Himachal Pradesh High Court
Manish Kumar vs State Of H.P on 9 January, 2018
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH AT
SHIMLA
Cr. Appeal No. 562 of 2017
.
Decided on : 9.1.2018
Manish Kumar
...Appellant
Versus
State of H.P.
Coram
r to ...Respondents
___________________________________________
Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? yes
____________
For the appellant: Mr. Sudhir Thakur,
Advocate.
For the respondent : Mr. R.S. Thakur, Additional
Advocate General.
Sureshwar Thakur, Judge (oral)
The instant appeal stands directed by the accused/convict, against, the judgment rendered by the learned Special Judge-II, Chamba, upon, Sessions trial NDPS No. 24 of 2013, whereon, he returned findings of conviction, against, the accused/convict in respect of charges framed, under, Section 20 of the ND & PS Act AND consequently sentenced him, to, undergo two years' rigorous imprisonment AND to pay ::: Downloaded on - 12/01/2018 23:03:51 :::HCHP 2 a fine of Rs. 5,000/- and in default, he was sentenced to undergo simple imprisonment for two months.
2. The facts relevant to decide the instant case .
are that on 15.7.2013, at about 5:15 PM HC Virender Singh (PW-14) alongwith Const. Mohd. Aslam, C. Ravinder Kumar (PW-10), C. Sanjay Kumar along with IP bag, electronic scale, private vehicle bearing registeration No. HP 48 9246, Govt. Camera were present near Udaipur rain shelter in connection with Nakkabandi. At about 5:30 PM, one HRTC bus ensroute Chamba to Shimla bearing registration No. HP-73-1189 came from the side of Chamba. The bus was signalled to stop. HC Virender Singh and Co.
Mohd Aslam boarded the bus from rear door of the bus and C. Ravinder Kumar (PW-10) and C. Sanjay Kumar boarded the bus from the front door for checking the luggage and passengers of the bus. When HC Virender Singh boarded the bus from rear door, the accused was standing on the rear door of the bus having a Pithu bag on his back and he tried to hide the same underneath the seat. On his conduct, a suspicion was raised that the accused might be carrying some suspicious article with him. The accused was asked to 2 ::: Downloaded on - 12/01/2018 23:03:51 :::HCHP 3 step down from the bus alongwith Sandeep Kumar and Subhash Kumar. Thereafter the credential of the accused was asked. On which the accused disclosed .
his name as Manish Kumar. The accused was apprised that the police has suspicion that he might be carrying some suspicious article or contraband and his search is required to be taken. The accused was also apprised about his legal right to be searched in the presence of Magistrate or Gazetted Officer. The accused showed his willingness to give the search of accused before some senior office. To that effect, consent memo Ext. PW9/A was prepared, which was signed by accused and by HC Deepak and Subhash Kumar. HC Virender Singh (PW-14) telephonically informed the then S.P. Sh.B.M. Sharma about the apprehension and willingness of the accused to be searched before some senior officer. The then S.P. asked HC Virender Singh to keep the spot intact and told HC Virender Singh that he was coming to the spot. After some time, the then SP B.M. Sharma, came to the spot. Thereafter, the then S.P. directed HC Virender Singh to bring the accused and witnesses to the open space adjacent to the spot. Thereafter, the 3 ::: Downloaded on - 12/01/2018 23:03:51 :::HCHP 4 then SP, the police official present at the spot and the witnesses Subhash (PW-7) gave their personal search to the accused before taking the search of bag of .
accused. To that effect, memo Ext. PW9/B was prepared which was signed by HC Deepak. Sh.
Subhash and Sh. Sandeep. Thereafter, as per the direction ofl the then S.P. HC Virender Singh put the Pithu bag of the accused on the ground which was locked. They key of the lock was procured from the accused and the lock of the Pithu bag was opened. On opening the zip of the Pithu bag one white coloured polythene bag came out. On opening the white coloured polythene bag a black coloured hard substance in the shape of sticks and bundle of sticks came out. On checking the black coloured hard substance the same was found to be cannabis/charas.
Thereafter, the recovered cannabis/charas was weighed with the help of electronic scale and the same was found to be 450 grams. The recovered cannabis was put in the same polythene bag and the polythene bag was sealed in a white piece of cloth with five seal impressions of seal "V" HC Virender Singh filled the NCB forms in triplicate Ext. PW14/A and embossed 4 ::: Downloaded on - 12/01/2018 23:03:51 :::HCHP 5 the seal "V" on it. The sample seal Ext. PW3/A was drawn on the separate piece of cloth. The seal after use was handed over to HC Deepak Kumar. The second zip .
of the bag one black coloured jacket, half sleeves sweater, one check shirt, one red coloured inner, one brass Chilam and one bottle of perfume were found.
The above said article recovered from the second pocket of the Pithu bag was also put in another Pulinda. The photography of the spot was conducted by C. Mohd. Aslam. Thereafter, the Pulinda containing charas, the other Pulinda containing article recovered from the second pocket of Pithu bag of accused, the ticket of the accused were taken into possession vide recovery and seizure memo Et. PW9/C. The recovery and seizure memo Ext. PW9/C, the Pulinda containing charas, memo Ext. PW9/B, sample seal Ext. PW3/A were signed by HC Virender Singh, the then S.P. Sh.
B.M. Sharma, HC Deepak Kumar, Sandeep, Subhash and the accused. Thereafter, the then S.P. left the spot. HC Virender Singhh prepared the ruqua Ext.PW5/A and sent the same to P.S. Sadar Chamba through C. Ravinder Singh. The copy of ruqua Ext.
PW7/A was sent to S.P. Office Chamba for his 5 ::: Downloaded on - 12/01/2018 23:03:51 :::HCHP 6 information through C. Ravinder Singh. Thereafter, HC Virender Singh prepared the spot map Ext. PW14/C, as per the factual position. HC Virender Singh also .
recorded the statements of the witnesses on the spot.
He also recorded the statements of Shri Subnhash Ext. PW14/D. On the basis of ruka Et. PW5/A, Inspect Tilak Raj also made endorsement Ext PW5/C on rukka. HC Virender Singh also recorded the statement Ext. PW14/E of conductor of the HRTC bus Manohar Lal, as per his version. Thereafter, the HRTC bus was allowed to proceed from the spot. The accused was interrogated and thereafter arrested vide arrest memo Ext. PW14/F. The information of arrest was given to his relatives. Jamatalashi of the accused was conducted vide memo Ext. PW14/G. Rapat Ext.
PW14/J was entered. HC Virender Singh handed over the case property for resealing.Tilak Raj released the case property with seal impression "M" (five in numbers) on the parcel. Seal impression was taken separately on a piece of cloth Ext. PW5/D in the presence of C. Vikram. He also filled up the relevant columns of NCB forms in triplicate. The seal after use was handed over to PW Vikram Singh. After that 6 ::: Downloaded on - 12/01/2018 23:03:51 :::HCHP 7 parcel, NCB forms in triplicate, seal sample, copy of seizure memo were handed over to MHC Neeraj Kumar. Neeraj Kumar entered the aforesaid case .
property in the Mallkhana register at Sr. No. 652/13.
On the same day, HC Virender Singh deposited with MHC Neeraj Kumar, one cloth parcel said to be containing clothes and perfumes etc. alongwith the Jamatalashi articles of the accused which he entered in Malkhana register at Sr. No. 52/13 Ext. PW4/C. On 16.7.2013, the cloth parcel containing charas alongwith sample seal V and M, recovery memo, reseal memo, NCB forms in triplicate and a copy of FIR were sent to the FSL, Junga for chemical analysis through HHC Ramesh Kumar, vide RC No. 155 of 2013. On 17.7.2013, HC Virender Singh prepared the special report and sent the same to S.P. Office through C. Sunil Kumar. On 17.7.2013, the then SP, Chamba handed over a copy of special report to C. Rajesh Kumar. The Chemical Examiner on analysis of the Charas opined Ext. PX that the substance examined was extract of cannabis and sample of Charas and quantity of resin found therein was 22.46% w/w. After the receipt of the RFSL, report Ext. PX and on the 7 ::: Downloaded on - 12/01/2018 23:03:51 :::HCHP 8 completion of the investigation, HC Virender Singh, IO handed over the case file to SHO for preparation of the challan.
.
3. On conclusion of investigations, into the offences, allegedly committed by the accused, a report under Section 173 of the Code of Criminal Procedure was prepared and filed in the Court concerned.
4. The accused was charged by the learned trial Court, for, his committing offence(s) punishable under Section 20 of the ND & PS Act. In proof of the charge, the prosecution examined 16 witnesses. On conclusion of recording of prosecution evidence, the statement of the accused, under, Section 313 of the Code of Criminal Procedure, was, recorded by the trial Court, wherein the accused claimed innocence and pleaded false implication in the case. However, no defence evidence was led by the accused.
5. On an appraisal of evidence on record, the learned trial Court, recorded findings of conviction against the accused/appellant herein.
6. The accused/appellant is aggrieved by the judgment of conviction recorded by the learned trial Court. The learned Counsel appearing for the 8 ::: Downloaded on - 12/01/2018 23:03:51 :::HCHP 9 accused/appellant has concertedly and vigorously contended qua the findings of conviction recorded by the learned trial Court standing, not, based on a .
proper appreciation, by it, of the evidence on record, rather, theirs' standing sequelled by gross mis-
appreciation, by it, of the material on record. Hence, he contends qua the findings of conviction being reversed by this Court in the exercise of its appellate jurisdiction AND theirs being replaced by findings of acquittal.
7. On the other hand, the learned Additional Advocate General has with considerable force and vigour, contended that the findings of conviction recorded by the Court below standing based on a mature and balanced appreciation, by it, of evidence on record and theirs not necessitating interference, rather theirs meriting 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. The Investigating Officer concerned, through, recovery memo borne in Ext. PW9/C, hence effectuated from the conscious and exclusive 9 ::: Downloaded on - 12/01/2018 23:03:51 :::HCHP 10 possession of the convict, recovery, of, charas weighing 450 grams. In sequel to recovery(s) of the aforesaid quantum of contraband, standing .
effectuated, from the purported conscious and exclusive possession, of, the accused, the Investigating Officer concerned, prepared NCB form, form whereof stands comprised in Ext. PW14/A "wherein" revelations occur, of, his "embossing upon"
the bulk parcel(s) comprised in Ext. P-1 , five seals of English Alphabet "V" (ii) also echoings occur in Ext.PW 14/A, of, thereafter Ext. P-1 standing re-
sealed, by the SHO concerned, at the Police Station concerned, with five seals, carrying English Alphabet "M". The aforesaid exhibit containing therein "the"
bulk of charas, exhibit whereof stood seized under Ext.PW 9/C (iii) "from the" purported conscious and exclusive possession, of, the accused "stood" under a road certificate comprised, in Ext.PW-4/B, hence sent for analysis to the FSL concerned. The FSL Junga purveyed its report thereon, report whereof is comprised in Ext. PX, wherein it recorded a firm opinion, of, the contents enclosed in the aforesaid bulk parcel "sent to it" for analysis, holding 10 ::: Downloaded on - 12/01/2018 23:03:51 :::HCHP 11 ingredients of charas. Apart therefrom, the prosecution for establishing the charge, to which the accused stood subjected to, relied upon the .
depositions', of, official witnesses. Even though, the testification(s), rendered by the official witnesses' concerned, do not, markedly underscore existence of any rife a) interse contradiction(s) in their respectively rendered testification(s) nor reveal, of theirs rendering testification(s) with occurrence therein, of, blatant intrase contradictions, borne in their respective examinations-in-chief, vis-à-vis their respective cross-
examination(s); C) importantly, with theirs at the stage of production of case property in Court, whereat, it stood shown to the prosecution witnesses' concerned, hence rather making forthright candid echoing(s), of, it bearing analogity, on all fronts, vis-à-
vis its seizure made under memo Ext. PW9/C, d) thereupon, evident display(s), of, all the apposite linkage(s), on all fronts, interse the recovery of the case property, at the site of occurrence, under memo Ext. PW9/C, vis-à-vis its production in Court, e) hence renders the prosecution case, to, achieve success.
11 ::: Downloaded on - 12/01/2018 23:03:51 :::HCHP 1210. Be that as it may, though for all the aforesaid reasons, this Court would be constrained to affirm findings of conviction, pronounced by the .
learned trial Court, upon the accused, yet for the reasons to be assigned hereinafter, this Court is prodded to form a formidable conclusion, of, the findings of conviction, warranting reversal by this Court.
11. The learned counsel appearing, for, the petitioner/convict, has contended with much force, before this Court (a), of, the prosecution being under a bounden obligation, to, unflinchingly prove the charge, of, Charas weighing 450 gms, being evidently recovered from Pithu, slung on the shoulder of the accused, with the latter, standing, on the rear door of the bus. (b) He makes a further submission, of, though the Investigating Officer concerned, in respect of effectuation, of recovery of charas, from, a Pithu slung on the shoulder(s) of the accused, did thereafter, prepare memo borne in Ext. PW9/C, (c) yet with an independent witnesses thereto, namely, one Subhash Kumar, while testifying, as PW-8, rather not supporting the prosecution case, hence 12 ::: Downloaded on - 12/01/2018 23:03:51 :::HCHP 13 the entire proceedings, drawn, at the site of occurrence by the Investigating Officer concerned, being stained with a vice of partisanship, also being .
amenable, to, an inference of the Investigating Officer concerned, holding skewed besides slanted investigations, merely for, falsely implicating the accused, d) preponderantly, when the other independent witness thereto, remained unexamined.
11. Even though, the aforesaid PW-8, (i) was estopped, by the mandate of Section 91 and 92, of, the Indian Evidence Act, from, reneging from his previously recorded signatured statement, embodied, in the relevant memo, borne in Ext. PW9/C (ii) yet the aforesaid estoppel would be firmly attracted against him, only upon, on his cross-examination, to which he was subjected to, by the learned Public Prosecutor concerned, upon, PW-8 with the permission of the Court, being hence standing declared hostile, his in course thereof, admitting occurrence, of, his signatures, at point "D", thereat.
However, reading(s), of the cross-examination of PW-
8, reveal, that during course thereof, his denying the occurrence, of, his signatures in red circle, at point 13 ::: Downloaded on - 12/01/2018 23:03:51 :::HCHP 14 "D". in memo Ext. PW9/C, (iii) sequel whereof is that the estoppels' constituted against him, by the mandate of Section 91 and 92 of the Indian Evidence .
Act, against, his deposing at variance with the recorded recitals, borne in Ext. PW9/C, being rendered wholly insignificant, rather standing concomitantly belittled. The Public Prosecutor concerned, upon PW-8, making the aforesaid denial(s), was thereafter enjoined, to, make motion(s) before the learned Court concerned, for collecting the admitted, besides specimen handwriting(s) of PW-8, whereafter he was enjoined to, also make motion(s) before the learned Court concerned, for its, alongwith them, hence despatching the disputed signatures, comprised at mark-D in Ext. PW9/C, vis-à-vis the handwriting expert. However, the Public Prosecutor concerned miserably, failed to make the aforesaid motion, nor the learned Special Judge concerned, cared to mete compliance with the mandate of Section 311(a), of, the Cr. P.C. Omission(s) whereof, do, galvanize an inference of the prosecution (iv) failing to, efficaciously adduce firm proof, through, visible apposite therewith voicing(s) being made, by 14 ::: Downloaded on - 12/01/2018 23:03:51 :::HCHP 15 an Independent witness, associated, in the relevant proceedings, at the site of occurrence, by the Investigating Officer concerned, whereas thereupon .
alone, the firmest proof would rather be lent vis-à-vis all the recitals, borne therein. Contrarily, absence thereof negates the probative efficacy of Ext. PW9/C. The further effect thereof, is, the purported recovery of contraband, from, the conscious and exclusive possession of the accused, in the manner, disclosed in Ext. PW9/C, is amenable, to the gravest skepticism.
12. Even otherwise, there occurs a disclosure in Ext. PW9/C, of, the Pitthu, purportedly slung on the shoulder of the accused, (i) being in a locked condition AND the Investigating Officer concerned, after ensuring the accused handing over its keys, vis-
à-vis him, his unlocking it, yet PW-16 in his cross-
examination, makes loud echoings, of, in consonance therewith, his failing to, prepare memo in respect, of,
(ii) accused handing, vis-à-vis him, the keys of the lock, existing on the Pitthu, purportedly slung by the accused, on his shoulder, (iii) thereupon omission(s) aforesaid, do wane, besides subsume, the effects, if 15 ::: Downloaded on - 12/01/2018 23:03:51 :::HCHP 16 any, of, production in Court, of the keys and lock, purportedly existing on the Pitthu, (iv) ensuing effects whereof are, of, this Court being enabled to .
conclude, of all the recitals borne in Ext. PW9/C, qua recovery of Charas being effected, in the manner reflected therein, hence standing perse falsified. This Court has also made an incisive circumspect reading of Ext. PW14/G, wherein, at column No. 5, there occurs a recital, of, upon a personal search, of, the accused hence being held, seizure memo prepared, in respect of 450 grams of Charas, being recovered, from, his conscious and exclusive possession, also hence being recovered from his person. The effect of the aforesaid reflection(s), occurring, in Ext.
PW14/G, is, of prime importance, as they bear consonance with the testification(s), occurring, in the cross-examination, of PW-16, of, a personal search of the accused, as well as, of, the Pitthu, being carried in his presence. Nowat, the prosecution charge, vis-à-vis the accused, qua his carrying the relevant item(s) of contraband, in the Pitthu, slung on his shoulder, whereas, with charge aforesaid, rather , hence staggering, (v) given the reflections' 16 ::: Downloaded on - 12/01/2018 23:03:51 :::HCHP 17 aforesaid occurring in Ext. PW14/G, rather hence carrying an aura of truth, AND especially therefrom an inference is bolstered, qua the Investigating .
Officer, upon, his subjecting the accused/convict, to personal search, his, in sequel thereto hence effecting recovery of the relevant item, of contraband, b) thereupon whereas the prosecution, through, a sheer stratagem, inventing its recovery being effectuated, from a Pitthu, slung on the shoulder of the accused, concomitantly renders the charge to hence founder.
C) The prosecution may have succeeded, if it had proceeded to ensure, qua, the trial Court, framing a charge against the accused, in consonance with Ext.
PW14/G AND in consonance with consent memo Ext.
PW9/A, (d) whereas, it contrarily endeavoring to falsely charge the accused, qua apposite recovery(s) being effectuated, from a Pitthu, slung on his shoulder(s). (e) Pre-eminently, reiteratedly, hence the preparation of memo(s) Ext. PW14/G and Ext.
PW9/A, also appears to be engendered, by the Investigating Officer concerned, rearing a deep suspicion of the accused, upon, his personal search being made, revelations' occurring, of, his carrying, 17 ::: Downloaded on - 12/01/2018 23:03:51 :::HCHP 18 besides tethering with his body, the relevant item of contraband, (f) besides obviously he would not have taken to prepare Ext. PW9/A, unless, prior thereto, .
nor efficacious, besides truthful recovery(s), of, the relevant item of contraband, had not already occurred, in the manner, disclosed in the seizure memo, borne in Ext. PW9/C. The further ensuing effect(s) of preparation of Ext. PW9/C IS, of, upon its being read in conjunction with Ext. PW14/G, an inference being stemmed, (g) of the Investigating Officer, rather purportedly effecting recovery(s) of the relevant item of contraband, upon his subjecting the accused, to, a personal search, thereupon, reiteratedly, if the prosecution, had prepared a charge, in consonance therewith, it may have succeeded. Consequently, a, smothered version qua the genesis, of, the prosecution case, warrants its rejection. Even otherwise, the independent witness vis-a-vis consent memo, borne in Ext. PW9/A, has denied occurrence of his signatures thereon, thereupon, the entire proceeding, conducted at the site of occurrence, are imbued, with the gravest suspicion, qua it being in its entirety, an invention 18 ::: Downloaded on - 12/01/2018 23:03:51 :::HCHP 19 deployed by the Investigating Officer concerned.
13. For the reasons which have been recorded hereinabove, this Court holds that the learned trial .
Court has not appraised the entire evidence on record in a wholesome and harmonious manner apart therefrom the analysis of the material on record by the learned appellate Court, suffers, from a perversity or absurdity of mis-appreciation and non-
appreciation of evidence on record. The learned trial Judge, is directed to, in future, remain abreast of the latest case law(s), on the subject concerned.
14. The appeal is allowed. The impugned judgment is quashed and set aside. The accused is acquitted. Case property be destroyed after the expiry of the period of limitation, for filing an appeal. Fine amount, if deposited by the accused be forthwith refunded to him. Personal and surety bond(s) be forthwith discharged.
(Sureshwar Thakur) Judge January 9, 2018 (Kalpana) 19 ::: Downloaded on - 12/01/2018 23:03:51 :::HCHP 20 .
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