Himachal Pradesh High Court
Karam Singh S/O Sh. Khubi Nand vs Karam on 2 November, 2022
Bench: Sabina, Sushil Kukreja
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 2nd DAY OF NOVEMBER, 2022
.
BEFORE
HON'BLE MS. JUSTICE SABINA
&
HON'BLE MR. JUSTICE SUSHIL KUKREJA
CRIMINAL APPEAL No.111 of 2019
Between:- r
1. KARAM SINGH S/O SH. KHUBI NAND,
AGED ABOUT 63 YEARS.
2. PAWAN KUMAR ALIAS PAMMI, S/O
KARAM SINGH, AGED ABOUT 24
YEARS.
BOTH RESIDENT OF VILLAGE BANJLI,
P.O. GANED, TEHSIL CHURAH, DISTT.
CHAMBA, H.P.
......APPELLANTS
(BY MR. RAM MURTI BISHT &
MR. RAVINDER THAKUR, ADVOCATES)
AND
STATE OF HIMACHAL PRADESH
......RESPONDENT
(BY MR. RAJU RAM RAHI, DEPUTY
ADVOCATE GENERAL )
RESERVED ON: 20th OCTOBER, 2022
DECIDED ON: 2nd NOVEMBER, 2022
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2
This appeal coming on for pronouncement of judgment
this day, Hon'ble Mr. Justice Sushil Kukreja, delivered the
following:
.
JUDGMENT
The instant appeal filed under Section 374 (2) of Code of Criminal Procedure, lays challenge to judgment of conviction and order of sentence dated 07.03.2019, passed by learned Special Judge, Chamba, District Chamba, H.P. in Sessions Trial No.09 of 2017, titled State of Himachal Pradesh Versus Karam Singh and another, whereby appellant/accused Karam Singh was convicted for commission of the offence punishable under Sections 20, 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as "NDPS Act"), whereas, appellant/accused Pawan Kumar @ Pammi was convicted under Sections 20 and 29 of the NDPS Act and sentenced them to undergo rigorous imprisonment for 12 years each and to pay fine of Rs.1,00,000/- (rupees one lakh only) and in default of payment of fine amount, to undergo rigorous imprisonment for a period of one year each for the commission of offence under Section 20(b)(ii)(C) of the NDPS Act, for the commission of offence punishable under Section 25 of NDPS Act, ::: Downloaded on - 02/11/2022 20:35:48 :::CIS 3 appellant/accused Karam Singh was sentenced to undergo rigorous imprisonment for 12 years and to pay fine of .
Rs.1,00,000/- (rupees one lakh only) and in default of payment of fine amount, to undergo rigorous imprisonment for a period of one year and for the commission of offence punishable under Section 29 of NDPS Act, both the appellants/accused persons were sentenced to undergo rigorous imprisonment for 12 years each and to pay fine of Rs.1,00,000/- (rupees one lakh only) each and in default of payment of fine amount, to undergo rigorous imprisonment for a period of one year each.
2. The case of the prosecution, in brief, is that on 20.11.2016 Inspector/SHO Dharam Singh alongwith HC Ravinder Kumar, HHC Parkash Chand, Constable Pushap Raj, Constable Mulkh Raj and LC Nirmala, was on patrolling duty and traffic checking towards Banjali in official vehicle bearing registration No.HP 73-2161, being driven by HHC Bilal Sheikh and laid naka at a distance of 1½ km from Shikari Mod. At about 12.30 p.m., one white coloured Swift Car bearing registration No.HP73-7414, came from Banjali side and the same was stopped by Constable Mulkh Raj and on inquiry, the driver of the vehicle hesitated to ::: Downloaded on - 02/11/2022 20:35:48 :::CIS 4 produce the documents of the vehicle and disclosed his name as Karam Singh, son of Shri Khubi Nand and another person, .
namely, Pawan Kumar alias Pammi was also sitting on the front seat of the car. During search of the car, one black coloured pithu bag with one pocket having two zips, was found kept nearby the driver. The police had raised suspicion apprehending the stolen articles or black money inside the bag and thereafter, C.Pushap Raj was sent to bring independent witnesses. However, no independent witness was available, hence, HC Ravinder Kumar and LC Nirmala were associated as witnesses and thereafter Inspector/SHO Dharam Singh checked the pithu bag and on opening the zip of the bag, one polythene packet containing black coloured substance in the shape of sticks and rounds was found, which was found to be charas and thereafter the same was weighed with a manual scale, which was found to be 3 kgs.
Thereafter, the recovered charas was kept in the same pithu bag and polythene packet and then sealed in a cloth parcel by using ten seals of seal impression `TD`. Sample of seal was separately taken on a piece of cloth, NCB forms were filled in triplicate and seal after use was handed over to HC Ravinder Kumar. The cloth ::: Downloaded on - 02/11/2022 20:35:48 :::CIS 5 parcel containing charas, NCB forms in triplicate and sample of seal were taken into possession and photographs were also .
clicked on the spot. Inspector/SHO Dharam Singh prepared rukka and sent the same to Police Station Tissa, District Chamba, H.P., through HHC Parkash Chand.
3. On the receipt of the rukka, FIR No.128, dated 20.11.2016 was registered at Police Station Tissa, District Chamba, H.P., against the accused persons under Sections 20, 25 and 29 of the NDPS Act.
4. During investigation, Inspector/SHO Dharam Singh prepared site plan, recorded statements of the witnesses and arrested the accused persons and also took into possession the swift car bearing registration No.HP73-7414. On 21.11.2016, both the accused persons and the sealed parcel containing contraband were produced before the learned Chief Judicial Magistrate, Chamba and certificate of correctness of inventory was obtained alongwith copy of the order. Thereafter, on 06.01.2017, the learned Judicial Magistrate 1st Class, Chamba issued certificate under Section 52A of NDPS Act and the case property was resealed with five Court seals and sample of seal was also taken.
::: Downloaded on - 02/11/2022 20:35:48 :::CIS 6The learned Judicial Magistrate 1st Class, Chamba had taken two samples of recovered charas weighing 25 grams each and the .
MHC sent the case property to SFSL, Junga for analysis. The result of the Chemical Examiner showed that the exhibit was extract of cannabis and sample of charas.
5. On the completion of the investigation and receipt of the SFSL report, Inspector/SHO Dharam Singh prepared the charge-sheet and presented the same in the Court.
6. Charges were framed by the learned trial Court against accused Karam Singh under Section 20 of NDPS Act read with Sections 25 and 29 of NDPS Act and against accused Pawan Kumar alias Pammi under Section 20 read with Section 29 of the NDPS Act, vide order dated 26.07.2017. Both the accused persons did not plead guilty of the charges framed against them and claimed trial.
7. In order to prove its case, the prosecution examined as many as 13 witnesses. Statements of accused persons were recorded under Section 313 Cr.P.C., wherein, they denied all set of incriminating evidence led by the prosecution against them, besides pleaded to be innocent and being falsely implicated.
::: Downloaded on - 02/11/2022 20:35:48 :::CIS 78. On the basis of evidence led on record by the prosecution, the learned trial Court held accused Karam Singh .
guilty of his having committed offence punishable under Sections 20, 25 and 29 of NDPS Act, whereas, accused Pawan Kumar alias Pammi was held guilty of his having committed the offence punishable under Sections 20 and 29 of the NDPS Act and sentenced them as per the description given hereinabove.
9. Being aggrieved and dissatisfied with the judgment of conviction and order of sentence passed by the learned trial Court, the appellants/accused persons approached this Court, praying therein for their acquittal after setting aside the aforesaid judgment of conviction and order of sentence.
10. We have heard learned counsel for the appellants as well as learned Deputy Advocate General and also gone through the record carefully.
11. The learned counsel for the appellants contended that the prosecution has failed to prove that the charas, in question, was recovered from the exclusive and conscious possession of the accused persons. He further contended that as no independent witness has been associated by the prosecution and ::: Downloaded on - 02/11/2022 20:35:48 :::CIS 8 the case of the prosecution is based on the testimony of the police officials only, who are interested in the outcome of the result of the .
case, therefore, the case of the prosecution has become doubtful.
He also contended that the report of FSL does not tally with the form of charas allegedly recovered from possession of the accused persons, which render the prosecution case highly suspicious.
12. On the other hand, learned Deputy Advocate General supported the judgment of the learned trial Court and contended that since the charges against the accused persons have been duly proved by the prosecution beyond reasonable doubt, the learned trial Court has rightly convicted them on the basis of proper appreciation of evidence.
13. The accused person, namely, Karam Singh stood charged for commission of the offence punishable under Section 20 read with Sections 25 and 29 of NDPS Act, whereas, the co-
accused, Pawan Kumar alias Pammi, stood charged for commission of the offence punishable under Section 20 read with Section 29 of the NDPS Act for having been found in exclusive and conscious possession of charas, weighing 3 kgs. To substantiate the said charges and to bring home the guilt of both ::: Downloaded on - 02/11/2022 20:35:48 :::CIS 9 the accused persons, the prosecution has examined as many as 13 witnesses. However, the case of the prosecution mainly rests .
upon the statements of PW-1 HC Ravinder Kumar, PW-2 HHC Parkash Chand, PW-11 Inspector Dharam Singh (Investigating Officer) and PW-12 C. Pushap Raj. These are the most material witnesses of the prosecution, who have been examined primarily to prove the search, recovery and seizure of charas, in question, from the exclusive and conscious possession of the accused persons.
14. It is not disputed that the case of the prosecution is based on the testimony of the police officials only and no independent witness has been associated by the Investigating Officer in the present case. We are conscious of the fact that the conviction can be based upon the sole testimony of the police officials, provided that such testimony is reliable, trustworthy and confidence inspiring and the Court can definitely act upon the same. But at the same time, if in the course of scrutinizing the evidence, the Court finds the evidence of the police officials as unreliable and untrustworthy, the Court may disbelieve the same.
In view of the aforesaid settled legal position, it has to be ::: Downloaded on - 02/11/2022 20:35:48 :::CIS 10 examined as to whether the search, recovery and seizure of the charas, in question, is doubtful as contended by the learned .
counsel for the appellants.
15. We have carefully perused the statements of police witnesses, i.e. PW-1 HC Ravinder Kumar, PW-2 HHC Parkash Chand, PW-11 Inspector Dharam Singh (Investigating Officer) and PW-12 C. Pushap Raj. The perusal of their statements show that no effort was made by the Investigating Officer to associate the independent witnesses, despite availability. It has come in the statements of the aforesaid witnesses that the accused persons were apprehended at the spot during the day time, i.e. at 12.30 p.m. In their cross-examination, PW-1 HC Ravinder Kumar and PW-2 HHC Prakash Chand have not specifically denied the suggestion of the learned defence counsel that there was a dhaba of Gian Chand at a distance of about ½ k.m. from the spot. PW-1 HC Ravinder Kumar had also not denied the suggestion that village Banjali was 1 k.m. away from the spot. PW-2 HHC Prakash Chand also admitted that during his stay on the spot, 3-4 vehicles passed through the spot. PW-12 C. Pushap Raj had also not specifically denied the suggestion that between Shikari Mod ::: Downloaded on - 02/11/2022 20:35:48 :::CIS 11 and Banjali, there was one village namely Siyoga. Therefore, it appears that no effort had been made by the Investigating Officer .
for associating any independent witness despite the fact that it was a day time and he could have joined independent witnesses from the nearby dhaba of Gian Chand or from village Banjali or village Siyoga or could have associated the occupants of the vehicles which passed through the spot even at some later stage and it would have proved the presence of the police party on spot.
However, there is total failure of the Investigating Officer to make any effort to associate any independent witness. From the evidence on record, it can be inferred that the police intentionally did not associate any independent witness as the things did not take place as projected by the prosecution.
16. The non-joining of the independent witnesses deliberately in spite of the availability gains significance in the facts of the present case as there is a major discrepancy in the case of prosecution inasmuch as that the report of the FSL does not tally with the form of charas allegedly recovered from the possession of the accused persons. It may be pertinent to mention here that ::: Downloaded on - 02/11/2022 20:35:48 :::CIS 12 all the spot witnesses, i.e. PW-1 HC Ravinder Kumar, PW-2 HHC Prakash Chand, PW-11 Inspector Dharam Singh (Investigating .
Officer) and PW-12 C. Pushap Raj, have stated in one voice that in the pithu bag, which was found lying in the vehicle, a black coloured hard substance in the shape of rounds and sticks was found and the same was found to be cannabis/charas. All of them further deposed that thereafter the recovered charas was taken into possession and the Investigating Officer put the same in the polythene bag and the said polythene bag was put inside the pithu bag, which was sealed in a white piece of cloth with 10 seals of seal impression 'TD'. PW-11 Inspector Dharam Singh specifically deposed that on reaching the Police Station, he handed over the sealed parcel containing charas to MHC for depositing the same in the Malkhana. PW-3 HC Deep Kumar also deposed that on 20.11.2016 Inspector/SHO Dharam Singh had handed over to him one sealed parcel sealed with 10 seals of seal impression 'TD' and after depositing the same in the Malkhana, he made an entry to that effect in the Malkhana register at Sr. No.300. He further deposed that on 21.11.2016, Inspector/SHO Dharam Singh took the sealed parcel to the Court from the Malkhana for conducting ::: Downloaded on - 02/11/2022 20:35:48 :::CIS 13 the proceedings under Section 52(A) of NDPS Act and on the same evening after the proceedings, the sealed parcel was again .
deposited with him in the Malkhana. He also deposed that on 22.11.2016, he sent the case property alongwith documents to FSL, Junga, through PW-5 HHC Subhash Singh. PW-5 HHC Subhash Singh specifically deposed that on 22.11.2016, he deposited the case property alongwith documents at FSL, Junga.
PW-12 C. Pushap Raj deposed that after collecting the result and the case property from the FSL, Junga, he handed over the same to MHC, Police Station Tissa on 22.12.2016.
17. Therefore, the above evidence shows that the charas, which was allegedly recovered from the possession of the accused persons, was in the shape of rounds and sticks and the same was sealed in a parcel with 10 seals of seal impression 'TD' and was sent to FSL, Junga in the same condition. However, the perusal of the report of FSL Ext. PZ shows that the charas, which reached FSL on 23.11.2016, was only in the form of sticks. The relevant portion of FSL report Ext. PZ is reproduced as under:-
"On opening the sealed cloth parcel, the exhibit stated as charas, in the form of sticks in white colored poly bag, was found in black ::: Downloaded on - 02/11/2022 20:35:48 :::CIS 14 colored synthetic zip bag. On weighing the exhibit stated as charas on electronic balance, the weight was found to be:
.
Total weight of parcel = 3.806Kg
Weight of poly bag, synthetic
bag & parcel cloth = 0.852Kg
Weight of exhibit = 2.954Kg."
18. The prosecution has failed to explain as to how the charas only in the shape of sticks reached FSL, despite the fact that the charas, which was allegedly recovered from the possession of the accused persons, was in the shape of rounds and sticks. We have also perused the statements of PW-1 HC Ravinder Kumar, PW-2 HHC Prakash Chand, PW-11 Inspector Dharam Singh and PW-12 C. Pushap Raj to the effect that when the case property was opened in the Court in their presence, nothing had been mentioned about its shape. The trial Court only observed that on opening the white coloured polythene bag, cannabis/charas Ext. P-6, came out. The trial Court has failed to observe the shape of the charas which was opened and then identified by the aforesaid witnesses during their deposition before the Court.::: Downloaded on - 02/11/2022 20:35:48 :::CIS 15
19. It has been specifically deposed by PW-11 Inspector Dharam Singh that on 21.11.2016, he moved an application .
Ext.PW11/G before learned CJM, Chamba for obtaining the certificate of correctness. In the application Ext. PW11/G also it has been mentioned that the charas, which was recovered from the possession of the accused persons, was in the shape of rounds and sticks. The learned CJM issued the certificate which is exhibited as Ext. PW11/H and also passed an order Ext.PW11/J. However, nothing has been mentioned by the CJM, Chamba in his certificate Ext.PW11/H as well as in the order-sheet Ext.PW11/J about the shape of the charas allegedly recovered from the possession of the accused persons. PW-11 Inspector Dharam Singh (Investigating Officer) had also deposed that photograph Ext. PW11/K was clicked in the Court when the case property was produced before the learned CJM, Chamba for obtaining certificate of correctness. However from the perusal of the abovesaid photograph also the shape of the contraband recovered cannot be ascertained.
20. It was the bounden duty of the prosecution to prove that while in their custody, the case property was not tampered ::: Downloaded on - 02/11/2022 20:35:48 :::CIS 16 with before reaching FSL, Junga. The prosecution was under an obligation to prove that the sealed parcel of the case property .
from the time it was taken into possession till the time it was deposited in the Malkhana and then till the same was deposited in the FSL, was in the same condition, in which, it was recovered from the accused persons and there was no possibility of tampering with it. In Rajiv Singh Vs. State of Bihar and another, (2015) 16 Supreme Court Cases 369, the Supreme Court has held that howsoever grave the alleged offence may be, suspicion alone cannot take the place of legal proof and the well-
established canon of criminal justice is "fouler the crime higher the proof". The relevant para of the judgment is reproduced as under:-
"66. It is well-entrenched principle of criminal jurisprudence that a charge can be said to be proved only when there is certain and explicit evidence to warrant legal conviction and that no person can be held guilty on pure moral conviction. Howsoever grave the alleged offence may be, otherwise stirring the conscience of any court, suspicion alone cannot take the place of legal proof. The well-established canon of criminal justice is "fouler the crime higher the proof". In unmistakable terms, it is the mandate of law that the prosecution ::: Downloaded on - 02/11/2022 20:35:48 :::CIS 17 in order to succeed in a criminal trial, has to prove the charge(s) beyond all reasonable doubt."
.
21. In the instant case, as observed earlier, the charas which was allegedly recovered from the possession of the accused persons, was in the shape of rounds/balls and sticks, but when it reached FSL, it was only in the shape of sticks.
Therefore, the possibility of tampering with the case property cannot be ruled out in view of the fact that no explanation has been given by the prosecution as to how the shape of the case property got changed when it reached FSL, Junga, which creates a serious doubt about the truthfulness of the case of the prosecution, the benefit whereof must go in favour of the accused persons.
22. Hence, in view of our aforesaid discussion, the prosecution has failed to prove its case against the accused persons beyond reasonable doubt. There has been a total wrong appreciation of evidence on record by the learned trial Court, which has resulted in miscarriage of justice.
23. Accordingly, the appeal is allowed and the impugned judgment of conviction and order of sentence dated 07.03.2019, ::: Downloaded on - 02/11/2022 20:35:48 :::CIS 18 passed by learned Special Judge, Chamba, District Chamba, H.P. in Sessions Trial No.09 of 2017, are set aside. Both the .
appellants/accused persons are acquitted of the charges framed against them and they be set at liberty, if not required in any other case. Office is directed to issue release warrant forthwith.
24. In view of the provisions of Section 437-A Code of Criminal Procedure, 1973, the appellants are directed to furnish personal bond in the sum of Rs.50,000/- each with one surety each in the like amount, before the Registrar (Judicial) of this Court, which shall be effective for a period of six months, with stipulation that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellants aforesaid, on receipt of notice thereof, shall appear before the Supreme Court.
( Sabina )
Judge
( Sushil Kukreja )
November 02, 2022 Judge
(VH)
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