Himachal Pradesh High Court
Pardeep Kumar vs State Of H.P on 2 April, 2015
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal Nos. 179 of 2011 & 180 of 2011.
Reserved on: March 26, 2015.
Decided on: April 02, 2015.
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1. Cr. Appeal No. 179 of 2011.
Pardeep Kumar ......Appellant.
Versus
State of H.P. .......Respondent.
2. Cr. Appeal No. 180 of 2011.
Parshotam ......Appellant.
Versus
State of H.P. .......Respondent.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?
For the appellant(s): Mr. Anoop Chitkara, Advocate in both the appeals.
For the respondent: Mr. P.M.Negi, Dy. AG.
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Justice Rajiv Sharma, J.
Since common questions of law and facts are involved in these appeals, both these appeals were taken up together for disposal.
2. These appeals are directed against the judgment dated 30.4.2011/2.5.2011, rendered by the learned Special Judge, Kullu, H.P, in Sessions Trial No. 30 of 2009, whereby the appellants-accused (hereinafter referred to as the "accused", namely, Pardeep Kumar and Parshotam), who were charged with and tried for offences punishable under Sections 20 & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ND & PS Act), have been convicted and sentenced to undergo rigorous imprisonment for a ::: Downloaded on - 15/04/2017 17:56:30 :::HCHP 2 period of 12 years each and to pay fine of Rs. 1,50,000/- each and in default of payment of fine, they were further ordered to undergo simple .
imprisonment for one year each. Accused Rajbir and Jeevan Lal were acquitted by the learned trial Court.
2. The case of the prosecution, in a nut shell, is that on 27.1.2009 at 6:30 PM, ASI Lal Chand alongwith other police officials were on patrolling duty and was present near Dohlu nallah on National Highway 21. The place was secluded. In the meanwhile, a white colour Indica car came there from Kullu side. It was on way to Manali. It was signaled to stop. The car driver stopped the vehicle at a distance of about 25 feet away from the police party. ASI Lal Chand developed a suspicion and he alongwith his fellow officials proceeded towards the car. They noticed that a person fled away towards river Beas after opening the rear door. Two persons were deputed to nab him and other police officials including the head of the police party surrounded the vehicle. The persons who were deputed to nab the person who fled away from the car returned back and disclosed to the I.O. that the person who fled away could not be nabbed due to the darkness. Thereafter, ASI Lal Chand deputed Constable Parveen Kumar to bring local witnesses towards Dohlu nalla side, who returned back and disclosed that due to cold, no one was available. Two persons out of the police party were associated as witnesses. ASI Lal Chand gave his personal search to the accused. The car was searched. During the search of the Car, I.O. found a rucksack of ::: Downloaded on - 15/04/2017 17:56:30 :::HCHP 3 blue colour lying near the legs of accused Prdeep Kumar. Upon checking, it was found containing a gunny bag (boru) of white colour containing .
stick shaped and chapatti shaped cannabis mixture. It was found to be 18.850 kg. From the recovered contraband, two samples of 25-25 gms were separated and sealed with seal-R. Other codal formalities were completed on the spot and thereafter accused Pardeep Kumar and Parshotam were arrested. Accused Rajbir was arrested on 28.1.2009.
Accused Pardeep Kumar, Parshotam and Rajbir told that they had purchased the recovered contraband from Jeewan Lal, resident of Dwara.
On 29.1.2009, house of accused Jeewan Lal was searched. The rukka was sent to the Police Station. FIR was registered. Special report was also prepared and samples were sent to FSL, Junga. The investigation was completed and the challan was put up after completing all the codal formalities.
3. The prosecution, in order to prove its case, has examined as many as 20 witnesses. The accused were also examined under Section 313 Cr.P.C. They have denied the prosecution case. According to them, they were falsely implicated. The learned trial Court convicted the accused Pardeep Kumar and Parshotam, as noticed hereinabove.
Accused Rajbir and Jeewan Lal were acquitted. Hence, these appeals on behalf of the accused.
4. Mr. Anoop Chitkara, Advocate, appearing on behalf of the accused, has vehemently argued that the prosecution has failed to prove ::: Downloaded on - 15/04/2017 17:56:30 :::HCHP 4 its case against the accused. On the other hand, Mr. P.M.Negi, Dy. AG, for the State has supported the judgment of the learned trial Court dated .
30.4.2011/2.5.2011.
5. We have heard learned counsel for both the sides and gone through the records of the case carefully.
6. Sh. Anil Sharma, PW-1 has proved tickets Ext. PW-1/A and PW-1/B.
7. Sh. Deep Lal, PW-2 stated that he received telephonic message from ASI of Police, who informed him that the police was present at Village Dawara. He along with Vinod Kumar reached the house of Budh Ram, father of Jeewan Lal. When they reached, the search process was going on. The police found some plastic envelopes which were lying in the room. The police also found a machine. According to him, nothing was found in his presence. He denied that the incident has taken place on 29.1.2009. He was declared hostile and cross-examined by the learned Public Prosecutor. He denied the suggestion that on 29.1.2009, he as well as Vinod Kumar were directed to be associated by the police during the search of the house of Budh Ram. He identified his signatures on Ext. PW-2/A. The articles were recovered vide memo Ext. PW-2/B.
8. Const. Mani Giri, PW-3 testified that on 5.2.2009, MHC Mahinder Singh handed over to him one cloth parcel sealed with three seal impressions of 'O' alongwith specimen seal impression of seal 'O', NCB forms in triplicate, docket, photocopy of FIR and other relevant ::: Downloaded on - 15/04/2017 17:56:30 :::HCHP 5 papers to him vide RC No. 253/08-09 with a direction to deposit the same at FSL, Junga. The copy of RC is Ext. Ext. PW-3/A. He deposited the .
case property at FSL on 6.2.2009. The receipt is Ext. PW-3/B and on return he handed over the RC to MHC. So long the case property remained with him, the same remained intact.
9. Const. Om Parkash, PW-4 testified that on 29.1.2009 MHC Mahinder Singh handed over the case property i.e. one sealed parcel which was sealed with three seals of 'R', specimen seal impression of seal 'R', NCB forms in triplicate, copy of FIR, copy of recovery memo to him vide RC No. 244/09, vide RC Ext. PW-4/A with a direction to deposit the same at FSL. He deposited the case property with FSL, Junga on 30.1.2009 vide receipt Ext. PW-4/B. After depositing the case property in FSL, he deposited the receipt on the RC with MHC on his return.
10. HHC Sher Singh, PW-5 has proved copy of special report Ext.
PW-5/A.
11. Sh. Rajiv Upadhyaye, PW-7 deposed that he was looking after the cottages as Manager. These cottages were owned by his mother. He has brought the visitors register according to which vide entry No. 130 dated 20.1.2009 one Parshotam son of Babu Lal Sharma alongwith Pardeep stayed in cottage No. 2. The entry in this regard is Ext. PW-7/A. They stayed up to 21.1.2009 and at about 7:55 AM, they checked out from the cottage. In his cross-examination, he admitted that Sr. No. 131 did not contain the name of the person who stayed in the hotel. He also ::: Downloaded on - 15/04/2017 17:56:30 :::HCHP 6 admitted that in entry No. 131, there is no reference regarding the three persons. He also admitted that the column meant for mentioning the .
names of tourists/visitors did not contain the names of Parshotam, Rajvir and Pardeep. He also admitted that after Sr. No. 132, there was no entry.
12. ASI Daya Ram, PW-8 has registered the FIR on the basis of rukka mark A vide Ext. PW-8/A.
13. MHC Mahender Singh, PW-11 deposed that on 27.1.2009 at about 11:45 PM, ASI Lal Chand deposited three parcels, out of which one bulk parcel was stated to be containing 18 kg 800 gms charas which was sealed with ten seals of R, two sample parcels stating to be containing 25- 25 grams charas sealed with 3 seals of R, specimen impression of seal R, NCB form in triplicate, photo copy of FIR, photo copy of seizure memo with him. He entered all these articles at Sr. No. 499 in register No. 19.
He handed over one parcel to Const. Om Parkash No. 178 vide RC No. 244/09 alongwith docket, copy of FIR, NCB form in triplicate, photocopy of recovery memo, sample seal R which were deposited in FSL on 30.1.2009. He also filled in column No. 12 of NCB forms in triplicate.
Const. Om Parkash deposited the RC and receipt with him. The copy of RC is Ext. PW-4/A. The abstract of register No. 19 is Ext. PW-11/A. Copy of NCB form is Ext. PW-11/B. On 29.1.2009 ASI Lal Chand deposited with him two parcels out of which bigger parcel was sealed with ten seals of 'O' and smaller parcel was sealed with three seals of 'O'. NCB forms, photo copy of FIR, photocopy of seizure memo, specimen ::: Downloaded on - 15/04/2017 17:56:30 :::HCHP 7 impression of seal 'O' were also deposited with him. He entered all these articles at Sr. No. 502 in register No. 19. He handed over on 5.2.2009 one .
parcel sealed with three seals of 'O' alongwith papers and specimen seal impression of 'O' to Const. Mani Giri with a direction to deposit the same at FSL Junga vide RC No. 253 dated 5.2.2009 vide Ext. PW-3/A. He deposited the case property with FSL on 6.2.2009 vide receipt Ext. PW-
3/B and on return deposited the RC with him. On 30.1.2009, ASI Lal Chand also deposited two parcels sealed with 3 seals of 'U'. These parcels were containing mobile phone. He entered these articles at Sr. No. 4 of register No. 19. The case property was produced vide DDR Ext. PK before the Court. Seals as mentioned in report Ext. PK were found intact but the cloth of parcel containing 18 kg. 800 gms charas produced was found in torn condition in "L" shape. The torn area was found to be stitched with 7 office pins. This fact was not mentioned in report Ext. PK. In his cross-
examination, he admitted that in entry No. 499 of Ext. PW-11/A, there is cutting of date which is written as 27.1.2009. The date 27 has been corrected from 25. He also admitted that date 27.1.2009 did not bear any initials. He also admitted that there was cutting regarding FIR number but the same was initialed. Voluntarily stated that earlier the figure 36 was written which was corrected as 37 and the same was initialed by him.
14. HC Om Parkash, PW-12 has brought the relevant register No. 19 and the record of road certificates. According to him, vide RC No. ::: Downloaded on - 15/04/2017 17:56:30 :::HCHP 8 139/09 dated 10.9.2009 through HC Sher Singh a parcel sealed with ten seals of R, specimen impression of seal R and sample parcel sealed with .
three seals of R were deposited with him. He entered these articles at Sr. No. 834 in register No. 19. On the same day, another parcel sealed with seal 'O' and sample which was sealed with three seals impressions of seal "R" were deposited with him. On the same day, a parcel sealed with seal "O" and seals of FSL were deposited with him. He entered these parcels at Sr. No. 834 of register No. 19. On 23.7.2010, a parcel stated to be containing 18.800 kgs. charas sealed with ten seals of 'R' and one sealed parcel stated to be containing 25 gms charas sealed with three seals of 'R' alongwith the docket was sent to FSL Junga vide RC No. 6/10 through HC Anup Ram No. 65 and HHC Gautam Chand No 246. After depositing the case property with FSL Junga, they returned the receipt to him. The copy of RC is Ext. PW-12/A and abstract of register is Ext. PW-12/B.
15. HC Anup Ram, PW-13 has deposed that PW-12 Om Prakash has handed over to him as well as HHC Gautam Chand No. 246 one bulk parcel stated to be containing 18 kg. 800 gms charas sealed with ten seals of R and sample parcel stated to be containing 25 gms of charas sealed with three seals of R, specimen impression of seal R, docket from Suptd. of Police Kullu, addressed to Director, FSL, copy of FIR, copy of recovery memo, copy of earlier report vide RC No. 6/10 Ext. PW-12/A. He deposited the case property on 24.2.2010 in FSL Junga. It was received by the authorities at FSL Junga vide receipt Ext. PW-13/A. ::: Downloaded on - 15/04/2017 17:56:30 :::HCHP 9
16. Sh. C.L.Sharma, PW-15 has proved reports Ext. PW-15/A and Ext. PW-15/B. .
17. Sh. Kapil Sharma, PW-16 has proved report Ext. PW-16/A.
18. Const. Parveen Kumar, PW-17 deposed the manner in which the vehicle was intercepted. ASI Lal Chand directed him to bring independent witnesses from Dohlu nalla side. Due to cold weather and night time, no one was found available. He returned back to the spot after about 10 minutes and apprised the I.O. about this fact. Upon this, ASI Lal Chand associated him and Const. Sumer Bahadur as witnesses in this case. The codal formalities were completed on the spot. Charas weighed 8.800 kgs. He handed over the rukka to ASI Daya Ram at PS Manali at about 10:05 PM on the basis of which, FIR Ext. PW-8/A was registered. The learned Public Prosecutor produced the case property vide report Ext. PX1. According to the report Ext. PX1, the parcel stated to be containing 18 kg. 800 gms cannabis mixture was stated to be sealed with ten seals of R, 8 seals of FSL2. When the case property was produced in the Court, only one seal of R was legible. However, there were six impressions of seal. In addition to this, seals of FSL2 were intact.
Alongwith this parcel another sealed parcel was also tagged which has been marked 'B' and when it was produced in the Court it was found sealed with 3 seals of FSL2 and two seals of 'R' which were legible and third one not legible. When the bulk parcel was produced in the Court, the parcel was found stitched at one corner of the parcel. The cut was "L"
::: Downloaded on - 15/04/2017 17:56:30 :::HCHP 10shaped bearing no seal. Another cut found on it was on which cello tape was put. In his cross-examination, he admitted that he had gone .
towards Dholu nallah side in order to bring witnesses. He searched the witnesses on the road itself. Dholu nalla bazaar was situated at a distance of about 100 meter from the place where they had put the picketing. In one or two shops, the upper storey was being used for residential purposes. He did not know about the names of the owners of those shops. He did not knock the door of any of the shop or house.
19. ASI Lal Chand, PW-18 is the I.O. He also deposed the manner in which the accused were apprehended, codal formalities were completed on the spot, including filling up of NCB forms in triplicate. He associated Const. Sumer and Const. Parveen as witnesses. In his cross-
examination, he admitted that Manali-Kullu road is a busy road where the vehicles remain plying on the road. Voluntarily stated that the rush of traffic is minimized during evening time. The buses use to ply after every half an hour. He also admitted that in the evening about more than 20 buses start from Manali to Delhi.
20. HC Sher Singh, PW-19 deposed that he was posted as MHC PS Manali since March, 2009. On 10.9.2009, he took the case property in case FIR No. 37 of 2009 from malkhana and deposited with Moharar of District malkhana, Kullu. He brought the case property from PS Manali vide RC No. 139 of 2009, the copy of which is Ext. PW-19/A. In his cross-
::: Downloaded on - 15/04/2017 17:56:30 :::HCHP 11examination, he admitted that no date is mentioned in Ext. PW-19/B i.e. details of the case property.
.
21. HC Om Parkash was recalled for further examination-in-chief.
He deposed that on 15.9.2010, he sent the case property in this case to the Court through HHGs Revati Ram and Sanjeev Kumar vide DDR No. 11A, copy of which is Ext. PK. When he sent the case property from the district malkhana on that day to the Court, the same was intact. In the Court, he came to know about the fact from the Naib Court of the Court that one parcel produced was found to be in a torn condition. Then, he inquired this from the persons to whom he had handed over the case property with a direction to produce the same in the Court. On his return from the Court to the malkhana, he got recorded DDR No. 27-A in this regard. Copy of the rapat No. 27-A is Ext. PW-12/X.
22. HHG Revati Ram, deposed that on 15.9.2010, he alongwith HHG Sanjeev Kumar were attached with Police Station Kullu. They were deputed to take the case property in this case from district malkhana Kullu to the Court. The case property was comprising of more than one parcel out of which, one was bulky parcel. They put the case property on an old bench lying in the police station Kullu. In the process of lifting the case property, one parcel was torn due to the nails on the bench. The said parcel was torn in L-shape. Thereafter, they produced the case property in the Court by handing it over to the Naib Court of the Court.
After the Court proceedings, they again took the case property to District ::: Downloaded on - 15/04/2017 17:56:30 :::HCHP 12 malknaha, Kullu. On return they apprised Moharar, Malkhana Kullu regarding this fact that the case property was torn while lifting.
.
23. Const. Mani Giri PW-3, Const. Om Parkash PW-4 and HC Anup Ram PW-13 have taken the case property to FSL, Junga vide RCs Ext. PW-3/A, PW-4/A and PW-12/A. The reports of FSL, Junga are Ext.
PW-15/A, Ext. PW-15/B and Ext. PW-16/A. These samples were sent by HC Mahender Kumar PW-11 and HC Om Parkash PW-12 to FSL, Junga.
24. HC Om Parkash PW-12 deposed that HC Sher Singh has deposited with him a parcel sealed with ten seals of R, specimen impression of seal R and sample parcel sealed with three seals of R. He entered these articles in the register No. 19. On the same day, another parcel sealed with seal 'O' and sample which was sealed with three seals impressions of seal "R" were deposited with him. On the same day, a parcel sealed with seal "O" and seals of FSL were deposited with him. He entered these parcels at Sr. No. 834 of register No. 19. On 23.7.2010, a parcel stated to be containing 18.800 kgs. charas sealed with ten seals of 'R' and one sealed parcel stated to be containing 25 gms charas sealed with three seals of 'R' alongwith the docket was sent to FSL Junga vide RC No. 6/10 through HC Anup Ram No. 65 and HHC Gautam Chand No 246.
HC Sher Singh PW-19 took the case property in case FIR No. 37 of 2009 from malkhana and deposited with Moharar of District malkhana, Kullu.
He proved RC No. 139 of 2009, vide Ext. PW-19/A. ::: Downloaded on - 15/04/2017 17:56:30 :::HCHP 13
25. The case property was sent to the Court by HC Om Parkash PW-12 on 15.9.2010 through HHGs Revati Ram and Sanjeev Kumar vide .
DDR No. 11A, copy of which is Ext. PK. According to him, when the case property was sent from District malkhana, it was intact. He came to know about the fact from the Naib Court that one parcel produced was found to be in a torn condition. He made inquiries from the persons to whom he had handed over the case property. Thereafter, he recorded rapat Ext. PW-12/X. HHG Rewati Ram deposed that the case property was consisting of more than one parcel, out of which one was bulky.
They put the case property on an old bench lying in the P.S. Kullu. In the process of lifting the case property, one parcel got torn due to the nails of the bench. The said parcel was torn in L-shape. Thereafter, they produced the case property in the Court by handing it over to the Naib Court of the Court. After the Court proceedings, they again took the case property to District malknaha, Kullu. On return they apprised Moharar, Malkhana Kullu regarding this fact. The trial Court has already noticed while recording the statement of HC Mahinder Singh PW-11 that the parcel containing 18 kgs. 800 gms charas was found to be in torn condition. It was stitched with seven office pins. However, this fact was not mentioned in Ext. PK. Mr. Anoop Chitkara, Advocate, for the accused has taken us through Ext. PK. According to Ext. PK, one parcel containing blue coloured rucksack containing another bag containing 18.800 kg. charas sealed with 10 seals of 'R' and 8 seals of FSL2 was sent ::: Downloaded on - 15/04/2017 17:56:30 :::HCHP 14 to the Police Station. However, when the parcel was produced before the Court, it was torn. HHG Revati Ram deposed that they had put the case .
property on an old bench lying in the P.S. Kullu. In the process of lifting the case property, one parcel got torn due to the nails of the bench. The said parcel was torn in L-shape. When the parcel was torn in the Police Station, it was the duty of HHG Revati Ram to bring this fact to the notice of HC Om Parkash PW-12. Though HC Om Parkash PW-12, in his examination-in-chief has deposed that he has made entry in Ext. PW-
12/X but it is after the parcel in torn condition was produced in the Court.
26. Mr. Anoop Chitkara, Advocate, has drawn the attention of the Court to Ext. PW-11/A, the abstract of register No. 19. The FIR number was initially mentioned as 35 and the same later on was changed to 37/09. The figure of 25 was also changed to 27. The FIR number has been initialed but the date has not been initialed and this fact has been admitted by HC Mahender Kumar PW-11, in his cross-examination. The case property was also produced while recording the statement of Const.
Parveen Kumar PW-17. The learned trial Court has noticed that in the case property produced in the Court for the second time, only one seal of impression 'R' was legible. There were only 6 impressions of seal. The prosecution has not explained as to what happened to the remaining seals of "R". There were 8 seals of FSL2. However, these were found intact. When parcel B was produced in the Court, it was found sealed ::: Downloaded on - 15/04/2017 17:56:30 :::HCHP 15 with 3 seals of FSL2 and two seals of impression "R". The 3rd seal was not legible. The cut, as noticed by the trial Court, was L-shape bearing no .
seal. In one of the cuts, cello tape was put. The manner in which the parcel containing the bulk charas has been produced in the Court, it casts doubt in the prosecution version. The case property is required to be produced in the Court intact. The case property at the time when it is taken out from the malkhana must bear the date in the malkhana register. The prosecution has tried to show that the parcel got torn when it was lifted from the bench at Police Station, Kullu. It is not the case of the prosecution that the parcel was torn when it was taken from Police Station to the Court premises. The parcel itself according to HHG Revati Ram was torn at Police Station but this fact, as noticed above, was not brought to the notice of HC Om Parkash PW-12.
27. We have also gone through Ext. PX vide which the case property was produced second time before the trial Court on 31.12.2010.
In daily station diary, it is stated that the contraband contained 18.800 kg charas sealed with 10 seals of "R" and 8 seals of FSL2 was sent to the Sessions Court, Kullu. The same was torn while being taken to the Sessions Court and it was stitched.
28. The accused were apprehended at 6:30 PM on 27.1.2009.
The police has not associated any independent witnesses at the time of apprehending the accused, search and sealing process of the contraband.
Constable Parveen Kumar, PW-17 has deposed that ASI Lal Chand PW-18 ::: Downloaded on - 15/04/2017 17:56:30 :::HCHP 16 has directed him to bring the independent witnesses from Dohlu nalla side. However, according to him, due to cold weather and night, no one .
was found available. He returned back to the spot after about 10 minutes and apprised the I.O. about this fact. Upon this ASI Lal Chand associated him and Const. Sumer Bahadur as witnesses in this case. In his cross-
examination, he has admitted that on the directions of the I.O., he had gone towards Dohlu nalla side in order to bring witnesses. He searched the witnesses on the road itself. Dohlu nalla bazaar was situated at a distance of about 100 meters from the place where they had put the picketing. In one or two shops, the upper storey was being used for residential purposes. ASI Lal Chand PW-18, has admitted in his cross-
examination that Manali-Kullu road is a busy road where the vehicles remain plying on the road. Voluntarily stated that the rush of traffic is minimized during evening time. The buses use to ply after every half an hour. He also admitted that in the evening about more than 20 buses start from Manali to Delhi. The Naka was laid on National Highway. The police ought to have associated the independent witnesses from the vicinity. The explanation given by the prosecution that the independent witnesses were not available, cannot be accepted. The police could stop the vehicles on the National highway and if the driver did not stop the vehicle action could be taken against him.
29. Mr. Anoop Chitkara, Advocate, has also argued that since the complainant himself has conducted the investigation, it has prejudiced ::: Downloaded on - 15/04/2017 17:56:30 :::HCHP 17 the accused. Their lordships of the Hon'ble Supreme Court in the case of State vrs. V. Jayapaul, reported in (2004) 5 SCC 223, have held that .
there is nothing in the provisions of Criminal Procedure Code which precluded the appellant from taking up the investigation. Their lordships have further held that there is no principle or binding authority to hold that the moment the competent police officer, on the basis of information received, makes out an FIR incorporating his name as the informant, he forfeits his right to investigate. It has been held as under:
"4. We have no hesitation in holding that the approach of the High Court is erroneous and its conclusion legally unsustainable.
There is nothing in the provisions of the Criminal Procedure Code which precluded the appellant (Inspector of Police, Vigilance) from taking up the investigation. The fact that the said police officer prepared the FIR on the basis of the information received by him and registered the suspected crime does not, in our view, disqualify him from taking up the investigation of the cognizable offence. A suo motu move on the part of the police officer to investigate a cognizable offence impelled by the information received from some sources is not outside the purview of the provisions contained in Sections 154 to 157 of the Code or any other provisions of the Code. The scheme of Sections 154,156 and 157 was clarified thus by Subba Rao, J. speaking for the Court in State of U.P. vs. Bhagwant Kishore [AIR 1964 SC 221].
"Section 154 of the Code prescribes the mode of recording the information received orally or in writing by an officer in charge of a police station in respect of the commission of a cognizable offence. Section 156 thereof authorizes such an officer to investigate any cognizable offence prescribed therein.
6. Though there is no such statutory bar, the premise on which the High Court quashed the proceedings was that the investigation by the same officer who 'lodged' the FIR would prejudice the accused inasmuch as the investigating officer cannot be expected to act fairly and objectively. We find no principle or binding authority to hold that the moment the competent police officer, on the basis of information received, makes out an FIR incorporating his name as ::: Downloaded on - 15/04/2017 17:56:30 :::HCHP 18 the informant, he forfeits his right to investigate. If at all, such investigation could only be assailed on the ground of bias or real likelihood of bias on the part of the investigating officer. The question of bias would depend on the facts and circumstances of .
each case and it is not proper to lay down a broad and unqualified proposition, in the manner in which it has been done by the High Court, that whenever a police officer proceeds to investigate after registering the FIR on his own, the investigation would necessarily be unfair or biased. In the present case, the police officer received certain discreet information, which, according to his assessment, warranted a probe and therefore made up his mind to investigate. The formality of preparing the FIR in which he records the factum of having received the information about the suspected commission of the offence and then taking up the investigation after registering the crime, does not, by any semblance of reasoning, vitiate the investigation on the ground of bias or the like factor. If the reason which weighed with the High Court could be a ground to quash the prosecution, the powers of investigation conferred on the police officers would be unduly hampered for no good reason. What is expected to be done by the police officers in the normal course of discharge of their official duties will then be vulnerable to attack.
13. Viewed from any angle, we see no illegality in the process of investigation set in motion by the Inspector of Police (appellant) and his action in submitting the final report to the Court of Special Judge."
30. Their lordships of the Hon'ble Supreme Court reiterating the same principles in the case of S. Jeevanantham vrs. State, reported in (2004) 5 SCC 230, have held that when nothing is pointed out to show that the investigation has caused prejudice or was biased against the accused in the case when the investigation was conducted by the complainant-police officer himself, it was found to be valid. It has been held as under:
"3. In the instant case, PW-8 conducted the search and recovered the contraband article and registered the case and the article seized from the appellant was narcotic drug and the counsel for the appellant could not point out any circumstances by which the ::: Downloaded on - 15/04/2017 17:56:30 :::HCHP 19 investigation caused prejudice or was biased against the appellant. PW-8 in his official capacity gave the information, registered the case as part of his official duty and later investigated the case and filed charge-sheet. He was not in any way personally interested in .
the case. We are unable to find any sort of bias in the process of investigation.
4. The appellants have been rightly convicted by the Special Judge and the High Court was also justified in confirming the conviction and sentence. These appeals are without any merit and are accordingly dismissed."
31. Mr. Anoop Chitkara, Advocate, for the accused has relied upon the judgment in the case of State vrs. Rajangam, reported in (2010) 15 SCC 369.
However, in this case, judgments in the case of State vrs. V. Jayapaul and S. Jeevanantham vrs. State have not been considered.
32. The case property should have been produced intact with seals and in this case since the case property has been produced in a torn packet (pulinda), it casts serious doubt whether the same contraband was recovered from the accused and also sent to the FSL, Junga or it was the case property in some other case. The independent witnesses, though readily available, have not been associated by the prosecution.
33. Accordingly, in view of the analysis and discussion made hereinabove, both the appeals are allowed. Judgment of conviction and sentence dated 30.4.2011/2.5.2011, rendered by the learned Special Judge, Kullu, H.P., in Sessions trial No. 30 of 2009, is set aside. Accused are acquitted of the charges framed against them by giving them benefit of doubt. Fine amount, if any, already deposited by the accused is ordered ::: Downloaded on - 15/04/2017 17:56:30 :::HCHP 20 to be refunded to them. Since the accused are in jail, they be released forthwith, if not required in any other case.
.
34. The Registry is directed to prepare the release warrants of the accused and send the same to the Superintendent of Jail concerned, in conformity with this judgment forthwith.
35. However, before parting with the judgment, taking judicial notice of the fact, the manner in which the case property was handled in this case by the prosecution, the respondent-State is directed that henceforth, the case property shall never be sent to the Court through Homeguards. The case property, as per law, is required to be produced in the Court and it is the responsibility of the SHO concerned to ensure that the case property is always carried from the malkhana after completing the codal formalities to the concerned Court through Head Constable and is also carried back and re-deposited after completing the codal formalities in the malkhana by the Head Constable. The Registry is directed to send a copy of this judgment to the Secretary (Home), Government of Himachal Pradesh, for due compliance.
( Rajiv Sharma ), Judge.
April 02, 2015, ( Sureshwar Thakur ),
(karan) Judge.
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