Himachal Pradesh High Court
Narayan Singh vs State Of H.P on 9 October, 2015
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.:124 of 2015 Reserved on: 01.10.2015 .
Date of Decision: 09.10.2015
Narayan Singh .....Appellant.
of
Versus
State of H.P. ...Respondent.
Coram
rt
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? Yes.
For the Appellant: Mr.Sanjeev Bhushan, Sr. Advocate with Ms.Abhilasha Kumari, Advocate.
For the respondent: Mr.M.A.Khan, Additional Advocate General.
_________________________________________________________________ Per Sureshwar Thakur, Judge This appeal is directed against the judgment rendered on 11.09.2014 by the learned Special Judge, Mandi, in Sessions trial No. 39/2010 whereby the latter convicted and sentenced the accused for his having ::: Downloaded on - 15/04/2017 19:10:52 :::HCHP Cr.Appeal No.124 of 2015.
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committed an offence punishable under Section 20 of the .
Narcotic Drugs and Psychotropic Substances Act.
2. The accused/convict is aggrieved by the renditions of the learned Special Judge, Mandi. Being of aggrieved he has by instituting the instant appeal before this Court assailed the findings recorded therein. A prayer has rt been made therein that his appeal be accepted and the findings of conviction recorded against him by the learned trial Court qua his having committed offences punishable under Section 20 of the NDPS Act be reversed and set-
aside in the exercise of appellate jurisdiction by this Court.
3. The prosecution story, in brief, is that on 12.04.2010 ASI Ram Lal alongwith LHC Narpat Ram, ASI Mohan Lal, constable Dhameshwar, constable Suresh Kumar and constable Kashmir Singh proceeded from Police Station, Sadar Mandi towards Bindrbani for nakabandi at about 12.10 p.m and naka was laid by the police party at Saat Meel where the accused came from Pandoh side ::: Downloaded on - 15/04/2017 19:10:52 :::HCHP Cr.Appeal No.124 of 2015.
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having a carry bag in his right hand and on seeing the police .
party he turned back and started running but was apprehended on suspicion. The members of the police party gave their search to the accused and nothing of incriminating was recovered from their possession and thereafter the search of the carry bag in possession of the rt accused was conducted from which another polythene bag containing charas was recovered. The contraband so recovered was weighed and found to be 2.900 Kgs. which was packed in a parcel in the same sequence alongwith polythene bag and carry bag which parcel was sealed with 12 seals of impression 'R' and taken into possession. NCB form was prepared in triplicate and seal impression was affixed over NCB form and sample seal was drawn separately and handed over to ASI Mohan Lal. Rukka was prepared and sent to the police station through constable Dhameshwar Singh, on receipt of which F.I.R. came to be recorded at the police station, Sadar Mandi.
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4. After completion of the investigation, challan, .
under Section 173 of the Cr.P.C. was prepared and filed in the Court. The trial Court charged the accused for his having committed an offence punishable under Section 20 of of the NDPS Act to which he pleaded not guilty and claimed trial.
5. rt In order to prove its case, the prosecution examined as many as 10 witnesses. On closure of the prosecution evidence, the statement of the accused under Section 313 Cr.P.C. was recorded, in which he pleaded innocence. On closure of proceedings under Section 313 Cr.P.C the accused person was given an opportunity to adduce evidence, in, defence, and he chose to adduce evidence in defence.
6. The accused/appellant is aggrieved by the judgment of conviction recorded by the learned trial Court.
Shri Sanjeev Bhushan, learned Senior Advocate, has concertedly and vigorously contended that the findings of ::: Downloaded on - 15/04/2017 19:10:52 :::HCHP Cr.Appeal No.124 of 2015.
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conviction, recorded by the learned trial Court, are not .
based on a proper appreciation of the evidence on record, rather, they are sequelled by gross mis-appreciation of the material on record. Hence, he contends that the findings of of conviction be reversed by this Court, in the exercise of its appellate jurisdiction and be replaced by findings of acquittal.
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7. On the other hand, the learned Additional Advocate General appearing for the State, has, with considerable force and vigour, contended that the findings of conviction, recorded by the Court below, are based on a mature and balanced appreciation of evidence on record and do not necessitate interference, rather merit vindication.
8. This Court with the able assistance of the learned counsel on either side, has with studied care and incision, evaluated the entire evidence on record.
9. Recovery of charas weighing 2 kilograms & 900 grams was effected from a carry bag held by the accused in ::: Downloaded on - 15/04/2017 19:10:52 :::HCHP Cr.Appeal No.124 of 2015.
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his right hand. The carry bag wherefrom charas weighing .
2.900 kilograms was recovered was taken into possession under memo Ext.PW-2/B. Even though the prosecution witnesses have deposed in tandem and in harmony qua of each of the links in the chain of circumstances commencing from the proceedings relating to search, seizure and rt recovery 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 chain of the circumstances, hence it is argued that when the prosecution case stand established, it would be legally unwise for this Court to acquit the accused.
10. Besides when the testimonies of the official witnesses, unravel the fact of theirs being bereft of any inter-se or intra-se contradictions hence, consequently they too enjoy credibility for sustaining thereupon the findings of conviction recorded against the accused by the learned trial Court. Apparently, proof of the prosecution case is ::: Downloaded on - 15/04/2017 19:10:52 :::HCHP Cr.Appeal No.124 of 2015.
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endeavoured to be sustained on the strength of .
unblemished testimonies of police witnesses. A close and studied perusal of the depositions of the police witnesses underscores the factum that they have neither given a of version qua the factum of recovery of contraband from the exclusive and conscious possession of the accused rt inconsistent with the manner thereof as recited in the F.I.R.
Ext.PW-8/A for begetting a conclusion that hence their testimonies comprised in their respective examinations in chief are ridden with the vice of inter se contradictions vis-à-vis their testimonies comprised in their respective cross-examinations nor when their depositions are afflicted with any vice of intra se contradictions rather when they have deposed qua the manner of recovery of charas from the alleged conscious and exclusive possession of the accused bereft of any disharmony or inconsistency gives leverage to the inference that hence the prosecution has been able to sustain the charge against the accused of ::: Downloaded on - 15/04/2017 19:10:52 :::HCHP Cr.Appeal No.124 of 2015.
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charas weighing 2.900 Kgs. having been recovered from his .
conscious and exclusive possession while his carrying it, in a carry bag held by him in his right hand and which was seized under memo Ext.PW-2/B. of
11. Be that as it may, given the manner of recovery of charas from the conscious and exclusive possession of rt the accused inasmuch as it having come to be recovered from a bag held by him in his right hand necessarily hence, when it was not recovered from either his pocket or its being strapped inextricably with any part of his body in event whereof compliance by the Investigating Officer in tandem with the mandatory provisions of Section 50 of the NDPS Act was imperative inasmuch as his being enjoined to under an apposite consent memo elicit from the accused his consent of search of his person being carried out either by the Executive Magistrate or a Gazetted Officer or by the police official eliciting his consent. Contrarily when it was recovered from a bag held in his right hand necessarily then ::: Downloaded on - 15/04/2017 19:10:52 :::HCHP Cr.Appeal No.124 of 2015.
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the said manner of the accused carrying it, did not .
constitute its being strapped inextricably with any portion of his body necessarily then compliance by the Investigating Officer with the provisions of Section 50 of the NDPS Act of were not enjoined to be meted out by him. Nor also when it was not a case of prior information rather was a chance rt recovery concomitantly also then compliance with the mandate of Section 42 of the NDPS Act was not enjoined to be meted out by the Investigating Officer.
12. However, even though the testimonies of the official witnesses who have proven the factum of recovery of charas under memo from the alleged conscious and exclusive possession of the accused while his carrying it in a bag held by him in his right hand besides when their testimonies comprised in their respective examinations in chief are bereft of any taint of either inter se contradictions vis-à-vis their depositions comprised in their respective cross-examinations nor also when their testimonies are not ::: Downloaded on - 15/04/2017 19:10:52 :::HCHP Cr.Appeal No.124 of 2015.
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ingrained with the vice of intra se contradictions necessarily .
then when their testimonies inspire confidence and are credible, reliance is to be imputed to them while concluding qua the guilt of the accused. Nonetheless before of proceeding to place implicit reliance upon their testimonies, it is also imperative for this Court to gauge or discern from rt the available evidence on record whether independent witnesses were available in the immediate vicinity of the locality where the proceedings relating to search, seizure and recovery of contraband from the alleged conscious and exclusive possession of the accused in the manner as deposed by the official witnesses were launched and concluded. The Investigating Officer, is not obliged to associate independent witnesses while his proceeding to carry out proceedings qua search and recovery of contraband from the alleged conscious and exclusive possession of the accused nor also the non association of independent witnesses by the investigating officer in the ::: Downloaded on - 15/04/2017 19:10:52 :::HCHP Cr.Appeal No.124 of 2015.
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proceedings relating to search and recovery of contraband .
from the alleged conscious and exclusive possession of the accused would oust or discount the probative worth of the testimonies of the official witnesses. However, when of independent witnesses despite proven evidence of theirs being available in close proximity to the location where the rt proceedings relating to search and recovery of contraband from the conscious and exclusive possession of the accused were launched or carried out, are not associated such non association of independent witnesses by the Investigating Officer despite their availability would nurse an inference that their non association was deliberate or intentional. Concomitantly also it would give succor to an inference that the Investigating Officer omitted to join independent witnesses despite their availability in the vicinity of the location where the proceedings relating to search and recovery of contraband from the conscious and exclusive possession of the accused were launched or concluded, as ::: Downloaded on - 15/04/2017 19:10:52 :::HCHP Cr.Appeal No.124 of 2015.
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he intended to smother the truth qua the genesis of the .
prosecution version. The genesis of the prosecution version would gain credence with this Court only when it is free from taint of it having been reared by partisan or a slanted of investigation having been carried out by the investigating officer. The investigation carried out by the Investigating rt Officer would garner an element of slantedness or distortion when the investigating officer despite availability of independent witnesses deliberately omits to join them in the proceedings relating to the search and recovery of contraband from the purported exclusive and conscious possession of the accused. Consequently, a slanted or distorted investigation by the Investigating Officer would erode the genesis of the prosecution story. Now the apt evidence for discerning therefrom whether independent witnesses were available in the immediate vicinity or in close proximity to the location or the site of search and recovery of contraband from the conscious and exclusive possession ::: Downloaded on - 15/04/2017 19:10:52 :::HCHP Cr.Appeal No.124 of 2015.
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of the accused besides concomitantly of such omission to .
join them being deliberate as well as intentional for sprouting a further inference that hence the investigation carried out by him was both slanted and tainted besides of distorted on which no reliance can be placed by this Court is comprised in the testimony constituted in the cross-
rt examination of PW-2. In his cross-examination PW-2 has underscored the factum that the location of the site of occurrence was National Highway No.21 at 7 Miles. He in his cross-examination has admitted the factum that at Badano many shops and dhabas are located. The factum of the proceedings relating to search and recovery of contraband in the manner as deposed by the official witnesses having come to be launched and concluded at 12.25 p.m when it was broad day light and with PW-2 in his cross-examination having conceded to the factum of many Dhabas and shops being located in proximity to the site of occurrence renders the omission on the part of the ::: Downloaded on - 15/04/2017 19:10:52 :::HCHP Cr.Appeal No.124 of 2015.
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investigating officer to associate any of the owners of the .
shops and dhabas located in close proximity to the site of occurrence to constrain an inference that despite availability of independent witnesses in close proximity to the site of of occurrence, the Investigating Officer deliberately abstain from joining them, as he intended to smother the truth qua rt the genesis of the prosecution version. Furthermore, the inference of the Investigating Officer having intentionally or deliberately omitted to join independent witnesses though available in proximity to the site of occurrence stands galvanized from the factum that PW-2 in his cross-
examination has admitted the factum of the Investigating Officer having requested the drivers, conductors and occupants of two buses, to join as independent witnesses, yet when he feigns ignorance whether the Investigating Officer had recorded their names and addresses and taken any lawful action for refusal on their part to join as independent witnesses, prods this Court to conclude that ::: Downloaded on - 15/04/2017 19:10:52 :::HCHP Cr.Appeal No.124 of 2015.
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despite the arrival of two buses at the site of occurrence the .
Investigating Officer did not proceed to join either their drivers or conductors or their occupants as witnesses in the apposite proceedings. If he had made a concert to join of them as witnesses in the purported proceedings relating to the recovery of contraband from the alleged conscious and rt exclusive possession of the accused then he would have proceeded to record their names and addresses besides even if they had refused to join as independent witnesses in the apposite proceedings, he would have maintained a record qua the lawful action initiated by him against such persons arising from their refusal to join as independent witnesses. However, with there being an admission in the cross-examination of the Investigating Officer that he did not record the registration numbers of the vehicles, which he stopped nor he recorded the names of the persons who were requested by him to join as independent witnesses in the apposite proceedings also when he has deposed that he ::: Downloaded on - 15/04/2017 19:10:52 :::HCHP Cr.Appeal No.124 of 2015.
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did not take any action against the persons who had .
refused to join as independent witnesses, constrains an inference that the Investigating Officer had not solicited the drivers, conductors or occupants of the two buses which of were stopped by him, to join as witnesses in the proceedings relating to search and recovery of contraband rt from the alleged conscious and exclusive possession of the accused. If he had concerted to make an endeavour of soliciting them to join as witnesses in the apposite proceedings, he would have proceeded to record their names and addresses besides on their refusal to accede to his solicitation or entreaty he would have proceeded to take lawful action against them. Necessarily when there are omissions on the part of the Investigating Officer to either record their names or when he concedes to his having not initiated any lawful action against them for theirs refusing to join as independent witnesses in the proceedings relating to search and seizure of recovery of contraband from the ::: Downloaded on - 15/04/2017 19:10:52 :::HCHP Cr.Appeal No.124 of 2015.
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purported conscious and exclusive possession of the .
accused, rejuvenates an inference that such omission was prodded by the fact that he did not make any concert or endeavour to solicit the drivers, conductors or occupants of of the two buses stopped by him, to join as independent witnesses in the proceedings relating to search and recovery rt of contraband from the alleged conscious and exclusive possession of the accused. As a corollary, the ensuing inference which flows therefrom is that such omission was intentional as well as deliberate as the Investigating Officer intended to smother the truth qua the prosecution version.
Furthermore, the inference which is available to be drawn by this Court is that the Investigating Officer carried out a slanted besides a contorted as well as a contrived investigation on which no reliance can be placed by this Court. In sequel, the genesis of the prosecution version founded upon a skewed, faulty and partisan investigation cannot be lent credence by this Court.
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13. The accused had espoused in his defence a .
propagation of his innocence founded upon the factum of his having been nabbed from his house by the police officials and then taken to the police station concerned. In of case the aforesaid defence propounded by the accused galvanizes an aura of truth, the proceedings relating to the rt search and recovery of contraband in the manner as alleged by the prosecution from the purported exclusive and conscious possession of the accused at National Highway No. 21 would stand belied. Concomitantly also then the factum of the deliberate or intentional omission for the reasons aforesaid on the part of the Investigating Officer to join independent witnesses in the apposite proceedings would also garner tremendous legal vigour, in discounting besides ousting the depositions of the official witnesses.
The apt and germane evidence which was relied upon by the accused in propagation of his defence stood comprised in Ext.DW-3/A, which constituted an inquiry conducted by ::: Downloaded on - 15/04/2017 19:10:52 :::HCHP Cr.Appeal No.124 of 2015.
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the police authority concerned qua the allegations reared by .
the complainant qua his having come to be nabbed from his house by the police officials concerned on the night intervening 11.4.2010 and 12.4.2010. Even when the of factum as propounded by the accused in his defence stood corroborated by the recitals in Ext.DW-3/A nonetheless the rt learned Court below discarded their probative worth, merely on the ground that it did not come to be proved by the authority who had proceeded to draw the conclusions recorded in Ext.DW-3/A. The reason as meted out by the learned trial Court for discounting the probative vigour of Ext.DW-3/A adduced into evidence at the instance of the accused in propagation of his defence of his having been nabbed from his house by the police officials concerned and then his having been taken to the police station concerned, is comprised in the fact that it stood not proved by its author rather came to be adduced in Court merely by an official in the office of S.P. Kullu. The ::: Downloaded on - 15/04/2017 19:10:52 :::HCHP Cr.Appeal No.124 of 2015.
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aforesaid reason is unworthy of acceptance. The .
unworthiness of the reason as meted out aforesaid by the learned trial Court in discounting Ext.DW-3/A is constituted in the fact DW-3 during the course of recording of his of deposition proved Ext.DW-3/A from the original brought by him in Court. With DW-3 having proved Ext.DW-3/A from its rt original brought by him in Court, obviously when the factum of its being a photocopy of the original stood not concerted to be repulsed by the learned Public Prosecutor by subjecting him to cross-examination, then it was neither appropriate nor apt for the learned trial Court to discard its probative worth merely on the ground of its authorship having remained not proved. In face thereof with the recitals in Ext.DW-3/A imputing succor to the propagation of the accused of the proceedings relating to search and recovery of contraband having not been either launched or concluded at the site of occurrence as espoused by the prosecution, all the more rendered imperative besides ::: Downloaded on - 15/04/2017 19:10:52 :::HCHP Cr.Appeal No.124 of 2015.
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entailed upon the investigating officer, to associate .
independent witnesses in the apposite proceedings especially for dispelling the efficacy of Ext.DW-3/A. In sequel with the Investigating officer having not concerted to of associate independent witnesses in the apt and apposite proceedings, for dispelling the efficacy of Ext.DW-3/A, the rt effect of his deliberately omitting to join independent witnesses in the apposite proceedings cannot but constrain an inference that it was actuated by his oblique motive, to smother the truth qua the genesis of the prosecution version. Moreover, the concomitant inference which is marshalable therefrom is that purported apposite proceedings were neither launched or concluded at the site of occurrence and also the concomitant inference which is derivable therefrom is that the deposition of the official witnesses cannot gather any aura of truth or veracity.
Consequently, no truth can be acquired by a tainted or slanted investigation.
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14. The summum bonum of the above discussion is .
that the prosecution has not been able to adduce cogent and emphatic evidence in proving the guilt of the accused.
The appreciation of the evidence as done by the learned of trial Court suffers from an infirmity as well as perversity.
Consequently, reinforcingly, it can be formidably concluded, that, the rt findings of the learned trial Court merit interference.
15. In view of above discussion, the instant appeal is allowed and the impugned judgment of 11.09.2014 rendered by the learned Special Judge, Mandi, is set-aside.
The appellant/accused is acquitted of the offence charged.
The fine amount, if any, deposited by the accused is ordered to be refunded to him. Since the accused is in jail, he be released forthwith, if not required in any other case.
16. The Registry is directed to prepare the release warrants of the accused and send the same to the ::: Downloaded on - 15/04/2017 19:10:52 :::HCHP Cr.Appeal No.124 of 2015.
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Superintendent of the jail concerned, in conformity with the .
judgment forthwith. Records be sent back forthwith.
( Rajiv Sharma ) Judge.
of 9th October, 2015. ( Sureshwar Thakur ) ™ Judge.
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