Himachal Pradesh High Court
State Of Himachal Pradesh vs Laxmi Dutt on 29 July, 2016
Author: Dharam Chand Chaudhary
Bench: Dharam Chand Chaudhary, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No.461 of 2011.
.
Judgment reserved on 3rd June, 2016.
Date of Decision: 29th July, 2016.
_______________________________________________________
State of Himachal Pradesh .. Appellant.
of
Versus
Laxmi Dutt .. Respondent.
Coram
rt
Hon'ble Mr. Justice Dharam Chand Chaudhary, J.
Hon'ble Mr. Justice Chander Bhusan Barowalia, J. Whether approved for reporting1 Yes.
For the appellant: Mr. D.S. Nainta and Mr. Virender Verma, Additional Advocates General.
For the respondent: Mr. Sunil Mohan Goel, Advocate.
Dharam Chand Chaudhary, J.
State of Himachal Pradesh is aggrieved by the judgment dated 30.6.2011, passed by learned Special Judge, Kullu, in Sessions trial No.47 of 2010, under Whether reporters of the Local papers are allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 20:55:28 :::HCHP -2-Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter to be referred as 'NDPS .
Act', has come up in appeal before this Court on the grounds inter alia that cogent and reliable evidence produced by the prosecution to prove its case against of the accused has been appreciated in slipshod and perfunctory manner and the same is based upon rt hypothetical reasoning, surmises and conjectures. The prosecution evidence has not only been ignored, but unrealistic standards adopted to evaluate the same. The testimony of the prosecution witnesses has been discarded for untenable reasons that too in the absence of any proof of their enmity with the accused. As per the prosecution case, the accused met the police-party per chance when it was patrolling in Green Tax Barrier and Banu Pul area. The suspicion that he might be in possession of some contraband or some illegal thing arises, when on seeing the police-party the accused ::: Downloaded on - 15/04/2017 20:55:28 :::HCHP -3- tried to flee away. He, however, was nabbed and thereafter his antecedents enquired. As per further case .
of the prosecution, efforts were made to join someone as an independent witness, however, no one was available and as such the search was conducted in the presence of of the police officials accompanying the Investigating Officer. The search was conducted after obtaining the rt consent of the accused and the procedure, as prescribed under the NDPS Act, was fully observed while conducting the search and seizure. It is claimed that the prosecution has been able to prove its case against the accused beyond all reasonable doubts and as such he has erroneously been acquitted by the trial Court.
2. The facts, in a nutshell, are that on 26.9.2010, at 5.00 p.m., Inspector Om Parkash (PW-3), the then Station House Officer, Police Station, Manali, deputed PW-5 ASI Daya Ram, hereinafter to be referred as 'the I.O.', PSI Anil Kumar, HHC Lal Singh (PW-4) and lady ::: Downloaded on - 15/04/2017 20:55:29 :::HCHP -4- constable Meena Kumari for patrolling in the area towards Green Tax Barrier, Banu Pul etc. etc. ASI Lal .
Chand, Incharge, Security Range was also deputed for patrolling with the police-party headed by the I.O. Rapat Ext.PW-2/A was entered to this effect in the Rapat of Roznamcha. The patrolling party when reached at Banu Pul on National Highway 21 around 5.25 p.m., noticed rt the accused walking on National Highway and coming towards Banu-Pul. On seeing the police party, he turned behind and tried to flee away towards Green Tax Barrier side. Such conduct of the accused has resulted in suspicion in the mind of the police-party that he might be in possession of some narcotic drugs/contraband, hence the police swung into action. The accused was overpowered by the I.O. with the help of accompanying police-officials at a distance of about 20 meters. Being an isolated place, no one from locality was readily available for being associated as witness. The I.O., ::: Downloaded on - 15/04/2017 20:55:29 :::HCHP -5- therefore, asked the accused to disclose his antecedents. He disclosed his name as Laxmi Dutt alias .
Pallu and his parentage as well as complete address.
3. PW-4 HHC Lal Singh was deputed to find out someone available in the locality for being associated as of an independent witness. The said witness, however, returned alone after 20 minutes and told the I.O. that no rt person is available there. On this, the I.O. has associated PSI Anil Kumar and PW-4 HHC Lal Singh as witnesses to witness the search and seizure. In their presence the information was given to the accused vide consent memo Ext.PW-4/A that the search of the bag he was carrying on his back is required to be conducted and that he has right to opt for conducting his search either before a gazetted Officer or Magistrate. The accused allegedly opted for being searched by the police present on the spot. On this, the I.O. has offered his search first vide memo Ext.PW-4/B to the accused. Since ::: Downloaded on - 15/04/2017 20:55:29 :::HCHP -6- on account of darkness after sun-set it was not possible to conduct further investigation on the spot, therefore, .
the accused alongwith Maroon and purple coloured bag he was carrying on his back was brought to the I.O.
room in the Police Station. Thereafter the search of the of accused was conducted in the Police Station and Charas weighing 3 Kgs. recovered from the bag he was rt carrying on his back. On smelling, it was found to be Charas. The recovered Charas was sealed in a parcel of cloth with six seals of seal 'T'. The sample of seal Ext.PW-
4/D was drawn separately and the seal after its use was given to PSI Anil Kumar. NCB-I form Ext.PW-2/G was filled-
in in triplicate. The Charas recovered from the accused was taken into possession vide recovery memo Ext.PW-
3/C. On finding that Charas weighing 3 Kgs. was recovered from the accused, Ruka Ext.PW-5/B was prepared and it was handed over to PW-4 for getting the FIR registered. Consequently, FIR Ext.PW-3/A came to be ::: Downloaded on - 15/04/2017 20:55:29 :::HCHP -7- registered against the accused under Section 20 of the NDPS Act. The spot map Ext.PW-5/A was prepared. The .
statement of PW-4 HHC Lal Singh Ext.PW-5/C was recorded under Section 161 of the Code of Criminal Procedure.
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4. In view of the commission of an offence by the accused punishable under Section 20 of the NDPS rt Act, he was arrested at 8.40 p.m. and apprised about the grounds of arrest vide memo Ext.PW-4/E. The accused was thereafter produced before PW-3 Om Parkash, Station House Officer alongwith the case property. The case property alongwith NCB-I form in triplicate and sample of seal was handed over to PW-3. Rapat Ext.PW-2/B to this effect was entered in the Rapat Roznamcha at the instance of the I.O. PW-3 has resealed the parcel containing the case property with six seals of seal 'H'. The facsimile of seal 'H' Ext.PW-4/D was obtained over a piece of cloth separately for sample. PW-3 has also filled-
::: Downloaded on - 15/04/2017 20:55:29 :::HCHP -8-in relevant columns of NCB-I form Ext.PW-2/G. The parcel containing the Charas, samples of seals 'T' and 'H' and .
NCB-I form in triplicate were thereafter handed over to PW-2 Sher Singh, Moharar Head Constable, Police Station, Manali for safe custody in the Malkhana. PW-2 of was also directed to forward the case property to Forensic Science Laboratory for analysis at the earliest.
rt PW-2 has received the case property alongwith samples of seals 'T' and 'H' and NCB-I form in triplicate and kept the same in safe custody in the Malkhana. The entries Ext.PW-2/F were made in the Malkhana register. The I.O.
prepared the special report Ext.PW-1/A and it was sent to Shri Ashish Sharma, the then S.D.P.O., Manali on 27.9.2010 at 11.10 a.m. The S.D.P.O. after perusal of the special report, as per endorsement Ext.PW1-/B handed over the same to PW-1 HC Dharam Chand, his Reader.
PW-1 has made the entries qua the special report in the relevant register, abstract whereof is Ext.PW-1/C. ::: Downloaded on - 15/04/2017 20:55:29 :::HCHP -9-
5. On the next day, i.e., 27.9.2010, PW-2 Sher Singh has sent the case property to Forensic Science .
Laboratory, Junga alongwith specimen of seals 'T' and 'H', NCB-I form in triplicate through HHC Lal Singh vide RC No.189/10 Ext.PW-2/D. HHC Lal Singh has deposited of the case property in the Laboratory and produced the receipt Ext.PW-2/G on the RC before PW-2. The report of rt Chemical Examiner Ext.PA was received and on the completion of the investigation, report under Section 173 of the Code of Criminal Procedure was filed in the trial Court.
6. The trial Court on going through the police report and the documents annexed thereto has arrived at a conclusion that prima facie the involvement of the accused in the commission of an offence punishable under Section 20 of the NDPS Act stands established, therefore, charge against the accused was framed accordingly. He pleaded not guilty to the charge and ::: Downloaded on - 15/04/2017 20:55:29 :::HCHP
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claimed trial. The prosecution was, therefore, called upon to produce the evidence in order to substantiate .
the charge against the accused.
7. The prosecution, in turn, has examined five witnesses in all. The material prosecution witnesses are of PW-4 HHC Lal Singh and the I.O. (PW-5). Remaining witnesses are formal because PW-1 HC Dharam Chand is rt a witness to the special report Ext.PW-1/A, whereas PW-2 Sher Singh, the then Moharar Head Constable, Police Station, Manali has proved the Rapats Exts.PW-2/A to 2/C, regarding the police-party proceeded towards Green Tax Barrier area for the purpose of patrolling and production as well as deposit of the case property duly sealed and resealed alongwith samples of seals and NCB-I form in triplicate in the Malkhana. He has also proved the copy of RC Ext.PW-2/D and the receipt qua deposit of the case property in the Laboratory Ext.PW-
2/E. He has also proved the abstract of register Ext.PW-
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2/F and NCB-I form Ext.PW-2/G. PW-3 Inspector Om Parkash, who as posted as Station House Officer in Police .
Station, Manali at the relevant time. It is he who had registered the FIR Ext.PW-3/A on the basis of Ruka Ext.PW-
5/B. He has made the endorsement Ext.PW-3/B on the FIR of Ext.PW-3/A and obtained the facsimile of seal 'H' Ext.PW-
3/C. On the completion of the investigation, he has filed rt the Challan in the Court.
8. On the other hand, the accused in his statement recorded under Section 313 of the Code of Criminal Procedure has denied the prosecution case being incorrect and for want of knowledge. While answering the last question, he has raised a plea in his defence that on the day of occurrence he was on his way from Sambha to Neuli. The police nabbed him and two Nepalese from the said place (place of search and seizure) and they were taken to Police Station, Manali.
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Therefore, it was pleaded that he is innocent and has been implicated falsely.
.
9. The accused, however, opted for not producing any evidence in his defence.
10. Learned trial Judge, on appreciation of the of prosecution evidence available on record, has arrived at a conclusion that the testimony of official witnesses is not rt consistent and rather contradictory in nature, hence inspires no confidence. The accused was, therefore, given the benefit of doubt and consequently acquitted of the charge.
11. Learned Additional Advocate General has vehemently argued that the testimony of police officials is as much good as that of any independent person.
According to him, PW-4 HHC Lal Singh and the I.O. while in the witness box have made consistent statements touching material aspects of the prosecution case.
Learned trial Court is stated to have illegally brushed ::: Downloaded on - 15/04/2017 20:55:29 :::HCHP
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aside the genuineness and authenticity of the prosecution case on petty procedural error such as FIR .
number should have not been there on the consent memo and the spot map, being prepared on the spot.
Note No.6 to the effect that the accused was of apprehended with Charas should have also not been there in the spot map in view of the Charas having been rt recovered in the Police Station whereas the map was prepared before that on the spot and how Section 20 of the NDPS Act would have been there finds mention in all the memos prepared by the I.O. According to learned Additional Advocate General, the findings that the prosecution has engineered the story in order to avoid the compliance of Section 42 of the NDPS Act and that the search otherwise should have been conducted either before the Magistrate or Executive Magistrate are also stated to be unrealistic having no nexus in the given facts and circumstances of this case. Mr. Nainta has also ::: Downloaded on - 15/04/2017 20:55:29 :::HCHP
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emphasized that when despite efforts made no one was available for being associated as an independent .
witness undue weight-age should have not been given to this aspect of the matter.
12. On the other hand, learned defence of Counsel has argued that in view of the statements made by the prosecution witnesses being inconsistent and rt contradictory in nature no findings of conviction could have been recorded on the basis thereof. The non-
joining of independent witness, particularly when the accused was apprehended at a place on National Highway near Manali town, a busy place, renders the entire prosecution story doubtful. Therefore, according to learned defence Counsel, search and seizure has not taken place in the manner as deposed by PW-4 and the I.O. The police officials, who according to him, were interested in the success of the prosecution case are not dependable nor the evidence as has come on record ::: Downloaded on - 15/04/2017 20:55:29 :::HCHP
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by way of their testimony can be relied upon to arrive at a conclusion other than the one drawn by learned trial .
Court. The appeal, therefore, has been sought to be dismissed.
13. On reappraisal of the facts of this case and of also the evidence available on record, we have culled out the following points for consideration:
1.
rt Whether the prosecution case that neither on the spot nor in the locality nearby no one was available for being associated as independent witness and as such the I.O.
had not left with any option except for associating PSI Anil Kumar and PW-4 HHC Lal Singh to witness the search and seizure, inspires confidence?
2. Whether the evidence as has come on record by way of the testimony of the only witness HHC Lal Singh and the I.O. PW-5 ASI Daya Ram inspires confidence and proves the alleged recovery of charas from the ::: Downloaded on - 15/04/2017 20:55:29 :::HCHP
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conscious and physical possession of the accused beyond all reasonable doubt?
.
3. Whether cogent and reliable evidence to link the alleged recovery of charas from the accused is available on record or the link evidence as produced is not worthy of credence?
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14. Before coming to the points for discussion, it rt is worth mentioning that we are dealing with a case of alleged recovery of charas weighing 3 kg., from the accused. In view of the stringent provisions of punishment made under the NDPS Act against an offender the onus is on the prosecution to prove beyond all reasonable doubt that the narcotic drug or psychotropic substance has been recovered from the exclusive and physical possession of the accused. We may refer here the judgment of Bombay High Court in Rubyana alias Smita Sanjib Bali Vs. State of Maharashtra and others, 1996 Crl. L.J. 148, which reads as follows:
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"The sine qua non for attracting the penal provisions, viz. Sections 20 and 21 of the N.D.P.S. .
Act, and Section 25 read with Section 7 of the Arms Act is that the appellant must be found in possession of the contrabands and the fire arms.
The term "possession" is not defined in the N.D.P.S. Act. The term "possession" has been of judicially construed to mean, in various decisions, as under :-
rt 'Possession implies dominion consciousness in the mind of the person and having dominion over an object that he has it and that he can exercise it. Possession must be conscious and intelligent possession and not merely the physical presence of the accused in proximity or even in close proximity to the object.
(See in this connection Dula Singh v. Emperor, AIR 1928 Lahore 272 : (1928 (29) Cri LJ 481), Kuldip Chand v. Emperor, AIR 1934 Lahore 718 : (1935 (36) Cri LJ 300), Sunder Singh v. Emperor, AIR 1936 Lahore 738 : (1936 (37) Cri LJ 939), and ::: Downloaded on - 15/04/2017 20:55:29 :::HCHP
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Ram Charan v. Emperor, AIR 1933 All 437 : (1933 (34) Cri LJ 930)).
.
The Apex Court in Supdt. and L.R. v. Anil Kumar Bhunja, (1979) 4 SCC 274 : (1979 Cri LJ 1390), observed that the test for determining "whether a person is in possession of anything is whether he is in general control of it." The Apex Court, of after examining Salmond's jurisprudence and other earlier decisions rendered by the Court, rt observed thus (at pp 1392-93 of Cri LJ) :-
"13. 'Possession' is a polymorphous term which may have different meanings in different contexts. It is impossible to work out a completely logical and precise definition of 'possession' uniformally applicable to all situations in the contexts of all statutes. Dias and Hughes in their book on Jurisprudence say that if a topic ever suffered from too much theorising it is that of 'possession'. Much of this difficulty and confusion is (as pointed out in Salmond's Jurisprudence, 12th Ed. 1966) caused by the fact that possession is not purely a legal concept. 'Possession', implies ::: Downloaded on - 15/04/2017 20:55:29 :::HCHP
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a right and a fact; the right to enjoy annexed to the right of property and the .
fact of the real intention. It involves power of control and intent to control. (See Dias and Hughes, 11th Ed.)
14. According to Pollock and Wright, when a of person is in such a relation to a thing that, so far as regards the thing, he can assume, exercise or resume manual control of it at pleasure, and so rt far as regards other persons, the thing is under the protection of his personal presence, or in or on a house or land occupied by him or in any receptacle belonging to him and under his control, he is in physical possession of the thing.
15. While recognising that 'possession' is not a purely legal concept but also a matter of fact, Salmond (12th Ed. page 52) describes 'possession, in fact", as a relationship between a person and a thing. According to the learned author the test for determining 'whether a person is in possession of anything is whether he is in general control of it'.
16. In Gunwantilal v. State of M.P. (1973) 1 SCR 508 : (1972 Cri LJ 1187), this Court while noting ::: Downloaded on - 15/04/2017 20:55:29 :::HCHP
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that the concept of possession is not easy to comprehend, held that, in the context of .
Section 25(a) of the Arms Act, 1959, the possession of a firearm must have, firstly, the element of consciousness or knowledge of that possession in the person charged with such offence, and secondly, he has either the actual of physical possession of the firearm, or where he has not such physical possession, he has nonetheless a power or control over that rt weapon. It was further recognized that whether or not the accused had such control or dominion to constitute his possession of the firearm, is a question of fact depending on the facts of each case. In that connection, it was observed (at p. 1189 of Cri LJ) :
In any disputed question of possession, specific facts submitted or proved will alone establish the existence of the de facto relation of control or the dominion of the person over it necessary to determine whether that person was or was not in possession of the thing in question."
15. Now while determining the points hereinabove, it is to be seen that the prosecution has ::: Downloaded on - 15/04/2017 20:55:29 :::HCHP
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satisfactorily discharged the onus upon it to prove that the contraband allegedly charas has been recovered .
from the exclusive and physical possession of the accused alone or not.
Point No.1.
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16. As a matter of fact, this point has been hotly contested on both sides. Before coming to the rt respective contentions, it is desirable to take note of the legal necessity of joining independent person to witness the search and seizure in a case of this nature. The apex Court and also this court in a catena of judgments, few of which have even been noticed by learned trial Judge also, has repeatedly held that joining of independent witness is not an idle formality but in order to ensure fairness in the matter of conducting search and seizure and ultimately to substantiate the manner in which the search and seizure having taken place beyond all reasonable doubt independent person(s) should ::: Downloaded on - 15/04/2017 20:55:29 :::HCHP
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invariably be associated. We are drawing support in this regard from the judgment of our own High Court in State .
of H.P. Versus Hancho @ Stewart, Latest HLJ 2004 (HP)(DB)
642. In order to ensure the fair investigation, it is the fundamental duty of the investigating officer to of associate independent person to witness the search and seizure. It is a separate thing that if the spot is an isolated rt place or no one is available for being associated as independent witness or the villagers/local residents at times even refused to assist the police during the course of investigation of a case, in that situation the non-joining of independent person as a witness may not be fatal to the prosecution case. We are drawing support in this regard from a recent judgment of the apex Court in State of Haryana versus Asha Devi, (2015), 8 SCC, 39.
Relevant extract of this judgment reads as follows:-
" ..... We find that both DSP Maharaj Singh as well as IO Ramphal have deposed that ::: Downloaded on - 15/04/2017 20:55:29 :::HCHP
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public persons were available when the contraband was seized, however, none of .
the public persons acceded to their request of joining the investigation as an independent witness. The Court below have found it unbelievable but no reason for the same is rendered. In our opinion the of consistent statement of both DSP as well as IO rather enhances the veracity of the rt circumstances as put forth by them ...."
17. The principles came to be settled by the apex Court in the judgment ibid on taking into consideration the evidence that the Dy.SP and I.O. both had requested the people available at the place of recovery, however, none of them had acceded to the request so made to assist the I.O. in the investigation of the case. The prosecution case, however, must stand satisfactorily for the test of legal scrutiny that the place of recovery was an isolated place hence no person was available near and around, who could have been ::: Downloaded on - 15/04/2017 20:55:29 :::HCHP
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associated as independent witness or there being locality nearby but despite, efforts made no one was .
ready to join the police as independent witness. The genuineness and authenticity of the prosecution case qua its failure to join the independent person as a witness of during the course of search and seizure is to be tested on the touch stone of the above legal parameters and also rt the evidence available on record.
18. We can take judicial notice of the fact that Manali town is an International tourist resort. It is thickly populated town. Crowd of tourists can be seen throughout the year at Manali. Interestingly enough the place of recovery as per own testimony of the I.O. is one kilometer from Police Station. The place of recovery is Banupul. The same, as a matter of fact, is in Manali town itself. PW-5, the I.O. while in the witness-box admits in his cross examination that Tibatian School is situated nearby Banupul. Across the river Rock Restaurant is on the bank ::: Downloaded on - 15/04/2017 20:55:29 :::HCHP
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of river Bias. Manali resorts is at a distance of 150 meters from the spot whereas green tax barrier at a distance of .
one kilometer. He admits the existence of hotels and petrol pump between the police station and the Banupul. Not only this, but according to him, vehicles in of large number can be seen being driven to and fro on Banupul. The only independent witness HHC Lal Singh rt PW-4 admits that the distance of Manali resorts from Banupul is 200 meters whereas that of green tax barrier from Manali resort is 300 meters. He also tells us that Shiva Cottage is on other bank of River Bias. He also admits that Hotels and petrol pump are in existence between Police Station Manali and Banupul. It is this witness who was deputed by the I.O. to find out someone available there for being associated as independent witness. In his statement under Section 161 Cr.P.C., it has been said that no one was ready to witness the search and seizure, which was to be ::: Downloaded on - 15/04/2017 20:55:29 :::HCHP
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conducted by the police on the spot, however, while in the witness-box he has turned around and stated that no .
one was available, hence he returned to the spot alone.
19. We have already taken judicial notice of the fact that Manali is thickly populated town and as per of own evidence of prosecution as has come on record by way of the testimony of the I.O. PW-11 and HHC Lal Singh rt PW4 many houses, hotels, petrol pump are in existence in between Police Station Manali and Banupul. It can neither be believed that no one was ready to join as independent witness nor that no person was available near and around the place of recovery. Had any effort been made to join someone from Manali Town or someone traveling in the vehicles by getting the same stopped, the I.O. would have easily joined the independent witnesses. Though, as per the evidence available on record no effort was made to join independent witnesses, it has come in the statement of ::: Downloaded on - 15/04/2017 20:55:29 :::HCHP
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PW-4 recorded under Section 161 Cr. P.C. that no one was ready to witness the search and seizure. If it was so, .
the I.O. and for that matter PW-4 were required to have issued Hukamnama to such person and still such person refused to witness the search and seizure without of reasonable cause, to have initiated proceedings under Section 100(8) of Cr. P.C. and also launch prosecution rt against such person(s) under Section 187 I.P.C. The I.O. in this case, however, has not made any attempt to join independent person to witness the search and seizure.
The prosecution story is absolutely false. The possibility of the I.O. acted cleverly and never intended to join someone as independent witness; the story to this effect has been engineered. Therefore, in our considered opinion, no effort was made by the I.O., to associate some independent person to witness the search and seizure and this has not only vitiated the investigation ::: Downloaded on - 15/04/2017 20:55:29 :::HCHP
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conducted in the case, but also the entire proceedings in the trial.
.
Point No. 2.
20. The present is a case where PW-5 had associated PSI Anil Kumar and HHC Lal Singh PW-4 to of witness the search and seizure. PSI Anil Kumar has not been examined by the prosecution. Therefore, the only rt evidence as has come on record is by way of testimony of PW-4 and the own testimony of the I.O., PW-5.
21. It is well settled at this stage that if it was not possible to associate the independent witnesses despite efforts made, the conviction can be based solely on the testimony of official witnesses, if the same inspires confidence. We are drawing support in this regard from the judgment of the apex Court in Makhan Singh versus State of Haryana, (2015) 12, SCC 247, this judgment reads as follows:-
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"......In peculiar circumstances of the case, it may not be possible to find out independent .
witnesses at all places at all times.
Independent witnesses who live in the same village or nearby villages of the accused are at times afraid to come and depose in favour of the prosecution. Though it is well settled of that a conviction can be based solely on the testimony of official witnesses, condition precedent is that the evidence of such rt official witnesses must inspire confidence. In the present case, it is not as if independent witnesses were not available....."
22. To the similar effect is the ratio of the judgment of the apex Court in Girja Prasad versus State of M.P., (2007) 7, SCC, 625, which reads as follows:-
"In our judgment, the above proposition does not lay down correct law on the point. It is well-
settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a Court of Law may not base conviction solely on the evidence of Complainant or a Police Official but it is not the ::: Downloaded on - 15/04/2017 20:55:29 :::HCHP
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law that police witnesses should not be relied upon and their evidence cannot be accepted .
unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a Police Official as any other person. No infirmity attaches to the of testimony of Police Officials merely because they belong to Police Force. There is no rule of law which lays down that no conviction can be rt recorded on the testimony of Police Officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the Court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence."
23. It is seen that in the judgment supra, it has been emphasized that the testimony of police officials, no doubt, can be relied upon, however, if consistent and trustworthy. Also that while placing reliance thereon, the rule of prudence may require more careful scrutiny of such evidence having come on record by way of ::: Downloaded on - 15/04/2017 20:55:29 :::HCHP
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testimony of the police officials. Rightly so, because the police officials are always interested in the success of the .
prosecution case. Even this Court in a recent judgment rendered in Cr. Appeal No.353 of 2011 titled State of Himachal Pradesh versus Virender Singh, on 5.7.2016, has of held that the place was an isolated and despite efforts made, no one could be associated to witness the search rt and seizure. The testimony of the official witnesses was, therefore, held to be trustworthy being consistent.
24. No doubt PW-4 HHC Lal Singh while in the witness box has stated that the accused was nabbed at Banupul and during the search of bag he was carrying on his back, Charas weighing 3 Kgs. was recovered therefrom. He has also supported the prosecution case qua search and seizure having taken place on the spot.
However, since to our mind, the I.O. did not associate the independent witnesses intentionally and deliberately, no reliance can be placed on the evidence as has ::: Downloaded on - 15/04/2017 20:55:29 :::HCHP
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come on record by way of the testimony of PW-4 HHC Lal Singh. In the given facts and circumstances and as .
already concluded, the I.O. has not made any effort intentionally and deliberately to associate the independent witnesses.
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25. The police party reached at Banupul around 5.25 p.m. and remained on the spot till 6.50 p.m. On rt finding that it was going to fall dark, the police party returned to Police Station. The I.O. could have easily joined someone on the spot itself in view of vehicular traffic over Banupul. There is no evidence that he had signalled the person on wheel to stop the vehicles and that the persons on the wheel did not stop their vehicles.
The I.O., however, did not make any effort to join anyone as independent witness on the spot and even while on the way to police Station Manali as he has stated so while in the witness box. While on the way to Police Station from the spot also, the I.O. could have asked ::: Downloaded on - 15/04/2017 20:55:29 :::HCHP
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someone and associated as independent witness.
Search of the accused was conducted in Police Station, .
Manali as according to the I.O. after Sunset, it was going to fall dark.
26. It is also doubtful that electronic weighing of machine was available with the I.O., for the reason that the evidence qua this aspect is contradictory in nature.
rt While PW-2 MHC Sher Singh has stated that prior to 31.12.2010 electronic weighing machines were not available in the Police Station. PW-3 Om Prakash, the then SHO has come forward with the version that in the year 2010, three electronic weighing machines were available in the Police Station.
27. The consent has also not been obtained in the manner as required under Section 50 of the Act. As a matter of fact, in view of the I.O., has not associated any independent witness, in order to remove all doubts the search of the accused should have been conducted ::: Downloaded on - 15/04/2017 20:55:29 :::HCHP
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before the nearest Magistrate or gazetted officer, particularly when the Court of Judicial Magistrate, .
Manali and also the office of Executive Magistrate, Manali is situated nearby Police Station. The accused was brought to the I.O. room in Police Station, Manali of from Banupul. On the way the I.O. could have asked some person(s) from the locality to witness the search rt and seizure. He, however, not made any effort to do so.
28. Being so, the investigation seems to have not taken place in the manner as claimed by the I.O., PW-5 and also PW-4 HHC Lal Singh. PSI Anil Kumar, another witness associated to witness the search and seizure has not been examined for the reasons best known to the prosecution. Therefore, analyzing the evidence as has come on record by way of the testimony of PW-5 and PW-4 and also the given facts and circumstances, it is not possible to record the findings of conviction against the accused.
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Point No.3.
29. Mentioning the commission of offence under .
Section 20 of the NDPS Act in those documents which were prepared well before recovery of Charas, that too with the same pen, leads to the only conclusion that the of search and seizure has not taken place in the manner as claimed by the prosecution. In the sample of seal rt Ex.PW-4/D, FIR number was written with same pen, most probably at the time of drawing the sample, however, realizing that FIR number could have not been mentioned before registration of FIR and to show that the FIR number was mentioned after its registration, overwriting has been made with red pen. However, the overwriting qua time against column No.10 of NCB forms Ext.PW-2/G, is not fatal to the prosecution case for the reason that the time of deposit of the case property by PW-3, with PW-2 after resealing has been recorded as 8.50 p.m. even in the Rapat Ext.PW2/C also entered in ::: Downloaded on - 15/04/2017 20:55:29 :::HCHP
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this regard in the Rojnamcha. The contradiction in the statement of PW-4 and PW-5 qua distance between .
Manali Resort and Banupul or Manali Resort to Green Tax Barrier as noticed by learned trial Judge cannot be given any weightage for the reason that with the passage of of time, memory fades away and such contradictions minor in nature are bound to occur.
30. rt The non-production of seal 'T' by PSI Anil Kumar, is also not fatal to the prosecution case for the reason that no question has been put to the I.O. in his cross-examination that the seal was not given to PSI Anil Kumar nor is it the case of the defence as to what prejudice has been caused to the accused from non-
production thereof. The non-production of seal 'H' by PW-3 Om Prakash, however, renders the prosecution story doubtful as while in the witness-box though it is stated by him that the seal has misplaced, however, it is not possible to believe so that too when no plausible ::: Downloaded on - 15/04/2017 20:55:29 :::HCHP
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explanation is forthcoming as to how and where the same got misplaced.
.
31. In view of what has been said hereinabove the sole testimony of official witnesses being contradictory in nature cannot be made basis for of recording the findings of conviction against the accused. The official witnesses have improved their rt version. The recovery of charas from the conscious and exclusive possession of the accused has not been proved beyond all reasonable doubt. In the nature of the evidence available on record, the findings of acquittal recorded by the Court below can neither be termed erroneous nor legally unsustainable. His plea in defence that he along with two Nepalese was nabbed while on his way from Sambha to Neuli and 5.50 kg.
charas was recovered from Nepalese and that the recovery of 3 kgs. was foisted upon him though seems to ::: Downloaded on - 15/04/2017 20:55:29 :::HCHP
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be not plausible, however, he otherwise is entitled to the benefit of doubt, hence it is not possible to convict him.
.
32. It is well settled at this stage that if from the evidence available on record two possible views emerge, the one, which is favourable to the accused, should be of upheld. In this view of the matter, we conclude that the findings of conviction could have not been recorded rt against the accused. The trial Court has, therefore, rightly acquitted him from the charge. The impugned judgment as such warrants no interference by this Court in the present appeal.
33. In view of what has been said hereinabove, this appeal fails and the same is accordingly dismissed.
Personal bond furnished by the accused shall stand cancelled and surety discharged.
34. Before parting with this case, we shall be failing in our duty, if ignore the manner in which PW-5 ASI Daya Ram, the I.O. of this case, has conducted himself.
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We have already observed in para supra that he did not join independent witnesses to witness the search and .
seizure intentionally and deliberately, that too, when the accused was apprehended at Banupul a place which situate in Manali Town itself. He being the I.O. was of expected to have the knowledge of the legal necessity of associating independent persons to witness the search and rt seizure that too in a case of this nature. True it is that independent persons are not available at each place and at every time. However, the present is not a case where the search and seizure has taken place at an isolated place. The accused rather was nabbed in the periphery of Manali Town itself and as regards his search, the same has been conducted in the I.O's room at Police Station, Manali. It is not understandable that in a situation when independent persons were not there to witness the search and seizure, why the I.O. has not preferred to conduct the search of the accused in the presence of a gazetted ::: Downloaded on - 15/04/2017 20:55:29 :::HCHP
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officer or a Magistrate, because both the gazetted officer and Judicial Magistrate are available in Manali and even .
having their office/residence nearby the Police Station.
How he could have believed that the accused has committed the offence under Section 20 of the NDPS Act of that too at the stage of obtaining his consent under Section 50 of the Act vide memo Ext. PW-4/A i.e. well rt before the alleged recovery of Charas. How he could have mentioned the FIR number on the documents with the same pen well before the prepration of rukka Ext. PW-
5/B and registration of FIR Ext. PW-3/A. All such lapses, the I.O. committed during the course of investigation, create doubt qua the recovery of Charas from the exclusive and physical possession of the accused. The accused may have been apprehended with Charas weighing 3 Kgs., and as per settled legal principles, no offender should go scot-free. He, however, taking benefit of various safeguards under the Act due to acts of omissions and ::: Downloaded on - 15/04/2017 20:55:29 :::HCHP
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commissions attributed to the I.O. has been acquitted of the charge. It is on account of faulty investigation .
conducted by the I.O. and his conduct which is not found above board, the accused has been acquitted of the charge.
of
35. If not shocking, it is painful to point out that irrespective of the NDPS Act enacted by the Parliament in rt 36th year of Republic of India with an object to make stringent provisions for control and regulation of the operations relating to Narcotic Drugs & Psychotropic Substances including forfeiture of the property derived from or use in the illicit trafficking of Narcotic Drugs & Psychotropic Substances to curb the drug menace, our Investigating Officers are still not well averse to the procedure mandatory as well as directory in nature required to be followed before conducing the raid with or without warrant and authorization, conducting the search of the accused and seizure of the Narcotic Drug & ::: Downloaded on - 15/04/2017 20:55:29 :::HCHP
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Psychotropic Substance, if any, recovered from him. The procedure as prescribed under Chapter V of the Act is .
neither cumbersome nor of such a nature that authorized officer/official is not in a position to understand the same.
The Investigating Officers are either not following the same of intentionally or deliberately to the reasons best known to them for some extraneous considerations or are easy going rt and inefficient, hence do not want to learn the procedure so prescribed and apply the same in each and every case under the Act, they come across. They even are not following the bare minimum requirement of joining independent witnesses also while conducting search and seizure, when such witnesses can be easily associated.
36. Having said so, we, however, leave it to the high-ups in the Police Department to have introspection over the matter and also to deal with the I.O. of this case as per the Rules and in accordance with law, if any, action is warranted against him.
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An authenticated copy of this judgment be supplied to the Chief Secretary to the Government of .
Himachal Pradesh and to the Director General of Police, Himachal Pradesh for information and action as warranted in the matter.
of (Dharam Chand Chaudhary), Judge.
July 29, 2016.
(rc/ps/ss)
rt (Chander Bhusan Barowalia),
Judge.
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