Himachal Pradesh High Court
Naresh Kumar R vs State Of H.P on 29 May, 2015
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr. Appeal No. 248 of 2014 a/w connected matters.
Reserved on: 22.5.2015 Decided on : 29th May, 2015
1. Cr. Appeal No. 248 of 2014 Naresh Kumar r .....Appellant.
Versus
State of H.P. .....Respondent.
2. Cr. Appeal No. 249 of 2014
Sonu ....Appellant.
Versus
State of H.P. .....Respondent.
3. Cr. Appeal No. 381 of 2014
Kewal Ram .....Appellant.
Versus
State of H.P. .....Respondent.
4. Cr. Appeal No. 251 of 2014
Sunil Kumar & another .....Appellants.
Versus
State of H.P. .....Respondent.
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.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Appellant: Mr. Amrinder Singh Rana vice Mr. H.S Rana, Legal aid counsel, Mr. Anirudh Sharma for appellant(s) in Cr. Appeal Nos.
r 248 and 249 of 2014.
None for appellants in Cr. Appeal Nos. 251
and 381 of 2014.
For the Respondent: Mr. P.M Negi, Deputy Advocate General,
for respondent-State in all appeals.
_______________________________________________________ Sureshwar Thakur, Judge The instant appeals are directed against the judgment of 19.5.2014 rendered by the learned Special Judge, Solan, District Solan, H.P., in Sessions trial No. 5-S/7 of 2011, whereby, the learned trial Court convicted and sentenced the accused/appellants Naresh Kumar, Sonu, Joginder Singh and Sunil Kumar to undergo rigorous imprisonment for a period of ten years each and to pay a fine in a sum of Rs.1,00,000/- (One Lac) each and in default of payment of 1 Whether reporters of the local papers may be allowed to see the judgment?
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fine to further undergo simple imprisonment for a period of two .
years each for commission of offence under Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ACT) whereas and accused/appellant Kewal Ram was convicted and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine in a sum of Rs.1,00,000/- (One Lac) and in default of payment of fine to further undergo simple imprisonment for a period of two years for commission of offence under Section 29 of Narcotic Drugs and Psychotropic Substances Act, 1985
2. The facts, in brief are that, on the intervening night of 20/21.1.2011, HC Prem Dass alongwith C Bahadur Singh, HHG Shyam Lal, HHG Manohar Lal and C Raj Pal were present at National Highway-22 at place Sector 3 near Shivalik Agro Company. At about 2.15 a.m. one Maruti car bearing registration No. DL-3CM-7361 came from Shimla side was signaled to stop by them. The driver of the car stopped the car at some distance. At that time, it was noticed that in the car two persons were sitting on the front seat and two others were on the back seat. On inquiry the ::: Downloaded on - 15/04/2017 18:17:32 :::HCHP ...4...
driver of the vehicle disclosed his name to be Naresh Kumar S/o .
Dalel Singh and the person sitting on the front seat disclosed his name to be Joginder Singh S/o Gulab Singh and the persons sitting on the back seat disclosed theirs names as Sonu and Sunil Kumar R/o Haryana. The driver of the vehicle was asked to unlock the dickey of the car for checking. On checking the dickey of the car, one black coloured raxin bag was found. On checking the bag aforesaid, there were two cream coloured bags in which charas in the shape of wicks and balls was found and one shirt of cream colour "Checkdar" was also found inside the rexin bag. Thereafter the police officials checked the vehicle bearing No. DL-3CM-7361 and underneath the mat of the front seat one green coloured bag marked 'ARIA' was found. Inside the green coloured bag, there was a red coloured bag in which charas in the form of sticks and balls, was found. Subsequently, with the help of weights and scales, the police officials weighed the contraband kept in two cream coloured bags and on weighment of one bag 2 kg Charas and in the another bag 1Kg. 500 grams charas was found. After weighment, the charas was again put in the rexin bag in the same ::: Downloaded on - 15/04/2017 18:17:32 :::HCHP ...5...
manner as it was opened and the recovered charas and the shirt .
was put in a cloth parcel and sealed with the seal impression 'N'.
The charas found underneath the mat of the front seat on weighment was found to be 2 Kg. 700 grams, which was put in the bag as it was opened and was put in the cloth parcel and sealed with the seal impression 'N'. Both the cloth parcels, one containing 3.5 kgs and the other containing 2.7 Kgs charas were sealed with six seals each of seal impression N and separate seal impression N Ex.
PW-1/A. NCB-1 forms were also filled in at the spot and the seal after its use was handed over to him. Thus, in all, 6.200 Kgs of charas had been recovered from the conscious and exclusive possession of the accused. The charas weighing 6 Kg 200 grams alongwith vehicle bearing No. DL-3CM-7361 and its documents were taken into possession vide seizure memo comprised in Ex.
PW-1/B, which bears the signatures of the witnesses and the accused. NCB form in triplicate had been filled in. The photographs of the proceedings Ex. P-14 to Ex. P-25 have been clicked. Site map comprised in Ex. PW-14/B was also prepared.
HC Prem Dass prepared Rukka comprised in Ex. PW-14/A and had ::: Downloaded on - 15/04/2017 18:17:32 :::HCHP ...6...
sent it to police Station, Parwanoo for registration of the case/FIR .
through Constable Raj Pal. On receipt of Rukka, FIR Ex. PW-5/E came to be registered. Thereafter, personal search of the accused were conducted. Thereafter, the charas parcels alongwith NCB -1 form, samples of seals N and K were sent to FSL, Junga for analysis.
The other case property i.e. car, its documents, keys had also been deposited by HC Prem Dass with MHC, who had entered the entire case property in malkhana register, the abstract of which is comprised in Ex. PW-5/A to PW-5/C. CIPA certificate comprised in Ex. PW-5/L was also prepared. HC Prem Dass prepared special report comprised in Ex. PW-3/A and had sent the same to SDPO Parwanoo for information, who had made endorsement on it and handed over one copy of it to constable Ram Lok, which was further handed over by him to Investigating Officer of the case. On 21.1.2011 the case property was sent by MHC to FSL Junga through C Vijay Kumar. During the course of interrogation of the accused, they had disclosed that the charas recovered from them had been purchased by them from their co-accused Kewal Ram. Accused Sonu had also revealed the phone number of accused Kewal Ram as ::: Downloaded on - 15/04/2017 18:17:32 :::HCHP ...7...
98162-23243. ID proof and call details of the this number was .
collected. On perusal of the call details they were found to have been used on 20.11.2011. The accused Naresh Kumar and Sonu had disclosed the location of accused Kewal Ram and the spot was identified vide maps comprised in Ex. PW-14/G and PW-14/H. The house of accused Kewal Ram was searched, but nothing was recovered from his house, memo comprised in Ex. PW-14/J was prepared to this effect. Then accused Kewal Ram was arrested vide memo Ex. PW-14/L. During the course of his interrogation, he had disclosed that he had supplied the charas to the accused and in lieu of that they had supplied him motorcycle bearing registration No. HR-12-F-3112, the value of which was Rs. 70,000/- . On the disclosure statement of accused Kewal Ram comprised in Ex. PW-
7/A, the motor cycle was got recovered and taken into possession vide seizure memo comprised in Ex. PW-7/B. Spot map of said recovery is comprised in Ex. PW-14/M. On the receipt of FSL report and on conclusion of the investigation, into the offences, allegedly committed by the accused, final report under Section 173 of the ::: Downloaded on - 15/04/2017 18:17:32 :::HCHP ...8...
Code of Criminal Procedure was prepared and presented in the .
Court.
3. The accused persons were charged, for, theirs having committed offence punishable under Sections 20 and 29 of NDPS Act, by the learned trial Court, to, which they pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution examined 15 witnesses. On closure of the prosecution evidence, the statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded, in, which they pleaded innocence and claimed false implication. They did not choose to lead any evidence in defence.
5. On appraisal of the evidence on record, the learned trial Court, returned findings of conviction against the accused/appellants.
6. The accused/appellants are aggrieved by the judgment of conviction, recorded by the learned trial Court. The learned counsel appearing for the appellants/accused have concertedly, and, vigorously contended, that, the findings of conviction recorded ::: Downloaded on - 15/04/2017 18:17:32 :::HCHP ...9...
by the learned trial Court, are, not based on a proper appreciation of .
evidence on record, rather, they are sequelled by gross mis-
appreciation of the material on record. Hence, they, contend that the findings of conviction, be, reversed by this Court, in, exercise of its appellate jurisdiction, and, be replaced by the findings of acquittal.
7. On the other hand, the learned Deputy Advocate General, has, with considerable force and vigour, contended that the findings of conviction, recorded by the Court below, are, based on a mature and balanced appreciation of evidence on record, hence, do not necessitate interference, and rather merit vindication.
8. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record.
9. Even though, the prosecution witnesses have deposed in tandem and in harmony in proof of each of the links in the chain of circumstances commencing from the proceedings relating to search, seizure and recovery till the consummate link comprised in the rendition of an opinion by the FSL on the specimen parcels sent ::: Downloaded on - 15/04/2017 18:17:32 :::HCHP ...10...
to it for analysis, hence portraying proof of unbroken and un- .
severed links, in the entire chain of the circumstances, therefore it is argued that when the prosecution case stands established, it would be legally unwise for this court to acquit the accused. Besides, it is canvassed that when the testimonies of the official witnesses, unravel the fact of theirs being bereft of any inter-se or intra-se contradictions hence, consequently they too enjoy credibility.
10. The deposition of PW-1, C Bahadur Singh is of prime importance. He in his deposition, has voiced that on the intervening night of 20/21.1.2011, he alongwith HC Prem Dass, HHG Shyam Lal, HHG Manohar Lal and C Raj Pal were present at National Highway 22 at place Sector 3. He continues to depose that on 21.1.2011 at about 2.15 a.m. one Maruti car bearing registration No. DL-3CM-7361 came from Shimla side which was signaled to stop by him. The driver of the car stopped the car at some distance. It was noticed that in the car, besides its driver, three other persons were occupying it. He deposes that one person was sitting on the front seat and two others were on the back seat. On inquiry by HC Prem Dass , the driver disclosed his name to be Naresh Kumar and the ::: Downloaded on - 15/04/2017 18:17:32 :::HCHP ...11...
person sitting on the front seat disclosed his name to be Joginder .
and the persons sitting on the back seat disclosed theirs names as Sonu and Sunil Kumar all R/o Haryana. HC Prem Dass has been deposed by this witness to have asked the driver of the vehicle to unlock the dickey of the car for checking. On checking the dickey of the car, HC Prem Dass found one black coloured raxin bag. On checking the bag aforesaid, there were two cream coloured bags in which charas in the shape of sticks and balls was found and one shirt of cream colour "Checkdar" was also found inside the rexin bag. Thereafter HC Prem Dass checked the vehicle aforesaid and underneath the mat of the front seat one green coloured bag marked ARIA was found. Inside the green coloured bag, there was a red coloured bag in which charas in the form of sticks and balls, was found. Subsequently, HC Prem Dass with the help of weights and scales weighed the two cream coloured bags of charas and on weighment in one bag 2 kg Charas and in the another bag 1Kg. 500 grams charas was found. After weighment, the charas has been deposed by this witness to have been put in the rexin bag in the same manner as it was opened and the recovered charas and the ::: Downloaded on - 15/04/2017 18:17:32 :::HCHP ...12...
shirt was put in a cloth parcel and sealed with the seal impression .
'N'. The charas found underneath the mat of the front seat on weighment was found to be 2 Kg. 700 grams, which was put in the bag as it was opened and was put in the cloth parcel and sealed with the seal impression 'N'. The impression of seal so used was separately taken on a piece of cloth which has been deposed by this witness to be comprised in Ex. PW-1/A which has been deposed to be bearing his signatures in red circle. NCB forms were also filled in at the spot and the seal after its use was handed over to him. The charas weighing 6 Kg 200 grams alongwith vehicle bearing No. DL-
3CM-7361 and its documents were deposed by this witness to have been taken into possession vide seizure memo comprised in Ex.
PW-1/B, which bears his signatures in red circle. He further deposes that on recovery memo comprised in Ex. PW-1/B, all the accused and witness Shyam Lal appended their signatures.
Thereafter, memo of arrest comprised in Ex. PW-1/C was prepared which has been deposed to be bearing his signatures in red circle and all the accused persons have also been deposed to have appended their signatures thereon.
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11. The attribution of an inculpatory role to accused Kewal .
Ram exists in the testimony of HC Prem Dass PW-14, wherein he has deposed that during the course of interrogation of accused Naresh and Sonu, both disclosed to him the factum of accused Kewal Ram having sold charas to them. Besides it was also disclosed by accused Naresh and Sonu to the Investigating Officer during the course of his interrogating of accused Naresh and Sonu, the place/location from where charas was purchased by them from Kewal Ram. The spot identification map of the place where charas was purchased by Sonu and Naresh is comprised in Ex. PW-14/H. Memo Ex. PW-14/J was prepared displaying the house where the charas was purchased. However, accused Kewal Ram was not present in the House. Subsequently on 18.3.2011 the accused Kewal Ram was arrested from his house. During the course of interrogation of accused Kewal Ram he disclosed that in exchange of charas the accused persons sold to him their motor cycle for a sum of Rs. 70,000/-. The disclosure statement of Kewal Ram qua the aforesaid fact is comprised in Ex. PW-7/A and the recovery of motor cycle at the instance of accused Kewal Ram in pursuance ::: Downloaded on - 15/04/2017 18:17:32 :::HCHP ...14...
thereof is comprised in Ex. PW-7/B. The aforesaid revelation has .
been espoused by the prosecution to connote the guilt of the accused Kewal Ram qua his having committed offence punishable under Section 29 of NDPS Act for which he stood charged and tried by the trial Court.
12. The testimony of PW-1 has been corroborated by other prosecution witnesses. Consequently, the genesis of the prosecution case qua the accused being in conscious and exclusive possession of charas while its being carried in the vehicle occupied by them has been contended to have been firmly established.
However, though the depositions of the official witnesses in the event of their testimonies being bereft of any inter-se or intra-se contradictions, are both trustworthy and credible, for founding thereupon findings of conviction, even when there is omission on the part of the Investigating Officer to associate independent witnesses in the proceedings relating to search, seizure and recovery of contraband in the manner as alleged by the prosecution.
The omission on the part of the Investigating Officer to associate independent witnesses in the apposite proceedings would not stand ::: Downloaded on - 15/04/2017 18:17:32 :::HCHP ...15...
in the way of returning findings of conviction against the accused .
on the strength of the consistent testimonies of the official witnesses qua the genesis of the prosecution case, only in case the evidence comprised in the testimonies of the official witnesses discloses that independent witnesses were not available for theirs being joined in the proceedings related to search, seizure and recovery of the contraband. However in the event of evidence on record fortifyingly disclosing that the independent witnesses were available in close vicinity to the site of occurrence, the inability of the Investigating Officer to solicit their participation in the apposite proceedings would taint the genesis of the prosecution version, especially when theirs being joined in the apposite proceedings, a firm conclusion of the investigation having been carried out in an independent and fair manner would be garnered. This Court to disinter whether independent witnesses were available in the vicinity of the site of occurrence for theirs being joined in the apposite proceedings, yet there being a conscious omission on the part of the Investigating Officer to do so for fostering an apt conclusion that omission on the part of the Investigating Officer to ::: Downloaded on - 15/04/2017 18:17:32 :::HCHP ...16...
despite their availability solicit their participation in the apposite .
proceedings, was constrained by a oblique motive on his part to smother the truth qua the genesis of the prosecution case, an advertence is required to be made to the existence of a statement in the cross-examination of PW-1 qua availability of 3-4 Khokhas and 2-3 factories in the vicinity of the site of the occurrence. Moreover even in the cross-examination of PW-14 there occurs an admission of the premises of Shivalik Agro Factory being located at a distance of 30-40 feet from the site of occurrence. Given the proximate location of the aforesaid factories to the site of occurrence necessarily then when the presence of Chowkidars/security guards to maintain vigil of the premises at night cannot be overruled.
Consequently, it was only on concerted efforts having been made by the Investigating Officer, by visiting the premises of the factories/buildings located in the vicinity of the site of occurrence, for ascertaining the availability of the security guards/chowkidars expected to maintain vigil at night of the factories/buildings, for hence soliciting their participation in the apposite proceedings.
However, there is no evidence on record portraying the fact that ::: Downloaded on - 15/04/2017 18:17:32 :::HCHP ...17...
any concerted effort was made by the Investigating Officer to .
ascertain the presence of chowkidars/ security guards expected to maintain vigil at night of the premises of factories/buildings located in the vicinity of the site of occurrence. Consequently, omission of concerted efforts on the part of the Investigating Officer to either ascertain the presence of chowkidars/security guards expected to maintain vigil at night of the premises of factories/buildings in the vicinity of the site of the occurrence or obviously then, solicit their presence in the apposite proceedings relating to search, seizure and recovery, constrains an inference that despite availability of independent witnesses in the vicinity of the site of occurrence, the Investigating Officer consciously omitted to do so. His conscious omission to associate independent witnesses in the apposite proceedings relating to search, seizure and recovery of the contraband naturally foments a conclusion that the said omission was sequelled by an oblique motive on the part of the Investigating officer to smother the truth qua the occurrence.
Consequently, this Court would not imbue veracity to a smothered investigation carried out by the Investigating Officer.
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13. Moreover, the prosecution was required to prove the .
fact that the case property, as shown to PW-1 and identified by him on its production by the learned P.P was linkable to the case property as recovered from the site of occurrence in the manner as alleged by the prosecution. The deposition of PW-1 discloses that the case property comprised in parcels P-1 to P-8 though bore the seal impressions of FSL as also the seals were intact, nonetheless PW-1 in his deposition has omitted to depose the pivotal and crucial facts of the case property having been handed over to him by PW-5, Incharge Malkhana of the police Station, concerned at the relevant time for producing the same in the Court at his instance.
For omission of or non-existence of a statement to the effect that the case property as shown to him in the Court by the learned P.P on production at his instance in Court, was handed over to him or to some other official by PW-5, after its having been retrieved by the latter from the police Malkhana, concerned, wherein it was kept in safe custody, besides omission of a disclosure in the statement of PW-1 that when he received the case property from PW-5, after its retrieval by the latter from the police Malkhana, the official ::: Downloaded on - 15/04/2017 18:17:32 :::HCHP ...19...
concerned recorded an apposite entry in the Malkhana register, .
renders open a conclusion that the case property as shown in court to PW-1, on its production by the learned P.P, was not handed over by PW-5 to PW-1 rather its entry in Court is to be attributed to a undisclosed source which renders suspect the factum of its constituting the property as was allegedly recovered from the conscious and exclusive possession of the accused. What fortifies the factum of the case property as shown to PW-1 in Court by the learned PP being not the property/contraband allegedly recovered at the site of occurrence from the conscious and exclusive possession of the accused, is the fact that there is no existence or occurrence in the deposition of PW-5 qua the person to whom he handed over the case property for its production in Court at the instance of learned PP for its being shown to PW-1. Besides there being no apposite entry contemporaneous to the date of its production in Court at the instance of the learned PP, in the Malkhana register portraying the fact that it was on the date on which it was shown to PW-1 by learned PP retrieved from the Police Malkhana and thereupon handed over to an unnamed ::: Downloaded on - 15/04/2017 18:17:32 :::HCHP ...20...
official for its being at the instance of the learned PP shown to PW-
.
1. Consequently, even if the seal impressions on parcels remained intact and the seal impression borne on the parcels tallied with seal impressions, as displayed in the report of the FSL, nonetheless for lack of a contemporaneous entry in the malkhana register depicting its retrieval therefrom on the date on which it was at the instance of learned PP produced in Court besides there being also no enunciation in the deposition of PW-5 qua the person to whom he handed over the parcels, renders its appearance in Court at the instance of learned PP to be suspect. Obviously then it cannot be construed to be the case property as was recovered from the purported, alleged, conscious and exclusive possession of the accused at the site of occurrence. Moreover, the inculpatory role as attributed to accused Kewal Ram of his having sold charas to accused Sonu and Naresh in lieu whereof he received the motor cycle which stood recovered under memo PW-7/B preceded by a disclosure statement comprised in PW-7/A cannot also be concluded to be sustainable especially when the charas as purportedly sold by him to accused Naresh and Sonu has not been ::: Downloaded on - 15/04/2017 18:17:32 :::HCHP ...21...
proved for the reasons aforesaid to be the one which was produced .
in Court at the time of recording of deposition of PW-1 at the instance of the learned PP.
14. The summum bonum of the above discussion is that the prosecution has not been able to adduce cogent and emphatic evidence in proving the guilt of the accused. The appreciation of the evidence as done by the learned trial Court suffers from an infirmity as well as perversity. Consequently reinforcingly, it can be formidably concluded, that, the findings of learned trial Court merit interference.
15. In view of above discussion, the appeals are allowed and the impugned judgment of 19.5.2014, rendered by the learned Special Judge, Solan, District Solan, is set aside. The appellants/accused are acquitted of the offences charged. The fine amount, if any, deposited by each of the accused is ordered to be refunded to them. Since the accused are in jail, they be released forthwith, if not required in any other case.
16. The registry is directed to prepare the release warrants of the accused and send them to the Superintendent of the jail ::: Downloaded on - 15/04/2017 18:17:32 :::HCHP ...22...
concerned, in conformity with this judgment forthwith. Records be .
sent down forthwith.
(Rajiv Sharma)
Judge
29th May, 2015 (Sureshwar Thakur)
(tm/priti) Judge
r to
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