Himachal Pradesh High Court
Dutt Ram Son Of Shri Puran vs State Of Himachal Pradesh on 2 September, 2022
Bench: Sabina, Sushil Kukreja
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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
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ON THE 2nd DAY OF SEPTEMBER, 2022
BEFORE
HON'BLE MS. JUSTICE SABINA
&
HON'BLE MR. JUSTICE SUSHIL KUKREJA
Between:-
r to
CRIMINAL APPEAL No.339 of 2018
DUTT RAM SON OF SHRI PURAN
CHAND RESIDENT OF VILLAGE
MASHIYAR, POST OFFICE BATHAD,
TEHSIL BANJAR, DISTRICT KULLU,
(H.P.) AGE 28 YEARS.
.... APPELLANT
(BY MR. N.S. CHANDEL, SENIOR
ADVOCATE WITH MR. VINOD
KUMAR GUPTA, ADVOCATE)
AND
STATE OF HIMACHAL PRADESH
....RESPONDENT
(BY MR. KAMAL KANT,
DEPUTY ADVOCATE GENERAL)
Reserved on : 30th August, 2022.
Decided on : 2nd September, 2022.
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This appeal coming on for pronouncement of judgment
this day, Hon'ble Ms. Justice Sabina, delivered the following:
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JUDGMENT
Appellant has filed the appeal challenging the judgment/ order dated 04.06.2018, whereby he has been convicted and sentenced as under:-
Section 20 of Narcotic : Rigorous imprisonment for ten years and to Drugs and pay a fine of `1,00,000/- (Rs. One lac Psychotropic only). In default of payment of fine, he Substances Act, 1985 shall further undergo simple imprisonment for one year.
2. Prosecution story, in brief, is that on 5 th January, 2016, ASI Narayan Lal along with other police officials were present in official vehicle No. HP-34A-9984 near Chhuti Bihal Garsa Road. At about 5.40 a.m., a person was seen coming on foot towards Bajaura side from Hurla side. The said person was noticed with the help of torch light. The said person was carrying Pithu bag on his back. On seeing the police party, the said person turned back and tried to run away, after throwing the Pithu bag by the side of the road. The said person was apprehended by the police party and on enquiry, he disclosed his name as Dutt Ram. The said person was taken to the place, where he had thrown the Pithu bag. Since the place was secluded and isolated one and it was winter season, no independent witness was available at ::: Downloaded on - 02/09/2022 20:04:30 :::CIS 3 the spot. The police party waited for sometime, but no independent witness became available. Consequently, on suspicion, the Pithu bag .
was searched and on opening the zip of the bag, red coloured carry bag having a polythene packet was recovered. The packet was tied with knot. On checking the same, black coloured sticks and ball shape charas was recovered. On weighment, the contraband came to 4.050 kilograms. The contraband was put in the polythene packet and was put in the carry bag. One vial of perfume was also recovered from the another zip of Pithu bag and the same was also put inside the Pithu bag. The Pithu bag was then put in another cloth parcel and was sealed with nine seals bearing impression 'S'. Sample seal, after use, was handed over to HC Krishan Lal. NCB-I form was filled-in triplicate.
Recovered contraband was taken in possession. Rukka was prepared and was sent to Police Station through HHC Krishan Lal and on the basis of the same, formal FIR No.3, dated 5 th January, 2016 was registered at Police Station, Bhuntar, District Kullu. Site plan was prepared and statements of witnesses were recorded. Appellant was arrested and information regarding his arrest was supplied to his father.
3. Thereafter, appellant along with case property was produced before the SI/SHO Bhup Singh, who after checking the case property, resealed the same with seal bearing impression 'O'. On the ::: Downloaded on - 02/09/2022 20:04:30 :::CIS 4 next day, appellant was produced before the Court and was remanded to the police custody.
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4. Case property was sent to Forensic Science Laboratory, Junga and after receipt of its report, challan was presented against the appellant under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
5. Charge was framed against the appellant under Section 20
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r to of the NDPS Act. Appellant did not plead guilty of the charge framed against him and claimed trial.
In order to prove its case, during trial, prosecution examined 12 witnesses.
7. After the close of prosecution evidence, appellant when examined under Section 313 of the Code of Criminal Procedure, prayed that he was innocent and had been detained by the Police at village Mashyar on 04th January, 2016.
8. Appellant did not examine any witness in his defence.
9. Learned trial Court, vide impugned judgment/order dated 4th June, 2018, ordered the conviction and sentence of the appellant as mentioned in para 1 of the judgment. Hence, the present appeal.
10. Learned counsel for the appellant has submitted that the trial Court has erred in ordering the conviction of the appellant with regard to the charge frame against him. Prosecution had miserably ::: Downloaded on - 02/09/2022 20:04:30 :::CIS 5 failed to prove its case against the appellant. PW-7, Ashok Kumar, driver of the official vehicle in question, has demolished the prosecution .
case. The presence of the said witness is admitted by the other spot witnesses. There were material contradictions in the testimony of the spot witnesses rendering the prosecution case doubtful.
11. Learned Deputy Advocate General, on the other hand, has opposed the appeal and has submitted that the statements of the spot witnesses inspired confidence. Learned trial Court had rightly ordered the conviction and sentence of the appellant with regard to the charge framed against him and no reliance could be placed on the testimony of PW-7. Some minor discrepancies were liable to occur in the testimonies of the witnesses with the passage of time.
12. Present case relates to recovery of 4 kilograms 50 grams of Charas from the bag allegedly carried by the appellant.
13. PW-1, Constable Durga Singh, PW-11 ASI Narrayan Lal, PW-12 HC Krishan Lal, have deposed as per the prosecution story.
The said witnesses have deposed that on 5th January, 2016, at about 5.40 a.m., they were present at the spot and appellant, on seeing the police party, threw the Pithu bag carried by him. On suspicion, appellant was apprehended and from the Pithu bag thrown by the appellant, charas weighing 4 Kilograms 50 grams was recovered.
::: Downloaded on - 02/09/2022 20:04:30 :::CIS 614. In order to demolish the testimony of the spot witnesses, learned counsel for the appellant has placed great reliance on the .
testimony of PW-7. As per PW-1, PW-11 and PW-12, Ashok Kumar (PW-7) was the driver of the official vehicle, in which they were travelling.
15. PW-7 Ashok Kumar deposed that he was the driver of the official vehicle in question and produced the original log-book of the vehicle as Ex.PW-7/A. relevant and reads as under:
r to Cross-examination of the said witnesses is "I do not remember whether on the way we stopped any where or not. ASI Narain Lal, HHC Krishan Lal and Constable Durga Dass were with me in the vehicle. I do not remember whether the police party had laid naqua or received information about the contraband in the vehicle itself. Self stated I remained seated in the vehicle. I do not remember where the police party alighted from the vehicle. I do not remember the distance of the place from Police Station where police party was dropped. I do not remember whether the Police Party proceeded on foot or remained in front of official vehicle. I had not seen any person on the spot. I cannot identity the accused present in the Court. I do not remember whether any documents were prepared on the spot or not. I cannot say my distance of police party from the place where the vehicle was parked. I cannot tell as to whom the custody of accused was entrusted by the Investigating Officer. I have not soon any house or sheds at the alleged place. It is correct that place being a State Highway and is a busy ::: Downloaded on - 02/09/2022 20:04:30 :::CIS 7 road. I cannot say how many vehicles passed through the alleged spot during that period. I do not remember whether any vehicle was signalled to stopped by the .
Investigating Officer or not. Nothing was weighed in my presence. No document was prepared in the light of the vehicle. I do not remember whether any parcel was prepared in my presence and the same was sealed by the police party. On way back we were five persons with accused, ie, ASI Narain Lal, HHC Krishan Lal, Constable Durga Singh, myself and the accused. All the four police personnel remained on the spot till completion of investigation. No photostat copy of any document was prepared in my presence. No seal was used in my presence. I do not remember as to by whom the search of accused was made. Self stated that I was sitting in the vehicle at the distance. I had not seen any bag on the spot as I was sitting in the vehicle. I do not remember as to whether I had noticed the accused coming towards police vehicle. It is incorrect to suggest that the entry in log book has been fabricated and I am deposing falsely."
16. A combined reading of the testimony of PW-1, PW-7, PW-11 and PW-12 reveals that all the said four witnesses was present at the spot at the time of alleged recovery.
17. Although, PW-1, PW-11 and PW-12 have supported the prosecution case with regard to the recovery of the contraband from the appellant, but PW-7, in his cross-examination, has deposed otherwise. The said witness has deposed that he had not seen any person at the spot nor could identify the appellant, who was present in ::: Downloaded on - 02/09/2022 20:04:30 :::CIS 8 the Court. He submitted that no document was prepared in the light of the vehicle.
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18. Thus, a complete reading of the cross-examination of PW-7 reveals that PW-7 has demolished the prosecution case. PW-7 is not a private/independent witness, but is official witness, who was accompanying the police party at the spot. Harsh punishment has been provided under the Act with regard to the recovery of commercial quantity of the contraband.
toHence, a strict duty is cast on the prosecution to prove its case beyond the shadow of reasonable doubt.
In case, an accused is able to create reasonable doubt as a part of his defence to rebut the testimony of the official witnesses, the benefit will naturally go to him.
19. Since, in the present case, one of the official witnesses has failed to identify the appellant or establish the proceedings carried out at the spot, the prosecution story becomes doubtful.
20. So far as PW-1 Constable Durga Singh is concerned, he has stated that the entire investigation at the spot was conducted on the road itself where the bag was lying, whereas, PW-11 ASI Narayan Lal and PW-12 Head Constable Krishan Lal have deposed that the entire sealing process etc., was done at the bonnet of the vehicle.
PW-1 has deposed that the entire proceedings were done by the investigating officer with the help of torch light, whereas, PW-11 and ::: Downloaded on - 02/09/2022 20:04:30 :::CIS 9 PW-12 have not deposed to this effect. As per PW-11 and PW-12, the proceedings at the spot were conducted on the bonnet of the vehicle, .
whereas, the said fact is not corroborated by PW-7, driver of the vehicle. Rather, PW-7 has deposed that no document was prepared in the light of the vehicle. As per PW-12, no special mark of identification was seen on the bag allegedly carried by the appellant.
21. After carefully going through the entire evidence on record, we are of the opinion that on account of the above discussed discrepancies and the testimony of PW-7, the prosecution story is rendered doubtful.
22. It is a settled preposition of law that prosecution is required to prove its case beyond the shadow of reasonable doubt and whenever doubt arises in the prosecution story, benefit of the same has to be extended to the accused. Since in the present case, prosecution story was rendered doubtful, as discussed above, the appellant was liable to be acquitted of the charge framed against him by giving him benefit of doubt.
23. Accordingly, the appeal is allowed and the appellant is acquitted of the charge framed against him. Consequently, the impugned judgment of conviction and order of sentence dated 4 th June, 2018, passed in Sessions Trial Number 40 of 2016 by the Special ::: Downloaded on - 02/09/2022 20:04:30 :::CIS 10 Judge (II), Kullu, Himachal Pradesh, are set aside. Appellant, who is in custody, be set at liberty forthwith, if not required in any other case.
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24. In view of the provisions of Section 437-A Code of Criminal Procedure, 1973, appellant Dutt Ram, is directed to furnish a personal bond in the sum of Rs.25,000/-, and a surety in the like amount, before the Registrar (Judicial) of this Court, which shall be effective for a period of six months, with stipulation that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellant aforesaid, on receipt of notice thereof, shall appear before the Supreme Court.
(Sabina) Judge (Sushil Kukreja) Judge September 02, 2022(ps) ::: Downloaded on - 02/09/2022 20:04:30 :::CIS