Himachal Pradesh High Court
Sanjay Kumar And Another vs State Of Himachal Pradesh on 28 March, 2019
Bench: Dharam Chand Chaudhary, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeals No. 385 & 368 of 2017 Reserved on: 28.02.2019 .
Decided on: 28.03.2019
Cr. Appeal No. 385 of 2017
Sanjay Kumar and another .....Appellants
Versus
State of Himachal Pradesh ......Respondent
Cr. Appeal No. 368 of 2017
Manoj Kumar .....Appellant
Versus
State of Himachal Pradesh ......Respondent
______________________________________________________________ Coram The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge. The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
1Whether approved for reporting? Yes.
For the appellant(s): Mr. Manoj Pathak, Advocate, in Cr.
Appeal No. 385 of 2017.
Mr. Anoop Chitkara and Ms. Sheetal Vyas, Advocates, in Cr. Appeal No. 368 of 2017.
For the respondent(s): Mr. Vikas Rathore, Mr. Narinder Guleria, Addl. AGs, Mr. J.S. Guleria and Mr. Kunal Thakur, Dy. AGs, with Mr. Sunny Dhatwalia, Assistant AG.
Chander Bhusan Barowalia, Judge.
Since both these appeals arise out of the judgment dated 22.06.2017, passed by learned Special Judge (II), Kinnaur at Rampur Bushehar, H.P., in Sessions Trial No. 25-R/3 of 2016, whereby appellants-accused persons were convicted and sentenced for the commission of offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 29/03/2019 21:58:54 :::HCHP 2(hereinafter to be called as "NDPS Act"), they are heard together and are being disposed of by a common judgment.
.
2. Succinctly, the facts giving rise to the present appeals, as per the prosecution story, are that on 15.01.2016 ASI/Investigating Officer Dilu Ram, alongwith, HHC Dalip and Constable Rajesh Kumar was on nakka on the road leading to Luhri. At about 5.00 a.m., one Scorpio bearing registration No. HP-
11C-9999 coming from Anni side was signaled to stop. The driver stopped the vehicle on one side of the road. Another person was also sitting in the said vehicle. On inquiry, the driver disclosed his name, as Sanjay Kumar, whereas the person sitting with him disclosed his name, as Manoj Kumar. The documents of the vehicle were checked and as per Registration Certificate, registered owner of the vehicle was one Pankaj. Investigating Officer opened the left hand side front door of the vehicle and found one pink coloured carry bag lying below the dashboard. The carry bag was having two strings and it was tied and when the same was opened, some black colour substance in the shape of balls was found, which was found to be cannabis. Since, no independent witness was present on the spot, ASI Dilu Ram asked HHC Dalip Kumar to bring two independent witnesses for search and seizure. HHC Dalip Kumar returned to spot after 20 minutes and told that no independent witness was found even after making sufficient efforts. During the aforesaid period, ASI Dilu Ram also stopped four vehicles passing ::: Downloaded on - 29/03/2019 21:58:54 :::HCHP 3 through the road and requested the occupants to associate themselves in search and seizure, however they refused and lastly, .
he associated HHC, Dalip Kumar and Constable Rajesh Kumar as witnesses. The recovered contraband was weighed with the electronic weighing machine and found to be 1.5 Kg. The contraband alongwith carry bag was put in cloth parcel and sealed with 12 seals having impression 'T' and sample of seal 'T' was also taken on separate piece of cloth. NCB form in triplicate was filled in and seal impression was taken on it. During interrogation, accused persons disclosed that they had purchased the said contraband from one Deep Ram of Shamshar, Anni for rupees fifty thousand. Investigating Officer scribed rukka and sent the same to Police Station, Anni, through Constable Rajesh Kumar, on the basis of which, FIR was registered. During investigation, Investigating Officer prepared site plan, recorded statements of the witnesses and arrested accused Manoj Kumar and Sanjay Kumar. On completion of codal formalities, Investigating Officer handed over the case property alongwith the sample seal and NCB form to SHO/Inspector Santosh Kumar for resealing. SHO Santosh Kumar after examining the parcel resealed the same with three seals having impression 'K' filled in columns No. 9 to 11 of NCB form and took sample seal on separate piece of cloth. Thereafter, he deposited the entire case property alongwith the sample seal and NCB form with malkhana Incharge, MHC Virender Kumar, who ::: Downloaded on - 29/03/2019 21:58:54 :::HCHP 4 made its entry in malkhana register and deposited it in the malkhana. On 17.01.2016, malkhana Incharge handed over the .
case property alongwith relevant documents to HHC, Laxman to deposit in SFSL, Junga, vide RC, who deposited the same in SFSL, Junga, on the same day and on return, handed over the receipt to MHC. On the same day, Inspector Santosh Kumar produced the special report before SDPO, Rampur. After completion of investigation, SHO Bhoop Singh prepared the challan and presented it before the learned trial Court.
3. The prosecution, in order to prove its case, examined as many as nine witnesses. Statements of the accused persons were recorded under Section 313 Cr. P.C., in which they denied the case of the prosecution. The accused persons did not lead any evidence in their defence.
4. The learned trial Court, vide judgment dated 22.06.2017, convicted the accused persons for the commission of offence punishable under Section 20 of the NDPS Act and sentenced them to undergo rigorous imprisonment for ten years (each) and to pay fine of rupees one lac (each) and in default of payment of fine to further undergo simple imprisonment for six months (each). Hence, the present appeals.
5. Mr. Anoop Chitkara, learned counsel for the appellant-
convict Manoj Kumar has argued that the prosecution has failed to prove the guilt of the appellant-convict beyond the shadow of ::: Downloaded on - 29/03/2019 21:58:54 :::HCHP 5 reasonable doubt, however, the learned trial Court on the basis of surmises and conjectures convicted the appellant. He has .
vehemently argued that the spot was having number of houses and shops, but inspite of that, no independent witness was associated. Further, it has come in the statements of police witnesses that many vehicles were passing through the road at that time, but there is no explanation why no independent witness could be associated. He has further argued that it cannot be said that no independent witness was available and as the prosecution case is based upon the police witnesses only, whose statements are not reliable in the peculiar facts and circumstances of the case, when the independent witnesses were available, the present appeal be allowed and the appellant-convict be acquitted.
6. Mr. Manoj Pathak, learned counsel for the appellant-
convict Sanjay Kumar has strenuously argued that when the weighing scale was brought from private person, there was no occasion that he could not bring the independent witness. He has further argued that when independent witnesses were available, non associating them in the proceedings make the prosecution case unreliable and wholly suspicious and the present appeal deserves to be allowed.
7. On the other hand, Mr. Narinder Guleria, learned Additional Advocate General has argued that the spot was away from the locality, as such, no independent witness could be ::: Downloaded on - 29/03/2019 21:58:54 :::HCHP 6 associated and as the prosecution has proved the guilt of the accused persons conclusively and beyond the shadow of .
reasonable doubt, both the appeals be dismissed.
8. In rebuttal, learned counsel for the appellants-convicts have argued that the place was having market and large number of shops and houses and many vehicles were passing through the road, which was also checked by the police party and the present is a case, where there was no recovery from the conscious possession of the accused persons and the prosecution case is a concocted story.
9. In order to appreciate the rival contentions of the parties, we have gone through the record carefully and in detail.
10. At the very outset the statement of ASI/Investigating Officer Dilu Ram is required to be considered, who while appearing in the witness box as PW-6 has testified that on 15.01.2016, he alongwith HHC Dalip and Constable Rajesh Kumar had laid a nakka on the road leading from Luhri to Anni. At around 5.00 a.m., one Scorpio of dark blue colour, bearing registration No. HP-11C-9999, coming from Anni side was signaled to stop. On inquiry, the driver disclosed his name as Sanjay and the person sitting with him disclosed his name as Manoj. Documents of the vehicle were checked, which were found to be correct and as per registration certificate, the vehicle was registered in the name of Pankaj.
During routine checking, he opened the left side front door of the ::: Downloaded on - 29/03/2019 21:58:54 :::HCHP 7 vehicle, where one carry bag was found lying. The carry bag was having two strings and when it was opened, some black colour .
substance in the shape of balls was found, which on checking was found to be cannabis. At the spot, no independent witness was present, as such, he asked HHC Dalip Kumar to bring independent witness. After 20 minutes, HHC Dalip Kumar came back to the spot and told that no independent witness could be found. He also stopped four vehicles passing through the road and requested the occupants of the vehicles to associate in the proceedings, however they refused. Consequently, he associated HHC Dalip Kumar and Constable Rajesh Kumar as witnesses and weighed the recovered contraband, which was found to be 1.5. k.g. The recovered contraband was put in the cloth parcel and sealed with 12 seal impressions of seal 'T'. He filled in the relevant columns of NCB form and took the sample of seal on separate piece of cloth. The recovered contraband alongwith vehicle and its documents was taken in possession vide memo, Ext. PW-1/B. This witness has also testified regarding the preparation of rukka and site plan. This witness, in his cross-examination, has deposed that he prepared the special report on 16.01.2016 and sent it to SDPO, Anni on 17.01.2016. He has further deposed that reseal certificate was not prepared by him and he does not wrote anything on it. He deposed that they had not given personal search of the police party to the accused persons. He feigned ignorance as to with whom the I.O.
::: Downloaded on - 29/03/2019 21:58:54 :::HCHP 8kit was lying. In cross-examination on behalf of accused Manoj Kumar, this witness has deposed that the weighing scale was lying .
in the I.O. kit. He further deposed that he procured the call details of accused persons, but the same were not made part of the charge sheet. He feigned ignorance whether case property was sent for SFSL examination when special report was prepared or not.
11. The statement of PW-6 is required to be gone into alongwith the statement of PW-1, HHC Dalip Kumar, who is the other witness of search, seizure and recovery. This witness, in his examination-in-chief, has corroborated the version of PW-6, Dilu Ram in all material particulars and has further deposed that he was sent by ASI Dilu Ram to bring two independent witnesses, but as it was dark due to winter season, no independent witness could be found. This witness, in his cross-examination on behalf of accused Sanjay, has admitted that there is habitation and bazar at Luhri, which is about the distance of five minutes from the spot. He deposed that copy of seizure memo, Mark DA was given to the accused persons at the spot prior to sending of rukka. He further deposed that they were present on the spot till 2.30 p.m. He admitted that I.O. kit was with the Investigating Officer and it was of black colour. He deposed that Investigating Officer had given his personal search to the accused persons. This witness, in his cross-
examination on behalf of accused Manoj, has admitted that there ::: Downloaded on - 29/03/2019 21:58:54 :::HCHP 9 are about 50 residential houses and 100 shops at Luhri bazar. He also admitted that the electronic weighing scale was not official, .
rather it belonged to private person.
12. PW-2, Constable Rajesh Kumar is also the witness of search, seizure and recovery and he also corroborated the statement of Investigating Officer on all material particulars. As per this witness, he took rukka to police station and handed over it to MHC, Purender Kumar. In cross-examination on behalf of accused Sanjay Kumar, he feigned ignorance about the sequence of the documents prepared. He deposed that NCB form was prepared prior to the seizure memo and its columns No. 1 to 8 were filled in. He feigned ignorance as to by whom the memo of taking personal search of the accused persons was signed. This witness, in his cross-examination on behalf of accused Manoj Kumar, has stated that it was dark outside when the vehicle of accused persons was intercepted.
13. PW-5-A, Inspector Santosh Kumar has deposed that on 15.01.2016, Constable Rajesh Kumar produced rukka before him, on the basis of which, FIR Ext. PW-2/A was registered. On the same day, ASI Dilu Ram produced case property before him and he resealed the same with three seal impressions of seal 'K' and issued reseal certificate. He further deposed that he filled in columns No. 9 to 11 of NCB form and also took the impression of seal 'K' on separate piece of cloth and thereafter deposited the ::: Downloaded on - 29/03/2019 21:58:54 :::HCHP 10 same alongwith NCB form and sample seal with Malkhana Incharge.
.
14. PW-7, Pankaj Kumar had deposed that he knows accused Sanjay. He admitted that he is the owner of vehicle bearing No. HP-11C-9999 and on 13.01.2016, accused Sanjay had requested him to lend his aforementioned vehicle and told that he would return it by 16.01.2016, the vehicle was at his home and he was at Shimla. On 16.01.2016, he came to know that his vehicle has been impounded by police in NDPS case.
15. PW-8, HC, Purender Kumar, Malkhana Incharge, has deposed that on 15.01.2016, SHO, Santosh Kumar handed over to him case property pertaining to the case, alongwith documents, which he entered in malkhana Register and deposited in malkhana. He further deposed that on 17.01.2016, vide RC, Ext.
PW-8/B, he handed over the case property alongwith documents to HHC, Laxman Dass, who deposited the same in SFSL, Junga and after depositing the case property in SFSL, handed over the receipt to him.
16. Besides aforesaid witnesses, the prosecution has also examined PW-3, HHC Laxman, PW-4, Constable Ajay Kumar, PW-5, Lady Constable Bhuvneshwari and PW-9, Lachi Ram, who are formal witnesses.
17. From the aforesaid evidence, it is not clear that how far away the shops and inhabitants are there from the spot, but ::: Downloaded on - 29/03/2019 21:58:54 :::HCHP 11 the spot map, Ex.PW6/A, makes the spot position crystal clear, as it is specifically mentioned therein that Luhri bazar is 300 meters .
from the spot. It has come in the statement of PW-1, HHC Dalip Kumar that electronic weighing scale was not official, but it belongs to a private person and when as per the statement of PW-1, in Luhri bazar, there were 50 residential houses and 100 shops and four vehicles also passed through at that time, which were also stopped for checking, it is not probable that no independent witness was available there. It has specifically come in the statement of PW-6, that at that time, four vehicles passed through the spot, which were stopped, but not checked. As per the prosecution case, PW-1, who was sent to bring the independent witness, has not stated anything as to whom he asked to become an independent witness, when there were 100 shops and more than 50 residential houses near the spot.
18. At the same point of time, PW-2, Constable Rajesh Kumar, stated that the vehicles, which were coming and going were searched after intercepting the vehicle of the accused and it took them 4-5 minutes to check one vehicle and during twenty minutes, they checked 3-4 vehicles. As per the statement of this witness, when they were checking the vehicles, HHC Dalip Kumar was not present on the spot. This witness has also feigned ignorance as to by whom memo of personal search of the accused persons was signed. Further, he could not say, who has prepared ::: Downloaded on - 29/03/2019 21:58:54 :::HCHP 12 the spot map. Even, PW-5A, Inspector/SHO Santosh Kumar, in his cross-examination has stated that the seal, which he used for .
resealing, has been used by him in many cases. As per the statement of Investigating Officer, he prepared the call details of the accused persons, but not made it part of the charge sheet. It has also come in his statement that personal search of the police party was not given to the accused persons. The Investigating Officer could also not say as to with whom the I.O. kit was lying.
19. In the given facts and circumstances of the case, when the independent witnesses were available, but not associated and the statements of police witnesses are having material contradictions, it is difficult to hold that the prosecution has proved the guilt of the accused persons beyond the shadow of reasonable doubt and it cannot be ruled out that it is a concocted story. PW-2, Constable Rajesh Kumar while in cross-examination has admitted that they were present on the spot till 2:30 p.m., which shows that the Investigating Officer has not made any sincere efforts to associate the persons traveling in the vehicles.
Even, when as per the police, there were 100 shops and 50 residential houses in Luhri bazar, which as per the spot map is only 300 meters away from the spot, why no independent witness was associated in the proceedings, make the prosecution case doubtful.
::: Downloaded on - 29/03/2019 21:58:54 :::HCHP 1320. Hon'ble Apex Court in Kalpnath Rai vs. State (through CBI), 1997 (8) SCC 732, has held as under:
.
"87. As a legal proposition it was argued that it would be unsafe to base a conclusion on the evidence of police officer alone without being supported by at least one independent person from the locality. To reinforce the said contention Shri V.S. Kotwal, Senior Advocate cited the decision of this Court in Pradeep Narayan Madgaonkar v. state of Maharashtra, wherein want of independent witnesses of the locality rendered suspicious a raid conducted by the police.
88. There can be no legal proposition that evidence of police officers, unless supported by independent witnesses, is unworthy of acceptance. Non-examination of independent witness or even presence of such witness during police raid would cast an added duty on the court to adopt greater care while scrutinizing the evidence of the police officers. If the evidence of the police officer is found acceptable it would be an erroneous proposition that court must reject the prosecution version solely on the ground that no independent witness was examined. In Pradeep Narain Madgaonkar (supra) to which one of us (Mukherjee, J.) was a party, the aforesaid position has been stated in unambiguous terms, the relevant portion of which is extracted below :
"Indeed, the evidence of the official (police) witnesses cannot be discarded merely on the ground that they belong to the police force and are, either interested in the investigation or the prosecuting agency but prudence dictates that their evidence needs to be subjected to strict scrutiny and as far as possible corroboration of their evidence in material particulars should be sought. Their desire to see the success of the case based on their investigation, requires greater care to appreciate their testimony."
21. Hon'ble Apex Court in Krishan Chand vs. State of H.P., AIR 2017 (SC) 3751, has held as under:
"15. From the evidence which has come on record, it is quite clear that the place, where the accused is alleged to have been apprehended, cannot be said to be an isolated one as the house of Govind Singh DW-2 is situated on the edge of Patarna bridge. Thus the version of the complainant PW-6 that independent witnesses could not be associated as it was an isolated place does not inspire confidence. Moreover, from the evidence of Govind Singh PW-2 the case of the prosecution regarding apprehension of the accused, at Patarna bridge, while being in possession of bag containing 7 kgs of charas, becomes highly doubtful because had he been so apprehended by the police, this fact was to come to his notice, for the reason, that his house is situated at the edge of the bridge in which he resides alongwith his family."
22. Applying the law, as settled by the Hon'ble Apex Court ::: Downloaded on - 29/03/2019 21:58:54 :::HCHP 14 (supra) and taking the contradictions of the material facts into consideration, which have come on record, this Court is of the .
considered view that the prosecution has failed to prove the guilt of the accused persons beyond the shadow of reasonable doubt.
Otherwise also, when the investigating agency has not associated any independent witnesses, when they were available, the appellants cannot be convicted on the sole testimony of police witnesses, especially, when their statements are not confidence inspiring.
23. Consequently, the appeals filed by the appellants-
convicts are allowed and they are acquitted of the commission of offence punishable under Section 20 of the NDPS Act. Resultantly, appellants-convicts, who are presently serving out the sentence, be released forthwith, if not required in any other case, subject to their furnishing personal bond in the sum of Rs. 50,000/- (each) with one surety in the like amount (each) to the satisfaction of learned trial Court so that in the event of any appeal against this judgment is preferred, their presence in the appellate Court be secured. Release warrants be prepared accordingly. The appeals are finally disposed of.
(Dharam Chand Chaudhary) Judge (Chander Bhusan Barowalia) Judge 28.03.2019 (C.S./raman) ::: Downloaded on - 29/03/2019 21:58:54 :::HCHP