Himachal Pradesh High Court
State Of Himachal Pradesh vs Tharban Lal on 26 March, 2018
Bench: Dharam Chand Chaudhary, Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 248 of 2009 .
Reserved on: 27.02.2018
Decided on: 26.03.2018
State of Himachal Pradesh ...Appellant.
Versus
Tharban Lal ...Respondent.
Coram
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting? Yes.
For the appellant: Mr. M.A. Khan, Mr. S.C. Sharma, Narinder Guleria and Mr. Nand Lal thakur, Additional Advocate Generals, with Mr. Kunal Thakur, Deputy Advocate General.
For the respondent: Mr. Anup Chitkara and Ms. Sheetal Vyas, Advocates.
Vivek Singh Thakur, Judge.
This appeal has been preferred by the State of Himachal Pradesh against acquittal of respondentTharban Lal vide judgment, dated 29th October, 2008, passed by the ::: Downloaded on - 29/03/2018 23:03:03 :::HCHP 2 learned Special Judge, Kullu, in Sessions Trial No. 52/06 arising out of case FIR No. 248/2005 registered at Police .
Station Manali under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act').
2. Prosecution case, in brief, is that on 19 th November, 2005, at about 2.45 p.m., PW3 SI Lal Singh, alongwith HC Gangvir Singh (not examined), HHC Nand Lal (not examined), PW1 HC Deepak Kumar and PW2 Constable Sanjay Kumar, departed Police Post Patlikuhl for patrolling and detection of crime relating to excise and narcotics after recording DDR No. 10 Ex. PW3/B. At about 4.50 p.m., near 15miles bridge, in the jungle, police party noticed a person coming from upper side having a rucksack on his shoulder, who, on seeing the police party, took uturn and started running towards jungle, whereupon the police party, on suspicion of some contraband being carried by the said person, overpowered him. On inquiry, he disclosed his identity as respondent. Thereafter, PW2 Constable Sanjay ::: Downloaded on - 29/03/2018 23:03:03 :::HCHP 3 Kumar was sent by PW3 SI Lal Singh in search of independent witnesses, who did not find any independent .
witness and came back on the spot, whereafter PW3 SI Lal Singh associated PW1 HC Deepak Kumar and PW2 Constable Sanjay Kumar as witnesses in search and seizure procedure.
3. After compliance of Section 50 of NDPS Act, vide memo Ex. PW1/A, whereupon respondent opted to be searched by the police party present on the spot, the Investigating Officer, i.e. PW3 SI Lal Singh, gave his personal search to respondent vide memo Ex. PW1/B and thereafter, conducted search of bag carried by the respondent. During search, charas was recovered from the bag, which, on weighment, was found to be 800 grams. After separating two samples of 25 grams each from the recovered contraband, samples as well as remaining bulk of charas were sealed in separate parcels with seal 'T'. NCB Form, copy whereof is Ex. PW1/D, was prepared in triplicate after taking sample seal impressions of seal 'T' on separate piece ::: Downloaded on - 29/03/2018 23:03:03 :::HCHP 4 of cloth Ex. PW1/C and on the the NCB Form. The seal was handed over to PW2 Constable Sanjay Kumar and three .
parcels were taken into possession vide memo Ex. PW1/E. Thereafter, rukka Ex. PW2/A was prepared and sent to Police Station Manali by PW3 SI Lal Singh through PW2 Constable Sanjay Kumar for registration of FIR. After registration of FIR No. 248/2005 Ex. PW8/A, the case file was brought back by PW2 Constable Sanjay Kumar to the spot. Statements of witnesses were recorded and spot map Ex. PW3/A was prepared. Respondent was arrested vide memo Ex. PW1/F and his mother, as indicated in endorsement on memo Ex. PW1/F encircled in red at point 'A', was informed about the arrest of respondent.
4. As per prosecution case, case property was produced before PW8 SHO Jagdish Chand, who resealed the parcels with seal 'L', took sample seal impression on a separate piece of cloth Ex. PW8/C, and filled columns No. 9 to 11 in NCB Form in triplicate and deposited the entire case property in malkhana with PW5 HC Hari Singh. On ::: Downloaded on - 29/03/2018 23:03:03 :::HCHP 5 1st December, 2005, PW5 HC Hari Singh, through PW7 HHC Bir Singh, sent the sample parcels of charas alongwith .
documents to CTL Kandaghat vide RC No. 150/05, copy whereof is Ex. PW5/B. After depositing the case property, PW7 HHC Bir Singh handed over the receipt Ex. PW5/C to PW5 HC Hari Singh. After receiving the report of Chemical Examiner Ex. PA, PW8 SHO Jagdish Chand prepared the challan and presented the same in the Court.
5. During trial, prosecution has examined eight witnesses to prove its case. After recording his statement under Section 313 of the Code of Criminal Procedure (hereinafter referred to as 'CrPC'), respondent has chosen not to lead any evidence in his defence. On conclusion of trial, the respondent stands acquitted. Hence, the appeal.
6. I have heard learned counsel for the parties and have also gone through the record.
7. PW1 HC Deepak Kumar, PW2 Constable Sanjay Kumar and PW3 SI Lal Singh are the only spot witnesses. There is no independent witness associated by ::: Downloaded on - 29/03/2018 23:03:03 :::HCHP 6 the police in present case and the prosecution is relying upon testimonies of official witnesses only.
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8. There is no dispute with regard to case law cited by learned Additional Advocate General in pronouncements of the apex Court in cases titled State of Haryana versus Mai Ram, son of Mam Chand, reported in (2008) 8 r to Supreme Court Cases 292; State of Punjab versus Nirmal Singh, reported in (2009) 12 Supreme Court Cases 205; State of Punjab versus Leela, reported in (2009) 12 Supreme Court Cases 300; State of Punjab versus Surjit Singh and another, reported in (2009) 13 Supreme Court Cases 472; and Kulwinder Singh and another versus State of Punjab, reported in (2015) 6 Supreme Court Cases 674, wherein it has been held that in absence of any infirmity in the evidence of official witnesses, conviction can be based on the testimony of official witnesses only and there is no legal bar to convict an accused in absence of independent witnesses only on the ::: Downloaded on - 29/03/2018 23:03:04 :::HCHP 7 basis of statements of official witnesses unless there is material to discredit their statements or some infirmity is .
pointed out in their evidence as trustworthy, credible and unimpeachable evidence of official witnesses beyond reproach is sufficient to convict an accused for the reason that it is the quality, not the quantity, which matters.
9. It is settled position that prosecution case is not to be rejected outrightly on the sole ground that there are no independent witnesses as the official witnesses are also independent witnesses unless proved to be inimical towards the accused like any other witnesses, however, keeping in view the fact that they are highly interested in success of the prosecution case being part of prosecution agency, their statements, in absence of independent witnesses, are to be scrutinized with greater care and caution as the question of personal liberty of a person is involved in a criminal trial.
10. It is also contended by learned Additional Advocate General that mere nonassociation of independent witnesses does not render the recovery of contraband illegal;
::: Downloaded on - 29/03/2018 23:03:04 :::HCHP 8there is no law for corroboration of evidence of official witnesses by independent witnesses; presumption is that .
every person acts honestly and the veracity of official witnesses is not to be suspected without any good ground and nonexamination/ nonassociation of independent witnesses is not always fatal for prosecution. In support of his contention, learned Additional Advocate General has relied upon Kulwinder Singh's case (supra); Karamjit Singh versus State (Delhi Administration), reported in 2003 Cri.L.J. 2021; Ram Lal and another versus State of H.P., reported in Latest HLJ 2005 (HP) (DB)143; and Ian Roylance Stillman versus State of Himachal Pradesh, reported in 2002 (2) Shim. L.C. 16. Undisputed ratio of law cited by learned Additional Advocate General is of no help to prosecution in present case as it is also settled law of land that provisions to associate independent witnesses are not ornamental in nature but are mandatory so as to ensure fair trial in a criminal case. Exemption from associating independent witnesses is an exception for ::: Downloaded on - 29/03/2018 23:03:04 :::HCHP 9 reasonable grounds based upon peculiar facts and circumstances of a particular case. No doubt, the Courts, .
after believing the official prosecution witnesses only, convict the accused, but, it does not exempt the prosecution from associating the independent witnesses wherever, in normal circumstances, it is possible to associate independent witnesses.
11. to According to PW1 HC Deepak Kumar and PW2 Constable Sanjay Kumar, PW3 SI Lal Singh had deputed PW2 Constable Sanjay Kumar to locate some local/ independent witnesses, however, PW3 SI Lal Singh has not uttered even a single word in this regard. In his deposition, PW3 SI Lal Singh has stated that on suspicion that respondent might be carrying some incriminating article with him, he (PW3) apprised the respondent about his legal right of being searched either in presence of Magistrate or Gazetted Officer or in the presence of police present on the spot and on consent of respondent to be searched in the presence of police present on the spot, he prepared the ::: Downloaded on - 29/03/2018 23:03:04 :::HCHP 10 consent memo, gave the personal search to respondent and conducted the search of bag being carried by the respondent.
.
Statement of PW3 SI Lal Singh, with respect to efforts made to locate independent witnesses, is contrary to the statements of PW1 HC Deepak Kumar and PW2 Constable Sanjay Kumar.
12. PW3 SI Lal Singh has not assigned any reason for not making any effort to associate the independent witnesses. Even PW1 HC Deepak Kumar and PW2 Constable Sanjay Kumar have also not indicated any reasonable explanation for nonavailability of independent witnesses. There is evidence on record that shops, residences and National Highway were at a distance from 50 meters to 500 meters from the spot. In the month of November, at 5.00 p.m., it is impossible to believe that no one was available either in shops or in residences or National Highway situated on the spot. Even, it is admitted by prosecution witnesses that 15miles bridge connects number of villages from National Highway and it is a busy ::: Downloaded on - 29/03/2018 23:03:04 :::HCHP 11 road. It is not a case of prosecution that persons approached by PW2 Constable Sanjay Kumar were not willing to join .
the investigation, but the only statement which has come on record is that independent witnesses were not available.
13. All the three witnesses, in their cross examination, have admitted that within a distance ranging from 25 meters to 300 meters, there were shops, residences and fish hatchery farm and that the shops and residences were visible from the bridge. It is claimed in the statements of PW1 HC Deepak Kumar and PW2 Constable Sanjay Kumar that respondent was spotted at a distance of about 150200 meters from 15miles bridge and it is admitted by them that there were shops and residences situated at a distance ranging from 250 to 500 meters from the bridge.
The recovery of contraband is claimed to have taken place at about 5.00 p.m. and at that time, there was every possibility of availability of independent witnesses especially in view of the admissions of these official witnesses in their cross ::: Downloaded on - 29/03/2018 23:03:04 :::HCHP 12 examination about existence of shops and residences near the spot of recovery.
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14. Therefore, here is not a case where the prosecution has been able to prove that either no independent witness was possible to be associated with all out honest efforts made by the police or the independent to join the investigation.
r to witnesses contacted by the police were not willing and ready
15. It is case of the prosecution that respondent was noticed by the police party coming on the road, who, on seeing police party, took a uturn and started running towards the jungle. PW3 SI Lal Singh, in his examination inchief, has claimed to have laid a Nakka on the spot and in his crossexamination, he has categorically stated that at the time of laying Nakka, police party was hiding and concealing its presence on the spot. His version is self contradictory. In case, police party was hiding itself, then version of prosecution, that respondent took uturn on ::: Downloaded on - 29/03/2018 23:03:04 :::HCHP 13 noticing the police party, is false, which raises a serious doubt on the genesis of prosecution case.
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16. PW3 SI Lal Singh, in the Court, has deposed that after sending PW2 Constable Sanjay Kumar with Rukka to the police station, he recorded statements of witnesses, prepared spot map and before return of PW2 Constable Sanjay Kumar with the case file from the Police Station after recording FIR, he informed the respondent about grounds of his arrest vide memo Ex. PW1/F and also informed his mother by means of a wireless message.
Whereas, in special report Ex. PW6/A, PW3 SI Lal Singh has stated contrary to the same by recording that statement of PW2 Constable Sanjay Kumar under Section 161 CrPC was recorded on 15miles bridge, where PW2 Constable Sanjay Kumar met PW3 SI Lal Singh with case file on return from the Police Station and respondent was arrested at 8.05 p.m. at 15miles bridge and information of his arrest was given. The sequence of events mentioned by him in ::: Downloaded on - 29/03/2018 23:03:04 :::HCHP 14 special report Ex. PW6/A is contrary to what he has deposed in the Court.
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17. PW1 HC Deepak Kumar, in his statement, has stated that after taking possession of the recovered contraband, respondent was informed about ground of arrest and was arrested vide memo Ex. PW1/F and his mother was informed, as desired by him, thereafter, rukka was prepared and handed over to PW2 Constable Sanjay Kumar. Whereas, according to PW2 Constable Sanjay Kumar and PW3 SI Lal Singh and also as per contents of rukka Ex. PW2/A, the rukka was prepared after seizure of the contraband, but prior to arrest of respondentaccused.
18. Further, PW1 HC Deepak Kumar has stated that he did not remember as to what was recovered from the possession of respondent during his personal search conducted by the Investigating Officer before the arrest.
However, he claimed preparation of memo of personal search Ex. PW1/G at the time of arrest whereas PW3 SI Lal Singh is silent about preparation of the memo of ::: Downloaded on - 29/03/2018 23:03:04 :::HCHP 15 personal search of respondent and in the crossexamination, he has categorically stated that no other memo, except .
stated by him in his examinationinchief, was prepared by him.
19. As per prosecution case, the Investigating Officer had given his personal search to respondent, but, PW2 Constable Sanjay Kumar is completely silent about the same and has stated that after preparation of consent memo Ex. PW1/A, PW3 SI Lal Singh took the search of the bag.
In crossexamination, he has not deposed about preparation of memo of search of Investigating Officer Ex. PW1/B and has categorically stated that no other memo, except which were referred by him in his examinationinchief, was prepared by the Investigating Officer.
20. PW1 HC Deepak Kumar has deposed that during patrolling, they stopped at 15miles bridge for some time and also went towards Naggar bridge. He has not stated about patrolling at Pangan road. On the other hand, PW2 Constable Sanjay Kumar has stated that they also ::: Downloaded on - 29/03/2018 23:03:04 :::HCHP 16 patrolled at Pangan road, but, remained silent about patrolling towards Naggar bridge. PW3 SI Lal Singh has .
categorically stated that they did not go towards the road leading to Naggar bridge and he has also evaded to reply specifically about the names of other places where they carried out patrolling. He has also denied to have remembered as to whether any Nakka was laid on 15miles bridge or they had checked any vehicle there.
21. In view of the discrepancies, contradictions and infirmities noticed hereinabove, testimonies of official witnesses, examined in present case, cannot be made basis to convict the respondent as from the evidence on record and in the given facts and circumstances of present case, the version of prosecution appears to be concocted.
22. There is no dispute with regard to contention of learned Additional Advocate General canvassed by relying upon pronouncement of apex Court in case titled as State represented by Inspector of Police, Chennai versus N.S. Gnaneswaran, reported in (2013) 3 Supreme Court ::: Downloaded on - 29/03/2018 23:03:04 :::HCHP 17 Cases 594; and judgment, dated 1st September, 2016, rendered by this Court in Criminal Appeal No. 201 of .
2016, titled as State of Himachal Pradesh versus Kishori Lal, that nonproduction of original seal in the Court is not fatal to the prosecution case unless it is established on record that such nonproduction has caused r to serious prejudice to the accused. But, in present case, there were no independent witnesses associated by the police and the seal, after seizure, was handed over to PW2 Constable Sanjay Kumar, who was none else but a police official serving in the same Police Station. Another seal, after re sealing, was also kept by PW8 SHO Jagdish Chand with him. For the contradictions, discrepancies and non association of independent witnesses; as discussed above, it was necessary for the prosecution to at least produce the original seal(s) in the Court so as to corroborate the version of official witnesses in absence of independent witnesses in the given circumstances of the present case.
::: Downloaded on - 29/03/2018 23:03:04 :::HCHP 1823. According to prosecution story, after recovery to 800 grams of charas from respondent, two samples of 25 .
grams each were taken out from the bulk and sealed in separate parcels and one sample was sent for chemical analysis. At the time of leading evidence in the Court, only bulk parcel Ex. P1 and sample parcel Ex. P2 were produced in the Court whereas sample parcel sent for chemical examination was never produced in the Court so as to connect the remaining bulk charas Ex. P1 and the sample parcel Ex. P2 with the sample parcel sent for chemical examination. In absence of physical production of the sample sent for chemical examination, it cannot be said that the prosecution has been able to connect the Chemical Examiner's report Ex. PA with the remaining bulk parcel Ex. P1 or another sample parcel Ex. P2. The physical evidence of a case of this nature, being property of the Court, should have been produced in the Court and non production thereof definitely warrant drawing of negative inference within the meaning of Section 114 (g) of the ::: Downloaded on - 29/03/2018 23:03:04 :::HCHP 19 Evidence Act {See Noor Aga versus State of Punjab and another, (2008) 16 SCC 417} .
24. A stamp has been affixed on Chemical Examiner's report Ex. PA stating therein that seal/seals on the sample parcel were tallied with the specimen impression of seal/seals and were found to be the same, intact and unbroken, but, perusal of record indicates that no sample of resealing seal 'L' is on record nor the statements of witnesses, including PW8 SHO Jagdish Chand, depict that such sample seal was ever taken. In absence of creditworthy evidence of official witnesses, it is also an additional ground for doubting the fairness of the procedure adopted by the prosecution during investigation.
25. In present case, for unreliable evidence of official witnesses, nonproduction of sample parcel sent for chemical examination is also fatal to the prosecution case for want of production of missing link between the parcels produced in the Court and chemical Examiner's report Ex. PA.
::: Downloaded on - 29/03/2018 23:03:04 :::HCHP 2026. As deposition of spot official witnesses has not been found to be trustworthy and confidence inspiring, .
testimonies of remaining witnesses, other than spot official witnesses, who were associated for completion of investigation, are not necessary to be discussed.
27. No doubt, Section 35 of NDPS Act provides presumption of culpable mental state of an accused for commission of offence by him, for possession of narcotic drugs, including charas, on his failure to account the said possession satisfactorily, however, said presumptions will come into play only after prosecution has successfully proved the recovery of contraband from the possession of the accused beyond reasonable doubt. Section 54 of NDPS Act places the burden of proof on the accused as regards possession of contraband to account for the same satisfactorily. Sections 35 and 54 of the NDPS Act, no doubt, raise presumptions with regard to the culpable mental state on the part of accused and also places the burden of proof on this behalf on the accused, but, presumption would operate ::: Downloaded on - 29/03/2018 23:03:04 :::HCHP 21 only in the event the prerequisite circumstances contained therein are fully satisfied. An initial burden exists upon the .
prosecution and legal burden would be shifted to the accused only when it stands satisfied. {See Noor Aga versus State of Punjab and another, (2008) 16 SCC 417}
28. In present case, for discrepancies and contradictions in statements of spot official witnesses with respect to sequence of events, missing narration of certain events claimed to have happened by the prosecution and also about the manner in which the events alleged to have taken place, the veracity of prosecution story is under suspicion. Thus, evidence on record is not sufficient to attract the provisions of Sections 35 and 54 of NDPS Act in present case.
29. It is also well settled principle of criminal jurisprudence that more serious the offence, the stricter is the degree of proof. A higher degree of assurance, thus, would be necessary to convict an accused. It must be kept in mind that severer the punishment, greater has to be the ::: Downloaded on - 29/03/2018 23:03:04 :::HCHP 22 care taken to see that all the safeguards provided in a statute are scrupulously followed. {See State of Punjab .
versus Baldev Singh, (1999) 6 SCC 172; Ritesh Chakarvarti versus State of M.P., (2006) 12 SCC 321; Noor Aga versus State of Punjab and another, (2008) 16 SCC 417; and Paramjeet Singh alias Pamma versus State of Uttarakhand, (2010) 10 SCC 439}
30.
r to In view of above discussion, the evidence led by the prosecution cannot be considered to be cogent, reliable, trustworthy and confidence inspiring so as to be relied upon to convict the respondent for the offence charged.
31. Respondent is also having advantage of being acquitted by the trial Court fortifying the presumption of innocence in his favour which stands unrebutted and for want of pointing out any cogent, reliable, convincing and trustworthy evidence against the respondent, it cannot be said that acquittal of respondent has resulted into travesty of justice or has caused miscarriage of justice. Therefore, no case for interference is made out. Accordingly, the appeal is ::: Downloaded on - 29/03/2018 23:03:04 :::HCHP 23 dismissed. Bail bonds furnished by the respondent and his surety are discharged. Case property be dealt with as .
directed by the trial Court in impugned judgment. Record be sent back.
(Dharam Chand Chaudhary)
Judge
March 26, 2018
( rajni )
rto (Vivek Singh Thakur)
Judge
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