle i.e. Truck No. HR-
of 37B-3190 and they requested for his presence for conducting the proceedings. If the statement of PW4 ASI Prem Kumar is rt perused, he in his cross-examination stated that Dy. S.P. had reached the place of alleged recovery at 7:45 a.m.
24. Apart from the aforesaid, the case of the prosecution is that the nakka was laid at Milwan, however, as per the statement of PW16 Dy. S.P., Rajeev Attri, received an information that the appellants had been nabbed alongwith contraband at Kathgrah along with the truck.
Point No. (iii) Seal not proved on record.
25. As per the prosecution case, the prosecution seal used in this case was handed over to PW2 Satpal Singh, who in his cross-examination stated that the seal was of wood and not of metal. Whereas PW 18 SI Chain Singh stated that the seal was made of brass "sikka" and not of wood. In these circumstances, the possibility of tampering cannot be ruled out and in coming to such conclusion, we are duly fortified by the ::: Downloaded on - 16/09/2023 20:35:50 :::CIS 12 judgment of the Hon'ble Supreme Court in Gurbax Singh vs. State of Haryana (2001) 3 SCC 28, wherein it was observed as under:-
.
9. The learned counsel for the appellant next contended that from the evidence it is apparent that the I. O. has not followed the procedure prescribed under Sections 52, 55 and 57 of the N.D.P.S. Act. May be that the I.O. had no knowledge about the operation of the N.D.P.S. Act on the date of the incident as he recorded the FIR of under Section 9/1/78 of the Opium Act. In our view, there is much substance in this submission. It is true that provisions of Sections 52 and 57 are directory. Violation of rt these provisions would not ipso facto violate the trial or conviction. However, I.O. cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article. In the present case, I.O. has admitted that the seal which was affixed on the muddamal article was handed over to the witness P.W.1 and was kept with him for 10 days. He has also admitted that the muddamal parcels were not sealed by the officer in charge of the police station as required under Section 55 of the N.D.P.S. Act. The prosecution has not led any evidence whether the Chemical Analyser received the sample with proper intact seals. It creates a doubt whether the same sample was sent to the Chemical Analyser. Further, it is apparent that the I.O. has not followed the procedure prescribed under Section 57 of the N.D.P.S. Act of making full report of all particulars of arrest and seizure to his immediate superior officer. The conduct of panch witness is unusual as he offered himself to be a witness for search and seizure despite being not asked by the I.O., particularly when he did not know that the substance ::: Downloaded on - 16/09/2023 20:35:50 :::CIS 13 was poppy husk., but came to know about it only after being informed by the police. Further, it is the say of the Panch witness that Muddamal seal used by the PSI was a wooden seal. As against this, it is the say of PW2 .
SI/IO that it was a brass seal. On the basis of the aforesaid evidence and faulty investigation by the prosecution, in our view, it would not be safe to convict the appellant for a serious offence of possessing poppy- husk.
of Point No. IV Seal of the case property not proved
26. As per PW 16 Dy.S.P. Rajeev Attri, the carton boxes rt which contained the contraband were sealed with the help of cello-tape and string was tied over the same. However, none of any other witnesses including the Investigating Officer have stated so. Why this assumes importance is because in case, the report of the SFSL is now seen, it nowhere states that carton boxes were having the cello-tape over the same, but only states that the case property was tied with a jute string.
It needs no emphasis that sealing of case property is not an empty formality, but is to ensure that there is no tampering.
27. Adverting to the instant case, as per the recovery memo, poppy husk was found in the shape of powder but in the FSL report, it is reported that poppy husk capsule fragrance was found in the carton boxes and the poppy husk in powder form was found only in the gunny bags.
::: Downloaded on - 16/09/2023 20:35:50 :::CIS 1428. In these circumstances, coupled with the fact that the discrepancies regarding the seal used in this case, further coupled with the fact that the seal itself has not been .
produced, makes the prosecution case tainted. Our views further strengthened from the fact that even though PW16 Dy.
S.P. Rajeev Attri is stated to have been associated in this case, but even he too had not appended any seal or signature on of the case property.
29. The object of associating a gazetted officer, is to rt ensure that there is no false implication. The gazetted officer, who is associated not only to supervise the investigation of the case but is also required to see and ensure that all necessary formalities are completed in accordance with law and no prejudice is caused even to the accused. The fact that he has not appended any seal or signature on the case property by itself casts serious doubt regarding his presence on the spot.
30. In coming to such conclusion, we draw support from the judgment rendered by the Punjab and Haryana High Court in Mukhtiar Singh vs. State of Punjab (2014) 1 RCR (Cri) 705, wherein it was observed as under:-
The recovery in the instant case is about 15 kg of poppy husk. Where the recovery is of small contraband, the chances of plantation cannot be ruled out. It is believed that in order to raise the number of FIRS, sometimes, the police acts over jealously. PW-3 ::: Downloaded on - 16/09/2023 20:35:50 :::CIS 15 ASI Kulwant Singh admitted in his cross examination that neither the DSP signed the case property nor pasted his seal on it. So, this can be inferred that the DSP was not present at the spot or that his signatures .
on the police papers were taken later on. The DSP also admitted in his cross examination that neither he fix his seal on the case property nor signed it. The object of the associating the Gazetted Officer is to ensure that there may not be any false implication. The Gazetted Officer who reached the spot has not only to supervise of the investigation but also to see and ensure that all the necessary formalities are completed from where the accused may not be prejudiced. Their purpose is to rt ensure fair investigation, so adverse inference is also drawn on account of this fact.
31. It is vehemently argued by Shri N. S. Chandel, learned Senior Advocate and Ms. Sheetal Vyas, that the case property is not connected with the appellants. The case property in the instant case was produced in the court while recording the statement of PW1 Janak Raj, the extract of Malkahna Register is Ext.PW13/A, where there is entry of depositing of contraband on 22.11.2013 and also when it is returned back after its examination from FSL Junga. However, there is no entry regarding its having been taken out from the Malkahana and produced in the Court, there is no DDR recorded when the case property was produced in the Court.
Similarly, there is no entry when the case property after production in the trial Court is redeposited in the Malkhaha.
::: Downloaded on - 16/09/2023 20:35:50 :::CIS 1632. It is not only essential but also necessary for the prosecution to have proved that the case property was taken out from the Malkhana for the production in the court and .
thereafter deposited back in the Malkhana in the same condition. Hence, this casts a serious doubt whether the case property which was produced in the Court is the same, which is alleged to have been recovered from the appellant and sent of to FSL Junga.
33. In Cr. A. No. 525 of 2015, titled as Sanjeev rt Kumar vs. State of Himachal Pradesh, this Court held as under:-
19. The case property was produced while recording the statement of PW-13 HC Shakti Nandan in the trial Court. The extract of copy of the malkhana register is Ext. PW-6/A & PW-6/B. There is entry of the deposit of the contraband on 18.2.2014 and when it was received back from the FSL Junga. There is no entry when the case property was taken out from the malkhana and produced in the Court. There is no DDR recorded when the case property was produced before the trial Court.
Similarly, there is no entry when the case property after production in the trial Court was redeposited in the malkhana register. It is necessary for the prosecution to prove that the case property was taken out from the malkhana for the production in the Court and also preparing DDR to this effect and the same process is to be undergone when the case property after its production in the Court is taken back and deposited in the malkhana. There has to be entry in the malkhana register when it is re-deposited and DDR is ::: Downloaded on - 16/09/2023 20:35:50 :::CIS 17 also prepared. The production of the case property in the Court is mandatory. There is doubt whether the case property which was produced in the Court was the same which was recovered from the accused and sent .
to FSL, Junga in the absence of any corresponding entries made at the time of taking it and re-deposit in the malkhana register or it was case property of some other case. It has caused serious prejudice to the accused. The nabbing of the accused, recovery and sealing proceedings in the instant case are doubtful.
of When the case property was produced in the Court, there is no reference as to who brought the case property to the Court from malkhana and by whom it rt was taken back. It is necessary to keep the case property in safe custody from the date of seizure till its production in the Court in ND & PS cases.
34. Similar reiteration of law can be found in another judgment rendered by this Court in Farid Deen vs. State of H.P. Latest HLJ 2016 (HP) 231.
35. It would further be noticed that the sealed parcels as well as the bulk parcels do not contain the signatures either of the appellants or even of the policy party. This flaw on the part of the prosecution goes to the roots of the case and makes the prosecution case doubtful.
36. In Mathura Prasad vs. State of U.P. (2005) 3 RCR (Crl.) 881, reiterating its earlier view taken in Beni Prasad (2003) 3 Cr.LJ 3185, wherein it was observed as under:-
::: Downloaded on - 16/09/2023 20:35:50 :::CIS 184. From the F. I. R., it is not at all clear whether any sample, as provided under the Act, was drawn at the spot. As a matter of fact there is nothing in the F. I. R. from which any such inference can be have by the .
Court even in the statement of P. W. 1 and P. W. 2.
However, the chemical examiner's report on record i.e. Exhibit KA-3 shows that the sample contained in a match box was found to be charas, but the fact that it was taken in a match box, nowhere it is stated by any of the two eye-witnesses named Bharat Singh Solanki-
of P. W. 1 and Shyam Veer Singh-P. W. 2 and even the Investigating Officer - P. W. 3 does not state a word about this fact. Therefore, it is not proved beyond rt doubt as to when and where and in what manner the sample was drawn. There is yet another fact that the alleged sample packet did not have any signature or the thumb mark of the appellant. It is a technical offence and the safeguards provided in the enactment requires a strict compliance. Failure, in the evidence, by these witnesses, to say when the samples were drawn from the same charas recovered allegedly from the appellant has a very serious bearing upon the ethnicity of the prosecution in this connection. I draw strength from a reported judgment namely Beni Prasad v. State of U.P., (2003) 46 All Cri C. 701 : 2003 Cri LJ 3185).
Point No. (vi) Testimonies of the witnesses not reliable
37. Independent witness i.e. PW1 Janak Raj has not deposed in the Court that the appellant Bharpoor Singh was also in the truck or even present at the spot. He has only named the driver i.e. appellant Paramjit Singh. As per the prosecution case, the truck was containing wooden apple ::: Downloaded on - 16/09/2023 20:35:50 :::CIS 19 boxes marked with 'Sophia Apple' and was also containing carton boxes which too were marked as 'Sophia Apple'.
Whereas the police witnesses stated that wooden apple boxes .
were not marked as 'Sophia Apple' and only carton boxes were marked as the 'Sophia Apple'. These independent witnesses stated that the police raiding party had stopped the convoy of trucks loaded with apples and the other trucks were also of checked and in the instant case, the truck was checked at 7:00 a.m. on 22.11.2013, whereas the specific case of the rt prosecution is that nakka was laid at 7:45 a.m. and the truck in question came at the place of checking at 8:00 to 8:30 a.m. None of the witnesses deposed that Dy. S.P. was also present at the spot. PW4 ASI Prem Kumar stated that Dy. S.P. reached at the place of alleged recovery at about 7:45 a.m., whereas as per the statements of PW6 HHC Kewal Krishan and PW9 HHC Jeewan Singh, the Dy. S.P. was at the residence at least up to 7:55 a.m. If the Dy. S.P. received the information through Constable at 7:55 a.m. then it was humanly impossible to him to be at the place of recovery at 7:45 a.m. more particularly, when the distance between is the two is 35 kms.
Point No. (vii) Non-deposit of sample seal in Malkhana creates serious doubt.
38. The non deposit of sample seal in the Malkhana, which has been established on record, and further non ::: Downloaded on - 16/09/2023 20:35:50 :::CIS 20 sending of NCB forms with parcel to FSL is a serious flaw in the prosecution case and renders it doubtful.
39. In Remgul alias Remulal vs. State of Madhya .
Pradesh, 2003 (3) RCR (Crl.) 103, it was observed by the Madhya Pradesh High Court "that in the ND&PS Act as well as Central Rule as also the State Rules framed therein, there is absolutely no provision for deposit of CFSL form in the of Malkhana. Therefore, the question of non-compliance or non-
depositing CFSL form would not arise. But, in the present case rt even the seal of the sample was also not deposited in the Malkhana alongwith the seized articles, therefore, the same is fatal to the prosecution. While sending the sample alongwith the sample of seal to SFSL, one packet of sample and seal of sample must remain in the Malkhana and the same should be deposited in the Court at the time of filing of charge sheet.
This non-compliance is fatal to the prosecution in the present case."
Point No. viii Deliberate association of two stock witnesses
40. It would be noticed that the Investigating Officer has associated so called independent witnesses i.e. PW1 Janak Raj and PW2 Satpal Singh, but when the documents produced by the appellants in the defence Ext. DA to Ext. DC, which are the information received under the RTI Act are perused, it is proved beyond doubt that witnesses are stock witnesses and ::: Downloaded on - 16/09/2023 20:35:50 :::CIS 21 have appeared as prosecution witnesses in many other cases, more especially, ND&PS cases, which fact also render the prosecution case highly improbable and even doubtful.
.
Point No. ix:- Testimony of PW20 Asif Sahah is highly doubtful
41. The prosecution has examined Asif Shah as PW 20 to support its claim that the apples in question belong to him.
The father name of this witness was mentioned as Nazeer of Ahmad Shah and his mobile number was mentioned as 9797711713, in his statement recorded under Section 161 rt Cr.P.C. Whereas when this witness was examined in the Court, he disclosed that his father name was not Nazeer Ahmad Shah but was Gulam Mohd Shah alias Gulla Shah. He further deposed that the mobile number was not the one recorded but was 7298445851. Thus, the identity of this witness and is further claimed that he is owner of the apple boxes is highly doubtful and cannot be relied upon.
42. It is rather unfortunate that the learned Special Judge has ignored all the aforesaid aspects and proceeded to convict the appellants, little realising harsher is the punishment, the stricter is the proof.
43. In view of the aforesaid discussion, the judgment of conviction and sentence, as recorded by the learned Special Judge, being not legally sustainable, is set aside.
::: Downloaded on - 16/09/2023 20:35:50 :::CIS 2244. The instant appeals are allowed in the aforesaid terms. Pending application, if any, also stands disposed of.
45. The appellants are already on bail. In view of the .
provisions of Section 437A Cr.P.C., each of the appellants is directed to furnish personal bonds in the sum of Rs.50,000/-
with one surety of the like amount to the satisfaction of the learned Registrar (Judicial) of this Court, which shall be of effective for a period of six months with a stipulation that in an event of an SLP being filed against this judgment or on rt grant of the leave, the appellants on receipt of notice thereof shall appear before the Hon'ble Supreme Court.
(Tarlok Singh Chauhan) Judge (Ranjan Sharma) 16.09.2023 Judge (sanjeev) ::: Downloaded on - 16/09/2023 20:35:50 :::CIS