Himachal Pradesh High Court
State Of Himachal Pradesh vs Ramesh Kumar & Others on 3 November, 2017
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 557 of 2012 Reserved on: 05.10.2017 Decided on: 03.11.2017 .
__________________________________________________________ State of Himachal Pradesh .....Appellant.
Versus Ramesh Kumar & others ......Respondents.
__________________________________________________________ Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. 1 Whether approved for reporting? Yes.
__________________________________________________________ For the appellant: Mr. V.S. Chauhan, Additional Advocate General with Mr. J.S. Guleria, Assistant Advocate General.
For respondents No. 1&2: Mr. Bhupinder Ahuja, Advocate.
For respondent No. 3: Mr. Vikas Chauhan, Advocate.
Chander Bhusan Barowalia, Judge.
The present appeal has been preferred by the appellant/State (hereinafter referred to as "the appellant") laying challenge to judgment, dated 23.08.2012 passed by learned Sessions Judge, Kullu, District Kullu, H.P., in Sessions Trial No. 12 of 2011, whereby the accused/respondents (hereinafter referred to as "the accused persons") were acquitted for the offence punishable under Section 20 read with Section 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as "the ND&PS Act").
1Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 10/11/2017 13:28:37 :::HCHP 22. The factual matrix, as per the prosecution story, may tersely be summarized as under:
On 04.10.2010, during midnight at 12:30 a.m., police .
personnel, in their official vehicle, proceeded for laying nakka towards Bahnu Pul and to this effect an entry was made in daily diary register. Nakka at Bahnu Pul was laid and at about 02:00 a.m. an Alto car, having registration No. HP01K-2458, was spotted, which was signalled to stop. Three persons were sitting in the vehicle, who were overpowered when they tried to flee. The vehicle was being driven by accused Daler Singh, accused Ramesh Kumar was sitting on front passenger seat and accused Tej Singh was sitting in rear seat. As the place, where the accused persons were apprehended, was secluded and it was late night hours, no independent witness was available. Therefore, Investigating Officer associated ASI Rajiv and Head Constable Manohar Lal as witnesses. Firstly, Investigating Officer gave his personal search to accused persons and nothing incriminating was found. Thereafter, vehicle was searched and one polythene packet, containing charas in the shape of sticks, was recovered from dashboard of the vehicle. The recovered contraband was weighed on electronic scale and found to be 435 grams. The contraband was sealed in a cloth parcel, sealed at six places. NCB form, in triplicate, was filled in and facsimile seal was taken on cloth pieces. One facsimile seal was handed over to ASI Rajiv Kumar. The ::: Downloaded on - 10/11/2017 13:28:37 :::HCHP 3 recovered contraband and Alto car, without its documents, were taken into possession. Subsequently, rukka was prepared and sent, through ASI Rajiv Kumar, to Police Station, Manali, whereupon FIR .
was registered by Inspector Om Parkash, S.H.O. Police Station, Manali, and the file was sent to Investigating Officer. Spot map was prepared and statements of the witnesses were recorded. The accused persons were arrested and brought to Police Station Manali.
Inspector, Om Parkash resealed the case property and filled the relevant columns of NCB form. Facsimile seal was put on NCB forms. Case property alongwith NCB forms and sample seals was deposited with MHC, Police Station, Manali, and the same was entered by MHC at Sr. No. 644 of the Malkhana register. On the same day, MHC, Sher Singh, handed over the case property, viz., a parcel sealed with seals 'T' and 'S' alongwith NCB forms, in triplicate, copies of seizure memo and FIR to HHC Gautam Chand, for being depositing in Forensic Science Laboratory, Junga. HHC Gautam Chand after depositing the same at FSL, Junga, returned the RC having receipt to MHC. Special report was produced before Deputy Superintendent of Police, Manali, who, after endorsing it, returned the same to HHC Sher Singh. Report of chemical analysis was obtained, which revealed the recovered material to be extract of cannabis, so report under Section 173 Cr.P.C. was prepared and presented in the Court.::: Downloaded on - 10/11/2017 13:28:37 :::HCHP 4
3. The prosecution, in order to prove its case, examined as many as eight witnesses. Statements of the accused persons were recorded under Section 313 Cr.P.C., wherein they pleaded not guilty .
and claimed to be tried. The accused persons took the stand that no recovery of charas was effected from them. Accused Daler Singh pleaded that accused Ramesh Kumar and Raj Singh hired his taxi from Raison to Manali on 03.10.2010, at 11:30 a.m. and he examined one defence witness, whereas defence of accused Tej Singh and Ramesh Kumar is of total denial.
4. The learned Trial Court, vide impugned judgment dated 23.08.2012, acquitted the accused persons of the offence punishable under Section 20 read with Section 29 of the ND&PS Act, hence the present appeal.
5. The learned Additional Advocate General has argued that the prosecution has proved the guilt of the accused persons beyond the reasonable doubt, but the learned Trial Court without appreciating the evidence, which has come on record, to its true perspective, acquitted the accused persons. He has argued that the accused persons are required to be convicted after re-appreciating the evidence. Conversely, learned counsel appearing on behalf of respondents No. 1 and 2 has argued that the prosecution has failed to prove the recovery of contraband from the exclusive and conscious possession of respondents No. 1 and 2, therefore, no interference is ::: Downloaded on - 10/11/2017 13:28:37 :::HCHP 5 required in the well reasoned judgment of learned Trial Court.
Similarly, learned counsel appearing on behalf of respondent No. 3 has argued that there are material contradictions in the statements .
of the witnesses and the incriminating material has not been put to the accused persons under Section 313 Cr.P.C. He has argued that the polythene bag, in which charas was found wrapped, has not seen the light of the day. The accused persons have been rightly acquitted by the learned Trial Court, thus no interference in the judgment of the learned Trial Court is required. The learned counsel for respondent No. 3 has relied upon the following judicial pronouncements:
1. State of Punjab vs. Gurnam Kaur & others, (2009) 11 SCC 225;
2. Deep vs. State of H.P. 2016(1) Criminal Court Cases 625 (H.P.);
3. State of Himachal Pradesh vs. Hottam Ram, 2017(1) Criminal Court Cases 220 (H.P.);
4. State of Himachal Pradesh vs. Som Nath @ Babi & another, 2017(2) Criminal Court Cases 848 (H.P.); and
5. Bhumika vs. State of Himachal Pradesh, 2012 (3) Shimla Law Cases 1395.
He has further argued that rapats, Ex. PW-2/A to Ex. PW-2/D have not been proved on record, as there is no certificate, as required under Section 65(a) and (b) of the Indian Evidence Act.
6. In rebuttal, the learned Additional Advocate General has argued that minor discrepancies and contradictions are not fatal to the ::: Downloaded on - 10/11/2017 13:28:37 :::HCHP 6 prosecution case. He has further argued that documents have been duly proved as per the law. Lastly, he has argued that the appeal be allowed and the accused persons be convicted.
.
7. In order to appreciate the rival contentions of the parties we have gone through the record carefully.
8. PW-1 Shri Kapil Sharma, Assistant Director and Assistant Chemical Examiner NDPS Division, State Forensic Science Laboratory, Junga, has deposed that a cloth parcel, Ex. P-1, having reference letter No. 6508/5A, alongwith Xerox copies of FIR, seizure memo, NCB form, in triplicate, and sample seals of 'S' and 'T' was received through HHC Gautam Chand No. 246, vide RC No. 200/10, dated 05.10.2010. As per this witness, sealed parcel was bearing six seals having impression 'S' and three seals having impression 'T'. He has further deposed that seals were found intact and tallied with specimen seals of 'S' and 'T', as sent by the forwarding authority and the seals impressions impressed on NCB-1 form. On weighment, the recovered material was found 432.0 grams and on chemical examination it was found to be sample of charas and quantity of resin was found 30.42% w/w. He has issued report, Ex. PW-1/A, which bears his seal and signatures. This witness, in his cross-
examination, has deposed that in the present case he only confined himself for determination of cystolithic hairs and his primary focus was only to determine the cystolithic hairs. He has further deposed ::: Downloaded on - 10/11/2017 13:28:37 :::HCHP 7 that by seeing the cystolithic hair, it cannot be said whether sample was of charas or not. Cystolithic hairs do not contribute in resin production. As per this witness, it is correct that he did not mention .
RF value in his report. He also did not mention in his report the real contents which were found after opening the sealed cloth parcel. He did not mention about polythene bag and only mentioned about polythene wrappers in which the charas was enwrapped.
9. PW-2, Lady Constable Harsh Lata, testified about the Daily Diary Reports, Ex. PW-2/A to Ex. PW-2/D. PW-3, Inspector Om Parkash, deposed that on 04.10.2010 at 4:20 p.m., ASI Rajiv Kumar (PW-6) brought rukka, Ex. PW-3/A, whereupon he registered FIR, Ex. PW-3/B, and made endorsement, Ex. PW-3/C, on the rukka. He has further deposed that on the same day, at 7:00 a.m., SI Om Parkash (PW-3) produced before him case property, viz., parcel, Ex. P-1, which was stated to have contained 435 grams of charas and the same was sealed with six seals having impression 'S' alongwith NCB forms, filled in triplicate, sample seal and the accused persons. As per this witness, he resealed parcel Ex. P-1 with three seals having impression of 'T' and drew sample seal 'T' on cloth pieces and also filled relevant columns of NCB form. Sample seal is Ex. PW-3/D and NCB form is Ex. PW-1/B. He has further deposed that thereafter the case property alognwtih NCB form and sample seals was deposited with MHC. After the receipt of FSL ::: Downloaded on - 10/11/2017 13:28:37 :::HCHP 8 report, Ex. PW-1/A, and conclusion of investigation he prepared the challan and presented the same in the Court.
10. PW-4, HHC Sher Singh, Reader to Deputy .
Superintendent of Police, Manali, deposed that on 04.10.2010 Shri Aashish Sharma, Deputy Superintendent of Police handed over to him special report, Ex. PW-4/A, after making his endorsement, Ex.
PW-4/B, thereon. Special report was entered in the concerned register and abstract whereof is Ex. PW-4/C. This witness, in his cross-examination, has deposed that Deputy Superintendent of Police did not put his signature in the register against the entry. In Ex. PW-4/C (Special Report), against column No. 3, the date has been mentioned as 4.1.10, self stated that inadvertently '10' has been mentioned as '1' and 'zero' could not be added and '10' has been mentioned in other columns.
11. PW-5, MHC Sher Singh, deposed that on 04.10.2010 SI Om Parkash (PW-3) deposited with him a parcel, Ex. P-1, which was sealed with six seals of 'S' and three seals of 'T' and the same was stated to have contained 435 grams of charas wrapped in a polythene. As per this witness, the charas alongwith sample seals 'S' and 'T' and NCB form, in triplicate, was also handed over to him. He entered the case property in malkhana register at Sr. No. 644 and abstract whereof is Ex. PW-5/A. As per this witness, on the same day, parcel, Ex. P-1, vide RC No. 200/10 (Ex. PW-5/B) alongwith ::: Downloaded on - 10/11/2017 13:28:37 :::HCHP 9 sample seals, NCB forms (in triplicate), copies of FIR and seizure memo, was handed over to HHC Gautam Chand (PW-7) for being deposited in FSL, Junga. He also filled column No. 12 of NCB form, .
one of which is Ex. PW-1/B. As per this witness, HHC Gautam Chand on his return handed over to him receipt, Ex. PW-5/C. Under his custody the case property remained intact. This witness, in his cross-examination, has deposed that Police Station, Manali, did not have government electronic weighing scale till 01.01.2011.
12. PW-6, ASI Rajeev Kumar, deposed that on 04.10.2010, at about 12:30 a.m. he alongwith SI Om Chand, ASI Lal Singh and HC Manohar Lal was on patrol duty and they laid a nakka at Bahnu bridge. At about 02:00 p.m. they noticed an Alto car coming from Kalath side and the same was signalled to be stopped. As per this witness, the occupants of the vehicle, after the vehicle was stopped, tried to flee and they overpowered them. The vehicle was bearing registration No. HP-01K-2458. The accused persons disclosed their names as Daler Singh, Ramesh and Tej Singh. He has further deposed that, as the place was secluded and it was mid night, no independent witnesses could be associated, therefore, he and HC Manohar Lal were made as witnesses. In their presence the vehicle was searched and a polythene packet was recovered, which was in the dashboard of the vehicle. On opening the said polythene it contained charas and the same was weighed with electronic weighing ::: Downloaded on - 10/11/2017 13:28:38 :::HCHP 10 scale and it was found 435 grams. The recovered contraband was sealed in a cloth parcel with six seals having impression 'S' and NCB-1 form, in triplicate, was filled in on the spot. As per this .
witness, sample seal was separately drawn on pieces of cloth and one of which is Ex. PW-6/A, which bears his signatures. Parcel, Ex.
P-1, was taken into possession vide seizure memo, Ex. PW-6/B, which bears his and the signatures of other witnesses. Seal after its use was handed over to him. The vehicle was seized, but without its documents, as the accused did not have documents of the vehicle.
Rukka, Ex. PW-3/A, was prepared by SI Om Chand (PW-8) and the same was handed over to him, which he took to Police Station where he handed over the same to Inspector Om Parkash (PW-3). On the basis of rukka, Ex. PW-3/A, FIR, Ex. PW-3/B was registered and Inspector Om Parkash also made an endorsement on the rukka, which he delivered to the Investigating Officer. He and HC Manohar Lal signed the arrest memos of the accused persons. This witness has further deposed that prior to conducting the search of the vehicle, Investigating Officer gave his personal search to the accused persons and to this effect memo, Ex. PW-6/F, was prepared. This witness, in his cross-examination, has deposed that he could not bring seal 'S', as the same got misplaced after his transfer from Manali and qua misplacement he neither got recorded any rapat in the police station nor reported the matter to his superiors. He has ::: Downloaded on - 10/11/2017 13:28:38 :::HCHP 11 further deposed that the proceedings were conducted by the police while sitting in the vehicle and he was sitting in the rear seat. He prepared memo, Ex. PW-6/B. However, he could not state as to who .
has scribed Ex. PW-6/C to Ex. PW-6/E, i.e., arrest memos. As per this witness, statement of Manohar Lal was got recorded by him, however, he could not tell that who has recorded his statement. He has deposed that words printed on Ex. P-2, i.e. polythene, did not find mention in the memo. He feigned ignorance that the passengers have hired the vehicle in question for going from Raison to Manali in presence of one Sham Lal.
13. PW-7, HHC Gautam Chand, was handed over parcel, Ex.
P-1, by MHC Sher Singh (PW-5), which was sealed with six seals having impression 'S' and resealed with three seals having impression 'T'. As per this witness, alongwith the parcel, NCB form, in triplicate, copy of FIR, samples of seals 'S' and 'T', documents etc. was handed over to him for being deposited in FSL, Junga, which he deposited and receipt and RC qua deposit was handed over to MHC Sher Singh. He has further deposed that under his custody the case property remained intact.
14. PW-8, Inspector Om Chand, reiterated the prosecution story qua recovery of charas from the accused persons. He has further deposed that as it was night hours and the place was also secluded, so he alongwith ASI Rajeev and HC Manohar Lal joined as ::: Downloaded on - 10/11/2017 13:28:38 :::HCHP 12 witnesses and in their presence vehicle was searched. During the search, a polythene packet was recovered from the dashboard of the vehicle. He prepared special report, Ex. PW-4/A, which he handed .
over to Dy.S.P. This witness, in his cross-examination, has deposed that there was frequent traffic on the road and they stopped 8-10 vehicles for checking. As per this witness, after the arrest of the accused persons no other vehicle was stopped. He did not depute any police official for bringing independent witnesses, as it was odd hours. He denied the suggestion that accused Ramesh and Tej Singh protested that the contraband did not belong to them. The weighing scale was electronic and the same was government property. He has denied that Police Station, Manali, did not have electronic weighing scale on 04.10.2010. He has denied that police personnel of Manali usually falsely implicate persons during night hours and spot is shown as Bahnu bridge in most of the cases. He prepared documents, Ex. PW-6/C to Ex. PW-6/E, and recorded the statement of Rajiv Kumar. As per this witness, statement of Manohar Lal was written by him under his instructions. He has further deposed that Hotel Manali Resorts is at a distance of approximately 400 meters from the spot. He did not click any photographs despite having camera in his I.O. kit. The charas was kept in the dashboard in a chamber. He could not say that in presence of one Sham Lal of Raison the taxi was hired by accused Tej Singh and Ramesh.
::: Downloaded on - 10/11/2017 13:28:38 :::HCHP 1315. The only defence witness, i.e., DW-1, Sri Sham Lal, examined by the accused persons deposed that he knew the accused persons, as they belong to Raison. As per this witness, accused .
Daler Singh is a taxi driver. On 03.10.2010, at about 11:30 p.m. accused Ramesh Kumar and Tej Singh made an enquiry for hiring a vehicle. Initially accused Daler Singh refused, but on persistent request of accused Ramesh Kumar and Tej Singh he agreed and the taxi fare was settled as `600/-.
16. This is the entire evidence led by the parties, which now needs to be examined on the touchstone of its veracity and credibility. PW-5, MHC Sher Singh, specifically admitted in his cross-examination that electronic weighing scale was not available in Police Station, Manali upto 01.01.2011, but PW-8, Inspector Om Chand, deposed that he weighed the recovered charas with the electronic weighing machine, which was issued by the government and was in the Investigating Officer's kit. In view of conflicting statements of PW-5 and PW-8 the weighment of the recovered charas and what was its exact quantum becomes highly doubtful.
17. The prosecution, through the statements of PW-6, ASI Rajiv Kumar, and PW-8, I.O. Inspector Om Chand, has tried to prove search, recovery and seizure of charas from the conscious and exclusive possession of the accused persons. As per these two witnesses on 04.10.2010 they laid a nakka at Bhanu Pul and around ::: Downloaded on - 10/11/2017 13:28:38 :::HCHP 14 02:00 a.m. they spotted an Alto car coming from Kalath side, which was stopped. These witnesses have further deposed that the occupants of the vehicle were trying to escape, but they were .
apprehended. The vehicle was having registration No. HP-01K-2458, which was being driven by accused Diler Singh, accused Ramesh was sitting in front passenger seat and accused Tej Singh was sitting in rear seat. The place was secluded, as such, independent witnesses were not available, therefore, PW-6, ASI Rajiv Kumar and HC Manohar Lal were associated as witnesses. The Investigating Officer gave his personal search to the accused persons and to this effect memo, Ex. PW-6/F, was prepared. The vehicle was searched and a polythene packet, Ex. P-2, containing charas, which was in the shape of sticks, was recovered. The recovered contraband, on weighment, was found 435 grams. Both these witnesses also testified proceedings qua seizure of the case property etc..
18. The prosecution evidence demonstrates that the recovered contraband was weighed with government electronic weighing machine, but it has come on record that the same was not available in Police Station, Manali, on that day. It has further come in the prosecution evidence that seal was handed over to ASI Rajiv Kumar (PW-6) and the alleged charas was recovered from the dashboard of the vehicle.
19. PW-3, Inspector Om Parkash, while appearing in the ::: Downloaded on - 10/11/2017 13:28:38 :::HCHP 15 witness-box has deposed that rukka, Ex. PW-3/A, was produced before him by ASI Rajiv Kumar (PW-6), whereupon he registered FIR, Ex. PW-3/B, and on the same day at about 07:00 a.m. the case .
property was produced before him, which was stated to be 435 grams sealed with six seals having impression 'S'. As per this witness, he resealed the case property and deposited the same in the malkhana with MHC, after filling the left out columns of the NCB form. At the same time, PW-6, ASI Rajiv Kumar, deposed that he lost the seal, which was entrusted to him, as the same was misplaced by him. He has further deposed that the Investigating Officer did not direct him to call the independent witnesses. So the I.O. did not try to associate independent witnesses. In the case in hand no independent witness was associated and the statements of available official witnesses become highly doubtful, as there was no government electronic scale with the I.O. on that day. Non-
production of seal is one of the material consideration which goes to the root of the prosecution story. The seal was not handed over to a third person, but to a police official that too of the rank of ASI.
20. The learned counsel for accused No. 1 and 2 has argued that as per the prosecution story the charas was recovered from the dashboard of the vehicle, which was in the exclusive knowledge of accused No. 3, as such no case is made out against accused No. 1 and 2. At the same point of time, the learned counsel for accused ::: Downloaded on - 10/11/2017 13:28:38 :::HCHP 16 No. 3 has argued that nothing was recovered and, in fact, he was the driver of the vehicle and his conscious possession has not been established. This court finds that in the present case, the .
prosecution has failed to prove the conscious possession of any of the accused persons. It has come in the evidence that a polythene bag was recovered, but PW-1, Shri Kapil Sharma, Assistant Director and Assistant Chemical Examiner, did not find any polythene bag.
21. It has been held as under by this Hon'ble High Court in Bhumika vs. State of Himachal Pradesh, 2012(3) Shimla Law Cases 1395:
"15. During the hearing of the case in this Court, the case property was sought to be perused, as such it was ordered to be produced on 4.7.2012. The said parcel contained three seals of District and Sessions Judge, 6 sealsof FSL, 4 seals of "A" and 4 seals of "T" and 4 seals were not readable, but when it ws produced in the statement of PW-2 it was having 'six' seals of FSL as against 'five' seals as observed in the statement of PW-5. Therefore, against the aforesaid background Head Constable Chaman Lal to whom the seal was entrusted was required to be examined in order to rule out the possibility of tampering with the parcel and in the absence of the bag which was not found in the parcel for examination creates a reasonable doubt on the probity of the prosecution case and the tampering of the said parcel cannot be overruled. Thus the specific defence taken by the accused assumes importance ::: Downloaded on - 10/11/2017 13:28:38 :::HCHP 17 and stands probablised.
16. Therefore, for the aforesaid reasons, the accused deserves to be acquitted by giving her the benefit of reasonable doubt. Accordingly, the appeal is allowed and the impugned .
judgment of conviction and sentence is set aside."
In view of the available material coupled with the law, as laid down in the judgment (supra), the prosecution case becomes doubtful.
22. It has been held by this Hon'ble High Court in State of Himachal Pradesh vs. Hottam Ram, 2017(1) Criminal court Cases 220 (H.P.) (DB), that discrepancies, inconsistencies and contradictions in the statements of PWs creates a serious doubt as to whether accused was actually apprehended by police in the mode and manner as propounded by prosecution or whether charas was actually recovered from exclusive and conscious possession of accused. The apt paras of the judgment (supra) is extracted hereunder for ready reference:
"23. Besides this, there are other major discrepancies in the statements of PW-8 and PW-
9. According to PW-8 Constable Hira Lal, he reached the spot in a private vehicle and thereafter, he scribed the statement Ext. DB under 19 Section 161 Cr.P.C. and he has also stated that he was a witness to the arrest Memo. The factum of alteration in the time of arrest in the arrest Memo has been admitted by the Investigating Officer PW-9, who stated that Hira Lal in fact had met the police about 1 KM away from the spot. This testimony of his also weakens the case of ::: Downloaded on - 10/11/2017 13:28:38 :::HCHP 18 the prosecution because according to PW-8, he had scribed his statement Ext. DB at the spot and the accused was also arrested at the spot.
PW-8 in his statement has also deposed that the Charas which .
was recovered from the accused was in the shape of pancake and rectangular. On the other hand, PW-9 in his statement has deposed that the Charas which was recovered from the accused was in the shape of pancake and stick shape. A perusal of NCB form demonstrates that the recovered Charas was in the shape of Chapati. All these discrepancies, inconsistencies and contradictions in the statements of the prosecution witnesses creates a serious r doubt as to whether the accused was actually apprehended by the police in the mode and manner, as has been putforth by the prosecution and whether the Charas was actually recovered from the exclusive and conscious possession of the accused as prosecution wants this Court to believe.
24. A perusal of the judgment passed by learned trial Court demonstrates that all these aspects of the matter have been gone into in detail by learned trial Court and thereafter, learned trial Court has come to the conclusion that the prosecution was not able to prove its case against the accused beyond reasonable doubt. It was held by learned trial Court that the contradictions in the case of the prosecution led to two views including a view which is in favour of the accused. On these basis it was held by learned trial Court that when two views are possible then the view ::: Downloaded on - 10/11/2017 13:28:38 :::HCHP 19 which favours the accused has to be taken. On these basis, the accused was acquitted by learned trial Court.
25. In our considered view, the findings so returned by learned .
trial Court are well founded and are borne out from the appreciation of the material placed on record by the prosecution. The evidence which has been produced on record by the prosecution both ocular as well as documentary does not prove beyond reasonable doubt that the accused in fact was apprehended by the police party on 04.07.2010 at village Saran in the mode and manner in which the prosecution wants this Court to believe, nor the r prosecution has been able to establish beyond reasonable doubt that 21 1Kg. 500 grams Charas was recovered from the exclusive and conscious possession of the accused beyond reasonable doubt.
Therefore, while upholding the findings returned by learned trial Court, we dismiss the present appeal being devoid of any merit. Bail bonds, if any, furnished by the accused are discharged."
In the present case also, there are discrepancies, inconsistencies and contradictions in the statements of official prosecution witnesses and the benefit of the same goes to the accused persons.
Thus, the judgment (supra) is fully applicable to the facts of the present case.
23. In Deep vs. State of H.P., 2016(1) Criminal Court Cases 625 (H.P.) (DB), this Hon'ble High Court has held that the ::: Downloaded on - 10/11/2017 13:28:38 :::HCHP 20 purpose of joining independent witnesses at the time of arrest, search and sealing process is to inspire confidence that all codal formalities were completed on the spot at the time of arrest, and .
sealing process, in the absence of same no reliance can be placed on the search and seizure. Relevant paras of the judgment (supra) are reproduced hereunder:
"25. Thus, the prosecution has failed to prove the case against the accused beyond reasonable doubt for the commission of offence under Section 20 of the N.D & P.S., Act, since the mandatory provisions have not been complied with and the manner r in which the case property was taken out and re-deposited, coupled with the fact that no independent witnesses, though available were associated.
26. Accordingly, in view of the analysis and discussion made hereinabove, the appeals are allowed. Judgment of conviction and sentence dated 4/5.1.2011, rendered by the learned P.O. Fast Track Court, Mandi, H.P., in Sessions Trial No. 16 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 to be refunded to them. Since the accused are in jail, they be released forthwith, if not required in any other case."
The judgment (supra) is fully applicable to the facts of the present case.
::: Downloaded on - 10/11/2017 13:28:38 :::HCHP 2124. The Hon'ble Supreme Court of India in State of Punjab vs. Gurnam Kaur and others, (2009) 11 SCC 225, has held that it is for the Investigating Officer to prove as to where the contraband .
had been kept not the respondents. It has been further held that reasons why independent witnesses could not be found and examined have to be explained. Relevant paras of the judgment (supra) are extracted hereunder:
"13. Respondent Gurnam Kaur admittedly is an old lady. Respondent Nos. 2 and 3 are her daughters-in-law. Curiously all of them were found sitting on the same bed beneath r whereto the contraband had allegedly been kept. That by itself does not establish that all of them were in conscious possession of the narcotics. They were not even asked any question in regard thereto. Prior to lodging of the first information report, the respondents did not point out the place where the narcotics were found kept. How the raiding party found the same has not been disclosed. The ladies in natural course were in their house. No explanation has been furnished, nor the statement of the respondent was recorded. The investigating officer DSP Baldev Singh PW3 was to prove as to where contraband had been kept not the respondents.
14. If by a reason of statements made by an accused some facts have been discovered, the same would be admissible against the person who had made the statement in terms of Section 27 of the Indian Evidence Act. Prosecution has not examined any independent witness. Why independent witnesses could not be found has not been explained.::: Downloaded on - 10/11/2017 13:28:38 :::HCHP 22
15. ASI Rajinder Kaur who is said to have been present has not been examined. Who conducted the personal search of the ladies? It is not the case of the prosecution that she had searched the ladies. Sub-section 4 of Section 50 of the Act postulates .
that personal search of the ladies must be conducted by a lady police officer. Curiously PW8 in his evidence categorically stated that there was no lady constable or lady officer posted at the police station, Harike. If that be so why participation by ASI Rajinder Kaur was introduced is beyond anybody s comprehension.
Personal search of the accused was conducted by DSP Baldev Singh which as indicated hereinbefore was violative of the provisions of Sub- section 4 of Section 50 of the Act.
16. It is a matter of great surprise r that PW8 DSP Ashutosh, although was not informed by DSP Baldev Singh PW3, was present in the village. His presence in the village is highly doubtful. No explanation has been furnished as to why the first information report was lodged after 11 hours and why the mandatory provisions of Sub-section 2 of Section 42 of the Act had not been complied with.
... ... ... ... ... ...
18. For the reasons aforementioned we are of the opinion that no case has been made out for interference with the impugned judgment. The appeal is dismissed."
The judgment (supra) is also fully applicable to the facts of the present case.
25. The prosecution has further failed to prove that which of the accused was in exclusive and conscious possession of the contraband, in view of the contradictions in the statements of the ::: Downloaded on - 10/11/2017 13:28:38 :::HCHP 23 official witnesses. The police personnel did not make any effort or took initiative to join independent witnesses and at the same point of time non-production of the seal in the Court as well as the fact that .
there are material contradictions with regard to the weighing scale, which as per the prosecution witness, was from the I.O. kit and it was electronic weighing scale, but as per the statement of PW-5, MHC Sher Singh, no government electronic weighing scale was available in Police Station, Manali, on that day. Thus, even after re-
appreciating the evidence, which has come on record, we are unable to hold that the prosecution has proved the guilt of the accused beyond the shadow of reasonable doubt.
26. It has been held in K. Prakashan vs. P.K. Surenderan (2008) 1 SCC 258, that when two views are possible, appellate Court should not reverse the judgment of acquittal merely because the other view was possible. When judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non consideration/mis-appreciation of evidence on record, reversal thereof by High Court was not justified.
27. The Hon'ble Supreme Court in T.Subramanian vs. State of Tamil Nadu (2006) 1 SCC 401, has held that where two views are reasonably possible from the very same evidence, prosecution cannot be said to have proved its case beyond reasonable doubt.
::: Downloaded on - 10/11/2017 13:28:38 :::HCHP 2428. In Chandrappa vs. State of Karnataka, (2007) 4 SCC 415, the Hon'ble Supreme Court has culled out the following principles qua powers of the appellate Courts while dealing with an .
appeal against an order of acquittal:
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
1. An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
2. The Code of Criminal Procedure, 1873 puts no limitation, restriction or condition on exercise of such power r and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
3. Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
4. An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law.
Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, ::: Downloaded on - 10/11/2017 13:28:38 :::HCHP 25 reaffirmed and strengthened by the trial Court.
5. If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial Court."
.
29. In view of the settled legal position, as aforesaid, and on the basis of material that has come on record, it is more than safe to hold that the prosecution has failed to prove the guilt of the accused persons and the findings of acquittal, as recorded by the learned Trial Court, needs no interference, as the same are the result of appreciating the evidence correctly and to its true perspective.
Accordingly, the appeal, which sans merits, deserves dismissal and is accordingly dismissed.
30. In view of the above, the appeal, so also pending application(s), if any, stand(s) disposed of. Bail bonds are cancelled.
(Tarlok Singh Chauhan) Judge (Chander Bhusan Barowalia) Judge 3rd November, 2017 (virender) ::: Downloaded on - 10/11/2017 13:28:38 :::HCHP