Himachal Pradesh High Court
State Of Himachal Pradesh vs Om Parkash And Another on 21 March, 2018
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA.
Cr. Appeal No. 352 of 2011
Reserved on: 15.3.2018
.
Decided on: 21st March, 2018.
State of Himachal Pradesh ...Appellant.
Versus
Om Parkash and another ...Respondents.
___________________________________________________________________
Coram:
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting? 1 No
For the Appellant : Mr. Vinod Thakur and Mr. Sudhir Bhatnagar,
Addl. A.Gs., with Mr. J.S. Guleria and Mr.
Bhupinder Thakur, Dy. A.Gs.
For the Respondents : Mr. Peeyush Verma & Mr. Lakshay Thakur,
Advocates.
_________________________________________________________
Justice Tarlok Singh Chauhan, Judge:
The State has come up in appeal under Section 378 of the Code of Criminal Procedure (for short 'Code') against the judgment rendered by learned Presiding Officer, Fast Track Court, Mandi, District Mandi, H.P. in Sessions Trial No. 75 of 2010 whereby the respondents/accused (hereinafter referred to as the 'accused') charged for offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (for short NDPS Act), have been acquitted.
2. The prosecution story which emerges from the record is that on 8.9.2010, ASI Ram Lal, LHC Kishori Lal, 1 Whether reporters of the local papers may be allowed to see the judgment? yes ::: Downloaded on - 22/03/2018 23:10:29 :::HCHP 2 LHC Narpat Ram, C. Dhameshwar, C. Jitender Kumar and C. Kashmir Singh had set up a 'Naka' at Dadi. At about 8.30 .
a.m. both the accused persons were seen coming on foot from Banjar towards Bali Chowki, who after seeing the police party started moving fast. The accused Om Parkash was carrying a Pithu bag, while accused Gopal Chand was having a bag with strips (Tani). Both the accused persons were apprehended. However, since the place was secluded one and as it was night time, no independent witnesses could be associated. Certain vehicles did cross through the road and were even stopped, however, their drivers and conductors expressed their unwillingness to become witness. Thereafter, the police officials gave their personal search to the accused persons and since no adverse material or contraband was recovered, the police officials then they proceeded to search the bags of the accused. On search of Pithu bag carried by accused Om Parkash, black coloured material in the shape of sticks and balls wrapped in a plastic tape was recovered, which on smelling was found to be cannabis. On the search of the bag carried by accused Gopal Chand, it was also found to be containing black coloured material in the shape of 'chapati', sticks and balls, which on smelling was found to be cannabis. Thereafter, the recovered contraband was weighed and sealed etc. and the ::: Downloaded on - 22/03/2018 23:10:29 :::HCHP 3 case property was deposited in the Malkhana. The samples of contraband was sent for analysis to the Laboratory and .
after receipt of positive report and after completion of entire formalities, challan against the accused was filed in the Court. Finding a prima-facie case, the accused were charged for offence punishable under Section 20 of the NDPS Act, to which they pleaded not guilty and claimed trial.
3. The prosecution in order to prove the guilt of the accused examined 12 witnesses. The statement of accused under Section 313 Cr.P.C. was recorded in which they denied the case of the prosecution and claimed themselves to be innocent. However, no evidence in defence was adduced by the accused.
4. The learned Presiding Officer, Fast Track Court, Mandi after recording the evidence and evaluating the same, acquitted the accused mainly on the ground of contradictions that had appeared in the prosecution evidence.
5. Aggrieved by the judgment of acquittal, the State has filed the present appeal.
6. It is vehemently argued by learned Additional Advocate General that the findings recorded by the learned Presiding Officer are perverse and thus liable to be set-aside.
On the other hand, Mr. Peeyush Verma, learned counsel for ::: Downloaded on - 22/03/2018 23:10:29 :::HCHP 4 the accused has supported the impugned judgment and would contend that once the evidence led by the prosecution .
does not inspire confidence being replete with major contradictions and embellishments, then obviously the learned Presiding Officer had no other option but to acquit the accused/respondents.
We have heard learned counsel for the parties and have gone through the records of the case.
7. At the out-set, it needs to be observed that the Court in such like cases has to first consider as to whether material contradictions as noticed by the learned Court below are sufficient to acquit the respondents/accused and further consider the scope and ambit of appeal against acquittal.
8. As regards material contradictions, it is more than settled that while appreciating evidence, the Court has to take into consideration whether the contradictions/ omissions are of such magnitude that they are materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case cannot be made a ground to reject the evidence in its entirety. The trial Court after going through the entire evidence, must form an opinion about the credibility of the witnesses and the ::: Downloaded on - 22/03/2018 23:10:29 :::HCHP 5 appellate Court in normal course of action, would not be justified in reviewing the same again without justifiable .
reasons. But the said provision where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and other witness also make material improvements before the Court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. Even though the normal discrepancies are bound to be there due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition and would not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility.
9. Mere marginal variations in the statements cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier.
The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited.
10. As regards the scope of interference in appeal arising out of an order of acquittal, it is well established principle of law, consistently re-iterated and followed by all ::: Downloaded on - 22/03/2018 23:10:29 :::HCHP 6 the Courts is that while dealing with a judgment of acquittal, an appellate Court must consider the entire evidence on .
record, so as to arrive at a finding as to whether the views of the trial Court are perverse or otherwise unsustainable.
Even though the appellate Court is entitled to consider, whether in arriving at a finding of fact, the trial Court has placed the burden of proof incorrectly or failed to take into consideration any admissible evidence and/or had taken into consideration the evidence brought on record contrary to law; the appellate Court should not ordinarily set-aside a judgment of acquittal in a case where two views are possible, though the view of the appellate Court may be the more probable one. The trial Court which has the benefit of watching the demeanor of the witnesses is the best judge of the credibility of the witnesses.
11. Every accused is presumed to be innocent unless his guilt is proved. The presumption of innocence is a human right and subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence of this Country. The appellate Court has to bear in mind the presumption of innocence of the accused and further that the trial Court's acquittal bolsters the presumption of his innocence. Therefore, interference with the decision of the trial Court cannot be interfered with in a casual or cavalier ::: Downloaded on - 22/03/2018 23:10:29 :::HCHP 7 manner where the other view is possible, the same should be avoided, unless there are good reasons for such .
interference. It is only in exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, that the appellate Court can interfere with the order of acquittal.
12. As regards the same, it can be inferred and drawn where the Court has arrived at a finding of fact by ignoring or excluding the relevant material or has taken into consideration the irrelevant/inadmissible material. A finding may be said to be perverse if it is against the weight of evidence, or if the finding so outrageously defies logic as to suffer from the vice of irrationality.
13. Bearing in mind the aforesaid parameters, we now proceed to consider and evaluate the material evidence on record so that we can come to the conclusion as to whether the findings recorded by the learned Court below are indeed perverse as alleged by the appellant/State or the same are based on correct appreciation of the evidence.
14. As per the case of the prosecution, the recovery of the contraband was effected in the presence of PW-1, PW-2 and PW-11, therefore, the statements of these witnesses being most material are required to be considered first. Therefore, before going through the other evidence led ::: Downloaded on - 22/03/2018 23:10:29 :::HCHP 8 by the prosecution, it would be necessary to advert to the statements of these witnesses.
.
15. LHC Narpat Ram appeared as PW-1 and stated that he was part of the police party headed by ASI Ram Lal and was present at Dadi on 8.9.2010 at about 8.30 P.M. The accused persons were seen coming on foot from the opposite direction. The accused Om Parkash was carrying a Pithu bag while accused Gopal Chand was also carrying a bag on his shoulder. The accused persons after seeing the police party turned back, but were apprehended. The police officials gave their personal search to them vide memo Ex.PW-1/A and after nothing incriminating was found therein, the police party, in turn, firstly searched Pithu bag carried by accused Om Parkash which was found to be containing charas in the shape of balls and sticks and on weightment found to be 5 Kg. It was put in that very bag and the bag was parceled and sealed with 16 seals of "R".
Thereafter, the bag carried by accused Gopal Chand was searched and was found to be containing Charas in the shape of Chapati, balls and sticks, which on weightment was also found to be 5 Kg. It was also put in that very bag and the bag was parceled and sealed with 16 seals of "R".
NCB form, in triplicate, was filled in. The recovered charas was taken into possession vide memo Ex.PW-1/B and the ::: Downloaded on - 22/03/2018 23:10:29 :::HCHP 9 same was duly signed by him and other witness Kishori Lal.
He also stated that sample seal Ex.PW-1/C was taken and .
notice of arrest Ex.PW-1/D was given to Om Parkash and notice of arrest Ex.PW-1/E was given to Gopal Chand.
Jamatalasi of both the accused persons were taken vide memos Ex.PW-1/F and Ex.PW-1/G, respectively. This witness also identified the case property in the Court.
16. In cross-examination, the witness stated that the police party had left the Police Station on 7.9.2010 in a hired private vehicle, which was a Tata-Sumo. He further stated that perhaps the police officials had stayed at Police Post, Balichowki during night on 7.9.2010. He further stated that the driver of Tata-Sumo which was hired by the police officials had not been made as a witness in this case. He also stated that no independent witness or Pradhan of the village was associated as a witness in this case.
17. Constable Jitender Kumar appeared as PW-2 and deposed about the recovery of Charas from the possession of the accused persons. He stated that before conducting search of the bag carried by accused persons, they had been told whether they are ready to get themselves searched before a Gazetted Officer or before the police party present at the spot, but the accused persons had consented to be searched by the police party. He also stated that he ::: Downloaded on - 22/03/2018 23:10:29 :::HCHP 10 carried ruka from the spot to the police station and after registration of the FIR, brought back the same to the spot.
.
He further deposed that on search of the pithu bag carried by accused Om Parkash, it was found to be containing charas, which on weightment was found to be 5 Kg.
Thereafter, Pithu bag was parceled and sealed with seal impression "R' at 16 places. Thereafter, the bag of accused Gopal Chand was searched and found to be containing Charas which on weightment again found to be 5 Kg. The bag was parceled and sealed with seal impression "R" at 16 places. He further deposed that the accused were arrested on the spot and had been communicated the grounds of arrest.
18. In cross-examination, the witness stated that the police party had stayed at Police Station, Aut in the night of 7.9.2010 and the driver of the vehicle, who had been hired by the police, had also stayed with the police party during the night.
19. ASI Ram Lal appeared as PW-11 and deposed like PW-1 and PW-2 about the investigation of the case.
However, in cross-examination, he stated that during the intervening night of 7/8.9.2010, the police party had stayed at Banjar. He further stated that he did not initiate any ::: Downloaded on - 22/03/2018 23:10:29 :::HCHP 11 proceedings against the persons, who had expressed their un-willingness to become witnesses in the case.
.
20. This in entirety is the evidence of the witnesses, who were alleged to be at the spot. However, before evaluating their statements, it would be necessary to refer, in brief, the statements of other witnesses.
21. Constable Durga Dass appeared as PW-3 and proved disclosure statement Ex.PW-3/A and stated that the accused persons had taken the police party to the spot and identified the place of occurrence. He also proved identification memo Ex.PW-3/B.
22. HC Yoginder Singh appeared as PW-4 and proved the special report of this case sent to Additional Superintendent of Police, Mandi on 10.9.2010 vide Ex.PW-4/A. He also proved abstract of special report register Ex.PW-4/B.
23. Constable Chet Ram appeared as PW-5 and deposed about the delivery of special report of this case to Additional Superintendent of Police, Mandi on 10.9.2010.
24. HHC Hoshiar Singh appeared as PW-6 and deposed about the delivery of case property at FSL, Junga on 10.9.2010. In cross-examination, this witness stated that he had taken only two parcels to FSL, Junga and no other ::: Downloaded on - 22/03/2018 23:10:29 :::HCHP 12 document except two parcels had been given to him for being taken to FSL, Junga.
.
25. H.C. Khem Chand appeared as PW-7 and deposed that SI/SHO Sharif Mohammad had deposited the case property alongwith NCB form, sample seals "R" and "N"
with him on 9.9.2010, which in turn were duly entered by him in the malkhana register Ex.PW-7/A. This witness further deposed about forwarding of the case property alongwith documents to FSL, Junga through HHC Hoshiar Singh vide RC No. 68/2010. In cross-examination, the witness denied the suggestion that the last line in the malkhana register regarding depositing of NCB form and the sample seal, had been inserted lateron.
26. H.C. Bhup Singh appeared as PW-8 and proved the copy of Rapat No. 65(A) as Ex. PW-8/A.
27. SI/SHO Sharif Mohammad appeared as PW-9 and deposed about the scribing of FIR Ex.PW-9/A. He proved his endorsement over Ruka Ex.PW-9/B. This witness further stated that the case property produced before him alongwith sample seal was re-sealed by him with seal "N"
and stated that he affixed 9 seals of "N" on each parcel containing case property and also filled in the relevant columns of NCB form. He proved the re-seal memo Ex.PW-9/D. He further deposed that he had deposited the ::: Downloaded on - 22/03/2018 23:10:29 :::HCHP 13 case property alongwith related document with MHC Khem Chand. In cross-examination, this witness stated that ASI .
Ram Lal alongwith other police officials had not stayed at Police Station, Aut during the night of 7.9.2010.
28. Retired ASI Sri Ram, PW-12 deposed about partial investigation of the case that was conducted by him and further deposed about recording of disclosure statement of accused persons Ex.PW-3/A. He stated that the accused persons had taken the police party to the spot from where the charas was recovered. He also proved identification memo Ex.PW-3/B. This in entirety is the prosecution evidence.
29. It would be noticed that admittedly no independent witness was joined by the Investigating Officer to witness the alleged recovery of Charas from the accused.
No doubt, an explanation was sought to be given by PW-11 that independent witnesses were not ready to join, but this explanation obviously cannot be accepted for more than one reason. Firstly, the names and addresses of those persons who refused to become witness have not been recorded and secondly, no action against such persons has been taken in accordance with law. Therefore, no fault can be found with the findings arrived at by the learned Presiding Officer to the effect that no effort to join independent witnesses to witness ::: Downloaded on - 22/03/2018 23:10:29 :::HCHP 14 the alleged recovery of Charas from the possession of the accused and the explanation offered by him is not true and .
otherwise unbelievable. It would further be noticed that even though the driver as admitted by PW-1, PW-2 and PW-11 was available at the spot, but even, he too, was not associated as witness and moreover no explanation is forth-
coming qua this.
30. Apart from the above, it was only at about 8.00
- 8.30 P.M when the police party had laid a Naka and is alleged to have recovered the contraband, that too, on the road side and, therefore, many people and vehicles must have crossed on the road about the same time and could have easily been associated as a witness to the alleged recovery of contraband. Not only this, the independent witnesses could have been called for from nearby locality as it has specifically come in the evidence of PW-1 and PW-2 that there were abadis nearby. Thus, it stands proved on record that no efforts were in fact made by the Investigating Officer to join the independent witnesses, which makes the entire investigation and recovery doubtful.
31. It has specifically come in the statement of PW-2 that the accused had been asked as to whether they wanted to get themselves searched before a Gazetted Officer or by the Police party present at the spot.
::: Downloaded on - 22/03/2018 23:10:29 :::HCHP 1532. If that be the position, obviously then the provision of Section 50 of the Act will come into play which .
reads thus:
"50. Conditions under which search of persons shall be conducted.-- (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest gazetted officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the gazetted officer or the Magistrate referred to in r sub-section (1).
(3) The gazetted officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female.
(5) When an officer duly authorised under Section 42 has reason to believe that it is not possible to take the person to be searched to the nearest gazetted officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest gazetted officer or Magistrate, proceed to search the person as provided under Section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).
(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior."::: Downloaded on - 22/03/2018 23:10:29 :::HCHP 16
33. In taking this view, we draw support from the judgment of the Hon'ble Supreme Court in State of .
Rajasthan vs. Parmanand and another (2014) 5 SCC 345 and earlier judgment of this Bench in State of Himachal Pradesh vs. Desh Raj and another 2016 (Suppl.) Himachal Law Reporter (DB) 3088 and the latest judgment in State of Himachal Pradesh vs. Rakesh Latest HLJ 2018 (HP) 214 wherein all the aforesaid judgments have been considered and it has been held:
"16. The prosecution evidence clearly demonstrates that personal search of both the accused persons was conducted by PW-3, HC Chaman Lal, after the search of the bag wherefrom allegedly contraband was recovered. It has also come in the prosecution evidence that nothing was recovered from the personal search of the accused persons. Now, we have to delve on the point that in the above enumerated circumstances, which have come on record through the evidence of the prosecution, whether personal search of the accused persons was required to be carried out, after following the procedure laid down under Section 50 of the ND&PS Act. Section 50 of the ND&PS Act is extracted hereunder for ready reference:
"50. Conditions under which search of persons shall be conducted.- -- (1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.::: Downloaded on - 22/03/2018 23:10:29 :::HCHP 17
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).
(3) The Gazetted Officer or the Magistrate .
before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female.
(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal r Procedure, 1973 (2 of 1974).
(6) After a search is conducted under sub- section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.]"
17. In the present case the personal search of the accused persons was carried out after alleged recovery of contraband from a bag, alleged to be of the accused persons. If the personal search is to be carried out without there being any suspicion of narcotics, perhaps Section 50 of the ND&PS Act will not apply, but in the present case nothing has come on record that when the personal search of the accused persons was carried out, the Investigating Officer was not having any suspicion that something will be recovered after conducting the personal search of the accused persons. In fact, it has come in the statements of prosecution witnesses that prior to the search of the bag of the accused persons personal search of the accused persons was also conducted by the Investigating Officer and this fact is further ::: Downloaded on - 22/03/2018 23:10:29 :::HCHP 18 fortified by PW-4, ASI Mahant Ram Sharma, who has specifically deposed that personal search of the accused persons was conducted in the bus by Head .
Constable Chaman Lal, so under these circumstances the law, which is extracted hereunder, as laid down by the Hon'ble Supreme Court and by this Court and has been relied upon by the learned counsel for respondent No. 1, is applicable:
1. State of Rajasthan vs. Parmanand & another, (2014) 5 SCC 345; &
2. State of Himachal Pradesh vs. Desh Raj & another, 2016 (Suppl.) Himachal Law Reporter (DB) 3088.
18. In State of Rajasthan vs. Parmanand & another, (2014) 5 SCC 345, the Hon'ble Supreme Court, vide para 15 of the judgment, has held as under:
"15. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this Case, Respondent 1 Parmanand's age was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of Respondent no. 2 Surajmal was also conducted.
Therefore, in the light of the judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application."
Now, in view of the above, this Court has to examine whether the provisions of Section 50 of the NDPS Act are applicable to the present case and if applicable, then whether those have been breached or not? Admittedly, as per the version of PW-3, HC Chaman Lal, he has conducted the personal search of both the accused persons and also prepared search memos, Ex. PW-3/P and Ex. PW-3/Q. If only the bag ::: Downloaded on - 22/03/2018 23:10:29 :::HCHP 19 of the accused persons would have been searched, then Section 50 of the NDPS Act has no application, but as the personal search of the accused persons .
was also conducted, certainly Section 50 of the NDPS Act is applicable. In fact, Section 50 of the NDPS Act has a purpose and communication of the said right, which is ingrained in Section 50, to the person who is about to be searched is not an empty formality. Offences under the NDPS Act carry severe punishment, so the mandatory procedure, as laid down under the Act, has to be followed meticulously.
Section 50 of the Act is just a safeguard available to an accused against the possibility of false involvement. Thus, communication of this right to the accused has to be clear, unambiguous and to the individual concerned. The purpose of this Section is to make aware the accused of his right and the whole purpose behind creating this right is effaced if the accused is not able to exercise the same for want of knowledge about its existence. This right cannot be ignored, as the same is of utmost importance to the accused. In the present case, certainly the provisions of Section 50 of the NDPS Act have not been complied with, therefore, the judgment (supra) is fully applicable to the facts of the present case.
19. In State of Himachal Pradesh vs. Desh Raj & another, 2016 (Suppl.) Himachal Law Reporter (DB) 3088, this Court has relied upon the law laid down in Parmanand's case (supra). Relevant paras of the judgment of this Court is extracted hereunder:
"18. Their Lordships of the Hon'ble Supreme Court in State of Rajasthan v. Parmanand reported in (2014) 5 SCC 345, have held that there is a need for individual communication to each accused and individual consent by each accused under ::: Downloaded on - 22/03/2018 23:10:29 :::HCHP 20 Section 50 of the Act. Their lordships have also held that Section 50 does not provide for third option. Their lordships have also held that if a bag carried by the accused is searched and his personal search is also .
started, Section 50 would be applicable.
......"
Again, in the present set of facts and circumstances, the judgment (supra) is fully applicable to the present case, as the right provided under Section 50 of the NDPS Act in no way can be diluted and its compliance is mandatory in nature.
20. Though the conviction can be based on the statements of the official witnesses, if their statements are confidence inspiring, but in the present case, the statements of the official witnesses do not inspire confidence, as there are discrepancies in the statements of the official prosecution witnesses. On the other hand, we have no hesitation to conclude that the provisions of Section 50 of the NDPS Act have not been complied with, thus the accused cannot be convicted. The respondents have been rightly acquitted and it is not possible to hold that the learned Trial Court's view is perverse. Hence, there is no occasion to interfere with the well reasoned judgment of the learned Trial Court."
34. At this stage, learned Additional Advocate General would argue that even in absence of independent witnesses the conviction can still be recorded on the statement of the official witnesses. The proposition is not so simple, as canvassed, because in order to base conviction on the statement of the official witnesses, the Court has to first come to the conclusion that their statements are cogent, ::: Downloaded on - 22/03/2018 23:10:29 :::HCHP 21 consistent, reliable and confidence inspiring. Not only this, the Court is required to scrutinize their testimonies with due .
care and caution before acting upon the same. If the testimony of prosecution witnesses in case inspires confidence then the same cannot be discredited only on the ground of their official status.
35. In order to test whether the testimony of the official witnesses examined in this case is trustworthy or reliable, one needs to advert to the statements of the official witness associated with the recovery and arrest i.e. PW-1, PW-2 and P-11. The first question that requires consideration is regarding the make of vehicle in question as there are material contradictions in the statements of all these three witnesses. This assumes significance and importance in view of the fact that the recovery was alleged to have been effected on 8.9.2010 and the statement of PW-1 and PW-2 was recorded barely three months thereafter on 15.12.2010 and the statement of PW-11 was recorded on 14.2.2011 and, therefore, it could not be expected that they would have forgotten about the investigation which they have allegedly carried out just nearly three months ago.
36. PW-1 LHC Narpat Ram stated that the police party had hired a Tata-Sumo vehicle for patrolling, while PW-2 states that the police party had hired a jeep for ::: Downloaded on - 22/03/2018 23:10:29 :::HCHP 22 patrolling and PW-11 stated that he could not tell the make of the vehicle. It has to be remembered that PW-11 was none .
other than the Assistant Sub Inspector and, therefore, it cannot be imagined that he would not know the make of the vehicle. Why the make of vehicle or type of vehicle assumes importance is because of the further contradiction with respect to the stay of the police party on the night of 7/8.9.2010.
37. According to PW-1, the police party perhaps stayed during the night of 7/8.9.2010 at Police Post, Balichowki. Whereas, according to PW-2, the police party had stayed at Police Station, Aut during this period. While according to PW-11, the police party stayed at Banjar. Not only this, PW-11 specifically stated neither the police party had gone to Police Post, Balichowki nor had they gone to Police Station, Aut. Not only this, PW-9 the then SHO, Police Station, Aut has categorically stated in his cross-
examination that the police party had not stayed at Police Station, Aut.
38. Thus, as rightly observed by the learned Presiding Judge, it remains a mystery as to where actually the police party stayed during the intervening night of 7/8.9.2010. This fact further assumes significance as none of these places are close to each other. These contradictions ::: Downloaded on - 22/03/2018 23:10:29 :::HCHP 23 gain significance and importance because Balichowki and Aut are situated in District Mandi, whereas Banjar is in .
Kullu District. Therefore, in the given circumstances, the presence of these witnesses i.e. PW-1, PW-2 and PW-11 becomes highly doubtful, more particularly, of the contradictions as pointed out above coupled with the non-
association of independent witnesses which creates a grave and serious doubt in the entire case of the prosecution.
39. In addition to the aforesaid, it would also be noticed that the case property is alleged to have been sealed by the Investigating Officer with seal "R" and as per ruka the seal is stated to be handed over after its use by the Investigating Officer to LHC Kishori Lal. But while appearing as PW-11, he has not so stated in his statement. Whereas, Kishori Lal has not at all been examined by the prosecution.
Thus, in such circumstances, the learned Presiding Judge is absolutely correct in observing that it remains with mystery as to under whose possession did the seal impression "R"
remained after its use. Thus, in the given circumstances, the possibility of tampering of the case property cannot be ruled out as has been held by the learned Presiding Judge.
40. Further testing the case of the prosecution, it would be noticed that there are major discrepancies even with regard to the case property inasmuch as HHC Hoshiar ::: Downloaded on - 22/03/2018 23:10:29 :::HCHP 24 Singh has clearly stated in his cross-examination that he had only taken two parcels to the Laboratory, Junga and .
had taken no other document alongwith the case property, which suggest that neither the sample seal nor NCB form had been taken alongwith the case property and if that be so, then it cannot be said with certainty that the case property examined by the Laboratory was the same which was allegedly recovered from the accused.
41. It is more than settled that severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed. (See: State of Punjab vs. Baldev Singh (1999) 6 SCC 172). Equally settled is the principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused. (See: Mousam Singha Roy and others vs. State of W.B. (2003) 12 SCC 377.
42. Therefore, in view of the aforesaid discussion, we find no irregularity, illegality or for the matter perversity in the judgment/order recorded by the learned Court below.
Therefore, there is no merit in this appeal and the same is dismissed.
43. Even though, no case for interference of the impugned judgment is made out, however, we have no ::: Downloaded on - 22/03/2018 23:10:29 :::HCHP 25 hesitation to conclude that it was solely on account of the testimonies of PW-1, PW-2 and PW-11, who botched up the .
entire investigation, thereby this Court has left with no other option, but to acquit the respondents/accused.
44. The investigation conducted is absolutely shoddy, therefore, having regard to the seriousness of the offence, the matter cannot be set at rest here.
45. The Hon'ble Supreme Court in State of Gujarat vs. Kishanbhai and others, (2014) 5 SCC 108 has categorically held that on the culmination of a criminal case in acquittal, the investigating/prosecuting official(s) concerned responsible for such acquittal must necessarily be identified. A finding needs to be recorded in each case, whether the lapse was innocent or blameworthy. Each erring officer must suffer the consequences of his lapse. It is apt to reproduce the relevant observations in the aforesaid case, which reads thus:-
"21. On the culmination of a criminal case in acquittal, the concerned investigating/prosecuting official(s) responsible for such acquittal must necessarily be identified. A finding needs to be recorded in each case, whether the lapse was innocent or blameworthy. Each erring officer must suffer the consequences of his lapse, by appropriate departmental action, whenever called for. Taking into consideration the seriousness of the matter, the concerned official may be withdrawn from ::: Downloaded on - 22/03/2018 23:10:29 :::HCHP 26 investigative responsibilities, permanently or temporarily, depending purely on his culpability. We also feel compelled to require the adoption of some .
indispensable measures, which may reduce the malady suffered by parties on both sides of criminal litigation. Accordingly we direct, the Home Department of every State Government, to formulate a procedure for taking action against all erring investigating/prosecuting officials/officers. All such erring officials/officers identified, as responsible for failure of a prosecution case, on account of sheer negligence or because of culpable lapses, must suffer departmental action. The above mechanism formulated would infuse seriousness in the r performance of investigating and prosecuting duties, and would ensure that investigation and prosecution are purposeful and decisive. The instant direction shall also be given effect to within 6 months."
46. What is more shocking is that all the aforesaid persons/officials happened to be part of the Special Investigation Team, Center Range, that has been specifically constituted to tackle such offences. The alleged recovery in this case is stated to be 10 Kg of Charas (5 Kg each), yet the callous and casual manner in which the investigation and thereafter evidence led by the prosecution leaves much to desire. Therefore, even we left with no option but to dismiss the appeal, however, we direct the Home Department of the State to take appropriate departmental action against PW-1 LHC Narpat Ram, No. 460, PW-2 C. Jetinder Kumar, No.218 ::: Downloaded on - 22/03/2018 23:10:29 :::HCHP 27 and PW-11 ASI Ram Lal, No. 648 as may be considered appropriate in accordance with law and such action shall be .
initiated and taken to its logical end irrespective of anyone or everyone of them having already retired from service.
47. Pending application(s) if any, also stands dismissed. Bail bonds are ordered to be discharged.
(Tarlok Singh Chauhan) Judge (Chander Bhusan Barowalia) 21st March, 2018. Judge (GR) ::: Downloaded on - 22/03/2018 23:10:29 :::HCHP