Himachal Pradesh High Court
State Of Himachal Pradesh vs Pardeep Kumar Son Of Sh. Paras Ram on 28 February, 2015
Bench: Sanjay Karol, P.S. Rana
IN THE HIGH COURT OF HIMACHAL PRADESH,
.
SHIMLA:
Cr. Appeal No.290 of 2008.
Judgment reserved on: 24.2.2015.
Date of Decision: February 28 ,2015.
____________________________________________________________
State of Himachal Pradesh. ....Appellant.
r Vs.
Pardeep Kumar son of Sh. Paras Ram.
to ....Respondent.
Coram:
Hon'ble Mr. Justice Sanjay Karol, Judge.
Hon'ble Mr.Justice P.S.Rana, Judge.
Whether approved for reporting1?yes.
For the appellant: Mr. B.S.Parmar Addl. Advocate
General with Mr.Vikram Thakur,
Dy.AG and Mr.J.S.Guleria,
Asstt. Advocate General.
For the respondent: Mr.B.S.Attri, Advocate.
P.S.Rana, Judge.
Whether reporters of the Local papers are allowed to see the judgment? yes.
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JUDGMENT:Present appeal is filed against the judgment .
passed by the learned Additional Sessions Judge Fast Track Court Kangra at Dharamsala in Sessions Trial No. 15 of 2007 titled State of H.P. Vs. Pardeep Kumar.
BRIEF FACTS OF THE PROSECUTION CASE:
2. Brief facts of the case as alleged by prosecution are that on dated 24.9.2006 at about 6 PM when police officials Police Station Dharamshala were on patrolling duty at place Sukkar they intercepted scooter No. HPK-6101 driven by accused and after conducting search of scooter 432 capsules of spasmo proxyvon were found. It is alleged by prosecution that sample of capsules took and thereafter sample parcels and remaining bulk quantity were sealed in parcel. It is alleged by prosecution that rukka Ext PW8/E was sent to Police Station on the basis of which FIR Ext PW8/F was registered. It is alleged by prosecution that on the receipt of rukka rapat No.10 was also recorded. It is alleged by prosecution that site plan Ext PW12/D was prepared at the spot by Investigating Officer. It is alleged by prosecution that NCB form Ext PW12/B was prepared in triplicate. It is alleged by prosecution that sample was again resealed in police ::: Downloaded on - 15/04/2017 17:40:35 :::HCHP 3 station by Incharge Police Station Dharamshala. It is alleged .
by prosecution that thereafter sample was sent for chemical analysis to FSL Junga and thereafter report Ext.PA was received. It is alleged by prosecution that scooter was also impounded. Charge was framed against the accused on dated 17.7.2007 under Section 22 of Narcotic Drugs and Psychotropic Substances Act 1985. Accused did not plead guilty and claimed trial.
3. Prosecution examined as many as twelve witnesses in support of its case.
Sr.No. Name of Witness
PW1 Rajesh Sharma
PW2 Rakesh Kumar
PW3 Subhash Chand
PW4 Shiv Kumar
PW5 Subhash Chand
PW6 Anil Kumar
PW7 Kartar Singh
PW8 Om Parkash
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PW9 R.P.Jaswal
.
PW10 Kapil Dev
PW11 Navneet Marwaha
PW12 Vinod Kumar
4. Prosecution also produced following piece of documentary evidence in support of its case:-
Sr.No. r Description.
Ext PW1/A Arrest memo
Ext PW1/B Seizure memo
Ext PW3/A Copy of special report
Ext PW3/B Copy of register of NDPS
Ext PW6/A Copy of malkhana register
Ext PW6/B
Ext PW6/C Road certificate
Ext PW6/D Copy of road certificate
Ext PW8/B Sample of seal
Ext PW8/E Rukka
Ext PW8/F FIR
Ext PW12/A Rapat No.l0
Ext PW12/B NCB Form
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Ext PW12/C Sample of seal
.
Ext PW12/D Site plan
Ext PW12/E Statement of Rajesh Sharma
Ext PW12/F Statement of Kapil Dev
Ext PA FSL Report.
5. Statement of accused was also recorded under Section 313 Cr.P.C. Accused has stated that he is innocent and false case has been filed against him. Accused did not lead any defence evidence. Learned trial Court acquitted the accused.
6. Feeling aggrieved against judgment passed by learned Additional Sessions Judge Fast Track Court Kangra at Dharamshala appellant-State filed present appeal.
7. We have heard learned Additional Advocate General appearing on behalf of the State and learned Advocate appearing on behalf of the respondent and also perused entire record carefully.
8. Point for determination in the present appeal is whether learned trial Court did not properly appreciate oral as well as documentary evidence adduced by the parties and ::: Downloaded on - 15/04/2017 17:40:35 :::HCHP 6 caused miscarriage of justice to the appellant as alleged in .
memorandum of grounds of appeal.
ORAL EVIDENCE ADDUCED BY PROSECUTION:
9 PW1 Rajesh Sharma has stated that on dated 24.9.2006 he along with Kapil Dev were proceeding on scooter towards Kangra on Sukkar road. He has stated that police officials were standing on the road. He has stated that police officials stopped his scooter. He has stated that they were called by police officials. He has stated that some people were already present at the spot. He has stated that accused present in Court was also present at the spot. He has stated that they were told that something was recovered from accused. He has stated that they were directed to place their signatures and thereafter they left the spot. Witness was declared hostile. He has denied suggestion that scooter was plied by accused. He denied suggestion that accused tried to run away from the spot when he saw police officials. He denied suggestion that 18 strips of capsules of spasmo proxyvon were recovered. He denied suggestion that Drug Inspector Navneet Marwah was called by telephonically. He denied suggestion that police officials had demanded license ::: Downloaded on - 15/04/2017 17:40:35 :::HCHP 7 from accused. He denied suggestion that two strips of .
capsules were kept as sample. He denied suggestion that remaining 16 strips were packed and sealed in a parcel. He denied suggestion that accused is known to him and in order to save accused he resiled from his earlier statement. He has stated that he has seen accused for the first time. He has stated that document Ext PW1/A and Ext PW1/B were not read over to him.
9.1 PW2 Rakesh Kumar has stated that on dated 24.9.2006 he was on patrol duty and left police station at 4.40 PM. He has stated that when he reached at place Sukkar at 6 PM a scooter came from Sukkar side which was driven by accused. He has stated that number of scooter was HPK-6101.
He has stated that when accused saw police officials accused tried to take scooter to back side and in thereafter accused fell down. He has stated that on suspicion personal search of the accused was conducted. He has stated that Kapil and Rajesh were also coming Sukkar side and they were asked to stop. He has stated that on inquiry accused told his name as Pardeep Kumar. He has stated that firstly ASI had given his search and thereafter other police officials have also given their ::: Downloaded on - 15/04/2017 17:40:35 :::HCHP 8 search to accused. He has stated that from the dicky of .
scooter a black coloured polythene bag was found. He has stated that thereafter police officials conducted search of bag and on search 18 strips of capsules were found. He has stated that two strips were taken out for sample purpose and Drug Inspector was also called through telephonically. He has stated that accused could not produce license. He has stated that remaining bulk was sealed in a parcel. He has stated that seizure memo was also prepared at the spot. He has stated that accused was arrested and scooter was impounded. He has stated that thereafter Investigating Officer sent rukka to police station for registration of case through HHC Shiv Kumar and site plan was prepared by Investigating Officer at the spot. He has denied suggestion that nothing was recovered from accused. He denied suggestion that offending vehicle was recovered from somewhere else and false case was filed against accused. He denied suggestion that all proceedings were conducted in Police Station. He denied suggestion that Drug Inspector did not reach at the spot.
9.2 PW3 HC Subhash Chand has stated that he was posted as Reader to SP Kangra at Dharamshala since 2003.
::: Downloaded on - 15/04/2017 17:40:35 :::HCHP 9He has stated that on dated 25.9.2006 at about 10.45 AM .
HHC Subhash Chand brought special report and handed over to SP A.K.Yadav. He has stated that he made entry at serial No.23 in relevant register and thereafter put the register before SP who also signed on the entry. He has stated that special report is Ext PW3/A which is true as per original. He has stated that extract of NDPS register is Ext PW3/B which is correct as per original.
9.3 PW4 Shiv Kumar has stated that since 2005 he was posted in Police Station Dharamshala. He has stated that on dated 24.9.2006 he along with ASI Vinod Kumar and HC Rakesh Kumar had proceeded on patrolling and traffic checking at Fatehpur. He has stated that in the meanwhile scooter No HPK-6101 came which was driven by accused. He has stated that when he saw police officials accused attempted to turn his scooter and in this process accused fell down. He has stated that on suspicion accused was apprehended and accused told his name as Pardeep Kumar.
He has stated that on search of dicky of scooter a polythene bag was found which was opened and found containing 18 strips of capsules. He has stated that thereafter Drug ::: Downloaded on - 15/04/2017 17:40:35 :::HCHP 10 Inspector was called telephonically. He has stated that Kapil .
and Rajesh Kumar came from other side. He has stated that Drug Inspector told that capsules found from the possession of accused were proxyvon. He has stated that thereafter he took rukka to Police Station on the basis of which FIR was registered. He has stated that thereafter case file was handed over to him and he handed over the same to Investigating Officer. He has stated that capsules Ext P2 and Ext P4 are the same. He has stated that search of another person who was accompanying the accused was also conducted. He has stated that he does not know the name of that person. He has stated that nothing was recovered from that person. He has denied suggestion that accused was not searched. He denied suggestion that nothing was recovered from accused. He denied suggestion that false case has been planted against accused.
9.4 PW5 Subhash Chand has stated that since September 2004 he was posted in Police Station Dharamshala. He has stated that on dated 25.9.2006 special report Ext PW3/A was given to him by SI Vinod Kumar which was handed over to SP Kangra at Dharamshala. He has stated ::: Downloaded on - 15/04/2017 17:40:35 :::HCHP 11 that he handed over the same at about 10.40 to Reader SP .
Kangra.
9.5 PW6 Anil Kumar has stated that in the year 2006 he was posted as MHC in Police Station Dharamshala. He has stated that on dated 24.9.2006 at about 9.55 PM Addl. Station House Officer Om Parkash deposited six parcels which were duly sealed with seal 'D' at four places. He has stated that NCB form in triplicate was also given to him. He has stated that two samples were sent through Constable Parmodh Singh vide RC No.99/21 to CFSL Chandigarh. He has stated that CFSL Chandigarh had raised objection that there was no facility to examine the sample at CFSL Chandigarh. He has stated that aforesaid parcels were again sent vide RC No.102/21-A along with NCB forms through HHC Kartar Singh to FSL Junga. He has stated that receipt was handed over to him. He has stated that he brought malkhana register.
He has stated that photo copy of malkhana register No.19 is Ext PW6/A and Ext PW6/B. He has stated that he also brought road certificate in original and its copy is Ext PW6/C and Ext PW6/D which are true as per original. He has denied ::: Downloaded on - 15/04/2017 17:40:35 :::HCHP 12 suggestion that samples were not sent to CFSL Chandigarh .
and FSL Junga.
9.6 PW7 Kartar Singh has stated that for the last three years he was posted in Police Station Dharamshala. He has stated that on dated 2.10.2006 MHC Anil Kumar handed over two sealed samples in a parcel which were sealed with seal 'D'. He has stated that he deposited the same vide RC No. 102/21 at FSL Junga.
9.7 PW8 Om Parkash has stated that since February 2006 he was posted as Addl. Station House Officer Police Station Dharamshala. He has stated that on dated 24.9.2006 he was exercising the powers of SHO Police Station Dharamshala. He has stated that six parcels sealed with seal 'D' at four places were produced and he affixed seal 'A' at three places and deposited with MHC. He has stated that parcels Ext P1 and Ext P3 are the same. He has stated that on receipt of rukka Ext PW8/E FIR Ext PW8/F was registered which bears his signature. He has denied suggestion that no rukka was received in Police Station. He denied suggestion that rukka was manufactured lateron in Police Station.
::: Downloaded on - 15/04/2017 17:40:35 :::HCHP 139.8 PW9 R.P.Jaswal has stated that he was posted as .
Station House Officer Police Station Dharamshala since May 2005. He has stated that after completion of investigation and on receipt of FSL Junga Ext PA1 he prepared challan and submitted in Court.
9.9 PW10 Kapil Dev has stated that he along with Rakesh was proceeding to Kangra and when they reached at place Tremblu on Sukkar road police officials were present nearby the temple of Mahadev. He has stated that they were stopped by police officials and asked to place signatures on the file. He has stated that after placing signatures at 2-3 places they left the spot. Witness was declared hostile. He has denied suggestion that accused came on scooter No HPK-6101 and when he saw police officials accused tried to turn back.
He denied suggestion that scooter of the accused was checked in his presence. He denied suggestion that polythene bag was recovered from the dicky of scooter. He denied suggestion that capsules Ext P2 and Ext P4 were found from the possession of accused. He denied suggestion that NCB form was prepared in his presence. He denied suggestion that seizure memo was also prepared in his presence. He denied suggestion that ::: Downloaded on - 15/04/2017 17:40:35 :::HCHP 14 sample was taken out from the polythene bag. He denied .
suggestion that scooter was took into possession and accused was arrested. He denied suggestion that he resiled from his earlier statement in order to save the accused.
9.10. PW11 Navneet Marwaha has stated that since May 1995 he was working as Drug Inspector at Dharamshala.
He has stated that on dated 24.9.2006 he was called at Police Station Dharamshala and he reached there at about 6.45 PM.
He has stated that accused present in Court was also with police officials. He has stated that he shown some capsules of Spasmo proxyvon. He has stated that such drug could be purchased only from the chemist on the prescription of registered medical practitioner. He has stated that each capsules contained 100 mg of proxyvon. He has stated that capsules have not been shown to him in Court. He has denied suggestion that he was called to Police Station and all proceedings were took in Police Station. He has stated that he asked the accused from where he acquired the capsules but accused did not provide any information.
9.11. PW12 Vinod Kumar has stated that since February 2006 he was posted in Police Station Dharamshala.
::: Downloaded on - 15/04/2017 17:40:35 :::HCHP 15He has stated that on dated 24.9.2006 he accompanied by HC .
Rakesh Kumar and HHC Shiv Kumar were on patrolling duty and traffic checking at place Charan Dari Sheela Chowk Fatehpur and Sukkar. He has stated that they proceeded from Police Station at 4.40 PM by bus and reached at Sukkar road and performed traffic checking at Sukkar road nearby temple of Mahadev. He has stated that when they were conducting traffic checking two persons came on scooter namely Kapil and Rajesh who were also stopped. He has stated that in the meantime a scooter No. HPK-6101 came from Sukkar side. He has stated that when the rider of the scooter saw police officials he tried to turn his scooter but the rider of the scooter fell down. He has stated that on suspicion accused was over powered. He has stated that he gave his personal search to accused. He has stated that a plastic bag of black colour from the dicky of scooter was recovered. He has stated that capsules were kept in a plastic bag containing 18 strips. He has stated that Drug Inspector was also called. He has stated that on arrival of Drug Inspector Ext P2 and Ext P4 were checked. He has stated that Drug Inspector told that capsules could not be purchased without prescription from medical ::: Downloaded on - 15/04/2017 17:40:35 :::HCHP 16 practitioner. He has stated that accused could not produce .
any license. He has stated that NCB form was filled in and site plan was prepared and statements of the witnesses were recorded as per their versions. He has stated that accused was arrested and scooter was impounded. He has stated that special report was sent to SP Kangra. He has stated that he handed over case property to SHO who re-sealed the case property in his presence and handed over the same to MHC.
He has stated that accused present in Court is the same person. He has denied suggestion that nothing was recovered from the possession of accused. He denied suggestion that Drug Inspector was associated in Police Station only. He denied suggestion that all parcels were prepared in Police Station. He denied suggestion that false case has been filed against accused. He has stated that capsules have not been shown to the witness in Court.
Testimony of PW1 Rajesh Sharma is fatal to prosecution.
10. It is the case of prosecution that 432 capsules of spasmo proxyvon recovered from exclusive possession of accused in the presence of PW1 Rajesh Sharma. PW1 has stated that scooter No. HP-6101 did not come from the side of ::: Downloaded on - 15/04/2017 17:40:35 :::HCHP 17 Sukkar. PW1 Rajesh Sharma has stated in positive manner .
that accused did not try to run away from the spot when accused saw police officials. He has denied suggestion that 18 strips of capsules of Spasmo proxyvon recovered from accused. PW1 has stated in positive manner that Drug Inspector was not called at the spot. PW1 has stated in positive manner that sample parcels and other remaining bulk parcels were not sealed. We are of the opinion that above stated testimony of PW1 Rajesh Sharma is fatal to prosecution case.
Testimony of PW10 Kapil Dev is also fatal to prosecution.
11. PW10 Kapil Dev has stated in positive manner that accused did not come on scooter No. HPK-6101. PW10 Kapil Dev has stated in positive manner that scooter of the accused was not searched in his presence. PW10 has stated in positive manner that no polythene bag was found from the dicky of scooter. PW10 Kapil Dev has stated in positive manner that no capsules were recovered from the possession of accused in his presence. Testimony of PW10 Kapil Devi is fatal to prosecution.
Non shown of capsules to the Investigating Officer in Court is also fatal to prosecution____________________________________ ::: Downloaded on - 15/04/2017 17:40:35 :::HCHP 18 .
12. PW12 ASI Vinod Kumar has specifically stated when he appeared in witness box that alleged capsules recovered from the possession of accused were not shown to him in Court by prosecution. We are of the opinion that non shown of capsules to the Investigating Officer is fatal to the prosecution.
Non shown of capsules to the Drug Inspector in the Court is also fatal to the prosecution________________________________
13. PW11 Navneet Marwaha Drug Inspector has specifically stated when he appeared in witness box that alleged capsules were not shown to him in Court. We are of the opinion that non shown of alleged capsules recovered from the possession of accused to Drug Inspector in Court is also fatal to prosecution in present case.
Non production of original seal in Court for comparison purpose is also fatal to the prosecution_____________________
14. Prosecution did not produce original seal in Court for comparison purpose. It was held in case reported in Latest HLJ 2011 HP 1195 (DB) titled Nanha vs. State that if original seal is not produced in court for comparison then conviction ::: Downloaded on - 15/04/2017 17:40:35 :::HCHP 19 could not be recorded. Also See 1998 (8) SCC 449 titled State .
Entire investigation of the case conducted by complainant himself i.e. ASI Vinod Kumar is also fatal to the prosecution.
15. It is proved on record that ASI Vinod Kumar is complainant in present case. It is also proved on record that ASI Vinod Kumar has himself conducted entire investigation of the present case. He has seized the contraband himself. He has prepared sample and sealed the same himself. He has prepared site plan himself. He has recorded the statements of the witnesses himself. It was held in case reported in AIR 1976 SC 985 titled Bhagwan Singh vs. The State of Rajasthan that whole investigation conducted by the complainant was against criminal jurisprudence and was ipso facto contrary to law. We are of the opinion that grave miscarriage of justice has been caused to the accused when entire investigation in the present case has been conducted by complainant himself ASI Vinod Kumar. There is no evidence on record in order to prove that some other Investigating Officer was not available at the time of preparation of search and seizure memo. Also ::: Downloaded on - 15/04/2017 17:40:35 :::HCHP 20 see 1993 Criminal Law Journal 3716 titled Gyan Chand vs. .
State of Rajasthan.
16. Submission of learned Additional Advocate General appearing on behalf of the State that there was no prior enmity with the accused and on the testimony of police officials accused be convicted is rejected being devoid of any force for the reason hereinafter mentioned. We have carefully perused seizure memo Ext PW1/B placed on record. The signatory of seizure memo are PW1 Rajesh Sharma and PW10 Kapil Dev. It is well settled law that contents of seizure memo could be proved by way of the testimony of witnesses who are signatory to the search and seizure memo. In the present case two witnesses namely PW1 Rajesh Sharma and PW10 Kapil Dev have not supported the prosecution case as alleged by the prosecution. We are of the opinion that two views have emerged in the present case. PW2 Rakesh Kumar has supported the prosecution case but PW1 Rajesh Sharma and PW10 Kapil Dev have not supported the prosecution story. It is held in case reported in 1998 (2) SLJ 1408 Shashi Pal and others Vs. State of HP that if two versions appear in prosecution evidence then version beneficial to the accused ::: Downloaded on - 15/04/2017 17:40:35 :::HCHP 21 should be adopted. Also see 1993 (1) SLJ 405 titled State of .
HP Vs. Sudarshan Singh
17. Another submission of learned Additional Advocate General appearing on behalf of the State that PW1 Rajesh Sharma and PW10 Kapil Dev have admitted their signatures in the seizure memo and on this ground accused be convicted is also rejected being devoid of any force for the reason hereinafter mentioned. It is well settled law that admission of signature in the document does not mean that contents of document are admitted by the witness. It is well settled law that contents of document should be proved in accordance with law as per Indian Evidence Act. We are of the opinion that simply admission of signature in the memo did not mean that contents of memos are proved when PW1 Rajesh Sharma and PW10 Kapil Dev have specifically denied the contents of memos when they appeared in Court as witness. It was held in case reported in (2005) 9 SCC 765 titled Anjlus Dungdung Vs. State of Jharkhand that suspicion however strong cannot take place of proof. It was held in case reported in (2010) 11 SCC 423 titled Nanhar Vs. State of Haryana that prosecution must stand or fall on its own leg ::: Downloaded on - 15/04/2017 17:40:35 :::HCHP 22 and it cannot derive any strength from the weakness of the .
defence. Also See: (1984) 4 SCC 116 Sharad Birdhichand Sarda Vs. State of Maharashtra. It is well settled law that conjecture or suspicion cannot take place of legal proof. See:
AIR 1967 SC 520 Charan Singh Vs. The State of Uttar Pradesh. Also See: AIR 1971 SC 1898 Gian Mahtani Vs. State of Maharashtra. It was held in case reported in AIR 1979 SC 1382 State (Delhi Administration) Vs. Gulzarilal Tandon that suspicion however strong cannot take the place of legal proof.
Also See: AIR 1983 SC 906 titled Bhugdomal Gangaram and others Vs. The State of Gujarat. Also See: AIR 1985 SC 1224 titled State of UP Vs. Sukhbasi and others. It is well settled principle of law that vested right accrued in favour of the accused with the judgment of acquittal by learned trial Court.
(See (2013) 2 SCC 89 titled Mookkiah and another Vs. State.
See 2011 (11) SCC 666 titled State of Rajashthan Vs. Talevar and another. See AIR 2012 SC (Supp) 78 titled Surendra Vs. State of Rajasthan. See 2012 (1) SCC 602 titled State of Rajasthan Vs. Shera Ram @ Vishnu Dutt). It is well settled principle of law (i) That appellate Court should not ordinarily set aside a judgment of acquittal in a case where two views are ::: Downloaded on - 15/04/2017 17:40:35 :::HCHP 23 possible though the view of the appellate Court may be more .
probable. (ii) That while dealing with a judgment of acquittal the appellate Court must consider entire evidence on record so as to arrive at a finding as to whether views of learned trial Court are perverse or otherwise unsustainable (iii) That appellate Court is entitled to consider whether in arriving at a finding of fact, learned trial Court failed to take into consideration any admissible fact (iv) That learned trial court took into consideration evidence contrary to law. (See AIR 1974 SC 2165 titled Balak Ram and another Vs. State of UP, See (2002) 3 SCC 57 titled Allarakha K. Mansuri Vs. State of Gujarat, See (2003) 1 SCC 398 titled Raghunath Vs. State of Haryana, See AIR 2007 SC 3075 State of U.P Vs. Ram Veer Singh and others, See AIR 2008 SC 2066, (2008) 11 SCC 186 S.Rama Krishna Vs. S. Rami Raddy (D) by his LRs. & others.
Sambhaji Hindurao Deshmukh and others Vs. State of Maharashtra, See (2009) 10 SCC 206 titled Arulvelu and another Vs. State, See (2009) 16 SCC 98 titled Perla Somasekhara Reddy and others Vs. State of A.P,See:(2010) 2 SCC 445 titled Ram Singh @ Chhaju Vs. State of Himachal Pradesh).
::: Downloaded on - 15/04/2017 17:40:35 :::HCHP 2418. In view of the above stated facts we are of the .
opinion that judgment passed by learned trial Court is based upon oral as well as documentary evidence placed on record and we also hold that no miscarriage of justice is caused to the State of HP in the present case while acquitting the accused. We dismiss the appeal filed by the State of HP and affirm the judgment passed by learned trial Court. Pending application(s) if any are also disposed of. Record of learned trial Court along with certified copy of judgment be sent back forthwith. Appeal disposed of.
(Sanjay Karol), Judge (P.S. Rana) Judge.
February 28,2015(R) ::: Downloaded on - 15/04/2017 17:40:35 :::HCHP 25 .
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