Himachal Pradesh High Court
State Of Himachal Pradesh vs Ashok Kumar on 10 January, 2017
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No 146 of 2015.
Reserved on: 20.12.2016.
.
Decided on: 10.01.2017 State of Himachal Pradesh. ....Appellant.
Versus
Ashok Kumar ... Respondent.
Coram
of
The Hon'ble Mr. Justice Sanjay Karol, Judge. The Hon'ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 Yes rt For the appellant : Mr. Vikram Thakur and Mr. Punit Rajta, Dy. Advocate Generals.
For the respondent : Mr. Anup Chitkara, Advocate. Ajay Mohan Goel, Judge By way of this appeal, the appellant/State has challenged the judgment passed by the Court of learned Special Judge-II, Kangra at Dharamshala, in Sessions Trial RBT No. 44-I-VII/13/2012, dated 26.11.2014, vide which, learned Trial Court has acquitted the present respondent (hereinafter referred to as 'accused') for commission of offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances, Act (in short 'NDPS Act').
1Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:53:05 :::HCHP 22. The case of the prosecution in brief was that on 23.07.2012, a police party headed by ASI Suresh Kumar and .
comprising of PW4 HC Govind Singh, PW5 HHC Balkar Singh, HHC Inderpal, HHGs Hoshiar Singh and Puroshatam Lal was on patrolling at a place known as Milwan. PW1 Satpal Singh, Up-Pradhan, Gram Panchayat, Milwan, and PW2 Janak Raj were called and associated by the Investigating Officer for the of purpose of raid and at around 3:10 a.m., a secret information was received by the Investigating Officer to the effect that rt ahead of Milwan village, on an old path which leads to railway bridge, one person was concealing bags in the bushes and these bags might contain some illicit articles. Further as per the prosecution, on the receipt of said secret information, Investigating Officer alongwith independent witnesses and other police officials proceeded to the spot and found the accused concealing bags in the bushes. The accused was apprehended by the police party and, on inquiry, he disclosed his name as Ashok Kumar @ Sonu. One bag was lying on the road and three bags were taken out from the bushes. The bags on checking were found containing plastic envelopes and when these plastic envelopes were opened, on smelling and taste, the envelopes were found containing poppy straw. First ::: Downloaded on - 15/04/2017 21:53:05 :::HCHP 3 bag was found containing 20 plastic envelopes of green colour, second bag was found containing 25 plastic envelopes .
of green colour, third bag was found containing 15 plastic envelopes of green colour and fourth bag was found containing 15 plastic envelopes of blue colour and 11 plastic envelopes of white colour and all the envelopes were filled with poppy straw. As per prosecution, accused could not of produce any licence/permit for possessing the said contraband. In these circumstances, one Shamsher Singh rt was asked telephonically to bring weighing scales and the poppy husk on weighing was found to be 80 kilograms and 600 grams. Each bag was tied with thread and sealed with seal impression 'A' and specimen of seal Ext. PW11/C was taken on a separate piece of cloth and seal after use was handed over to witness Satpal Singh. NCB forms in triplicate were filled on the spot and recovered contraband was taken into possession vide memo Ext. PW1/A. The Investigating Officer sent rukka Ext. PW11/A to police station through HHC Inderpal, on the basis of which, FIR Ext. PW8/A was registered in Police Station, Indora. Thereafter, Investigating Officer prepared site plan and recorded the statements of witnesses under Section 161 of the Code of Criminal ::: Downloaded on - 15/04/2017 21:53:05 :::HCHP 4 Procedure (hereinafter for short as 'Cr.P.C.'). Case property was resealed with seal impression 'B'. PW7 MHC Chain Singh .
entered the case property in Malkhana register. HHC Balkar Singh deposited the same in State Forensic Science Laboratory, Junga.
3. After the completion of investigation, challan was filed in the Court and as a prima-facie case was found against of the accused, accordingly, he was charged for commission of offence punishable under Section 15 of the NDPS Act, to rt which he pleaded not guilty and claimed trial.
4. Learned trial Court vide its judgment under challenge acquitted the accused for commission of offences punishable under Section 15 of the NDPS Act by holding that the evidence produced by the prosecution was neither cogent nor satisfactory nor it pointed towards the guilt of the accused. Learned trial Court further held that testimonies of prosecution witnesses were full of improbabilities and contradictions and, hence, inescapable inference was that prosecution had failed to bring home the guilt of the accused beyond reasonable doubt that on 23.07.2012, at around 3:10 a.m. at place Milwan near Purani Sadak Pul he was found in ::: Downloaded on - 15/04/2017 21:53:05 :::HCHP 5 exclusive and conscious possession of 80 kilograms and 600 grams of poppy husk.
.
5. Feeling aggrieved by the said judgment passed by the learned trial Court, the State has filed this appeal.
6. We have heard the learned Deputy Advocate General as well as learned counsel appearing for the respondent/accused. We have also gone through the records of of the case as well as the judgment passed by the learned trial Court. rt
7. In order to prove its case, the prosecution in all examined 11 witnesses.
8. PW1 Satpal Singh, Up-Pradhan, Gram Panchayat, Milwan deposed in the Court that on 23.07.2012 he was called by ASI Suresh Kumar, Incharge, PP Thakurdwara at about 1:30 a.m./2:00 a.m. and accordingly, he visited the spot where police officials were present and police officials told him that they had recovered poppy husk weighing 80 kilograms 600 grams from Ashok Kumar. He further deposed that he did not see the accused on the spot as it was dark. As this witness did not support the case of the prosecution he was declared as a hostile witness.
::: Downloaded on - 15/04/2017 21:53:05 :::HCHP 69. PW2 Janak Raj deposed in the Court that he worked as carpenter and on 23.07.2012, at about 5:00 p.m. .
he went to Bopar Rai Dhaba at Milwan where one Innova car was parked in which four plastic bags were there. He further deposed that he was told by the police that said bags were containing poppy husk. This witness was also declared as a hostile witness as he did not support the case of prosecution.
of
10. PW3 Shamsher Singh, Ex-Pradhan, Gram Panchayat, Ulehrian deposed that he was not called by the rt police in the said case on 23.07.2012 to weigh contraband nor he went to the spot with scales and weights. As this witness also not support the case of the prosecution, he was also declared as a hostile witness.
11. PW4 HC Govind Singh deposed in the Court that on 22.07.2012, at about 11:30 p.m., he was on patrolling towards Milwan alongwith ASI Suresh Kumar, HHC Balkar Singh, HHC Inder Pal, HHGs Hoshiar Singh and Puroshatam.
He further stated that Investigating Officer received information that accused was concealing bags in the bushes and there might be some contraband material in the bushes.
He further deposed that Investigating Officer called local witnesses namely Satpal Singh and Janak Raj and they also ::: Downloaded on - 15/04/2017 21:53:05 :::HCHP 7 reached the spot. He further stated that said information was received on 23.07.2012 at around 3:10 a.m. He further .
deposed that police party reached old Railway Bridge which was 400 meters away from NH-1-A where accused was concealing three bags in bushes and one bag was lying on the path. He further deposed that in the meanwhile, police party caught the accused who on inquiry disclosed his name as of Ashok Kumar. He further deposed that in the presence of witnesses bags were checked and poppy husk was found in rt the same. According to him, four bags of poppy husk were found in the possession of accused on the spot and accused was not having permit of contraband. He further stated that Investigating Officer called Shamsher Singh alongwith scales and weights to weigh the contraband who came to the spot within 30-40 minutes and thereafter all the bags containing polythene bags were weighed by Shamsher Singh on the spot and same were found containing 80 kilograms 600 grams poppy husk. According to him, the contraband so recovered was taken into possession by the police vide memo Ext.
PW1/A. He further stated that Investigating Officer also prepared rukka on the spot and sent the same to Police Station Indora through HHC Inder Pal. Thereafter he deposed ::: Downloaded on - 15/04/2017 21:53:05 :::HCHP 8 that all the bags containing poppy husk were sealed on the spot with seal impression 'A' and specimen of seal was taken .
on plain cloth and seal after use was handed over to witness Satpal Singh. He deposed that memo Ext. PW1/A was prepared on the spot.
12. PW5 HHC Balkar Singh deposed that on 22.07.2012, at around 11:30 p.m., he was on patrolling duty of alongwith other police officials and when the police party reached at place Milwan, Investigating Officer ASI Suresh rt Kumar received information that the accused was concealing bags in the bushes on the spot 400 meters away from NH-1-A and there might be some contraband substance in the same.
He further stated that Investigating Officer called Satpal Singh and Janak Raj who also reached the spot. He further stated that information was received on 23.7.2012, at about 3:10 a.m. Thereafter he deposed about the factum of police party apprehending the accused with poppy husk which when weighed was found 80 kilograms and 600 grams and other proceedings conducted at the spot by the police.
13. The next relevant witness is PW7, MHC Chain Singh who deposed that at the relevant time he was working as MHC, Police Station Indora and on 23.07.2012 after ::: Downloaded on - 15/04/2017 21:53:05 :::HCHP 9 resealing the contraband, SHO/SI Onkar Nath deposited four plastic bags, sealed with seal impressions 'A' and 'B' five in .
number on each parcel, containing 80 kilograms and 600 grams poppy husk in all the bags. He further stated that NCB form was also deposited by SI Onkar Nath. He deposed that on 25.07.2012, vide R/C No. 138/2012, all the four bags alongwith NCB form were handed over to HHC Nasib Singh of and HHC Balkar Singh for depositing at FSL, Junga for chemical test.
rt
14. PW8 SI Onkar Nath deposed in the Court that in the year 2012, he remained posted as SI/Additional SHO at Police Station Indora and on 23.07.2012, he received a rukka written by ASI Suresh Kumar through HHC Inder Pal, on the basis of which, FIR Ext. PW8/A was registered. He also deposed that on the same day, Investigating Officer ASI Suresh Kumar produced case property i.e. four plastic bags sealed with seal impression 'A' before him in the police station which were resealed by him and thereafter deposited in the malkhana of the Police Station,Indora with MHC Chain Singh.
15. Investigating Officer ASI Suresh Kumar entered the witness box as PW11. He deposed that on 22.07.2012, at about 1:30 p.m. he went for patrolling duty alongwith other ::: Downloaded on - 15/04/2017 21:53:05 :::HCHP 10 police officials in his personal vehicle. On 23.07.2012, at about 3:10 a.m., when the police party was present at place .
Milwan, he called Janak Raj and Satpal Singh to join the raiding party. He further deposed that he received information regarding the contraband at old Railway Station road Milwan and that somebody was concealing contraband in the bushes.
He deposed that he alongwith other police officials and local of witnesses visited the spot and found that one person was hiding three bags in the bushes and fourth bag was lying on rt the road. This witness deposed that they brought the three bags on the road from the bushes and opened all the bags in the presence of local witnesses and found that there was poppy husk in the polythene bags. He further deposed that he called Shamsher Singh to weigh the contraband which when weighed was found to be 80 kilograms and 600 grams. He further deposed that he prepared rukka Ext. PW11/A and handed over the same to HHC Inder Pal, on the basis of which, FIR Ext. PW8/A was registered. He further deposed that he also prepared site plan Ext. PW11/B and poppy husk was taken into possession vide memo Ext. PW1/A. He further stated that he took four samples of poppy husk from each bag and the samples and bags of poppy husk were sealed with ::: Downloaded on - 15/04/2017 21:53:05 :::HCHP 11 seal impression 'A'. He deposed that he recorded the statements of witnesses on the spot and further sent the case .
property to police station through HHC Govind Singh. He further stated that case property was resealed in the police station by SI Onkar Nath. In his cross examination, this witness deposed that they left the police station on 22.07.2012 in his personal vehicle. He also deposed that of besides Alto car, remaining police officials travelled by Motorcycles. He further deposed that Milwan was at a rt distance of 10 kilometres from Thakurdwara. He stated that first he called witnesses Satpal Singh and Janak Raj and information was received thereafter. He also deposed that there were 86 polythene bags in four plastic bags and all the plastic bags were weighed individually.
16. From the perusal of the testimony of the prosecution witnesses it is apparent that (a) the so called private witnesses did not support the case of the prosecution and (b) there are major and material contradictions in the testimonies of police officials i.e. PW4, PW5 and PW11.
17. As per the statements of PW4 and PW5, who were part of the police party, Investigating Officer called the independent witnesses PW1 Satpal Singh and PW2 Janak Raj ::: Downloaded on - 15/04/2017 21:53:05 :::HCHP 12 and associated them with the raiding party after a secret information was received by him. However, when we peruse .
the statement of Investigating Officer, this witness has stated that he had already associated the independent witnesses before he received the secret information to the effect that accused was hiding some bags in the bushes which might be containing contraband. This major contradiction in the of statements of PW1 and PW2 on the one hand and PW11 on the other hand has not been satisfactorily explained by the rt prosecution. In this background, when we peruse the statements of PW1 and PW2 who were declared as hostile witnesses and were subjected to lengthy cross examination by the learned Public Prosecutor, it seems probable that in fact search and seizure of the alleged contraband did not take place in the mode and manner as put forth by prosecution. It has come in the statement of PW11 Investigating Officer that four plastic bags which were recovered from the accused were containing poppy husk in 86 polythene bags. However, a perusal of the F.S.L. report which is on record as Ext.
PW11/D demonstrates that 168 envelopes were in fact received at State forensic Science Laboratory, Junga. As per Ext. PW11/D i.e. report of Forensic Science Laboratory, four ::: Downloaded on - 15/04/2017 21:53:05 :::HCHP 13 parcels were received in the laboratory and parcel (a) contained 50 poly bags, parcel (b) contained 39 poly bags, .
parcel (c) contained 50 poly bags and parcel (d) contained 29 poly bags. It is not understood that when as per Investigating Officer, 86 poly bags were in fact recovered and seized from the accused, how the case property sent to Forensic Science Laboratory contained 168 poly bags in stead of 86 as were of recovered by the Investigation Officer from the accused as per his own statement.
rt
18. As we have already mentioned above that PW1 Satpal Singh, PW2 Janak Raj as well as PW3 Shamsher Singh have not supported the case of the prosecution. PW1 Satpal Singh has denied that he was part of raiding party and any recovery of contraband took place in his presence as is the case put forth by the prosecution and rather he has contended that when he was called by the Investigating Officer, he visited the spot where police officials were already present and police officials told him that they had recovered poppy husk weighing 80 kilograms and 600 grams from accused Ashok Kumar. Similarly, PW2 has also not corroborated the case of the prosecution that any recovery of contraband in fact was made in his presence and all that he ::: Downloaded on - 15/04/2017 21:53:05 :::HCHP 14 has stated was that on 23.07.2012, when he went to the Dhaba of Bopar Rai at Milwan, a Innova car was parked there .
in which four plastic bags were found, which as informed by the police officials were containing poppy husk. PW3 has denied that he took scales and weights to the spot with which the poppy husk allegedly recovered from the accused was weighed.
of
19. Now the factum of independent witnesses not supporting the case of the prosecution when seen together rt with the contradiction in the statements of official witnesses viz. PW4, PW5 and PW11, then the same shrouds clouds of suspicion over the case of the prosecution as to whether in fact contraband was recovered from the accused in the mode and manner in which the prosecution wants this Court to believe.
20. Besides this, there are other contradictions also in the statements of official witnesses which also make the case of the prosecution to be doubtful. PW4 HC Govind Singh has deposed in his cross examination that the contraband was weighed in polythene bags one by one whereas PW11 Investigating Officer ASI Suresh Kumar in his cross ::: Downloaded on - 15/04/2017 21:53:05 :::HCHP 15 examination deposed that all the polythene bags were not weighed individually.
.
21. PW4 stated in his cross examination that he did not remember as to who took out the polythene bags from the bushes, however, PW11 has stated that Hoshiar Singh, Inder Pal, Janak Raj and Satpal Singh took out the bags from the bushes. In addition, HHC Balkar Singh (PW5) in his cross of examination stated that barrack of the police guarding the bridge was also in the vicinity of the place of occurrence and rt was visible from the spot, however, police officials from the said post were not called, but PW11 in his cross examination deposed that there was no railway bridge guard or barrack for the said guard near the spot and same was not visible from the spot.
22. This demonstrates that there is neither any consistency nor any harmony even in the deposition of police officials.
23. Another important fact is that both PW4 and PW5 have deposed that they travelled from police post Thakurdwara to Milwan on foot and PW4 also stated that distance between police post Thakurdwara to Milwan where 'nakabandi' was laid was 11 kilometres. However, PW11 ::: Downloaded on - 15/04/2017 21:53:05 :::HCHP 16 deposed that police party had in fact left for Milwan in Alto car and Motorcycles.
.
24. Taking into consideration all these contradictions in the statement of prosecution witnesses especially official witnesses create a serious doubt over the case of the prosecution and, therefore, keeping in view the fact that accused has the benefit of acquittal in his favour, we do not of find that the judgment of acquittal so passed by the learned trial Court calls for any interference.
rt
25. Besides this, learned trial Court after taking into consideration all aspects of the matter has returned the findings of acquittal in favour of accused. We have also gone through the judgment so passed by the learned trial Court and, in our considered view, the findings so returned by the learned trial Court are neither perverse nor it can be said that the findings so returned by the learned trial Court are not borne out from the records of the case and the same do not call for any interference.
26. It has been held by Hon'ble Supreme Court in Mohammed Ankoos and Others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 Supreme Court Cases 94 ::: Downloaded on - 15/04/2017 21:53:05 :::HCHP 17 "12. This Court has, time and again, dealt with the scope of exercise of power by the Appellate Court against judgment of acquittal under Sections 378 and 386, Cr.P.C. It has been repeatedly held .
that if two views are possible, the Appellate Court should not ordinarily interfere with the judgment of acquittal. This Court has laid down that Appellate Court shall not reverse a judgment of acquittal because another view is possible to be taken. It is not necessary to multiply the decisions on the of subject and reference to a later decision of this Court in Ghurey Lal v. State Of Uttar Pradesh1 shall suffice wherein this Court considered a long line of cases and held thus :
rt (SCC p.477, paras 69 -70) "69. The following principles emerge from the cases above:
1. The appellate court may review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.
2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when (2008) 10 SCC 450 he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.
3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There ::: Downloaded on - 15/04/2017 21:53:05 :::HCHP 18 must also be substantial and compelling reasons for holding that the trial court was wrong.
.
70. In light of the above, the High Court and other appellate courts should follow the well-
settled principles crystallised by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal:
1. The appellate court may only overrule or of otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons"
for doing so.
rt A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when:
(i) The trial court's conclusion with regard to the facts is palpably wrong;
(ii) The trial court's decision was based on an erroneous view of law;
(iii) The trial court's judgment is likely to result in "grave miscarriage of justice";
(iv) The entire approach of the trial court in dealing with the evidence was patently illegal;
(v) The trial court's judgment was manifestly unjust and unreasonable;
(vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc.
(vii) This list is intended to be illustrative, not exhaustive.
2. The appellate court must always give proper weight and consideration to the findings of the trial court.
::: Downloaded on - 15/04/2017 21:53:05 :::HCHP 193. If two reasonable views can be reached-
-one that leads to acquittal, the other to conviction--the High Courts/appellate courts .
must rule in favour of the accused."
27. In State of Himachal Pradesh Vs. Kahan Chand, 2016 (1) Drugs Cases (Narcotics) 576, a Coordinate Bench of this Court has held as under
"19. The accused has had the advantage of of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Mohamed Ankoos and others versus rt Public Prosecutor, High Court of Andhra Pradesh, Hyderabad (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged."
Accordingly, while concurring with the findings of acquittal returned by the learned trial Court, we dismiss the present appeal being devoid of any merit, so also pending miscellaneous application(s), if any.
(Sanjay Karol) Judge (Ajay Mohan Goel) Judge 10th January, 2017.
(narender) ::: Downloaded on - 15/04/2017 21:53:05 :::HCHP 20 .
of rt ::: Downloaded on - 15/04/2017 21:53:05 :::HCHP