Himachal Pradesh High Court
State Of Himachal Pradesh vs Tej Singh on 22 November, 2016
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No 408 of 2016.
Reserved on: 25.10.2016.
.
Decided on: 22.11.2016.
State of Himachal Pradesh. ....Appellant.
Versus
Tej Singh ... Respondent.
Coram
of
The Hon'ble Mr. Justice Sanjay Karol, Judge. The Hon'ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 No rt For the appellant : Mr. Vikram Thakur and Mr. Punit Rajta, Dy. Advocate Generals.
For the respondent : Mr. Divya Raj Singh, Advocate.
Ajay Mohan Goel, Judge This appeal is directed against the judgment passed by the Court of learned Special Judge-II, Chamba, District Chamba, in Sessions Trial No. NDPS/69/2014, dated 08.04.2016, vide which, learned Trial Court has acquitted the present respondent (hereinafter referred to as 'accused') for commission of offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances, Act (in short 'NDPS Act').
1Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:35:42 :::HCHP 22. The case of the prosecution in brief was that on 31.12.2013, PW9 HC Shaukat Ali alongwith PW2 Constable .
Naresh Kumar, PW3 SPO Ramesh Kumar and PW1 ASI Bishamber Dass proceeded towards Jassourgarh for the purpose of Nakabandi. Said police party had laid 'naka' at Zero Point Jassourgarh at about 5:00 a.m. in the morning and when they were checking vehicles, they saw a person of coming on foot from Jassourgarh side to Kathel with the help of a torch. As per the prosecution, as soon as this person saw rt the police party, he tried to run away from the spot, on which, on suspicion, he was apprehended. This person was carrying a rucksack bag (pithu bag) on his back. On inquiry, he (accused) disclosed his name as Tej Singh son of Shri Nodhar Singh, resident of Village Bharada, Post Office Tikarigarh, Tehsil Churah, District Chamba. According to the prosecution, at the time of apprehension of said person (accused), no independent witness could be associated as no population was there within a periphery of three kilometers from the spot from where the accused was apprehended.
Accordingly, in these circumstances, Investigating Officer associated PW1 ASI Bishamber Dass and PW2 Constable Naresh Kumar as witnesses. Thereafter, the accused was ::: Downloaded on - 15/04/2017 21:35:42 :::HCHP 3 apprised of his legal right to be searched before a Gazetted Officer or a Magistrate, but the accused consented to be .
searched by the police party vide memo Ext. PW1/A in the presence of witnesses ASI Bishamber Dass (PW1) and Constable Naresh Kumar (PW2). This was followed by search of pitthu bag of accused, inside which besides other things, a carry bag, having red strip in the middle, in which 'Liliput' of was written, was found and when this carry bag was opened, black coloured hard substance in the shape of sticks and rt sticks bundle was recovered in the presence of PW1 ASI Bishamber Dass and PW2 Constable Naresh Kumar, which on smelling and burning was found to be cannabis/charas.
Thereafter aforesaid black coloured substance was weighed and same was found 2 kilo 200 grams charas/cannabis.
Thereafter, the charas/cannabis was put in the same carry bag and the carry bag was also put in the same pitthu bag and pitthu bag was put in a cloth parcel and sealed with five seals having impressions 'Y' and was taken into possession vide memo Ext. PW1/C in the presence of witnesses PW1 ASI Bishamber Dass and PW2 Constable Naresh Kumar.
Investigating Officer HC Shokat Ali filled the NCB forms Ext.
PW8/C in triplicate and sample of seal 'Y' was also appended ::: Downloaded on - 15/04/2017 21:35:42 :::HCHP 4 on the NCB forms on the spot. Seal impression was taken separately on the piece of cloth Ext. PW1/D and seal after use .
was handed over to witness ASI Bishamber Dass. Recovery memo was signed by witnesses ASI Bishamber Dass, Constable Naresh Kumar and the accused. The accused was arrested and information about his arrest was given to his younger brother. Investigating Officer prepared the site plan, of recorded the statements of witnesses under Section 161 of the Code of Criminal Procedure (for short 'Cr.P.C'). Rukka was rt sent to the police station through PW2 Constable Naresh Kumar, on the basis of which, FIR Ext. PW8/A was registered.
After reaching the police station, the case property was handed over for resealing to SHO Sharif Mohammad at police Station Tissa who resealed the parcel with five seals of impression 'A'. The case property was thereafter handed over to MHC Hukam Singh. The sample of contraband was subsequently sent to FSL, Junga for its chemical analysis alongwith NCB forms and other case property through HHC Subhash Singh. As per report of the chemical examiner, the substance examined was extract of cannabis/charas. After the completion of investigation, challan was filed in the Court and as a prima-facie case was found against the accused, ::: Downloaded on - 15/04/2017 21:35:42 :::HCHP 5 accordingly, he was charged for commission of offence punishable under Section 20 of the NDPS Act, to which he .
pleaded not guilty and claimed trial.
3. Learned trial Court vide its judgment under challenge acquitted the accused by holding that the evidence produced by the prosecution was neither cogent nor satisfactory to prove the guilt of the accused. Learned trial of Court further held that link evidence was missing and the only inescapable inference which could be drawn was that rt prosecution had failed to prove the guilt of the accused beyond shadow of reasonable doubt that he was found in conscious and exclusive possession of the contraband. While arriving at the said conclusion, learned trial Court took note of the fact that it was evident from the evidence that many vehicles passed the spot where the accused was allegedly apprehended, however, Investigating Officer despite having occasion to associate independent witnesses had intentionally not associated any independent witness which had caused miscarriage of justice to the accused. Learned trial Court also held that seals with which the case property was sealed and resealed were not produced before the Court for comparison.
It also held that there was no evidence on record as to who ::: Downloaded on - 15/04/2017 21:35:42 :::HCHP 6 brought the case property from FSL, Junga and there was no entry in malkhana register with regard to receiving the case .
property from FSL, Junga. Learned trial Court went on to hold that prosecution had failed to complete the chain of links from the time of seizure of the contraband till the production in the Court. On these bases, it was held by the learned trial Court that the prosecution has failed to prove its case against of the accused beyond reasonable doubt.
4. We have heard the learned Deputy Advocate rt General as well as learned counsel appearing for the respondent/accused. We have also gone through the records of the case as well as the judgment passed by the learned trial Court.
5. In the present case, Investigating Officer stepped into the witness box as PW9. He deposed in the Court that the police party laid a naka at Zero point Jassourgarh and were checking vehicles which were plying on the road and at around 5:00 p.m., one person i.e. the accused, came from Jassourgarh side who had a torch and when he (accused) saw the police party, he tried to run away. He further deposed that he asked that person (accused) to stop but he did not do so and on the basis of suspicion that he may be carrying some ::: Downloaded on - 15/04/2017 21:35:42 :::HCHP 7 contraband or some stolen property, he was apprehended at a distance of 25-30 feet. He further deposed that there was no .
population at the spot and as it were odd hours, no independent witness was available. He further deposed that in these circumstances, he associated ASI Bishamber Dass and Constable Naresh Kumar as witnesses and after apprising the accused of his legal right of conducting his personal search in of the presence of a Gazetted Officer or a Magistrate, when the accused consented to be searched by the police, search of rt pitthu bag carried by the accused was conducted. He further deposed that search of rucksack bag being carried out by the accused revealed that inside it there was one carry bag on which 'Liliput' was written and from the said carry bag black coloured hard substance in the shape of slides was recovered, which on smelling and burning was found to be charas.
Thereafter he deposed about the factum of weighing and sealing the charas as well as filling of NCB forms, sending of rukka and preparation of spot map etc. In his cross examination, he stated that ASI Bishamber Dass ordered him orally to conduct the investigation in the present case. He admitted that he did not mention this fact in statement of any of the witnesses recorded under Section 161 of Cr.P.C. He ::: Downloaded on - 15/04/2017 21:35:42 :::HCHP 8 further stated that the police party had not switched on any light and it was a dark night. He further deposed in his cross .
examination that the police party saw the accused coming from the distance of 5-7 feet and that the accused had switched on his torch at the relevant time.
6. SI Bishamber Dass, who entered the witness box as PW1 and who deposed that he was the member of the of police party which apprehended the accused on the relevant date, time and place, nowhere mentioned in his statement rt that he ordered the PW9 to investigate the case. In his cross examination, he stated that the place Madhuwad was situated at a distance of three kilometers from the zero point. He feigned ignorance that places Guwad and Seri were located near to zero point. He stated that Chanjunala was situated at a distance of three/four kilometers via shortcut. He admitted it to be correct that buses ply from Tissa, Bhanjraru to Chamba Pathankot between 4:00 to 10:30 a.m. on the said road. He also stated in his cross examination that Constable Naresh Kumar left the spot with rukka for police Station Tissa at 7:40 a.m. and that the distance of police Station Tissa from the Zero point Jassourgarh was 25 kilometers.
::: Downloaded on - 15/04/2017 21:35:42 :::HCHP 97. PW2 Constable Naresh Kumar while corroborating the case of the prosecution in his examination in chief, .
admitted in his cross examination that vehicles were being plied on Chamba-Tissa road during day time and occasionally in the night hours. He further stated that he reached police Station Tissa with Rukka in a private vehicle coming from Chamba side. He admitted that it was not recorded in his of statement recorded under Section 161 of Cr.P.C that he took lift from the spot to reach Police Station Tissa.
rt
8. Honble Supreme Court in Mohammed Ankoos and Others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 Supreme Court Cases 94 has held "12. This Court has, time and again, dealt with the scope of exercise of power by the Appellate Court against judgment of acquittal under Sections 378 and 386, Cr.P.C. It has been repeatedly held that if two views are possible, the Appellate Court should not ordinarily interfere with the judgment of acquittal. This Court has laid down that Appellate Court shall not reverse a judgment of acquittal because another view is possible to be taken. It is not necessary to multiply the decisions on the subject and reference to a later decision of this Court in Ghurey Lal v. State Of Uttar Pradesh1 shall suffice wherein this Court ::: Downloaded on - 15/04/2017 21:35:42 :::HCHP 10 considered a long line of cases and held thus :
(SCC p.477, paras 69 -70) "69. The following principles emerge from the .
cases above:
1. The appellate court may review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the of trial court's conclusion with respect to both facts and law.
2. The accused is presumed innocent until rt proven guilty. The accused possessed this presumption when (2008) 10 SCC 450 he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.
3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that the trial court was wrong.
70. In light of the above, the High Court and other appellate courts should follow the well-
settled principles crystallised by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal:
1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons"
for doing so.::: Downloaded on - 15/04/2017 21:35:42 :::HCHP 11
A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial .
court's decision. "Very substantial and compelling reasons" exist when:
(i) The trial court's conclusion with regard to the facts is palpably wrong;
(ii) The trial court's decision was based on an erroneous view of law;
(iii) The trial court's judgment is likely to of result in "grave miscarriage of justice";
(iv) The entire approach of the trial court in dealing with the evidence was patently illegal;
(v) The trial court's judgment was
rt
manifestly unjust and unreasonable;
(vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc.
(vii) This list is intended to be illustrative, not exhaustive.
2. The appellate court must always give proper weight and consideration to the findings of the trial court.
3. If two reasonable views can be reached-
-one that leads to acquittal, the other to conviction--the High Courts/appellate courts must rule in favour of the accused."
9. In the present case, the justification which has been given by the prosecution witnesses including the Investigating Officer for not associating any independent witness was that no independent witnesses could be associated as the spot where the accused was apprehended ::: Downloaded on - 15/04/2017 21:35:42 :::HCHP 12 was an isolated and secluded place. These witnesses have further deposed that there was no population nearby the area .
from where any independent witness could have been associated.
10. Be that as it may, the fact of the matter still remains that there is no material on record from which it could be inferred that the Investigating Officer did make an of attempt to associate the independent witnesses but despite his attempt rt he could not bonafidely associate any independent witness. This is for the reason that without even making a single attempt to associate the independent witnesses, the Investigating Officer associated PW1 ASI Bishamber Dass and PW2 Constable Naresh Kumar as witnesses in the proceedings. There is another important aspect of the matter and the same is that as per the prosecution, the police officials had laid a naka at zero point Jassourgarh, at about 5:00 a.m. in the morning for the purpose of checking of vehicles. Strangely, as per the prosecution witnesses, not even a single vehicle crossed the road during the time when they had laid the naka and even during the entire course of proceedings of the case which allegedly have been conducted by the police party at the spot ::: Downloaded on - 15/04/2017 21:35:42 :::HCHP 13 after they apprehended the accused. Further, incidentally, when Constable Naresh Kumar was to bring the rukka to the .
police Station, he was able to get lift in a private vehicle from the spot itself.
11. Another interesting point is that it has come in the cross examination of Investigating Officer that previously also he had set up 15-20 nakabandis at place Zero point of Jassourgarh during his tenure and he admitted this suggestion that as and when he laid naka at Zero point, rt recoveries were effected in all those cases. He also admitted the suggestion that in all those cases, he had mentioned that the place being secluded, no independent witness was available. It is a strange co-incidence that the police party used to lay naka at Zero Point for the purposes of checking vehicles, which place as per own version of the prosecution witnesses was not frequented by vehicles but the Investigating Officer was successful in effecting recoveries as and when he laid naka at place Zero Point. All these facts when taken up together create a serious doubt over the version of the prosecution case as to whether in reality the accused was actually apprehended by the police party at the date, time and place and in the mode and manner, which the prosecution ::: Downloaded on - 15/04/2017 21:35:42 :::HCHP 14 wants this Court to believe. Neither the statement of Investigating Officer nor the statements of PW1 and PW2 .
inspire confidence or seem to be trustworthy. On the one hand, these witnesses have stated that no independent witness could be associated interalia for the reason that the road on which in naka was laid was not frequented by the vehicles, however, in the same breath, PW1 ASI Bishamber of Dass in his cross examination deposed that buses used to ply from Tissa, Bhanjraru to Chamba Pathankot during the time rt when the naka was laid and the accused was apprehended.
Even the Investigating Officer in his cross examination stated that he did not stop any vehicle or bus on the spot to witness the proceedings.
12. Besides this, it was the case of the prosecution that the night on which the accused was apprehended alongwith the contraband by the police party was a dark night. A perusal of the documents which were allegedly prepared by the Investigating Officer at the spot do not reveal as to how the said documents were prepared in the absence of there being any source of light otherwise available at the spot.
These documents do not reflect that they were prepared under ::: Downloaded on - 15/04/2017 21:35:42 :::HCHP 15 the torch which was available with the police or under any other source of light.
.
13. From the above discussion, in our considered view, it cannot be said that on the basis of the material which was produced on record by the prosecution both ocular as well as documentary it can be said beyond reasonable doubt that the petitioner in fact was apprehended with alleged of contraband at Zero Point by the police party at around 5:00 a.m. on 31.12.2013. The case as put forth by the prosecution rt does not inspire confidence and beyond suspicion it does not convince the Court that the accused was actually apprehended with contraband on the said date at about 5:00 a.m. in the morning. A perusal of the judgment passed by the learned trial Court also demonstrates that all these aspects of the matter have been taken into consideration by the learned trial Court and after appreciating the material on record, it was held by the learned trial Court that the prosecution was not able to prove its case against the accused beyond reasonable doubt. In our considered view, the findings so returned by the learned trial Court are duly borne out from the records of the case and the said findings are not perverse and the same do not call for any interference.
::: Downloaded on - 15/04/2017 21:35:42 :::HCHP 1614. Accordingly, while concurring with the findings of acquittal returned by the learned trial Court, we dismiss the .
present appeal being devoid of any merit, so also pending miscellaneous application(s), if any.
(Sanjay Karol) Judge of (Ajay Mohan Goel) Judge 22nd November, 2016.
rt (narender) ::: Downloaded on - 15/04/2017 21:35:42 :::HCHP