Himachal Pradesh High Court
State Of Himachal Pradesh vs Abdul Latif And Another on 29 November, 2018
Bench: Surya Kant, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Criminal Appeal No. 159 of 2012.
Reserved on 14.11.2018 Decided on: 29.11.2018 State of Himachal Pradesh ....Appellant.
Versus Abdul Latif and another ......Respondents.
Coram
r to
The Hon'ble Mr. Justice Surya Kant, Chief Justice.
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting? Yes.
For the appellant: Mr.Ashok Sharma, Advocate General with M/s Ranjan Sharma, Ashwani Sharma, and Nand Lal Thakur, Additional Advocate Generals.
For the respondents: Mr. Anoop Chitkara, Advocate with Ms. Shreya Chauhan, Advocate, for respondent No.1.
Mr. Ajay Sharma, Advocate, for respondent No.2.
Surya Kant, Chief Justice.
This Criminal Appeal has been preferred by the State of Himachal Pradesh assailing the order dated ::: Downloaded on - 01/01/2009 08:06:58 :::HCHP 2 21.12.2011 passed by learned Special Judge, Chamba whereby the respondents have been acquitted in a case .
registered under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act'), arising out of FIR No.166/10 dated 26.06.2010 Police Station Sadar Chamba, Himachal Pradesh.
2. to The brief facts of the case are that the raiding party comprising HC Kartar Singh, HC Varinder Singh, HHC Surinder Kumar and Constable Mohammad Aslam headed by ASI Naseeb Singh left for Nakabandi towards Koti and Kandla from the Special Investigation Unit on 26.06.2010 in a private vehicle and a private motor cycle vide Rapat No. 5 Ext.PW6/A and laid naka on the road, one and a half kilometers before Kandla. At about 3.30 pm, three persons were seen walking over a pagdandi crossing the BairaSiul river. On seeing the police party, they turned back and started running on the pagdandi following each other and were chased by the police party. ASI Naseeb ::: Downloaded on - 01/01/2009 08:06:58 :::HCHP 3 Singh and HC Kartar Singh could overpower respondent No.1 (Abdul Latif) along with his khaki coloured bag which .
he was carrying on his back but the other two persons managed to flee towards the river side after throwing their bags on the way. They were chased by HC Varinder Singh, HHC Surinder Kumar and Constable Mohammad Aslam but could not be apprehended. The blue and khaki coloured bags thrown by those two persons were, however, taken into possession. The first respondent (Abdul Latif) disclosed that the blue coloured bag and the khaki coloured bags were left behind by Tek Chand (respondent No.2) and Kumar Singh respectively.
3. Suspecting that the bags might be containing some narcotic substance, ASI Naseeb Singh informed the first respondent that he had a legal right to be searched before the Magistrate or a Gazetted Officer but the latter, vide his own writing Ext.PW1/A consented to be searched by the Police at the spot. The police party checked all the three bags and found two polythene envelopes in the bag of ::: Downloaded on - 01/01/2009 08:06:58 :::HCHP 4 respondent No.1, having black coloured hard substance in the shape of sticks, which on examination viz. smelling, .
burning and experience was found to be charas and weighed 6 kilo 500 grams. The recovered charas was put back in the same envelopes, same bag and parceled in a piece of cloth and sealed with four seals of seal impression 'V' and taken
4. to into possession vide memo Ext.PW1/C. The same procedure was followed for checking the blue and khaki coloured bags thrown by respondent No.2 (Tek Chand) and one Kumar Singh and it was found that their bags too contained charas weighing 6 kilo & 500 grams and 2 kilo & 800 grams, respectively. The substance recovered from these two bags was also sealed, following exactly the same procedure as was in the case of the substance recovered from respondent No.1 and the sealed bags were taken into possession vide memos Ext.PW1/D and Ext.PW10/A, respectively.
5. ASI Naseeb Singh thereafter filled NCB forms in triplicate qua recovery of charas belonging to all the ::: Downloaded on - 01/01/2009 08:06:58 :::HCHP 5 accused, took specimen of seal 'V' on a piece of cloth and handed over seal 'V', after its use, to HC Varinder Singh. A .
copy of the seizure memo qua the charas recovered from him was given to respondent No.1. Ruqa Ext.PW10/B was prepared and sent through Constable Mohammad Aslam to Police Station, Chamba for registration of the case. Its copy was sent to Superintendent of Police, Chamba also through the same constable; the spot was inspected and site plan Ext.PW10/C was prepared. The statements of witnesses at the spot were also recorded. Respondent No.1 was arrested and reasons for arrest were communicated to him. After completing other statutory formalities, the raiding police party reached Police Station Sadar, Chamba at 9.00 pm where all the three parcels along with NCB forms etc. were produced before SHOASI Joginder Singh, who deposited the parcels and other documents with MHC.
6. Accused Kumar Singh @ Ghindro remained absconder till completion of investigation, hence respondent Nos.1 & 2 were sent to face the trial. Since a prima facie ::: Downloaded on - 01/01/2009 08:06:58 :::HCHP 6 case for the offence punishable under Section 20 of the NDPS Act was made out, charges were framed to which the .
respondents pleaded not guilty and claimed trial.
7. The prosecution examined as many as 11 witnesses, all comprising members of the raiding police party, including ASI Naseeb Singh (PW10) as well as other official witnesses. No independent witness was cited or examined by the prosecution.
8. The respondents in their statements under Section 313 of the Code of Criminal Procedure (hereinafter referred to as the Cr.P.C) alleged their false implication at the instance of HC Kartar Singh, who was statedly inimical to them and had a property dispute with respondent No.2.
The respondents also examined 4 witnesses in defence.
9. The learned Special Judge thus was required to find out as to whether it was proved beyond any reasonable doubt that on 26.06.2010 at about 3.30 pm both the respondentsaccused were found in conscious possession of 6 ::: Downloaded on - 01/01/2009 08:06:58 :::HCHP 7 kilo and 500 grams of charas each near Kandla without any permit or licence?
.
10. Learned Special Judge vide judgment under appeal dated 21.12.2011 found various material lacunas in the prosecution case and has come to a firm conclusion that the respondents were entitled to the benefit of doubt for the reasons including (i) all the witnesses examined by the prosecution are police officials and no effort was made to associate any independent witness despite the fact that the police had sufficient time to do so; (ii) the raiding police party had apparently prior information that is why it went to the spot and laid a naka therefore, also it could conveniently associate some independent witnesses; (iii) there were material contradictions in the testimonies of eye witnesses HC Varinder Singh (PW1), HHC Surinder Kumar (PW2) and Constable Mohammad Aslam (PW4); (iv) the place of occurrence is near Village Kandla where admittedly there are a number of shops. Similarly, the police party has admitted that they took tea at Pukhri which is also very ::: Downloaded on - 01/01/2009 08:06:58 :::HCHP 8 close to the place of occurrence and there are shops in Pukhri as well and hence some independent witness could .
have been easily associated; (v) the entire recovery and other proceedings regarding search and seizure were conducted by ASI Naseeb Singh (PW10). He was the principal complainant and also the Investigating Officer who recorded statements under Section 161 of the Cr.P.C and carried the investigation till the end; (vi) ASI Joginder Singh (PW8) has not deposed that before resealing the case property he had properly verified the same; (vii) there is also no evidence that ASI Joginder Singh was officiating as SHO on that day because admittedly Kailash Walia was the SHO;
(viii) respondent No.2 (Tek Chand) has been concededly implicated on the basis of confessional statement made by respondent No.1 (Abdul Latif) and in the absence of any corroborating evidence, such confession cannot be relied upon; and (ix) the defence evidence led by the respondents carries some weightage as it establishes that neither respondent No.1 (Abdul Latif) was apprehended at the spot ::: Downloaded on - 01/01/2009 08:06:58 :::HCHP 9 nor any naka was laid by the police. The defence evidence thus causes serious dent in the prosecution case.
.
11. It was vehemently urged on behalf of the appellantState that the learned Special Court has taken a hypertechnical view to brush aside the prosecution version since the law does not discard an eye witness account merely because the witnesses were police officials. It was urged that the police party made its best efforts to associate independent witnesses but no one came forward, therefore the testimony of prosecution witnesses ought not to have been disbelieved. It was then argued that in the absence of any proof of enmity between H.C. Kartar Singh and respondent No.2, the learned Special Judge should not have placed too much reliance on the defence evidence.
Statement of PW10 ASI Naseeb Singh having been duly corroborated by the statements of PW1, PW2 and PW4, there was no rhyme or reason for the learned Special Judge not to hold the respondents guilty. It was then contended that the recovery of such a heavy quantity of narcotic ::: Downloaded on - 01/01/2009 08:06:58 :::HCHP 10 substance from the respondents or their coaccused outrightly belies the very plea of their false implication. It .
was then contended that some infirmities in the statements of the eye witnesses ought not to have weighed heavily in the mind of learned Trial Court, as the witnesses are not expected to depose a tutored version and that too after a gap of considerable long period. Lastly, it was contended that Section 55 of the NDPS Act is directory in nature and not mandatory therefore also, its noncompliance per se is not a valid ground to acquit the respondents.
12. Contrarily, learned counsel for the respondents laid much emphasis on the point that there are material contradictions in the prosecution account as there is no satisfactory explanation as to why an independent witness could not be associated. While PW1 HC Varinder Singh has deposed that "no vehicle had passed through the road till we laid the naka", ASI Naseeb Singh (PW10) had claimed that ".... the road on which we laid naka there is heavy rush of vehicles. We remained at the spot for 1015 minutes. During ::: Downloaded on - 01/01/2009 08:06:58 :::HCHP 11 this period, no person or vehicle was checked". It was pointed out that there is serious inconsistency in the deposition of .
ASI Naseeb Singh (PW10) as to when were the accused seen after setting up the naka, for HC Varinder Singh (PW1) has deposed that the accused reached at the road as soon as the naka was laid whereas the other two witnesses have deposed that they reached at the spot after 1015 minutes after laying the naka. Learned counsel also urged that the spot of occurrence is totally imaginary inasmuch as it was a very narrow pagdandi and had the accused persons actually been chased there, they would have thrown the bags downhill into the river and even if they had thrown the bags on the pagdandi, still the bags would have gone down the hill. It was argued that as the Investigating Officer wanted to foist a false case, he neither associated any independent witness nor made any attempt to do so. A detailed reference to the statements of ASI Naseeb Singh and his police associates was made to substantiate this plea. Learned counsel urged that the seal was not produced in Court and ::: Downloaded on - 01/01/2009 08:06:58 :::HCHP 12 unless prosecution proves the fact of the seal being handed over to someone from whom it could not be obtained, it is .
unsafe to presume that the sealed case property reached the FSL untampered. It was also argued that as and when the police party was to proceed to conduct an official act, they were expected to use official vehicles or claim travelling expenditure from the public exchequer. In this case, it has come on record that the personal Car of HC Kartar Singh (with whom respondent No.2 had a property dispute, they being neighbours) and Motor Cycle of one Constable Mohammad Aslam were used. No evidence was led by prosecution to prove that they were permitted to take private vehicles in a routine check up . It was vehemently argued that the complainant, ASI Naseeb Singh himself investigated the case thereby causing serious prejudice to the accused.
13. Having heard learned counsel for the parties and after going through the record, we do not find any merit in this appeal. We say so for the reasons that the explanation ::: Downloaded on - 01/01/2009 08:06:58 :::HCHP 13 given by prosecution for not associating any independent witness at the time of search and seizure of the accused does .
not inspire the desired confidence. There is overwhelming evidence to suggest that the naka was not laid at an isolated place. There were several shops in Kandla as well as in village Pukhri which are close to the place of naka. It has also been admitted by PW1, PW4 and PW10 that the road where naka was laid, was busy with vehicular traffic. The police party thus had ample opportunity to associate an independent witness but it failed to do so. It is true that testimony of official witnesses is not to be rejected only on the ground of noncorroboration by independent evidence but here is the case where the testimony of official witnesses is full of material contradictions in respect of (i) whether vehicles crossed from the spot where naka was laid or was it an isolated place?; (ii) whether the accused were nabbed immediately after laying the naka or they came after 1015 minutes?; (iii) what was the distance from one to another ::: Downloaded on - 01/01/2009 08:06:58 :::HCHP 14 while the accused were walking?; and (iv) why the seal impression 'V' was not produced in court? etc. etc. .
14. Secondly, when the complainant a police official himself assumed the role of investigator, there is every likelihood of causing serious prejudice to the accused. Such an Investigating Officer obviously would, even if no case is made out, never submit a cancellation report and will make all out efforts to incriminate the suspects in his report under Section 173 of the Cr.P.C.
15. The principles enunciated by Hon'ble Supreme Court in a recent decision rendered in Mohan Lal vs. State of Punjab [Crl. Appeal No.1880 of 2011 decided on August 16, 2018] reported in 2018 (9) Scale 663 are squarely applicable to the facts and circumstances of the case in hand. In the cited decision, the Supreme Court approved the view of this Court taken in State of Himachal Pradesh vs. Atul Sharma reported in (2015) 2 Shim. LC 693, and has held as follows:
::: Downloaded on - 01/01/2009 08:06:58 :::HCHP 15"14. In a criminal prosecution, there is an obligation cast on the investigator not only to be fair, judicious and just during investigation, but also that the .
investigation on the very face of it must appear to be so, eschewing any conduct or impression which may give rise to a real and genuine apprehension in the mind of an accused and not mere fanciful, that the investigation was not fair. In the circumstances, if an informant police official in a criminal prosecution, especially when carrying a reverse burden of proof, makes the allegations, is himself asked to investigate, serious doubts will naturally arise with regard to his fairness and impartiality. It is not necessary that bias must actually be proved. It would be illogical to presume and contrary to normal human conduct, that he would himself at the end of the investigation submit a closure report to conclude false implication with all its attendant consequences for the complainant himself.
The result of the investigation would therefore be a foregone conclusion."
16. Thirdly, and as noticed earlier, the prosecution version falls short of inspiring confidence especially when, in a case of such a heavy recovery of contraband also, it did not associate any independent witness regardless of the fact that the availability of such witnesses is undisputable. In a ::: Downloaded on - 01/01/2009 08:06:58 :::HCHP 16 case originating from this Court in Krishan Chand vs. State of Himachal Pradesh reported in (2018) 1 SCC .
222, rendered in a somewhat similar fact situation, Hon'ble Supreme Court has opined that:
"15. 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 DW2 is situated on the edge of Patarna bridge. Thus the version of the complainant PW6 that independent witnesses could not be associated as it was an isolated place does not inspire confidence. Moreover, from the evidence of Govind Singh PW2 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."
17. There is thus credence in the defence version to the limited extent that respondent No.2 (Tek Chand) had some dispute with HC Kartar Singh, who is his immediate ::: Downloaded on - 01/01/2009 08:06:58 :::HCHP 17 neighbour. The respondents, in the very first opportunity as well as through defence evidence, have been able to suggest .
that there existed some dispute, referred to above. The fact that the private vehicle of HC Kartar Singh was statedly used by the raiding party also raises strong suspicion on the credibility of prosecution story.
18. Still further, respondent No.2 (Tek Chand) has been implicated only on the basis of confessional statement of respondent No.1 (Abdul Latif). The prosecution evidence nowhere suggests that at the time when police party made unsuccessful attempt to apprehend respondent No.2, his face and features were seen by the alleged eye witnesses so as to believe their deposition that he is one of the same persons who ran away from the spot.
19. Taking into consideration the totality of the circumstances, it would be unsafe to hold the respondents guilty of committing the offence attributed to them.
20. Resultantly, the appeal fails and is accordingly dismissed. Bail bonds furnished by the respondents, if any, ::: Downloaded on - 01/01/2009 08:06:58 :::HCHP 18 stand discharged, if they are not required in any other criminal case. Send down the records forthwith.
.
(Surya Kant), Chief Justice (Ajay Mohan Goel) Judge November 29th, 2018.
(cm Thakur) ::: Downloaded on - 01/01/2009 08:06:58 :::HCHP