Himachal Pradesh High Court
State Of H.P vs Tul Bahadur @ Tula Ram on 18 July, 2023
Bench: Tarlok Singh Chauhan, Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No. 1310of 2023.
.
Date of decision : 18.7.2023.
State of H.P. ...Applicant.
Versus
Tul Bahadur @ Tula Ram ...Respondent
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting?1Yes.
For the applicant : Mr. Anup Rattan, Advocate General
with Mr. Ramakant Sharma and Ms.
r Sharmila Patial, Addl. A.Gs, and Ms.
Priyanka Chauhan, Dy. A.G.
For the respondents : Nemo.
Satyen Vaidya, Judge (Oral)
Heard.
By way of instant application, the State has sought leave of this Court to assail the judgment of acquittal dated 16.1.2023, passed by the learned Sessions Judge, Solan, District Solan, H.P. in Sessions Trial No. 19-S/7 of 2020/18.
2. Respondent was charged for commission of offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act). It was alleged that on 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 19/07/2023 20:44:36 :::CIS -2-26.9.2018, the respondent was apprehended by the police at about 4.30 P.M. at place near Naya Nagar on Subathu-Kanda .
Road within the jurisdiction of Police Post, Subathu, Police Station Dharampur, District Solan, H.P. On search of a gunny bag carried by the respondent, 744 grams of charas was recovered.
3. Prosecution presented its case on the facts that on 26.9.2018 police officials namely HC Rajesh Kumar, HC Mahipal Singh and C. Bhupender Singh of Special Investigating Unit (SIU) Solan alongwith HC Narender Kumar, C. Jasvinder Singh and C. Dinesh Kumar of Police Post Subathu were on routine patrol duty on Subathu-Kanda Road. At about 4.30 P.M. they noticed the respondent on the spot with a gunny bag on his person. On suspicion, the bag carried by the respondent was searched and beside other articles, a packet containing 744 grams of charas was recovered. After recovery of contraband, it was again placed in the same packet, which was further placed in a cloth bag and was sealed with three seals bearing mark 'Y'.
The gunny bag was separately sealed with one seal bearing mark 'Y' after placing in the said bag all other articles recovered therefrom. The relevant clauses of NCB Form Ext. PW-5/A were ::: Downloaded on - 19/07/2023 20:44:36 :::CIS -3- filled. The entire search and seizure proceedings were recorded vide memo Ext. PW-1/A. The photography and videography of .
the proceedings was also carried by PW-2, C. Jasvinder Singh.
Later, photographs Ext. A-1 to Ext. A-23 and "CD" Ext. PW-2/B were got developed.
4. 'Rukka', Ext. PW-11/A was prepared and sent to the Police Station by PW-11, HC Narender Kumar through PW-4, C. Dinesh Kumar, on the basis of which, FIR Ext. PW-8/A was registered. The file was sent back to spot from Police Station through PW-4, C. Dinesh Kumar, who handed over the same to PW-10, ASI, Rattan Singh, for further investigation. The spot map was also prepared by PW-11, HC Narender Kumar. The respondent was formally arrested. PW-11 Narender Kumar handed over the case property alongwith respondent/accused and other evidence collected during investigation to PW-10, ASI, Rattan Singh vide memo Ext. PW-10/A. ASI, Rattan Singh further handed over the case property alongwith accused and collected evidence at Police Station, Dharampur to PW-5, HC Pyare Lal, who conducted resealing proceedings and issued certificate in this regard Ext. PW-5/C. PW-5 HC Pyare Lal ::: Downloaded on - 19/07/2023 20:44:36 :::CIS -4- thereafter deposited the recovered contraband and other collected evidence in the 'Malkhana' of the police station.
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5. On the next day i.e. 27.9.2018, the case property was handed over to PW-10, ASI Rattan Singh, who prepared an inventory and received a certificate Ext. PW-10/B under Section 52A of the Act from Additional Chief Judicial Magistrate, Kasauli, District Solan, H.P. The recovered contraband was further sent to SFSL, Junga on 28.9.2018. The laboratory examination report on the contraband Ext. PW-10/D was prepared by the SFSL, Junga and sent back alongwith contraband to the police station. On completion of investigation, report under Section 173 of the Cr.P.C. was prepared and submitted, recommending trial of the respondent.
6. Prosecution examined total 11 witnesses. PW-1, HC Rajesh Kumar, PW-2, C. Jasvinder Singh, PW-4, C. Dinesh Kumar, PW-6, HC Mahipal and PW-11, HC Narender Kumar were examined as spot witnesses. PW-10, ASI Rattan Singh was examined as Investigating Officer. PW-8, Inspector/SHO Naveen Jhalta was posted as SHO, Police Station, Dharampur, District Solan, H.P. at the relevant time. He was examined to prove endorsement PW-8/B on FIR Ext. PW-8/A, made by him. PW-
::: Downloaded on - 19/07/2023 20:44:36 :::CIS -5-5, HC Pyare Lal was MHC of Police Station, Dharampur at the relevant time. He was examined to prove the receipt of .
contraband and other evidence alongwith accused in the Police Station on 26.9.2018. He was also examined to prove the resealing of the contraband and also its safe custody in the Malkhana. PW-3, Constable Krishan Dutt had taken the contraband to SFSL Junga on 28.9.2018. PW-7 Constable Arjun Singh was examined to prove the recording of DDR Nos.
11, 12 and 15, Ext. PW-7/A, PW-7/B and PW-7/C respectively in the DDR, maintained at PP Subathu. Lastly, PW-9 HC, Parveen Kumar was examined to prove the receipt of special report in the office of SDPO, Parwanoo on 28.9.2018.
Respondent was examined under Section 313 of the Cr.P.C.
Respondent did not lead any defence evidence.
7. Learned trial Court has acquitted the respondent of all charges on the ground that the prosecution had failed to prove the charges against the respondent beyond all reasonable doubts. For arriving at such conclusion, the learned trial Court has taken into account (a) the non-association of independent witnesses, (b) material contradictions in the statements of ::: Downloaded on - 19/07/2023 20:44:36 :::CIS -6- witnesses and (c) defective investigation, as reasons for acquittal.
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8. In our considered view, the findings recorded by learned trial Court are borne from the material available on record. It was clearly establishes on record that the place Naya Nagar was thickly populated. PW-4, C. Dinesh Kumar had stated in his cross-examination that the 'Nakka' was laid by police near to the place Naya Nagar. PW-6, HC Mahipal had mentioned the place of alleged recovery to be at distance of ½ KM from Naya Nagar. Further, PW-11, HC Narender Kumar in his cross-examination had also stated that the village where the respondent resided was at a distance of about 500 meters from the spot of recovery. The time of apprehension of respondent with contraband was 4.30. P.M. Thus, it was not a case where the police could not have associated independent witnesses, especially when the police party was having two vehicles at its disposal. However, the evidence on record suggests that no effort was made to associate any witness from the nearby place, which was inhabited by large population.
9. As regards the reason for non-associating the independent witnesses no explanation has been rendered, ::: Downloaded on - 19/07/2023 20:44:36 :::CIS -7- rather the prosecution witnesses have contradicted themselves on this important aspect. PW-1, HC Ramesh Kumar could not .
render any explanation regarding non-association of independent witnesses. PW-2, C. Jasvinder Singh specifically stated in his cross-examination that the investigating officer had made no effort to join the independent witnesses. PW-11, HC Narender Kumar stated that efforts were made to join the independent witnesses by searching for people travelling in vehicles but success could not be achieved.
10. Learned trial Court has also taken note of the contents of 'Rukka' Ext. PW-11/A, wherein it was clearly mentioned that due to non-availability of any government or private houses near the spot, the investigating officer had waited for vehicular traffic to pass from the spot for about 30 minutes but no vehicle crossed from the spot during such period. The version so rendered by PW-11, HC Narender Kumar is not only contradictory to the versions given by PW-1 and PW-2 but is also highly improbable. In this view of the matter, it can safely be concluded that despite availability of independent witnesses, no effort was made to join such witnesses.
::: Downloaded on - 19/07/2023 20:44:36 :::CIS -8-11. It is settled proposition of law that more stringent the penal provisions more circumspection is required in .
scanning the prosecution evidence. In Hanif Khan @ Annu Khan vs. Central Bureau of Narcotics, reported in 2020 (16) SCC 709, the Hon'ble Supreme Court has held as under:-
"8. We have considered the submissions on behalf of the parties. The prosecution under the NDPS Act carries a reverse burden of proof with a culpable mental state of the accused. He is presumed to be guilty consequent to recovery of contraband from him, and it is for the accused to establish his innocence unlike the normal rule of criminal jurisprudence that an accused is presumed to be innocent unless proved guilty. But that does not absolve the prosecution from establishing a prima facie case only whereafter the burden shifts to the accused. In Noor Aga v. State of Punjab, (2008) 16 SCC 417 it was observed as follows :
"58. Sections 35 and 54 of the Act, no doubt, raise presumptions with regard to the culpable mental state on the part of the accused as also place the burden of proof in this behalf on the accused; but a bare perusal of the said provision would clearly show that presumption would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied, would the legal burden shift.::: Downloaded on - 19/07/2023 20:44:36 :::CIS -9-
Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of .
proof required to prove the guilt of the accused on the prosecution is "beyond all reasonable doubt"
but it is "preponderance of probability" on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigors of Section 35 of the Act, the actusreus which is possession of contraband by the accused cannot be said to have been established."
9. Because there is a reverse burden of proof, the prosecution shall be put to a stricter test for compliance with statutory provisions. If at any stage, the accused is able to create a reasonable doubt, as a part of his defence, to rebut the presumption of his guilt, the benefit will naturally have to go to him."
12. Though, mere absence of association of independent witnesses is not fatal to the prosecution case, however, in such circumstances, as are available in the instant case, the courts are called upon to assess the prosecution evidence minutely in order to negate the possibility of any foul play or mischief.
13. In Raveen Kumar vs. State of H.P., reported in 2020 (12) Scale, 138, Hon'ble Supreme Court has held as under:-
::: Downloaded on - 19/07/2023 20:44:36 :::CIS -10-"19. It would be gainsaid that lack of independent witnesses are not fatal to the prosecution case. However, such omission cast an additional duty on courts to adopt .
a greater degree of care while scrutinizing the testimonies of the police officer, which if found reliable may form the basis of a successful conviction".
14. Further, the contradictions noticed by learned trial Court in the statements of prosecution witnesses also cannot be ignored. There are contradictions with respect to the mode and manner in which the police officials had laid 'Nakka'. The witnesses have also contradicted each other with respect to the factum of passing of vehicular traffic from the spot. As noticed above, there are contradictions on the aspect of association of independent witnesses. It can also be noticed that the relevant records with respect to departure of officials of SIU from Solan had also not been proved on record. It also cannot be ignored that the police officials involved in the 'Nakka' had not offered themselves for search in the first instance.
15. Another material discrepancy noticed by learned trial Court is clearly evident on record as well. The resealing of contraband was conducted by PW-5, HC Pyare Lal, who was posted as MHC in Police Station, Dharampur at the relevant ::: Downloaded on - 19/07/2023 20:44:36 :::CIS -11- time. As per statement of this witness, the SHO was on leave on 26.9.2018 and for such reason, the MHC was officiating as .
SHO. PW-5 further stated that C. Dinesh Kumar had brought 'Rukka' Ext. PW-11/A to the Police Station and FIR Ext. PW-
8/A was recorded at his instance. To the contrary, PW-8 Inspector Naveen Jhalta stated that he was present in the Police Station on 26.9.2018, when PW-4, Constable Dinesh Kumar had handed over the 'Rukka' to him and on this basis FIR Ext. PW-8/A was registered.
r PW-8 further verified the endorsement Ext. PW-8/B, made on 'Rukka' Ext. PW-11/A to be in his hand. In cross-examination, PW-8 denied to be on leave on 26.9.2018 and 27.9.2018.
16. Thus, in view of the serious infirmities found in the prosecution case, the learned trial Court was right in holding that the prosecution had not been able to prove the charges beyond all reasonable doubt.
17. It is also trite that in an appeal against acquittal, if two views are possible, one which favours the accused has to be adopted by the Court. It has also been held so by the Hon'ble Supreme Court in Allah Rakha K. Mansoori vs. State of Gujarat, 2002 (1) RCR (Criminal) 748. Similarly, in Mrinal ::: Downloaded on - 19/07/2023 20:44:36 :::CIS -12- Das & others vs. State of Tripura, 2011 (9) SCC 479, the Hon'ble Supreme Court, after noticing various judgments has .
observed as under:-
"13 It is clear that in an appeal against acquittal in the absence of perversity in the judgment and order, interference by this Court exercising its extraordinary jurisdiction, is not warranted. However, if the appeal is heard by an appellate court, being the final court of fact, is fully competent to re-appreciate, reconsider and review the evidence and take its own decision. In other words, law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused. The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court. If two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal.
14. There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is found and to come to its own conclusion. The appellate court can also review the conclusion arrived at by the trial court with respect to both facts and law. While dealing with the appeal against acquittal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and only by giving cogent and ::: Downloaded on - 19/07/2023 20:44:36 :::CIS -13- adequate reasons set aside the judgment of acquittal. An order of acquittal is to be interfered with only when there are "compelling and substantial reasons" for doing so. If .
the order is "clearly unreasonable", it is a compelling reason for interference. When the trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts, etc. the appellate court is competent to reverse the decision of the trial court depending on the materials placed".
18. Keeping in view the facts of the instant case and the exposition of law, as noticed above, the view taken by the learned trial Court is a possible view. This Court does not find any compelling and substantial reason to interfere with such view. Therefore, no ground for interference is made out and the application for leave to appeal is dismissed. Record be sent back forthwith.
(Tarlok Singh Chauhan)
Judge
(Satyen Vaidya)
18th July, 2023 Judge
(kck)
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