Supreme Court - Daily Orders
Naresh Bahadur Sahi vs The State Of Himachal Pradesh on 25 March, 2022
Bench: Uday Umesh Lalit, S. Ravindra Bhat, Pamidighantam Sri Narasimha
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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.483/2022
(Arising out of SLP (Crl.) No(s). 707/2019
NARESH BAHADUR SAHI Appellant(s)
VERSUS
STATE OF HIMACHAL PRADESH Respondent(s)
ORDER
Leave granted.
This appeal challenges the judgment and order dated 01-05-2017 passed by the High Court of Himachal Pradesh at Shimla in CRA No. 441/2016.
On an allegation that the appellant was apprehended on 08.02.2015, with 1.6 kg. of charas, a prohibited substance under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 ("the Act" for short), the appellant was arrayed as accused in Crime registered pursuant to FIR 37 of 2015 with Police Station Balh, District- Mandi, H.P. Signature Not Verified According to the prosecution at about 2.00 A.M. on 08.02.2015, the appellant Digitally signed by Indu Marwah Date: 2022.03.26 13:32:06 IST was found to be coming from Bagla towards Ner Chowk by the Police Personnel who Reason:
were doing their duty of Nakabandi.2
After finding that the movements of the appellant were suspicious, the appellant was apprehended and searched by Inspector Chet Singh who was later examined as PW-8.
The necessary steps undertaken by said PW-8 as recorded in his examination as PW-8 in the trial were as under:
“With the help of emergency light, I checked the bag of Naresh Bahadur which was of blue colour, having black strips and pockets on both side of the bag. The front pocket was small while the second pocket was big. On opening the chains of both the pockets in big pocket of the bag one pant in gray colour, T-Shirt white having blue coller and one carry bag light blue colour was found. On opening carry bag, 14 small/bag packets wrapped with transparent polythene were found. On checking aforesaid packets, black substance in shape of papad was found. On checking black susbstance by smelling and experience it was found to be charas. The recovered charas was weighed with the help of electronic balance. It was found to be 1 kg 600 gms. The recovered charas was again packed in the same manner as it was recovered from the bag. Thereafter, recovered charas was put in a cloth parcel, sealed with seal impression D at 9 places, while the pant, T-shirt was put in the bag and packed in another clothe parcel, sealed with seal impression Ex. PW1/A on piece of cloth. I filed NCB form in triplicate from columns No.1 to 8 Ex. PW8/A and also imbossed seal impression D thereon. Seal after use was handed over to HC Nand Lal.” After due investigation, the charge-sheet was filed in the matter in respect of an offence punishable under Section 20 of the Act and the appellant was tried in the Court of Sub-Judge (III), Mandi, H.P..
The prosecution relied upon the testimony of 8 witnesses including PW-8 Investigating Officer. The person to whom the seal was handed over by PW-8 the Investigating Officer, namely, Nand Lal was examined as PW-1.
Said Nand Lal in his examination-in-Chief stated as under:
“After inquiring the whereabouts of the accused I.O. conducted the search of the bag of the accused in the emergency light. On opening blue Pithu Bag having black strips, in the middle pocket a pant grey colour and one T-shirt lines and blue colour 3 kolar and one light blue colour carry bag was found. Inside this carry bag 14 packets wrapped with transparent polythene were found. On removing, transparent polythene black substance in shape of chapatti (papad) were found. As per experience and smelling it was found to be charas. The I.O. weight the recovered charas with the help of electronic balance. It was found to be 1600 grams.” In his cross-examination, said witness stated as under:
“I know the difference between blue and green colour. It is correct to suggest that Ex P-3 is light green and not light blue.” He also accepted as under:
“It is correct to suggest that in ruqua Ex.PW8/B the colour of carry bag is written as light blue.” He also admitted:-
“I have not brought the seal impression today. Self stated that I have lost it. I have not lodged any report in the P.S.” The Trial Court by its judgment and order dated 29.08.2016 in Trial No.41 of 2015 accepted the case of the prosecution and convicted the appellant under Section 20 of the Act and sentenced him to undergo rigorous imprisonment for 10 years with imposition of find in the sum of Rs.1 lakh and default sentence of two years, in case the fine was not paid.
The appellant being aggrieved preferred Criminal Appeal No.441 of 2016 in the High Court which came to be dismissed by the High Court by its judgment and order presently under challenge.
Mr. Ajay Marwah, learned advocate appearing for the appellant has submitted inter alia:
(a) the bag in question, as mentioned in official document including Panchnama was stated to be of blue colour but as accepted by PW-1 and PW-8, the colour of the bag when produced in Court was of light green colour. 4
(b) No sample was taken by the Investigating Officials and what was sent for Chemical Examination was the entirety of the recovered contra-band material.
(c) As stated by the Investigating Officer, the contra-band material was sealed and the seal in question was handed over to PW-1. PW-1 in turn, accepted that the seal was lost and no report was lodged in any Police Station.
Mr. Subhro Sanyal, learned advocate for the State on the other hand submits that the assessment made the Courts below and the conclusions drawn by them as regards the conviction and sentence do not call for any interference.
No independent witness was associated with the apprehension of the appellant and recovery of material from the appellant. That part by itself would not make the case of the prosecution unsustainable but at the same time, the steps undertaken at the stage of seizure and recovery must evoke confidence.
In the official documents, the bag was stated to be of blue colour whereas as accepted by both the witnesses, the colour of the bag as produced in court was light green. No samples were taken which were independently sealed and what was sent for Chemical Examination was the entirety of the sample. But no seal could be produced for the inspection of the Court.
The explanation given by PW-1, Nand Lal does not inspire any confidence. In the circumstances, in our considered view, the prosecution failed to prove the essential ingredients fastening the liability upon the appellant. The appellant, therefore, is entitled to the benefit of doubt. Setting aside the view taken by the courts 5 below, we acquit the appellant of the charges levelled against him. The appellant be set at liberty forthwith unless his custody is required in connection with any other crime.
With these observations, the appeal is allowed.
......................................................................J (UDAY UMESH LALIT) .………........................................................J (S. RAVINDRA BHAT) ……….........................................................J (PAMIDIGHANTAM SRI NARASIMHA) New Delhi, March 25, 2022.
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ITEM NO.38 Court 2 (Video Conferencing) SECTION II-C
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl.) No(s). 707/2019
(Arising out of impugned final judgment and order dated 01-05-2017 in CRA No. 441/2016 passed by the High Court Of Himachal Pradesh At Shimla) NARESH BAHADUR SAHI Petitioner(s) VERSUS STATE OF HIMACHAL PRADESH Respondent(s) (IA No. 103636/2021 - GRANT OF BAIL) Date : 25-03-2022 These matters were called on for hearing today. CORAM :
HON'BLE MR. JUSTICE UDAY UMESH LALIT HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE PAMIDIGHANTAM SRI NARASIMHA For Petitioner(s) Mr. Ajay Marwah, AOR Mr. Tapan Masta Adv Mr. Ayush gupta Adv For Respondent(s) Mr. Subhro Sanyal, AOR UPON hearing the counsel the Court made the following O R D E R Leave granted.
The appeal is allowed in terms of the signed order. Pending applications, if any, shall stand disposed of.
(INDU MARWAH) (VIRENDER SINGH)
COURT MASTER (SH) BRANCH OFFICER
(SIGNED ORDER IS PLACED ON THE FILE)