Himachal Pradesh High Court
Manmohan Sharma vs State Of H.P on 8 July, 2015
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr. Appeal No. 303 of 2014
Reserved on: 2.7.2015
Decided on : 8th July,2015
Manmohan Sharma .....Appellant.
Versus
State of H.P. .....Respondent.
Coram r
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Appellant: Mr. Vikas Rathore and Mr. Ajay Kochhar, Advocate.
For the Respondent: Mr. Ramesh Thakur, Assistant Advocate General.
_______________________________________________________ Sureshwar Thakur, Judge The instant appeal is directed against the judgment of 13.8.2014, rendered by the learned Special Judge(1) Una, District Una, H.P., in Sessions Case No. 17/2013, whereby, the learned trial Court convicted and sentenced the accused/appellant to undergo rigorous imprisonment for a period of 12 years and to pay a fine in 1 Whether reporters of the local papers may be allowed to see the judgment?
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a sum of Rs.1,00,000/- (One Lac) and in default of payment of fine .
to further undergo simple imprisonment for a period of two years for commission of offence under Section 21(c) of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the NDPS Act").
2. The facts, in brief are that, on 10.8.2013, SI Krishan Lal Beri alongwith other police officials were present at Una-Mehatpur Road near Railwany Bridge, Shani Mandir at about 8.15 a.m. and laid a Nakka for conducting traffic checking. At about 10.30 a.m. one motorcycle, black in colour, having registration No. HP-20D-
8788 came from Mehatpur side having bags on both handles of the motorcycle. SI Sanjay stopped the motorcycle and asked about the antecedents of the motorcyclist, who disclosed his name to be Manmohan Sharma. The police checked the bags aforesaid and found medicines/drugs/injections in the bags. SI Sanjay then asked the motorcyclist about the documents/licence relating to those medicines/drugs/injections. However, the accused could not produce any documents. Thereafter, rukka was prepared by SI Krishan Lal Beri and handed over the same to C Rajat Kumar with ::: Downloaded on - 15/04/2017 18:31:59 :::HCHP ...3...
direction to take the same to police Station. The police also .
prepared spot map. The IO called drug inspector on his mobile phone and narrated him the description of medicines and drugs recovered from the motorcyclist. The Drug Inspector told I.O that except for one or two medicines, rest of them are psychotropic substances and asked the IO to prepare separate samples of those drugs/psychotropic substance. Thereafter, the Investigating Officer prepared three parcels from the drugs recovered from the accused and sealed all three parcels with seal impression B. He also prepared sample of seals on pieces of clothes. NCB-1 form in triplicate was filled in by the IO. The I.O also took in to possession the motorcycle alongwith keys, drugs parcels and prepared seizure memo. He deposited all these articles in Malkhana. The IO moved an application to Drug Inspector on 13.8.2013 for verifying the facts as to whether the accused was having the licence to keep all these drugs and psychotropic substances or not and the drug inspector replied to all the queries of IO through a separate letter. Prior to that, the accused was arrested on 10.8.2013 and intimation of his arrest was given to his brother. The IO also sent special report to ::: Downloaded on - 15/04/2017 18:31:59 :::HCHP ...4...
S.P Una. On 12.8.2013 the medical store of the accused was .
searched in the presence of Drug Inspector, Pradhan and up-
Pradhan of Gram Pachayat, Arniala, however, no incriminating drug or psychotropic substance was found in the shop of the accused. The accused made a disclosure statement regarding a room/store taken on rent by him from one kasturi lal of village Bhadolian khurd, Una. Thereafter, police went to the house of Kasturi Lal alognwith the accused. On searching the room taken on rent by the accused, a huge quantity of Narcotic and Psychotropic drugs were recovered. All the drugs were put in one white plastic sack and four parcels. All the parcels were duly sealed with seal impression A. The parcels were taken in possession by the Police vide separate seizure memo. NCB-1 form was filled in by the IO.
Spot map was also prepared. Statements of witnesses were also recorded. The police has also obtained certificate from the owner of the room. The photographs of the rented room were also clicked with the help of one Rajat Kumar, photographer. The rented room was also video graphed by one police official with the help of his mobile. The compact disc of that video was also obtained. The ::: Downloaded on - 15/04/2017 18:31:59 :::HCHP ...5...
drugs and psychotropic substances kept in parcel were sent to FSL, .
Junga for chemical analysis. On conclusion of the investigation, into the offence, allegedly committed by the accused, final report under Section 173 of the Code of Criminal Procedure was prepared and presented in the Court.
3. The accused person was charged, for, his having committed offence punishable under Section 21(c) & 22 of the NDPS Act, by the learned trial Court, to, which he pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution examined 16 witnesses. On closure of the prosecution evidence, the statement of the accused, under Section 313 of the Code of Criminal Procedure, was recorded, in, which he pleaded innocence and claimed false implication. He chose to lead evidence in defence.
5. On appraisal of the evidence on record, the learned trial Court, returned findings of conviction against the accused/appellant.
6. The accused/appellant is aggrieved by the judgment of conviction, recorded by the learned trial Court. The learned counsel ::: Downloaded on - 15/04/2017 18:31:59 :::HCHP ...6...
appearing for the appellant/accused has concertedly, and, .
vigorously contended, that, the findings of conviction recorded by the learned trial Court, are, not based on a proper appreciation of evidence on record, rather, they are sequelled by gross mis-
appreciation of the material on record. Hence, he contends that the findings of conviction, be, reversed by this Court, in, exercise of its appellate jurisdiction, and, be replaced by the findings of acquittal.
7. On the other hand, the learned Assistant Advocate General, 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, hence, do not necessitate interference, and 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. PW-15 Krishan Lal Beri, the Investigating Officer deposes that on 10.8.2013 he alongwith SI Sanjay Kumar, HHC Raj Kumar, HHG Gurdeep Singh, was on patrol duty. He further deposes that at about 8.15 a.m. the police party reached Shani ::: Downloaded on - 15/04/2017 18:31:59 :::HCHP ...7...
Mandir near railway bridge and checked about 30 vehicles. At .
about 10.30 a.m. one motorcycle black in colour having registration No. HP-20D-8788 came from Mehatpur side having bags on both the handles was stopped and on checking the bags aforesaid, the same were found to be containing five types of medicines/drugs and injections kept in small boxes, syrup bottles, two types of injections and two types of drugs. SI Sanjay asked the accused about the documents for transporting the drugs. The accused could not produce any document. He continues to depose that thereafter he prepared rukka Ex. PW-10/A and handed over the same to C Rajat Kumar with a direction to take the same to the police station.
Spot map comprised in Ex. PW-15/A has been deposed by this witness to have been prepared by him. He deposes that thereafter he prepared three different parcels from the drugs recovered from the accused, out of which one was the representative sample of the drugs/psychotropic substances. Thereafter all the parcels aforesaid were sealed with three seals of seal impression B. He further deposes that he also prepared the sample seals on pieces of cloths.
NCB forms were filled in by him. The motor cycle alongwith key ::: Downloaded on - 15/04/2017 18:31:59 :::HCHP ...8...
and the contraband bags i.e. parcels Ex. P-2 & Ex. P-3 and .
representative parcels Ex. P-10 were taken into possession vide seizure memo Ex. PW-8/B and then handed over to MHC for depositing the same in the Malkhana. Thereafter, on permission having been accorded by the Court, the learned PP opened the parcels Ex. P-2, P-3 and P-10. He continues to depose that on opening the parcels, injections of Kavil Ex. PG-1 to PG 95, 25 injections of Avil Ext. PH-1 to Ex. PH 25, 18 bottles of Rexcof syrup Ex. PJ-1 to PJ-18, 9 Corex Syrup Ex. PK-1 to PK-9, 20 tablets of Nitrazepam Ex. Pl-1 to Ex. PL-20, 290 tablets of Alzolom Ex. PM-1 to PM-290, 780 tablets of spas Parvon Ex. PA-1 to Ex. PA-780, 1560 tablets Spasmo Proxyvon Plus Ex. PB-1 to PB-1560, 120 tablets of Spasmo Proxyvon Ex. PC-1 to Ex. PC-120, 120 tablets of Proxyvon Ex. PD-1 to Ex. PD-120, 190 tablets of Pantosec Ex. PE-1 to PW-190 and 360 injection of Norgesic Ex. PF-1 to PF-360, one strip each of Parvon Spas, Proxyvon, Spasmo Proxyvon Plus capsules and 10 injections of Norgesic, 10 tablets Pantosec, 5 injections of Kavil, 5 injection Avil, 2 bottles of Rexcof syrup, one bottle corex and 10 tablets of Alprazolam were found. All the drugs/injections found ::: Downloaded on - 15/04/2017 18:31:59 :::HCHP ...9...
in Ex. P-2, P-3 and P-10 were identified by this witness to be the .
same, which were found in the conscious and exclusive possession of the accused. He continues to depose that on 12.8.2013 the medical store of the accused was searched in the presence of Drug Inspector, Pradhan and Up-Pradhan of Gram Pachayat, Arniala, however no incriminating drug or psychotropic substance was found in the shop of the accused. The accused made a disclosure statement regarding a room/store taken on rent by him from one kasturi lal of village Bhadolian kurad, Una. Thereafter, police went to the house of Kasturi Lal alognwith the accused. He further deposes that on searching the room taken on rent by the accused, a huge quantity of Narcotic and Psychotropic drugs were found. All the drugs were put in one white plastic sack and four parcels. All the parcels were duly sealed with seal impression A. The parcels were taken in to possession by the Police vide separate seizure memo. He continuous to depose that the learned PP on permission having been accorded by the Court opened Ex. P-6, P-7 to P-9, in which Spasmoproxyvon capsules Ex. PA-1 to Ex. PA-15408 and 5000 capsules of Parvon spas Ex. PB-1 to Ex. PB-5000, 2784 capsules of ::: Downloaded on - 15/04/2017 18:31:59 :::HCHP ...10...
Proxyvon Ex. PC-1 to PC-2784, 2370 tablets of Anxinil Ex. PS-1 to .
Ex. PS-2370, 800 tablets of Momolit Ex. PK-1 to Ex. PK-800, 400 tablets of Micromlit Ex. PL-1 to Ex. PL-400, 540 injections of Norgesic Ex. PH-1 to Ex. PH-540 and 984 injections of Fortwin Ex.
PG-1 to Ex. PG-984 were kept. He continuous to depose that another parcel in which 32 bottles of Rexcof and 64 bottles of Exiplon were sealed has not been shown to him. He continues to depose that a rapat regarding loss of that parcel has been entered on 16.2.2014. He also deposes that NCB-1 form was filled in and spot map was also prepared by him. He further deposes that statement of witnesses were also recorded by him. In his cross-examination he stated it to be incorrect that the police party with the help of Drug Inspector tried to place those Narcotic Medicines in the shop of accused and when they failed to keep the alleged medicines in the shop of the accused, then they prepared a fake disclosure statement of accused and placed the drugs in the rented accommodation of the accused.
10. The other prosecution witnesses, in their depositions have deposed a version in square tandem to the ::: Downloaded on - 15/04/2017 18:31:59 :::HCHP ...11...
prosecution story, as referred to hereinabove by the Investigating .
Officer of the case.
11. Even though, the 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 till the consummate link comprised in the rendition of an opinion by the FSL on the specimen parcels sent to it for analysis, hence portraying proof of unbroken and un-severed links, in the entire chain of the circumstances, therefore it is argued that when the prosecution case stands established, it would be legally unwise for this court to acquit the accused. Besides, it is canvassed that 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.
12. The prosecution was required to prove the fact that the case property, as shown to PW-8 and identified by him on its production in court by the learned P.P, was linkable to the case property as recovered from the site of occurrence in the manner as ::: Downloaded on - 15/04/2017 18:31:59 :::HCHP ...12...
alleged by the prosecution. However, at the time of recording of .
his deposition, Ex. P-3 bore thirteen seals of Forensic Science Laboratory, nonetheless, the impression of other seals though existing on Ex.P-3 yet were not decipherable except one. With the permission of the Court, the learned PP opened the parcels for its being shown to PW-8. However, there is omission in the statement of the learned PP while his seeking permission of the Court to open it in court for its being shown to PW-8, it was received from an official who had on its retrieval from the Malkhana concerned transmitted it to the learned PP. Moreover, there is no evidence comprised in apposite entries recorded in the Malkhana concerned contemporaneous to its production in Court at the instance of the learned PP for its being shown to PW-8. Consequently, for omission on the part of learned PP while seeking the permission of the Court to open it for its being shown to PW-8 to state that it was received by him from the Malkhana concerned through a named official after its retrieval therefrom with an apposite contemporaneous entry therein, an apt conclusion which is to be formed is that the case property as shown to PW-8 is rendered ::: Downloaded on - 15/04/2017 18:31:59 :::HCHP ...13...
vulnerable to skepticism, in as much, as, it being not the case .
property as was recovered at the site of occurrence from the conscious and exclusive possession of the accused.
13. Besides the case property was also subsequently shown to PW-14 and PW-15. During the course of the recording of depositions of PW-14, Drug Inspector and PW-15, the Investigating Officer, the learned PP again sought the permission of the Court to open the sealed parcels for theirs being shown to PWs aforesaid for eliciting from them a testimony qua the fact whether it constituted the case property even during the stage of its production in the Court at the instance of learned PP. There is no communication to the Court by the learned PP that the case property as concerted to be shown to PWs aforesaid was received by him in Court from an official who had received it from the Malkhana Incharge after its retrieval by the latter from the Malkhana concerned nor also there is any communication by the learned PP at the time of his seeking the permission to open it, that an apposite entry was recorded in the Malkhana to portray that hence, it was retrieved from the Malkhana contemporaneous to its production in Court for its being shown to ::: Downloaded on - 15/04/2017 18:31:59 :::HCHP ...14...
PWs aforesaid at the instance of the learned PP. Consequently, .
omission on the part of the learned PP while producing the case property in Court to articulate the fact that it was received through an authorized official who had received it from the Malkhana Incharge after its retrieval from the police Malkhana, concerned with a contemporaneous entry in the Malkhana register, renders the factum of its constituting the case property to be vulnerable to skepticism. Obviously then, it cannot be construed to be the case property as was recovered at the site of occurrence from the purported, alleged, conscious and exclusive possession of the accused.
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 trial Court suffers from an infirmity as well as perversity. Consequently reinforcingly, it can be formidably concluded, that, the findings of the learned trial Court merit interference.
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15. In view of above discussion, the appeal is allowed and .
the impugned judgment of 13.8.2014, rendered by the learned Special Judge(I), Una, District Una, H.P, 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 warrant of the accused and send the same to the Superintendent of the jail concerned, in conformity with this judgment forthwith. Records be sent down forthwith.
(Rajiv Sharma)
Judge
8th July, 2015
(Sureshwar Thakur)
(priti) Judge
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