Himachal Pradesh High Court
Diwakar vs State Of Himachal Pradesh on 5 July, 2019
Bench: Sureshwar Thakur, Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr. Appeal No. 106 of 2018 Judgment reserved on : 13.6.2019 Date of Decision : July 5 , 2019 Diwakar ...Appellant.
Versus State of Himachal Pradesh r ...Respondent.
Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge. The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 For the appellant : Mr. Sanjay Kumar, Advocate, vice Mr. B.B. Vaid, Advocate, for the appellant.
For the respondent : Mr. Desh Raj Thakur, Additional A.G. with Mr. Vikrant Chandel, Dy. A.G. for the respondent/State.
Per: Anoop Chitkara, Judge.
I have the privilege to go through the judgment authored by me Senior Colleague. I have also gone through the complete record of the case as well as the impugned judgment of conviction passed by the Special Judge-II 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 29/09/2019 00:24:44 :::HCHP 2(Additional Sessions Judge), Kullu, Himachal Pradesh. I say with utmost respect that I have arrived at an opposite .
finding. With due reverence I do not agree with the reasoning, therefore, I am under a legal obligation to write my separate judgment.
2. The present appeal has been filed by convict Diwakar under Section 374 of the Code of Criminal Procedure, which is deemed to be under Section 36-B of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the "NDPS Act"), assailing the judgment dated 21.2.2018, passed by the Special Judge-II (Additional Sessions Judge), Kullu, Himachal Pradesh, in Sessions Trial No. 34 of 2015 (Registration No. 60 of 2015), titled as State of Himachal Pradesh vs. Diwakar, whereby he has been convicted for having committed an offence punishable under Section 20 of the NDPS Act and sentenced to undergo rigorous imprisonment for a period of ten years and pay a fine of `1,00,000/- (rupees one lac only) and in case of default of payment of fine to further undergo simple imprisonment for one year. The period of detention ::: Downloaded on - 29/09/2019 00:24:44 :::HCHP 3 undergone by the convict during investigation and trial was set off by giving him the benefit of Section 428 Cr.P.C.
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3. The gist of the evidence apposite to arrive at a just conclusion is as follows :
(a) Vide daily diary entry number 14 dated 13.2.2015 (Ext. PW-7/A) police party headed by HC-Bhupender Singh (PW-8), HHC Tara Chand (PW-9), Const. Vipin Kumar (not examined) and HHG Jeet Ram (not examined) went for patrolling towards Jana area in Manali, District Kullu, H.P.
(b) As per the case of the prosecution, as revealed from the seizure memo (Ext. PW-8/C), when the police party had reached a place known as Paljot, then at around 4.30 p.m. in the evening, one person was coming on foot from the side of Jana. He was carrying a bag pack. On seeing the police party the said person became perplexed and started moving towards Jana side with faster pace. This aroused suspicion in the mind of HC-
Bhupinder Singh (PW-8) that he is carrying some contraband and he was nabbed at a distance of about 50 -60 feet.
(c) The person told his name as Diwakar Singh (accused) and could not give any satisfactory explanation about the contents of ::: Downloaded on - 29/09/2019 00:24:44 :::HCHP 4 the bag, he was carrying. Thereupon, the Investigating Officer HC Bhupinder Singh (PW-
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8) became suspicious and had reasons to believe that he was carrying some intoxicating substance or illegal articles, hence his search was required.
(d) At that very time, one person was seen coming from Nashala side. On being questioned, he revealed his name as Rajinder Kumar (PW-6). He was associated as a witness alongwith HHC Tara Chand (PW-9) and in their presence further investigation was conducted.
(e) The Investigating Officer (PW-8) gave an option, under Section 50 of the NDPS Act, to accused Diwakar Singh, vide consent memo (Ext. PW-8/A). As revealed from this document, he consented to be searched by the police party.
(f) Thereafter, the police party offered their personal search to the accused.
(g) Consequently, the back pack carried by the accused, was checked and from this back pack a saffron coloured cotton pouch was recovered, which had charas, in the shape of sticks, wrapped in transparent polythene wrapper.
::: Downloaded on - 29/09/2019 00:24:44 :::HCHP 5(h) The recovered charas was weighed with the help of electronic scale and measured .
as 1 k.g. and 512 grams.
(i) After weighment, the said charas was repacked in the same way and put in a cloth parcel and sealed with 10 seals of Seal impression-T. Separate specimen seal was obtained on a separate cloth (Ext. PW-6/A).
(j) Thereafter, three copies of NCB form (Ext. PW2/A) were filled up and three specimen of seal-T were affixed on it. After use, the seal was handed over to witness Rajinder Kumar (PW-6).
(k) After this the Investigating Officer HC- Bhupinder Singh (PW-8) prepared the ruka (Ext. PW-8/D) and sent the same to the SHO, Police Station Manali, District Kullu, through HHC Tara Chand (PW-9), for registration of FIR. Consequently, FIR (Ext. PZ) came to be registered. In the bottom of this document, (Ext. PW-8/D) the distance of the spot from the police station is mentioned as 30 kilometers.
(l) The Investigating Officer also took the photographs of the accused at the spot and such photographs are exhibited as Ext. PW-8/H to Ext. PW-8/H7 and the spot map (Ext. PW- h/E) was also prepared.
::: Downloaded on - 29/09/2019 00:24:44 :::HCHP 6(m) SI-Bala Ram (PW-5), who was the SHO Police Station Manali, received ruka (Ext. PW-
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8/D) as well as the case property at the police station. He resealed the case property by affixing his own seal of seal-K and sample of seal was taken on a piece of cloth (Ext. PW- 5/A). He also filled in the columns of NCB form (Ext. PW-2/A) and deposited the case property with HC-Vivek Kumar (PW-2) for keeping in safe custody.
(n) Prosecution also complied with the requirements of Section 57 of the NDPS Act vide special report (Ext. PW-3/B) and entry to the said effect was made in the Register (Ext. PW-3/A).
(o) Subsequently the case property was sent by HC-Vivek Kumar (PW-2) for chemical analysis to SFSL Junga.
(p) Vide report (Ext. PW-8/M), the laboratory termed the contraband as charas.
(q) After completion of investigation police report under Section 173 Cr.P.C. was filed in the Court and the case was sent for trial.
4. The trial Court framed charges under Section 20 of the NDPS Act against the accused/convict for possessing ::: Downloaded on - 29/09/2019 00:24:44 :::HCHP 7 1 kg and 512 grams of cannabis/charas, to which he did not plead guilty and claimed trial.
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5. Prosecution examined spot witnesses, SHO, custodian of Maalkhana (store), Constable Sameer Kumar (PW-1) who carried the contraband to SFSL Junga and HC Uttam Chand (PW-3) to prove the compliance of Section 57 of the NDPS Act.
6. After the completion of the prosecution evidence, the learned Special Judge, put to the accused the incriminating circumstances appearing against him, as per the requirement of Section 313 Cr.P.C. The accused has taken the defence of denial simplicitor and no evidence in defence was led. The accused also did not file any oral arguments or memo of arguments as contemplated under Section 314 Cr.P.C.
7. Learned Sessions Judge accepted the prosecution evidence and convicted the accused for the charged offence and sentenced him as aforesaid. Hence the present appeal.
8. After careful appreciation of the entire evidence, application of law and judicial precedents, my reasoning is as follows:
::: Downloaded on - 29/09/2019 00:24:44 :::HCHP 89. A bare perusal of daily diary entry No. 14 dated 13.2.2015 (Ext.PW-7/A) reveals that there is no mention that .
when the police party had gone for patrolling they were also carrying the investigation kit. There is no mention that the police party was having any source of light or torch with them.
10. Similarly, there is no evidence that the police party was carrying any investigation kit or weighing scale. In the absence of the earliest evidence of the police party carrying weights and scale, it would be doubtful to believe the version of the police. None of the police officials state that they had actually carried the investigation kit from the police station. This renders the prosecution story of having weighed and sealed the contraband substance on the spot to be extremely doubtful, if not false. Law is very well settled that the burden is always upon the prosecution to prove its case and it shifts to the accused under Sections 35 and 54 of the NDPS Act only when the prosecution has discharged its initial burden.
11. In the absence of the Investigation kit, how could the police procure the NCB form. A bare perusal of the NCB ::: Downloaded on - 29/09/2019 00:24:44 :::HCHP 9 form reveals that it is a printed form with words 'TEST MEMO' written on it. There was no occasion for the police .
team to keep it with them. It is not even folded to arrive at some assumption that it was kept in the pocket of some police personnel.
12. It is not the case of the prosecution that the electronic scale, cloth parcels, seal impression of seal-T, sealing wax (laakh), thread and needles were brought from the police post or the police station.
13. As per the case of the prosecution, the charas was not recovered from the person of the accused but was recovered from the bag carried by him. As such, Section 50 of NDPS Act shall not apply. In view of the judgment delivered by three Judges of Hon'ble the Supreme Court in State of H.P. vs. Pawan Kumar, (2005) 4 SCC 350, it is no more res interga that Section 50 of the NDPS Act will not apply to search of a bag, wherein it is held as under:
"18. There is another aspect of the matter, which requires consideration. Criminal law should be absolutely certain and clear and there should be no ambiguity or confusion in its application. The same principle should apply in the case of search or seizure, which come in the domain of detection of ::: Downloaded on - 29/09/2019 00:24:44 :::HCHP 10 crime. The position of such bags or articles is not static and the person carrying them often changes the manner in which they are carried. People waiting .
at a bus stand or railway platform sometimes keep their baggage on the ground and sometimes keep in their hand, shoulder or back. The change of position from ground to hand or shoulder will take a fraction of a second but on the argument advanced by learned Counsel for the accused that search of bag so carried would be search of a person, it will make a sharp difference in the applicability of Section 50 of the Act. After receiving information, an officer empowered under Section 42 of the Act, may proceed to search this kind of baggage of a person which may have been placed on the ground, but if at that very moment when he may be about to open it, the person lifts the bag or keeps it on his shoulder or some other place on his body, Section 50 may get attracted. The same baggage often keeps changing hands if more than one person are moving together in a group. Such transfer of baggage at the nick of time when it is about to be searched would again create practical problem. Who in such a case would be informed of the right that he is entitled in law to be searched before a Magistrate or a Gazetted Officer? This may lead to many practical difficulties. A statute should be so interpreted as to avoid unworkable or impracticable results. In Statutory Interpretation by Francis Bennion (3rd Edn.) para 313, the principle has been stated in the following manner:::: Downloaded on - 29/09/2019 00:24:44 :::HCHP 11
"The Court seeks to avoid a construction of an enactment that produces an unworkable or impracticable result, since this is unlikely to have been intended by Parliament. Sometimes .
however, there are overriding reasons for applying such a construction, for example where it appears that Parliament really intended it or the literal meaning is too strong."
The learned author has referred to Sheffield City Council vs. Yorkshire Water Services Ltd. , (1991) 1 WLR 58 at p. 71, where it was held as under:
"Parliament is taken not to intend the carrying out of its enactments to be unworkable or impracticable, so the Court will be slow to find r in favour of a construction that leads to these consequences. This follows the path taken by Judges in developing the common law. '.....the common law of England has not always developed on strictly logical lines, and where the logic leads down a path that is beset with practical difficulties the Courts have not been frightened to turn aside and seek the pragmatic solution that will best serve the needs of society."
19. While interpreting a provision in the Finance Act, 1972, Lord Denning in S.J. Grange Ltd. vs. Customs and Excise Commissioners, (1979) 2 All ER 91, observed that if the literal construction leads to impracticable results, it would be necessary to do little adjustment so as to make the section workable."
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26. The Constitution Bench decision in Pooran Mal vs. Director of Inspection, 1974 (1) SCC 345, was considered in State of Punjab v. Baldev Singh, 1999 (6) SCC 172, and having regard to the scheme of the ::: Downloaded on - 29/09/2019 00:24:44 :::HCHP 12 Act and especially the provisions of Section 50 thereof, it was held that it was not possible to hold that the judgment in the said case can be said to .
have laid down that the "recovered illicit article" can be used as "proof of unlawful possession" of the contraband seized from the suspect as a result of illegal search and seizure. Otherwise, there would be no distinction between recovery of illicit drugs, etc. seized during a search conducted after following the provisions of Section 50 of the Act and a seizure made during a search conducted in breach of the provisions of Section 50. Having regard to the scheme and the language used, a very strict view of Section 50 of the Act, was taken and it was held that failure to inform the person concerned of his right as emanating from sub-section (1) of Section 50 may render the recovery of the contraband suspect and sentence of an accused bad and unsustainable in law. As a corollary, there is no warrant or justification for giving an extended meaning to the word "person"
occurring in the same provision so as to include even some bag, article or container or some other baggage being carried by him."
In view of the aforesaid statement of law, this option was not required to be given to the accused.
14. The most material contradiction in the prosecution case emerges in the cross examination of HHC Tara Chand (PW-9). During his cross examination, he specifically ::: Downloaded on - 29/09/2019 00:24:44 :::HCHP 13 mentioned that the entire photographs were clicked before his departure from the spot to Police Station Manali. He .
further stated in his cross examination that it was evening time and it was not dark when the case property was sealed in parcel. Now this witness has testified, on oath, that the photographs were taken in his presence. A bare perusal of ruka (Ext. PW-8/D) mentions the time of recording of the same at 7.20 p.m., therefore, the photographs were taken before 7.20 p.m. Now this witness has specifically stated that when photographs were taken it was not dark.
Photographs (Ext. PW-H to PW-H7) reveal that they were taken in darkness. Specifically, photographs Ext. PW-8/H6 and PW-8/H7 depict charas in the shape of sticks in the bag.
Now all the photographs also reveal darkness. Now these photographs totally contradicted the statement of the spot police witness HC- Tara Chand (PW-9) who specifically stated that it was not dark when the case property was sealed and the photographs were taken. This shows that everything was done at some subsequent stage.
15. At this stage, it would be relevant to mention the statement of independent witness Rajender Kumar (PW-6), ::: Downloaded on - 29/09/2019 00:24:44 :::HCHP 14 who was declared hostile because he did not support the case of the prosecution. In his cross examination this .
witness stated that at 8.00 - 8.15 p.m., when he was going to his home, he met the police party, who told them that they had seized charas and asked him to become a witness.
He further stated that he appended his signatures on blank papers and cloth. Therefore, possibility of the seizure and sealing of sample being conducted in darkness gets corroboration from independent witness.
16. (a) There is another material contradiction emerging from the case of the prosecution. The Investigating Officer HC- Bhupinder Kumar (PW-8) in the initial documents specifically the daily diary report (Ext. PW-7/A), ruka (Ext.
PW-8/D) and special report under Section 57 of the Act (Ext.
PW-3/B) did not mention that they had gone to the spot in a vehicle. However, in his statement, on oath, PW-8 stated that they had proceeded to the spot in a vehicle bearing registration No. HP34 9273 from the police post Patlikuhal.
He further stated that he had not made any entry in the official record regarding proceeding in official vehicle. It cannot be believed that the police persons would not make ::: Downloaded on - 29/09/2019 00:24:44 :::HCHP 15 entry about the vehicle when they are even mentioning the number of the vehicle in the statement before the Court.
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(b) HHC Tara Chand (PW-9) was also cross examined about the vehicle and he took a different stand when he says that they had travelled from Police Post Patlikuhl to the spot in a private vehicle. It appears from the statement of HC-Bhupinder Singh (PW-8) that it was a private vehicle of HHG - Jeet Ram. However the prosecution did not examine him to prove this fact. In the absence of any substantial evidence how can it be believed that they had gone towards the spot in a vehicle. More so, when this fact of vehicle does not find mention in any of the initial documents till the filing of the chargsheet. This shows that the prosecution did not reveal the true story.
(c) Furthermore, there is also no mention that they had gone in some vehicle because whenever police party would leave in a police vehicle then reference of that vehicle and driver would also find mention in the daily diary entry. It is not the case of the prosecution that they had taken lift. No such fact was proved.
::: Downloaded on - 29/09/2019 00:24:44 :::HCHP 1617. Prosecution could not produce any receipt of the handing over of the specimen seal to witness Rajender .
Kumar (PW-6). Assurance of the case property not being tampered with until it has reached the Forensic Science Laboratory, for chemical analysis, is only when the sample seal was handed over to an independent witness or was kept in safe custody. PW-6 has denied that the seal after its use was handed over to him.
One question which will always come to the mind
18. of the Court is that such a huge quantity would not be planted unless there is animosity against the accused. In answer to statement under Section 313 Cr.P.C., accused did not level any such allegations against any of the police officials. Therefore, it cannot be said that the police had falsely planted this kind of charas on the accused. But then it does not mean that the prosecution need not prove its case simply because such kind of assumption would always be there in the mind of the Court.
19. Findings returned by the trial Court, convicting the accused, cannot be said to be based on correct and complete appreciation of testimonies of prosecution ::: Downloaded on - 29/09/2019 00:24:44 :::HCHP 17 witnesses. Such findings cannot be said to be on the basis of any clear, cogent, convincing, legal and material piece of .
evidence, leading to an irresistible conclusion of guilt of the accused. Incorrect and incomplete appreciation thereof, has resulted into grave miscarriage of justice, inasmuch as accused stands wrongly convicted for the charged offence.
20. The only evidence on record is the contradictory statements of HC- Bhupender Singh (PW-8) and HHC Tara Chand (PW-9). Independent witness did not support the case of the prosecution. Photographs bely the time when the alleged seizure had taken place. Why the vehicle was introduced during trial and not mentioned in the police report has also not been explained. On such kind of evidence, it may be highly unsafe to convict the accused.
The quantity involved in this case is a commercial quantity which will provide minimum ten years of imprisonment, without any remission. Law is settled that graver the punishment, the stricter is the proof and higher the obligation upon the prosecution to prove the charges.
Resultantly, the prosecution has failed to prove its case beyond reasonable doubt.
::: Downloaded on - 29/09/2019 00:24:44 :::HCHP 1821. Therefore, appreciation of the evidence and application of law cited herein above, take this Court to only .
one conclusion that the possibility of the investigating team not revealing the true and correct facts cannot be ruled out.
Prosecution has miserably failed to prove its case.
22. Hence, for all the aforesaid reasons, appeal is allowed and the judgment of conviction and sentence, dated 21.2.2018, passed by the Special Judge-II (Additional Sessions Judge), Kullu, Himachal Pradesh, in Sessions Trial No. 34 of 2015 (Registration No. 60 of 2015), titled as State of Himachal Pradesh vs. Diwakar, is set aside and the accused is acquitted of the charged offence. Amount of fine, if deposited by the appellant, be refunded to him.
(Anoop Chitkara), Judge.
July 5 , 2019 (PK) ::: Downloaded on - 29/09/2019 00:24:44 :::HCHP