Himachal Pradesh High Court
State Of Himachal Pradesh vs Sandeep Kumar & Another on 5 July, 2019
Bench: Sureshwar Thakur, Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr. Appeal No. 269 of 2012 Judgment reserved on : 13.6.2019 Date of Decision : July 5 , 2019 State of Himachal Pradesh ...Appellant.
Versus
Sandeep Kumar & another
r ...Respondents.
Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge. The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 For the appellant : Mr. Hemant Vaid & Mr. Desh Raj Thakur, Addl. AGs with Mr. Yudhvir Singh Thakur & Mr. Vikrant Chadel, Dy. AGs, for the appellant-State.
For the respondent : Mr. Ajay Chandel, Advocate, for respondents No. 1 and 2.
Per: Anoop Chitkara, Judge.
I have the privilege to go through the judgment authored by me Senior Colleague. I have also gone through the complete record of the case as well as the impugned judgment of acquittal passed by the Special Judge, FTC, 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 29/09/2019 00:24:50 :::HCHP 2Kullu, Himachal Pradesh. I say with utmost respect that towards him, I have arrived at an opposite finding. With due .
reverence, I do not agree with the reasoning, therefore, I am under a legal obligation to write my separate judgment.
2. The present appeal has been filed by the State of Himachal Pradesh under Section 378 of the Code of Criminal Procedure, assailing the judgment of acquittal dated 17.8.2011, passed by the Special Judge, FTC, Kullu, Himachal Pradesh, in Sessions Trial No. 20 of 2009, titled as State of Himachal Pradesh vs. Sandeep Kumar & another, whereby the trial Court has dismissed the prosecution case and acquitted both the accused of the offences punishable under Section 20 read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the "NDPS Act").
3. The gist of the evidence apposite to arrive at a just conclusion is as follows :
(a) A police party, headed by ASI Inder Singh (PW-2) and comprised of HHC Ajay Kumar (not examined), HHC Hem Raj (PW-1), L/c Saroj Kumari (not examined) and HHC Roop Lal (not examined) of Police Station Banjaar, ::: Downloaded on - 29/09/2019 00:24:50 :::HCHP 3 departed on 14.2.2008 at 12.30 noon towards Fagu Pul, Manglore etc. .
(b) Further, the case of the prosecution as revealed from the seizure memo (Ext. PW-
1/D) wherein it is mentioned that when the police party was present at Fagu Pul then around 3.45 p.m., when they set up a naaka for checking the vehicles for traffic violations, a scooter bearing No. PB07E 1991 came.
(c) On the scooter, apart from the driver, there was also a pillion rider. Police party asked the driver of the scooter to produce the documents of the scooter for the purpose of checking. To take out the documents of the scooter, the driver of the scooter opened the dickey of the scooter with keys.
(d) When the driver of the scooter took out the documents of the scooter from the dickey, then police noticed one plastic carry-
bag of pink colour.
(e) The police party asked the driver of the scooter to show the contents of the said carry bag and on checking the same, charas in the shape of billets was found.
(f) Upon this, both the persons were inquired about their identity. The driver of the scooter revealed his name as Sandeep Kumar ::: Downloaded on - 29/09/2019 00:24:50 :::HCHP 4 (Accused A-1) and the pillion rider told his name as Ashok Kumar (Accused A-2).
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(g) Further the case of the prosecution is that the said charas was weighed, with scale which the police party was carrying and on weighment it was found to be 500 grams.
(h) Police took out two samples of 25 grams each for chemical examination and sealed the samples in separate cloth parcels. The remaining bulk charas was placed back in the same polythene bag, which was thereafter kept in a cloth parcel and all the parcels were sealed with six seals of seal impression-T.
(i) Police conducted further investigation and filled up the NCB form (Ext. PW-2/A), in triplicate, and embossed impression of Seal -T on the same.
(j) Separate specimen seal was also obtained on a separate piece of cloth (Ext. PW-
1/A) and after sealing, the seal was handed over to HHC Hem Raj (PW-1).
(k) The scooter alongwith the documents was also taken into possession.
(l) After completion of the seizure, the Investigating Officer HHC Inder Singh (PW-2) recorded ruka (Ext. PW-2/B) and sent the same to SHO Police Station Banjar, through HHC Hem Raj (PW-1), for registration of the FIR.
::: Downloaded on - 29/09/2019 00:24:50 :::HCHP 5(m) As per ruka (Ext. PW2/B) the distance of the police station from the spot is mentioned .
as 6 kilometers.
(n) During further investigation the Investigating Officer prepared spot map (Ext.
PW-2/C).
(o) ASI Hari Singh (PW-6) received the ruka from HHC Hem Raj (PW-1) on the same day and recorded FIR No. 15/2008 (Ext. PW- 6/A) under Sections 20 & 29 of the NDPS Act.
(p) Later on the Investigating Officer (PW-
2) deposited the case property, sealed with six seal impressions of Seal -T, sample seal-T and three copies of NCB form along with the scooter and its keys with ASI Hari Singh (PW-6) and necessary entries to this effect were incorporated in the maalkhana register, which was exhibited as Ext. PW-6/B.
(q) The SHO complied with the provisions of Section 57 of the NDPS Act vide Special Report (Ext. PW-2/F) and entry to the said effect was made in the register (Ext. PW-4/A).
(r) According to ASI Hari Singh (PW-6) on 16.2.2008, he directed Constable Puran Chand (PW-3) vide Road Certificate (Ext. PW-6/C), to take the sample to SFSL Junga.
(s) The SFSL Junga vide report (Ext. PW- 2/G), which is per se admissible under Section ::: Downloaded on - 29/09/2019 00:24:50 :::HCHP 6 293 Cr.P.C., after performing the requisite test opined that the contraband was charas.
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(t) Entries regarding receiving back of the case property from SFSL Junga were also made on 17.3.2018 in the maalkhana register (Ext. PW-6/B).
(u) After completion of investigation police report under Section 173 Cr.P.C. was filed in the Court and the case was sent for trial
4. The trial Court framed charges against both the accused for possessing 500 grams of charas, to which they did not plead guilty and claimed trial.
5. After the completion of the prosecution evidence, the learned Special Judge put to the accused the incriminating circumstances appearing against them as per the requirement of Section 313 Cr.P.C. The accused have taken the defence of denial simplicitor and examined two witnesses in defence. The accused did not file any oral arguments or memo of arguments as contemplated under Section 314 Cr.P.C.
::: Downloaded on - 29/09/2019 00:24:50 :::HCHP 76. Trial Court acquitted both the accused for the reason that prosecution could not prove its case, beyond .
reasonable doubt. Hence the present appeal by the State.
7. After careful appreciation of the entire evidence, application of law and judicial precedents, my reasoning is as follows:
8. A bare perusal of daily diary entry No. 18 dated 14.2.2008 (Ext.PW-6/D) reveals that there is no mention that when the police party had gone for patrolling, they were also carrying the investigation kit.
9. Prosecution examined two of the spot witnesses namely HHC Hem Raj (PW-1) and Investigating Officer ASI Inder Singh (PW-2). The other witnesses were examined to prove the link and compliance of other provisions of the NDPS Act. Reference to these witnesses may not be relevant to arrive at any findings. The entire case of the prosecution hinges on the credibility of the spot witnesses, HHC Hem Raj (PW-1) and ASI Inder Singh (PW-2).
10. The defence examined two witnesses. Ashok Kumar (DW-1) testified that on 14.2.2008 he was going to house of one Narotam Dass. At about 3.45 p.m. he noticed both the ::: Downloaded on - 29/09/2019 00:24:50 :::HCHP 8 accused with the police at some distance from Banjaar. He got down from the bus to inquire from them. Thereafter .
they revealed that they were not having any documents and police took them to police station Banjaar leaving the scooter on the spot. This statement on the face of it is false and concocted. The accused are residents of Punjab. He would come out for saving them only if there was some close relationship between them. No such facts were proved. Therefore, no reliance can be placed on this witness.
11. Defence also examined Ashwani Kumar (DW-2) resident of Hoshiarpur. He belongs to the area to which area the accused appear to belong. He testified that on 14.2.2008, he and his friend had come to Kullu alongwith the accused and they had gone to Jalori Pass and Nagan Talav. He further testified that both the accused were on scooter whereas, he along with his friend Vishal was on motorcycle. He stated that when they reached Banjaar they noticed that scooter on which the accused persons were riding had not come so he waited for them for half an hour. Then he alongwith his friend came towards Jalori side.
::: Downloaded on - 29/09/2019 00:24:50 :::HCHP 9He noticed that the police had stopped the accused and were inquiring from them. Even this witness has been .
falsely introduced because had there been an iota of truth in his testimony then in the normal course of things, these people would have complaint to the higher authorities and took at least some steps to rescue their friends from been falsely implicated. Their inaction in making any efforts to save their friends, show that these are not trustworthy witnesses. No reliance can be placed on their testimonies.
12. Case of the prosecution suffers from two material defects. Firstly, the daily diary entry No. 18 dated 14.2.2008 (Ext.PW-6/D) reveals that there is no mention that when the police party had gone for patrolling they were also carrying the investigation kit. In the absence of the earliest evidence of the police party carrying weights and scale, it would be doubtful to believe the version of the police. Law is very well settled that the burden is always upon the prosecution to prove its case and it shifts to the accused under Sections 35 and 54 of the NDPS Act only when the prosecution has discharged its initial burden.
::: Downloaded on - 29/09/2019 00:24:50 :::HCHP 1013. Secondly, in the seizure memo (Ext. PW1/D), ruka (Ext. PW-2/B), special report (Ext. PW-2/F) and FIR (Ext. PW-
.
6/A) there is no mention that the police party made any efforts, worth the name, to associate any independent witness. Time of incident was 3.45 p.m. It has come in the statement of HHC Hem Raj (PW-1) that prior to the checking of the scooter, two motorcycles and one car had crossed. He also admitted that people take out sand from the river bank. It is the case of the prosecution, as also revealed from the spot map, that the search was made on the bridge above river Tirthan.
14. The Investigating Officer ASI Inder Singh (PW-2) in his cross examination stated that no independent witness was present and therefore none was associated. He did not say that he made any efforts to associate any independent witness. In his cross examination he admitted that there is a house which is located at a distance of 200mts from the spot. He admitted of a village on the Thatibeer Road at a distance of 700 mts. from the spot. He further admitted that after half an hour of stopping of the scooter, one vehicle had crossed but it was also not stopped.
::: Downloaded on - 29/09/2019 00:24:50 :::HCHP 1115. The Supreme Court in Krishan Chand vs. State of Himachal Pradesh, (2018) 1 SCC 222 holds that:
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"21. From the evidence which has come on record, it is quite clear that the place, where the accused is alleged to have been apprehended, cannot be said to be an isolated one as the house of Govind Singh DW-
2 is situated on the edge of Patarna Bridge. Thus the version of the complainant PW-6 that independent witnesses could not be associated as it was an isolated place does not inspire confidence. Moreover, from the evidence of Govind Singh PW-2 the case of the prosecution regarding apprehension of the accused, at Patarna bridge, while being in possession of bag containing 7 kgs of charas, becomes highly doubtful because had he been so apprehended, by the police, this fact was to come to his notice, for the reason, that his house is situated at the edge of the bridge in which he resides, along with his family."
16. Regarding availability of weights with the police team, the Investigating Officer (PW-2) was cross examined by the learned defence counsel and he stated that he was carrying the weights with him. No question was put to him ::: Downloaded on - 29/09/2019 00:24:50 :::HCHP 12 that he was not carrying any investigation kit. Absence of cross examination would not mean that the prosecution is .
discharged of its initial burden to prove its case beyond reasonable doubt.
17. It is well settled by the Constitution Bench of the Supreme Court in Amba Lal vs. Union of India & others, AIR 1961 SC 264 wherein the Supreme Court holds as under:
"2. The facts giving rise to this appeal may be briefly stated. The appellant is at present a resident of Barmer in the State of Rajasthan. But before 1947 he was living in a place which is now in Pakistan. On June 22, 1951, the Deputy Superintendent, Land Customs Station, Barmer, conducted a search of the appellants house and recovered therefrom the following ten articles..."... ...
"5. This Court has held that a customs officer is not a judicial tribunal and that a proceeding before him is not a prosecution. But it cannot be denied that the relevant provisions of the Sea Customs Act and the Land Customs Act are penal in character. The appropriate customs authority is empowered to make an inquiry in respect of an offence alleged to have been committed by a person under the said Acts summon and examine witnesses, decide whether an offence is committed, make an order of confiscation of the goods in respect of which the offence is committed ::: Downloaded on - 29/09/2019 00:24:50 :::HCHP 13 and impose penalty on the person concerned, see Ss. 168 and 171A of the Sea Customs Act and Ss. 5 and 7 of the Land Customs Act. To such a situation, .
thought the provisions of the Code of Criminal Procedure or the Evidence Act may not apply except in so far as they are statutorily made applicable, the fundamental principles of criminal jurisprudence and of natural justice must necessarily apply. If so, the burden of proof is on the customs authorities and they have to bring home the guilt to the person alleged to have committed a particular offence under the said Acts by adducing satisfactory evidence."... ...
The Constitutional Bench considered the application of the Sea Customs Act and the Land Customs Act vis-a-vis Section 106 of Indian Evidence Act by holding as under:
"8 ... ...Section 106 of the Evidence Act in terms does not apply to a proceeding under the said Acts. But it may be assumed that the principle underlying the said section is of universal application. Under that section when any fact is especially within the knowledge of any person the burden of proving that fact is upon him. This Court in Shambhu Nath Mehra v. State of Ajmer, 1956 SCR 199 (AIR 1956 SC 404) considering the earlier Privy Council decisions on the interpretation of S. ::: Downloaded on - 29/09/2019 00:24:50 :::HCHP 14 106 of the Evidence Act, observed at p. 204 (of SCR) thus :
"The section cannot be used to undermine the .
well-established rule of law that, save in a very exceptional class of case, the burden is on the prosecution and never shifts."
If S. 106 of the Evidence Act is applied, then, by analogy, the fundamental principles of criminal jurisprudence must equally be invoked."... ...
18. As far as the case against the pillion rider Ashok Kumar (Accused A-2) is concerned he has been implicated with the aid of Section 29 of the NDPS Act. The case of the prosecution is that the alleged charas was in the dickey of the scooter which was locked. Further case of the prosecution is that the dickey was opened by the driver of the scooter, Sandeep Kumar (Accused A-1). Now how can the knowledge of the contraband in the dickey of the scooter be attributed to the pillion rider (Accused A-2).
19. In Mahant Bal Giri & another vs. State of H.P., 2008 Cri. L. J. 2648, the Division Bench of this Court was dealing with a case where three persons were sitting in a car and police had detected charas in the bonnet of the same. Trial Court had convicted all the three accused for ::: Downloaded on - 29/09/2019 00:24:50 :::HCHP 15 possessing charas. The Division Bench set aside the conviction holding as under:
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"13. It is an admitted fact that the car in question was being driven by Mangat Ram and the appellants were its occupants and PW 7 Gurdayal Singh Inspector had laid a Nakka on Sultanpur near Oachghat and this car was stopped. He was accompanied by the police officials Mohan Lal, Devender Kumar, Purshottam Kumar, HHG Suresh Kumar. He has further stated that he asked Mangat Ram, driver, to raise the bonnet in order to verify the engine and Chassis numbers with those mentioned in the registration certificate. On lifting the bonnet, said Inspector noticed a plastic bag containing 1 kg. 400 grams. Charas kept concealed near the battery. He took samples as aforesaid. PW 2 Mohan Lal Constable, who was accompanying Gurdayal Singh (PW 7) has corroborated his version regarding the recovery, hereas, Narinder Sharma did not support the prosecution. Though he had resiled from his earlier version recorded under Section 161 of the Code of Criminal Procedure yet regarding recovery he affords corroboration, the presence of the appellants and their car on the spot in the presence of police is not denied. He has also stated that the police had informed him of the recovery of Charas from the appellants and police obtained his signatures on each of the parcels.::: Downloaded on - 29/09/2019 00:24:50 :::HCHP 16
14. Thus there is no ground to dispute the above statements of the witnesses to the extent of recovery from the engine portion of the car.
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15. Now the question is whether the appellants Mahant Balgiri and Chander Phool can be attributed its actual and conscious possession. Our answer is "No" because Mangat Ram appellant was the driver. He was having the keys of the car and was in actual control of the vehicle. The car was not owned by any of the above occupants. None of the articles, of the said appellants, were found in the poly-bag recovered from the engine portion of the car to connect them with the recovered stuff. They had no domain over the site from where the recovery was made. Therefore, no knowledge can be attributed to any of them. Even there is no allegation or evidence of conspiracy against them. Since they were travelling with the appellant Mangat Ram, in the car will not make them liable, in the aforesaid facts and circumstances of the case.
16. The reliance put by the learned trial Court on Madan Lai's case (2003 Cri LJ 3868) is absolutely misplaced. The facts of the case in hand were juxtaposed to that of Madan Lai's case (supra). In that case the Charas was recovered from a steel doloo kept in a plastic bag kept on the seat of the cabin in the car in which all the five accused were travelling. It was against this factual backdrop, the apex Court held that the accused were aware of it ::: Downloaded on - 29/09/2019 00:24:50 :::HCHP 17 and it constituted conscious possession. But in the instant case, the facts do not spell out that the aforesaid appellants were aware of the said article .
kept in the engine portion of the car, in which they were travelling.
17. Unless the possession is coupled with the requisite mental element i.e. conscious possession and not mere the custody without awareness of the nature of such possession, Section 20 of the Act is not at all attracted.
18. As already stated above, in the instant case, the said appellants had no power and control over the article in question, therefore, we can also not press into service either Sections 35 and 54 of the Act to draw the statutory presumption even. The findings of the learned trial Court holding the appellants, who were passengers in the car, guilty are wrong, therefore, it deserves to be set aside as they are entitled to the benefit of a reasonable doubt on the strength of the above evidence."
20. Having perused the testimony of the prosecution witnesses on record it cannot be said that prosecution has been able to prove its case, beyond reasonable doubt, by leading clear, cogent, convincing and reliable material on record to the effect that both the accused persons conspired with each other to transport 500 grams of charas in a ::: Downloaded on - 29/09/2019 00:24:50 :::HCHP 18 scooter bearing No. PB07E 1991 in contravention of the provisions of the NDPS Act.
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21. Resultantly, even if the learned Special Judge gave slightly different reasons in the judgment of acquittal, it does not mean that this Court is barred from discussing the other evidence from the record or not to consider the entire material in a holistic manner. Result would remain the same and the accused were rightly acquitted.
The Court below, in my considered view, has
22. correctly appreciated the evidence so placed on record by the prosecution. It cannot be said that the judgment of trial Court is perverse, illegal, erroneous or based on incorrect and incomplete appreciation of material on record resulting into miscarriage of justice and, as such, no interference is warranted in the instant case.
23. Resultantly, present appeal filed by the State is dismissed. Bail bonds, if any, furnished by the accused are discharged.
(Anoop Chitkara), Judge.
July 5 , 2019 (PK) ::: Downloaded on - 29/09/2019 00:24:50 :::HCHP