Himachal Pradesh High Court
State Of H.P vs Pradeep Kumar on 18 November, 2015
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.579 of 2008.
.
Reserved on: 30.10.2015 Decided on: 18th November, 2015.
State of H.P. ...Appellant.
of
Versus
Pradeep Kumar. ...Respondent.
The Hon'ble Mr.Justice Rajiv Sharma, Judge.
rt The Hon'ble Mr.Justice Sureshwar Thakur, Judge.
Whether approved for reporting? Yes. For the Appellant: Mr. M.A. Khan, Addl. Advocate General.
For the Respondent: Mr. Vivek Sharma, Advocate.
_________________________________________________ Sureshwar Thakur, Judge.
1. This appeal is directed against the judgement of acquittal rendered on 24.5.2008 by the learned Special Judge, Shimla, H.P. in Sessions trial No.2-S/7 of 2008, whereby he acquitted the accused/respondent herein for his having committed an offence punishable under Section 20 of the NDPS Act.
2. Brief facts of the case are that on 19.11.2007, at about 12.30 P.M., PW-14 HC Ashwani Kumar along ::: Downloaded on - 15/04/2017 19:21:43 :::HCHP ...2...
with HC Yashwant Singh, PW-12 HC Kundan Singh .
No.190 and PW-6 Constable Mohinder in consequence of Rapat No.5 Ext.PW.3/A proceeded towards local Bus Stand, Shimla for patrolling and detection of crimes. At of about 2.30 P.M. on the relevant day, they received a secret information rt that one person wearing blue jean pant and gray jacket carrying a bag, was having Charas and if searched, the Charas could be recovered. In the meantime the accused resembling the description in the secret information appeared, who was stopped by PW-
14. The name and address of the accused was asked, upon which he disclosed his name and address. PW-14 apprised the accused of his legal right of being searched either before the Magistrate or the Gazetted Officer, upon which he vide option and consent memo Ext.PW.1/A , declined the said offer and opted to get himself searched through the police present on the spot.
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Vide Memo Ext.PW.1/B, the aforesaid police officials and .
witnesses gave search, but nothing incriminating was found. Thereafter, PW-14 carried out the search of rucksack being carried by the accused and on the said of search, Charas wrapped in one plastic belt which was kept in another blue and red colored bag was recovered, rt which was weighed and found 1.8 Kg. PW-14 out of the so recovered Charas took out two samples of 50 grams each and packed and sealed into two separate parcels and marked those as S-1 and S-2 and sealed with seal having impression 'R'. The seal after use was handed over to PW-1. PW-14 filled in the NCB forms in triplicate. The recovered Charas was taken into possession, vide memo Ext.PW.1/A. PW-14 prepared Ruka and sent the same through PW-12 to the Police station for registration of the case and on the basis of whichle FIR Ext.PW-5/B came to be registered in Police ::: Downloaded on - 15/04/2017 19:21:43 :::HCHP ...4...
Station, Sadar, Shimla. Site plan Ext.PW.13/A was .
prepared. The sample of the Charas was sent to SFSL, Junga for chemical examination. The report of the SFSL, Junga is Ext.P.Z, according to which the samples were of found to be of Charas.
3. After rt completion of the necessary investigation, into the offence, allegedly committed by the accused/respondent herein, challan was filed under Section 173 of the Code of Criminal Procedure.
4. The accused/respondent herein was charged by the learned trial Court for his having committed an offence punishable under Section 20 of the NDPS Act, to which he pleaded not guilty and claimed trial.
5. In proof of the prosecution case, the prosecution examined as many as 14 witnesses. On closure of the prosecution evidence, the statement of accused under Section 313 Cr.P.C. was recorded by the ::: Downloaded on - 15/04/2017 19:21:43 :::HCHP ...5...
Court, in which he claimed false implication and pleaded .
innocence. In defence, the accused/respondent did not choose to examine any witness.
6. On appraisal of the evidence on record, the of learned trial Court acquitted the accused for his having committed offence punishable under Section 20 of the rt NDPS Act.
7. The State of H.P. is aggrieved by the findings of acquittal recorded by the learned trial Court. The learned Additional Advocate General appearing for the appellant/State has concertedly and vigorously contended that the findings of acquittal recorded by the learned trial Court are not based upon a proper appreciation of evidence on record, rather they are sequelled by gross mis-appreciation of material on record. Hence, he contends that the findings of acquittal recorded by the learned trial Court in favour of the ::: Downloaded on - 15/04/2017 19:21:43 :::HCHP ...6...
accused be reversed by this Court in the exercise of its .
appellate jurisdiction and be replaced by findings of conviction.
8. On the other hand, the learned defence of counsel has with considerable force and vigour, contended that the findings of acquittal recorded by the rt learned Court below are based on a mature and balanced appreciation of evidence on record and do not necessitate interference, rather merit vindication.
9. The Court with the able assistance of the learned counsel on either side, has with studied care and incision, evaluated the entire evidence on record.
10. Even though the official prosecution witnesses have deposed in tandem and in harmony in proof of each of the links in the chain of circumstances commencing from the proceedings relating to search, seizure and recovery of contraband from the alleged conscious and ::: Downloaded on - 15/04/2017 19:21:43 :::HCHP ...7...
exclusive possession of the accused till the consummate .
link comprised in the rendition of an opinion by the FSL on the specimen parcels sent to it for analysis, portraying proof of unbroken and unsevered links, in the entire of chain of the circumstances, hence it is argued that when the prosecution case stood established, it would be rt legally unwise for this Court to acquit the accused.
11. In proof of the prosecution case, the prosecution has relied upon the testimonies of official witnesses besides upon the depositions of independent witnesses PW-1, PW-2 and PW-11. However, PW-1, PW-2 and PW-11 though stood joined as independent witnesses by the Investigating Officer in the proceedings relating to search and recovery of contraband from the alleged conscious and exclusive possession of the accused, they have not supported the prosecution case.
Even if PW-1, PW-2 and PW-11 have omitted to lend ::: Downloaded on - 15/04/2017 19:21:43 :::HCHP ...8...
support to the prosecution case, their omission to do so .
would not constrain this Court to belie the testimonies of the official witnesses unless on a threadbare analysis of their testimonies on oath, stark and blatant material of contradictions eroding the genesis of the prosecution version, surface therefrom.
rt
12. Ext.PW.1/B encapsulates the factum of official witnesses besides the independent witnesses, having preceding the recovery of contraband under memo Ext.PW.1/C from bag Ext.P.2 carried by the accused on his back, given their uninvented personal search to him for dispelling any inference of contraband Ext.P.1 having come to be planted by the Investigating Officer in bag Ext.P-2 purportedly carried by the accused on his back. In case efficacy is to be imputed to Ext.PW.1/B, the official witnesses besides the independent witnesses purportedly contemporaneously available at the site of ::: Downloaded on - 15/04/2017 19:21:44 :::HCHP ...9...
occurrence at the time of carrying out of the apposite .
proceedings thereto, were enjoined to depose consistently qua the factum of their respective personal search having been as portrayed in Ext.PW.1/B carried of out by the accused, to dispel any inference of contraband having been planted by the Investigating rt Officer in bag Ext.P.2 carried by the accused on his back. However, PW-12 in his cross examination has deposed that the search of the police officials was conducted by the accused as well as by the independent witnesses. He has also proceeded to depose that initially the search of the police officials was carried out by the independent witnesses inasmuch as by PW-1 and PW-11, yet he has been unable to disclose with specificity the names of the official witnesses, whose personal search was carried out by PW-1 nor he has been able to disclose with specificity the names of the official witnesses whose ::: Downloaded on - 15/04/2017 19:21:44 :::HCHP ...10...
personal search was conducted by PW-11. He though has .
also proceeded to depose that the accused also carried out the personal search of the official witnesses as well as of the independent witnesses, yet again he was of unable to spell out with specificity qua whether the accused initially carried out the personal search of each rt of the independent witnesses succeeding whereto he carried out the personal search of each of the official witnesses nor he has been able to depose with specificity qua the factum of the accused having carried out the personal search of each of the official witnesses preceding his carrying out a personal search of each of the independent witnesses. Necessarily with lack of specificity qua the aforesaid facet gives momentum to an inference of portrayals in Ext.PW.1/B of the accused having carried out personal search of each of the independent witnesses as well as of each of the official ::: Downloaded on - 15/04/2017 19:21:44 :::HCHP ...11...
witnesses, not gaining any vigor. Apart therefrom the .
deduction which is drawable therefrom is of Ext.PW.1/B losing its credibility. Furthermore with PW-14, the Investigating Officer, having in his deposition comprised of in his cross-examination underscored therein the factum of the accused rt having not carried out any personal search of any of the police officials nor his having carried out any personal search of any of the independent witnesses, rather the personal search of all the aforesaid having been carried out only by Ram Singh, constrains this Court to record the following inferences: (a) PW-12 and PW-14 being unavailable simultaneously at the site of occurrence at the stage contemporaneous to the initiation and conclusion of the apposite proceedings therein; (b) as a corollary the depositions of PW-12 and PW-14 in proof of the genesis of the prosecution case cannot gain any probative force, ::: Downloaded on - 15/04/2017 19:21:44 :::HCHP ...12...
rather fillip an apt deduction of the proceedings, if any, .
relating to the seizure of contraband from the alleged conscious and exclusive possession of the accused in the manner as projected by the prosecution having stood of not carried out at the site of occurrence, rather theirs having been carried out elsewhere, with the sequelling rt effect of the genesis of the prosecution version facing erosion; (c) the factum of the accused having been given an opportunity to carry out personal searches of each of the official witnesses as well as of each of the independent witnesses, to benumb the deriving of an inference by this Court of contraband Ext.P.1 recovered at the site of occurrence from the alleged conscious and exclusive possession of the accused from bag Ext.P.2 carried by him on his back, having been planted therein by the Investigating Officer, besides to countervail any inference of Ext.PW.1/C having been not prepared at the ::: Downloaded on - 15/04/2017 19:21:44 :::HCHP ...13...
site of occurrence in succession thereto yet the existence .
of intra se ambiguities in the testimony of PW-12 and in the testimony of PW-14, the Investigating Officer qua the carrying out of personal search of each of the official of witnesses as well as of each of the independent witnesses, by the accused, rather constrains this Court to rt hence conclude of no such opportunity having stood afforded by the Investigating Officer to the accused, necessarily then this Court is not precluded to draw an inference of contraband, if any recovered from the bag carried by the accused on his back, having stood planted therein by the Investigating Officer, even when an inference of Ext.PW-1/C having been prepared other than at the site of occurrence for hence jettisoning the genesis of the prosecution case, emerges therefrom; (d) aggravated momentum to the inference aforesaid is lent by the factum of PW-14 having deposed qua only PW-2 ::: Downloaded on - 15/04/2017 19:21:44 :::HCHP ...14...
having carried out the personal search of each of the .
official witnesses as well as of each of the independent witnesses, yet when the said factum remains undisclosed in Ext.PW.1/B, facilitates an inference of PW-14 having of prevaricated qua the factum of personal search of each of the official witnesses as well as of each of the rt independent witnesses at the site of occurrence at the stage preceding search and recovery of contraband from bag carried by the accused on his back, having stood carried out by PW-2. Dehors the aforesaid inference, the effect if any of a disclosure in Ext.PW.1/B of the accused preceding the recovery of contraband Ext.P.1 under memo Ext.PW-1/C from bag Ext.P-2 carried by him on his back, having carried out a personal search of each of the official witnesses as well as of each of the independent witnesses for dispelling an inference of planting of contraband by the Investigating Officer in bag Ext.P-2, ::: Downloaded on - 15/04/2017 19:21:44 :::HCHP ...15...
is of its acquiring no truth or veracity. Concomitantly, .
even the holding of the purported apposite proceedings by the Investigating Officer leading to recovery of contraband Ext.P-1 from bag Ext.P-2 carried by the of accused on his back apparently ex-facie appear to be a contrivance as well as an engineered concert on the part rt of the Investigating Officer necessarily then the versions of the official witnesses qua the holding of the apposite proceedings at the site of occurrence do not inspire confidence. In aftermath this Court is constrained to disbelieve the recorded depositions on oath of the official witnesses in proof of the aforesaid fact.
13. NCB forms are comprised in Ext.PW-14/B. PW-
14, the Investigating Officer has not categorically testified qua the factum of relevant columns of NCB forms as are enjoined to be filled up by him, having come to be filled up by him on the spot, whereas PW-12 ::: Downloaded on - 15/04/2017 19:21:44 :::HCHP ...16...
has deposed that PW-14 had performed the aforesaid act .
at the spot. Evidently the deposition of PW-12 qua the factum of the Investigating Officer as enjoined upon him having filled up all the relevant columns of the NCB forms of on the spot, when hence has not come to be lent corroboration by PW-14 arising from the factum of his rt having equivocated qua his having performed the enjoined aforesaid act at the spot. In sequel with contradictions occurring intra se the deposition of PW-12 vis-à-vis the deposition of PW-14 qua the factum of the latter having performed his enjoined duty of his having filled up the relevant columns of the NCB forms at the spot, arising from the latter having equivocated qua the factum of his having filled up all the relevant columns of NCB forms Ext.PW-14/B at the spot renders open an inference of the Investigating Officer having not as enjoined upon him filled up the relevant columns of the ::: Downloaded on - 15/04/2017 19:21:44 :::HCHP ...17...
NCB forms at the site of occurrence. Cumulatively, in .
conjunction with the preceding discussion it is to be held that the apposite proceedings were not carried out at the site of occurrence. Naturally then the genesis of the of prosecution case gets capsized.
14. The summon bonumn of the above discussion, is rt with rife, open and material contradictions occurring in the testimonies of the official witnesses qua the afore-
referred facets, their testimonies are hence rendered to be uninspiring as well as untrustworthy. As a natural corollary when the depositions of the official witnesses are not to be meted implicit credence by this Court, warranting hence theirs being discarded, necessarily when even the independent witnesses have not supported the prosecution version, it was fated to, hence as aptly concluded by the learned trial Court, gain no approbation.
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15. For the reasons which have been recorded .
hereinabove, this Court holds that the learned trial Court below has appraised the entire evidence on record in a wholesome and harmonious manner apart therefrom the of analysis of the material on record by the learned trial Court does not suffer from any perversity or absurdity of rt mis-appreciation and non appreciation of evidence on record, rather it has aptly appreciated the material available on record.
16. In view of the above, we find no merit in this appeal which is accordingly dismissed. In sequel, the impugned judgement is affirmed and maintained.
Record of the learned trial Court be sent back forthwith.
(Rajiv Sharma) Judge 18th November, 2015. (Sureshwar Thakur) (tm/rkv) Judge ::: Downloaded on - 15/04/2017 19:21:44 :::HCHP ...19...
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of rt ::: Downloaded on - 15/04/2017 19:21:44 :::HCHP