Himachal Pradesh High Court
State Of Himachal Pradesh vs Tara Chand And Another on 3 March, 2015
Bench: Sanjay Karol, P.S. Rana
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.289 of 2009 Reserved on : 25.2.2015 .
Date of Decision : March 3, 2015.
State of Himachal Pradesh ...Appellant.
Versus Tara Chand and another ...Respondents.
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge. The Hon'ble Mr. Justice P.S. Rana, Judge.Whether approved for reporting? No. 1
For the Appellant : Mr. B.S. Parmar, Mr Ashok Chaudhary, Mr. V.S. Chauhan, Additional Advocates General;
and Mr. Vikram Thakur, Deputy Advocate General.
For the Respondents : Mr. Vivek Sharma vice Mr. Ajay Kochhar, Advocate.
Sanjay Karol, Judge State has appealed against the judgment dated 14.11.2008 of the learned Sessions Judge, Kinnaur at Rampur Bushahr, Himachal Pradesh, passed in Sessions Trial No.8 of 2006, titled as State of Himachal Pradesh v.
Tara Chand and another, challenging the acquittal of respondents Tara Chand and Govind Ram (hereinafter Whether reporters of the local papers may be allowed to see the judgment?
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referred to as the accused), who stand charged for having committed offences punishable under the provisions of .
Sections 20 and 29, respectively, of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act).
2. It is the case of prosecution that on 19.1.2006, SI Raghubir Singh (PW-8), alongwith Constables Faquir Chand (PW-3) and Naresh Kumar (PW-1), was travelling towards Kingal, in connection with investigation of a case.
At 12 noon, when the police party reached near Jabli, they noticed accused Tara Chand carrying a bag. On suspicion, police stopped him. SI Raghubir Singh suspected the accused to be carrying some narcotic substance. Hence, after associating Shri Diwan Gautam (PW-4) and Shri Dalip Singh (a Government official), as independent witnesses, and after apprising the accused of his statutory rights, SI Raghubir Singh searched him. From the bag, 8 polythene packets, containing charas, in the shape of balls, was recovered, which upon weighment was found to be 1.500 kgs. Two samples, each weighing 25 grams, were drawn and sealed with seal of impression 'H'. Bulk parcel was also sealed with the very same seal. Constable Naresh ::: Downloaded on - 15/04/2017 17:42:01 :::HCHP ...3...
Kumar (PW-1) took ruka (Ex. PW-8/A) to Police Station, Kumarsain, on the basis of which FIR No.17/06, dated .
19.1.2006 (Ex. PW-16/A), under the provisions of Section 20 of the Act. Whereafter the file was taken to the spot.
With the completion of proceedings on the spot, including filling up of the NCB forms and recovery of the bulk parcel, accused was arrested.
3. Investigation further revealed that accused Tara Chand was a carrier and in fact the contraband substance was owned by one Govind Ram, who was travelling in a private bus. When the bus reached the spot, seeing accused Tara Chand in the company of police party, accused Govind Ram got down and fled away from the spot, but however, was apprehended lateron. Case property was entrusted to MHC Diwan Chand (PW-6), who sent the sample for chemical analysis through Shri Jai Pal (PW-2). Report of chemical analysis was taken on record.
With the completion of investigation, challan was presented in the Court for trial.
4. Accused Tara Chand and Govind Ram were charged for having committed offences punishable under the provisions of Sections 20 and 29 of the Act, ::: Downloaded on - 15/04/2017 17:42:01 :::HCHP ...4...
respectively, to which they did not plead guilty and claimed trial.
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5. In order to establish its case, prosecution examined as many as nine witnesses and statements of the accused, under the provisions of Section 313 of the Code of Criminal Procedure were also recorded, in which they pleaded innocence and false implication.
6. Based on the testimonies of witnesses and the material on record, trial Court acquitted both the accused of the charged offences. Hence, the present appeal by the State.
7. We have heard Mr. Ashok Chaudhary, learned Additional Advocate General, on behalf of the State as also Mr. Vivek Sharma, Advocate, on behalf of the accused. We have also minutely examined the testimonies of the witnesses and other documentary evidence so placed on record by the prosecution. Having done so, we are of the considered view that no case for interference is made out at all. We find that the judgment rendered by the trial Court is based on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record. There is neither any illegality/infirmity ::: Downloaded on - 15/04/2017 17:42:01 :::HCHP ...5...
nor any perversity with the same, resulting into miscarriage of justice.
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8. It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused.
To dislodge the same, onus heavily lies upon the prosecution. Having considered the material on record, we are of the considered view that prosecution has failed to establish essential ingredients so required to constitute the charged offence.
9. In Prandas v. The State, AIR 1954 SC 36, Constitution Bench of the apex Court, has held as under:
"(6) It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under S. 417, Criminal P.c., to reverse a judgment of acquittal, unless the judgment is perverse or the subordinate Court has in some way or other misdirected itself so as to produce a miscarriage of justice. In our opinion, the true position in regard to the jurisdiction of the High Court under S. 417, Criminal P.c. in an appeal from an order of acquittal has been stated in - 'Sheo Swarup v.
Emperor', AIR 1934 PC 227 (2) at pp.229, 230 (A), in these words:
"Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be ::: Downloaded on - 15/04/2017 17:42:01 :::HCHP ...6...
reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the .
Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is r only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice." "
10. Noticeably, in the instant case, independent witness Shri Diwan Gautam has not supported the prosecution case at all. He was declared hostile and extensively cross-examined, but nothing fruitful could be elicited from his testimony. For unexplained reasons, another witness Shri Dalip Singh has not been examined in Court.
11. To us, genesis of the prosecution story of having left the Police Station, Kumarsain, in relation to ::: Downloaded on - 15/04/2017 17:42:01 :::HCHP ...7...
investigation of a case, does not inspire confidence at all. Investigating Officer Raghubir Singh states that he .
left the Police Station, in connection with a case, in the Car owned by Constable Naresh Kumar. Except for this bald statement, there is no documentary evidence establishing such fact. Now, why would a Police Officer travel in a private vehicle, in connection with investigation of a case, has not been explained, for afterall SI Raghubir Singh was the SHO of the Police Station. None has come forward to explain that no other vehicle was available in the Police Station or that police party had to leave under emergent circumstances. No departure report has been placed on record.
12. Not only that we find that there are material contradictions in the testimonies of the witnesses, rendering the prosecution version to be further fatal.
Ruka (Ex. PW-8/A) as also Special Report (Ex. PW-5/A) nowhere record presence of accused Govind Ram.
Absence of such crucial fact, only renders the prosecution story of accused Tara Chand having disclosed the identity of owner of the contraband ::: Downloaded on - 15/04/2017 17:42:01 :::HCHP ...8...
substance, to be doubtful. Also, police officials do not remember the number or the make of the bus.
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13. As per Consent Memo (Ex.PW-4/B), accused Tara Chand was apprised of the right of personal search and that of the bag before a Magistrate of a Gazetted Officer. Recital in Ruka (Ex. PW-8/A) and Special Report (Ex. PW-5/A) is also to similar effect but SI Raghubir Singh (PW-8), Constables Faquir Chand (PW-3) and Naresh Kumar (PW-1) did not state that the personal search of accused Tara Chand was carried out before search of the bag. The manner in which the bag was searched is also discrepant, contradictory and unreliable.
14. As per version of SI Raghubir Singh, he sent Constable Naresh Kumar and witness Dalip Singh in a car for bringing the scales and the weights. According to the witnesses, ordinary scale with weights of 1 kg, 500 grams and two packets of turmeric of 100 grams each were brought. But when we peruse the testimony of Faquir Chand (PW-3), we find such version to be contradicted for it was he who alongwith Dalip Singh ::: Downloaded on - 15/04/2017 17:42:01 :::HCHP ...9...
had gone to fetch the scales. Be that as it may, according to PW-8, two samples of 25 grams each were .
separated and drawn from the bulk parcel. Now, when police did not have weights of either 50 grams or 25 grams, then how is it that samples of exact weight were drawn. The contradiction acquires significance, in view of non-examination of owner of the shop from whom the scale and weights were brought. Thus, presence of the police officials on the spot itself is in doubt. The search, recovery and seizure proceedings cannot be said to have been effected in the manner prosecution wants us to believe.
15. We further find that even by way of link evidence, prosecution has not been able to establish its case, beyond reasonable doubt. In fact, there is a serious doubt with regard to correctness of the prosecution story. The NCB form, as is evident from the testimony of PW-1, PW-6 and PW-8, was never deposited in the Malkhana. Also, Malkhana Register (Ex.PW-6/B) does not record such fact. Perusal of the NCB form reveals that only one sample of Charas was drawn.
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Thus, testimony of witnesses to recovery stands materially contradicted. Not only that the NCB form .
does not even bear impression of the sample seal (H), so used by the police. With whom did the seal lie all along, has not been explained.
16. Testimony of police officials that Consent Memo (Ex. PW-4/B) was prepared on the spot and only thereafter, accused was searched, stands falsified from the unrebutted testimony of Diwan Gautam (PW-4), according to whom he appended his signatures on the consent memo, as a witness, in the Police Station and not on the spot. According to the witness, the document was not signed on the date of occurrence of the incident.
17. Hence, it cannot be said that prosecution has been able to prove its case, by leading clear, cogent, convincing and reliable piece of evidence so as to prove that the accused persons have committed the charged offences.
18. For all the aforesaid reasons, we find no reason to interfere with the well reasoned judgment ::: Downloaded on - 15/04/2017 17:42:01 :::HCHP ...11...
passed by the trial Court. The Court has fully appreciated the evidence so placed on record by the parties.
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19. The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Mohammed Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged.
Appeal stands disposed of, so also pending application(s), if any.
( Sanjay Karol ), Judge.
( P.S. Rana ),
March 3, 2015(sd) Judge.
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