Himachal Pradesh High Court
Dhani Ram vs State Of Himachal Pradesh on 3 June, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
Criminal Revision No.126 of 2007
Reserved on : 20.05.2016.
.
Date of Decision : 03.06.2016
Dhani Ram ....Petitioner.
Versus
State of Himachal Pradesh ...Respondent.
Coram:
of
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1 Yes.
For the Petitioner
rt : Mr. Bimal Gupta, Sr. Advocate, with
Mr. Vineet Vashishta, Advocate.
For the Respondent : Mr. Rupinder Singh Thakur, Additional
Advocate General.
Sandeep Sharma, Judge (Oral)
Present revision petition filed under Section 397(1) read with Section 401 of the Code of Criminal Procedure, is directed against the judgment dated 24.8.2007 passed by learned Sessions Judge, Kullu, in Criminal Appeal No. 28/2005, affirming the judgment dated 1.10.2005 passed by Judicial Magistrate Ist Class, Manali, District Kullu, Hp, whereby accused has been convicted under Section 61(1)(a) of Punjab Excise Act, as applicable to the State of HP and has been sentenced to undergo rigorous Whether reporters of the local papers may be allowed to see the judgment ::: Downloaded on - 15/04/2017 20:33:54 :::HCHP ...2...
imprisonment for a period of six months and to pay fine of Rs. 5000/- and in default of payment of fine to undergo .
simple imprisonment for a period of one month.
2. Briefly stated, case of the prosecution is that on 16.7.2004, when a police party headed by SI Preetam Chand along with ETI Prem Chand was on patrolling duty at Haripur of at 6:00 AM, they received a secret information that accused indulges in preparing and selling of illicit liquor at his house.
rt On the basis of the aforesaid information, ruqua Ex.PW2/A was sent to the police Station through HHC Daulat Ram and on the basis of which, FIR Ex.PW2/B was registered against the accused. Thereafter, as per story of the prosecution, before raiding the house of the accused, as per aforesaid information, police party associated Nanak Chand (PW-6) as independent witness and then proceeded towards the house of the accused. It is specific case of the prosecution that during search of the house of the accused, three plastic cans containing each 40 liters illicit liquor were recovered from the cattle shed of the accused. After recovery of aforesaid liquor, samples were taken from the recovered cans for chemical analysis and thereafter cans as well as ::: Downloaded on - 15/04/2017 20:33:54 :::HCHP ...3...
samples were sealed with seal impression "P", which were taken into possession vide memo Ex.PW1/A. The .
investigating Officer also prepared spot map Ex.PW4/B and recorded statements of the witnesses under Section 161 Cr.P.C. Police after completion of the investigation, presented the challan before the appropriate Court against of the accused under Section 61(1)(a) of Punjab Excise Act, as applicable to the State of HP.
3. rt The learned trial Court after satisfying itself that a prima facie case exist against the accused, framed the charge under Section 61(1)(a) of Punjab Excise Act, as applicable to the State of HP, against the accused, to which accused pleaded not guilty and claimed trial.
4. Prosecution with a view to prove its case examined as many as six witnesses namely PW-1, Prem Chand, PW-2, HHC Daulat Ram, PW-3, HC Mohar Singh, PW-
4, SI Preetam Chand, PW-5, Constable Ishwari Ram and PW-
6, Nanak Chand. On the other hand, statement of the accused was recorded under Section 313 Cr.P.C, wherein he denied in toto the case of the prosecution. However, he led no evidence in his defence.
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5. The learned trial Court after appreciating the evidence available on record held the accused guilty under .
Section 61(1)(a) of Punjab Excise Act and sentenced the accused to undergo rigorous imprisonment for a period of six months and to pay fine of Rs. 5000/- and in default of payment of fine to undergo simple imprisonment for a of period of one month.
6. Feeling aggrieved and dissatisfied with the rt impugned /order passed by learned trial Court, present petitioner filed an appeal under Section 374 of the Code of Criminal Procedure Code against the impugned judgment dated 1.10.2005, passed by the learned trial Court. However, the Court of learned Sessions Judge, Kullu after appreciating the evidence be it ocular and documentary available on record dismissed the appeal preferred by the present petitioner and up held the impugned judgment passed by learned trial Court. Hence, the present petition.
7. Mr. Bimal Gupta, learned Senior Counsel duly assisted by Mr. Vineet Vashishta, advocate vehemently argued that the judgments passed by both the Courts below are not sustainable and deserve to be quashed and set-
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aside as the same are not based on proper appreciation of evidence available on record. He further contended that .
the Courts below while passing the judgments have acted wrongly with material irregularities, as evidence led by the prosecution has not been dealt with in its right perspective by the Courts below. Mr. Gupta, learned Senior Counsel of forcibly contended that both the Courts below have failed to appreciate the fact that the prosecution has not been rt able to prove the most essential ingredients i.e. conscious possession of the alleged seized liquor and, as such, present appeal deserves to be dismissed on this sole ground only. He also contended that in the present case, there is no sufficient compliance of Section 100(4) of Cr.P.C, because no independent witness was associated in accordance with law and the witness so associated namely, Nanak Chand(PW-6) turned hostile and has not supported the case of the prosecution and, as such, findings recorded by the learned Sessions Judge while discussing the evidence of PW-
6, Nanak Chand that " hostile witness has spoken in favour of the prosecution" is contrary to the record and same could ::: Downloaded on - 15/04/2017 20:33:54 :::HCHP ...6...
not be taken into consideration by the Courts below while convicting the accused.
.
8. During arguments, Mr. Gupta, learned Senior counsel with a view to establish that there are major contradictions in the statements given by the prosecution witnesses, invited the attention of this Court to the statements of given by the material prosecution witnesses. It was also contended on behalf of the petitioner that the case of the rt prosecution case is that based on some secret information they raided the house of the accused but there is nothing made available o record from where it could be inferred that the police party had raided the house on the basis of some secret information. Moreover, he also invited the attention of the Court to the aspect that as per the case of the prosecution, ETI Prem Chand(PW-1) and SI Pritam Chand (PW-4) were on patrolling duty and around 6:00 AM some information was received but at this stage, it remained unexplained that when secret information was received at 6:00 AM ,how the PW-1, ETI Prem Chand was with police at Haripur. Apart from above, Mr. Gupta, learned Senior counsel also raised the question with regard to non ::: Downloaded on - 15/04/2017 20:33:54 :::HCHP ...7...
association of any of the independent witness from the locality and submitted that there is ample evidence on .
record which suggest that there were houses adjacent/ near the house of the accused. With the aforesaid submissions, Mr. Gupta, leaned senior counsel prayed that the impugned judgments passed by both the Courts below of deserve to be quashed and set-aside.
9. On the other hand, Mr. Rupinder Singh Thakur, rt learned Additional Advocate General appearing on behalf of the respondent-State supported the impugned judgments passed by both the Courts below. Mr. Thakur, learned Additional Advocate General vehemently argued that no interference of this Court is warranted in the facts and circumstances of the present case, where admittedly judgments passed by both the Courts below are based upon the correct appreciation of evidence and material available on record. He also contended that in the present case prosecution has been able to prove beyond reasonable doubt the guilt of the accused and, as such, the judgment passed by both the Courts below deserve to be up held. He forcibly contended that this Court has very limited jurisdiction ::: Downloaded on - 15/04/2017 20:33:54 :::HCHP ...8...
while exercising the power under section 397 of the Code of Criminal Procedure to re-appreciate the evidence especially .
in view of the fact that both the Courts have meticulously dealt with each prosecution witnesses as well as statements given by the accused under Section 313 Cr.P.C. He prayed that the present appeal deserves to be dismissed being of devoid of any merit.
10. I have heard the learned counsel representing rt the parties and have carefully gone through the record made available.
11. True, it is that this Court has very limited powers under Section 397 of Criminal Procedure Code while exercising its revisionary jurisdiction but in the instant case, where accused has been convicted and sentenced, it would be apt and in the interest of justice to critically examine the evidence available on record that too solely with a view to ascertain that judgments passed by learned Courts below are not perverse and same are based on correct appreciation of evidence on record.
12. As far as scope of power of this Court while exercising revisionary jurisdiction under Section 397 is ::: Downloaded on - 15/04/2017 20:33:54 :::HCHP ...9...
concerned, the Hon' ble Apex Court in Krishnan and another Versus Krishnaveni and another, (1997) 4 Supreme .
Court Case241; has held that in case Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of the High Court to prevent the abuse of the process or of miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its judicial process or rt illegality or sentence or order. The relevant para of the judgment is reproduced as under:-
"8. The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice.
In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of justice or ::: Downloaded on - 15/04/2017 20:33:54 :::HCHP ...10...
misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary .
duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/ incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order."
of
13. Mr. Bimal Gupta, learned Senior Advocate while arguing on behalf of the petitioner-accused specifically rt raised point with regard to constitution of raiding party, which actually raided the house of the accused and allegedly recovered three plastic cans each containing 40 litres illicit liquor from the cattle shed of the accused. To analyze the aforesaid submission having been made by learned senior counsel representing the petitioner, this Court undertook an exercise to critically examine the submissions as well as statements given by the material prosecution witnesses i.e.PW-1, ETI Prem Chand, PW-4, SI Preetam Chand and PW-6, Nanak Chand as well as documentary evidence available on record. In the instant case, PW-1and PW-4 stated that on 16.7.2004, when police party was present at Haripur in connection with patrolling/detection of excise ::: Downloaded on - 15/04/2017 20:33:54 :::HCHP ...11...
cases, then at about 6:00AM, a secret information was received that the accused indulges in preparing and selling .
of illicit liquor at his house and accordingly, they persuaded towards the house of the accused. PW-1, ETI Prem Chand, stated in his cross-examination that the raiding party was constituted in the police station itself. Aforesaid statement of of PW-1 is totally contradictory to the statement of PW-4, SI Preetam Singh, who in his cross-examination stated that the rt raiding party was formed at Haripur. At this stage, it remains unexplained that how PW-1, ETI Prem Chand was present with the police party at Haripur on the date of occurrence that too at 6:00 AM because admittedly there is nothing on record to suggest that on the basis of prior information some raiding party was constituted to detect the excise cases.
Though, it has come in the statement of PW-2, HHC Daulat Ram that he was also member of the flying squad consisted of police officials as well as official of the Excise department but careful perusal of the record, nowhere suggest that any flying squad/raiding party was constituted prior to the raid in the house of the accused.
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14. Moreover, PW-4 in his cross-examination admitted that the raiding party was formed at Haripur, .
meaning thereby that at 6:00 AM in the morning, when some secret information was received by the so called raiding party present at Haripur, people from Excise department were called in morning at 6:00 AM for joint raid in the house of of accused. Had the police party headed by PW-4, any prior information with regard to the accused indulging in sale of rt illicit liquor, certainly it would have been recorded in the daily diary( Rapat Rojnamcha) and necessary orders, if any, would have obtained from the concerned authority for the constitution of the raiding party as has been shown in the present case. Moreover, as has been pointed above, that there are major contradictions with regard to constitution of the raiding party in the statements given by PW-1 as well as PW-4. PW-1 stated that the raiding party was constituted in the police station, whereas PW-4 stated that the raiding party was constituted at Haripur only. If the statement of PW-
1, ETI Prem Chand is taken to be correct then it appears that before heading towards Haripur or to the house of the accused, police had received some secret information in the ::: Downloaded on - 15/04/2017 20:33:54 :::HCHP ...13...
police station itself, which was not reduced/ recorded in the daily diary. Hence, in view of the major contradictions in the .
statements of PW-1 and PW-4, versions put forth by the prosecution with regard to the constitution of the raiding party is highly doubtful and cannot be relied upon in the given facts and circumstances of the case.
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15. If the statement of PW-4 is taken to be correct, whereas he stated that the raiding party was rt constituted at Haripur then in that event, there is no explanation that how at Haripur, an official of Excise Department i.e. PW-1 was present, if at all, he was called by the police at the relevant time. There is no document worth the name to suggest that joint raiding party of police as well Excise official was constituted for detection of Excise cases and PW-1 was deputed to represent Excise department.
Though, PW-2, HHC, Daulat Ram while deposing before the Court stated that there was flying squad of Excise Department but has been discussed in detailed above, there is no document worth the name available on record to suggest that some joint raid was being carried out by the police along with an official of the Excise Department.
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Hence, this Court is of the view that the version put forth by the prosecution witnesses with regard to constitution of the .
raiding party is highly doubtful and cannot be accepted on its face value.
16. Mr. Bimla Gupta, learned Senior Counsel during his arguments also pointed out that both the Courts of below have erred in concluding that it has been proved beyond reasonable doubt that the liquor was recovered rt from the conscious possession of the accused. PW-1, while making statement before the learned trial Court stated that cattle shed on the ground of the house of the accused was searched and under the staircase, three cans of plastic Ex.P-
1 to Ex.P-3 each containing 40 litres liquor i.e. total 120 litres illicit liquor, were recovered and out of the recovered cans, samples were taken separately for chemical examination and the case property was taken into possession vide seizure memo Ex.PW1/A. He also stated that copy of seizure memo Ex.PW1/A was given to the accused in the presence of Sh.Nanak Chand (PW-6) so called witness, who also put in signature on the seizure memo. Careful reading of his statement made in examination- in-chief suggest that three ::: Downloaded on - 15/04/2017 20:33:54 :::HCHP ...15...
plastic cans containing illicit liquor were actually recovered under the staircase in the courtyard of the cowshed, .
meaning thereby three cans of liquor were actually recovered below the staircase, which actually exist/situate on the courtyard of the house of the accused. But judgments passed by both the courts below suggest that the recovery of of three cans containing liquor was actually effected from the cowshed of the accused, which finding is totally contrary rt to the statements of the prosecution witnesses itself. In this regard statement of PW-4 is also relevant, who also categorically stated that during raid in the house of the accused Dhani Ram, three plastic cans containing liquor were recovered below the wooden staircase situated in the courtyard of the cowshed. From the aforesaid statement of PW-3, it can be inferred that actually recovery, if any, was effected from the staircase situated in the courtyard of the cowshed but not from the cowshed, as has been concluded by both the Courts below. Now, if aforesaid statements given by PW-1 and PW-4 are examined in the light of the spot map Ex.PW4/B, it clearly suggests that there is one staircase which starts from the open courtyard in front of cowshed and leads ::: Downloaded on - 15/04/2017 20:33:54 :::HCHP ...16...
to first floor where accused resided. As per story of the prosecution, three cans containing illicit liquor were actually .
recovered below the staircase, which was admittedly not covered and starts from the courtyard of the cowshed.
Hence, in totality of the circumstances as has been indicated hereinabove, contention raised by Mr. Bimal of Gupta, learned Senior Advocate has substantial force that recovery, if any, was not made from the conscious rt possession of the accused because admittedly as per the version of the prosecution witnesses, three cans containing illicit liquor were recovered below the staircase, which actually exists/starts from the courtyard of the cowshed.
Moreover, no evidence, whatsoever, has been led by the prosecution that the staircase from where liquor was recovered was actually covered and it was part of the house of the accused. Perusal of the spot map Ex.PW4/B, suggest that staircase starts from the 'Varandah' of the cowshed, which is definitely an open area as emerges from the perusal of the spot map. Hence, findings returned by both the courts below that it stands proved on record that the alleged liquor was recovered from the conscious and ::: Downloaded on - 15/04/2017 20:33:54 :::HCHP ...17...
exclusive possession of the accused is contrary to the factual position as depicted in the spot map.
.
17. In the present case another aspect, which needs to be examined is the absence of independent witnesses at the time of recovery. Perusal of the statements made by PW-
1 and PW-4 clearly suggest that the raid was conducted of around 7:00 AM in the morning on the date of occurrence and around the house of the accused, there were number rt of houses but no explanation worth the name has been put forth by the prosecution that why no independent witness was associated at the time of alleged recovery. Though, prosecution associated one Sh. Nanak Chand, PW-6 as independent witness at the time of recovery, who as per the statement of PW-4 met them 100-200 metres away from the house of the accused. But aforesaid independent witness Nanak Chand, PW-6 has not supported the case of the prosecution. He denied that any raid was carried out in his presence and alleged recovery of liquor was effected in his presence. Though, he admitted his signature on the seizure memo Ex.PW1/A, but stated that police had obtained his signatures on the blank paper. Since prosecution had ::: Downloaded on - 15/04/2017 20:33:54 :::HCHP ...18...
declared him hostile, his statement cannot be of any help to prove the case of the prosecution. Both the courts below .
had lent undue weight-age to the signatures admitted by PW-6 on the seizure memo, which though he admitted but with the qualification that the signatures were obtained on the blank paper by the police. Since there is specific of admission on the part of PW-1 and PW-4 that there are number of houses adjacent to the house of the accused rt and at that time independent witnesses could be associated but there is no explanation worth the name on record to explain why no independent witness from the locality was associated by the police at the time of recovery.
18. Moreover, PW-4 has categorically admitted in his cross-examination that the spot map Ex.PW4/B was prepared by him and the houses adjacent the house of the accused have not been shown in the spot map. Aforesaid admission on the part of PW-4, SI Preetam Singh in not showing/depicting the houses adjacent to the house of the accused itself, raises doubt with regard to the story of the prosecution, especially when there is no independent witness to support the version of the story put forth by the ::: Downloaded on - 15/04/2017 20:33:54 :::HCHP ...19...
prosecution. Non-association of the independent witness in the present case gains significance in the light of the .
statement given by PW-6, Nanak Chand who in his cross-
examination, categorically denied any recovery whatsoever, having been effected in his presence from the house of the accused and recovery of liquor in his presence. He of categorically stated that his signatures were obtained in the police station on the blank paper. Now, if the whole story put rt forth by prosecution examined and analyzed from the first step, when the alleged raiding party was constituted and thereafter the manner in which recovery has been shown to be effected, absence of independent witness from the nearby locality is fatal to the prosecution case, especially in view of the deposition of PW-6, who stated that his signatures were obtained in the police station on the blank paper. In the case like present one, where at every stage story put forth by the prosecution has been proved to be doubtful, absence of independent witness in the present facts and circumstances of the case is quite detrimental to the case set up by the prosecution.
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19. Careful analysis and reading of the prosecution witnesses, as discussed hereinabove, viz-a-viz .
documentary evidence available on record compel this court to conclude that story put forth by the prosecution with regard to recovery, if any, made from the house of the accused is doubtful untrustworthy and cannot be relied of upon in its face value.
20. True it is that testimonies of the officials rt witnesses cannot be brushed aside easily and case of prosecution cannot be thrown solely on the ground of absence of an independent witnesses, as has been held by the Hon'ble Apex Court in number of case but in the present case, where story of the prosecution from very inception is doubtful and there are major contradictions with regard to constitution of the raiding party and recovery of liquor from the conscious possession of the accused and, as such, absence of independent witnesses in the present case is material irregularity committed by the police party and such omission has rendered the story of the prosecution doubtful and untrustworthy.
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21. Our own High Court in Prem Lata versus State of Himachal Pradesh 1986 Sim. L.C.258. Relevant paras .
No. 4,5 &6 of the judgment are reproduced as under:-
" 4. On the facts of this case, it appears to me that the failure of the prosecution in associating two or more independent and respectable witnesses renders this case doubtful, benefit of of which must go to the accused. The above conclusion is based on the interpretation of sub- rt sections (4), (5) and (8) of section 100, Cr.P.C. The said sub-sections reads as follows:-
"100. Persons in charge of closed place to search:
(1)........................
(2).........................
(3).........................
(4) Before making a search under this chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.::: Downloaded on - 15/04/2017 20:33:54 :::HCHP
...22...
(5) The search shall be made in their presence, and a list of all things seized in the course of .
such search and of the place in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the of search unless specially summoned by it. (6)................
(7)..................
rt (8) Any person who without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him shall be deemed to have committed an offence under section 187 of the Indian Penal Code (45 of 1960)"
The bare perusal of sub-sections(4), (5) and (8) of section 100, Cr.P.C makes it abundantly clear that a duty has been cast upon the officer or any other person conducting search to make every effort to do so in presence of two or more independent and respectable inhabitants of the locality in which the place to be searched is situate., If no such inhabitant is ::: Downloaded on - 15/04/2017 20:33:54 :::HCHP ...23...
available or is willing to be a witness to the search, a witness of any other locality has .
to be called upon to join the raiding party for witnessing the search. These provisions are quite stringent and meant to be strictly followed inasmuch as the refusal or neglect to attend and witness a search when called upon to do so by an order in writing has of been expressly made an offence under section 187 of the Indian Penal Code.
5. rt All the same, failure to comply with the aforesaid provisions will not be invariably fatal to the prosecution. This is because circumstances of a particular case may be such as to make it totally unreasonable and impracticable. If not impossible, to procure the presence of such witnesses. The possibility of existence of such circumstances has been noticed by the Supreme Court in State of Maharashtra V. P.K.Pathak, AIR 1980 SC 1224, wherein the smuggled articles were recovered by the Custom Authorities from Toney at the sea shore and also from the bushes on an is land where they were hidden and which had to be reached through a mechanized vessel, the journey itself taking an hour and a half. Nevertheless, it would be for the ::: Downloaded on - 15/04/2017 20:33:54 :::HCHP ...24...
prosecution to establish on the facts and circumstances of each case that meeting .
the requirements of section 100, Cr.P.C.
pertaining to the association of two or more independent and respectable witnesses with the conducting of search was not possible. If the prosecution fails to discharge this onus, its case would be of rendered shaky and, on the face of it, unworthy of acceptance unless a formidable set rt of reasons are shown to exisit justifying the infraction of express provisions of law contained in section 100,ibid Thus, the Courts will be extremely reluctant to upheld the prosecution case which is solely based on recovery made as a result of a search not witnessed by at least two independent and respectable persons, unless it was unreasonable and impracticable to procure the presence of such witnesses.
6. In the instant case, the prosecution evidence per se clearly indicates that independent and respectable persons were easily available in the locality. In fact, there is no escape from the conclusion that H.C.Bhagwan Singh (PW-3) made no efforts at all to call upon such persons for being ::: Downloaded on - 15/04/2017 20:33:54 :::HCHP ...25...
witness to the search. He has admitted in his cross-examination about the presence of a .
number of persons as well as that of seven or eight shops at the place where he associated Shri Gopi Chand(PW-1) in the raiding party. Gopi Chand was admittedly posted at the Police Station, Palampur, on that date and it is not very convicing that of the meeting between two of them took place in the manner deposed to by H.C.Bhagwan Singh. Be that as it may, one rt thing which stands out like a sore thumb is the flagrant violation of law, as discussed above, After all, why the police Officers or other persons placed in such a situation should whirk to implement and comply with the express provisions of law laid down by the Legislature? In these circumstances, the entire prosecution case becomes somewhat fishy and unfit to be acted upon. In other words, non-compliance of law discussed above would give rise to doubt about the accuracy of the prosecution case, and the benefit of this doubt has to be given to the accused".
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22. Another glaring aspect, which has been noticed by this Court that PW-1, and PW-4. PW-2 .
categorically stated in his statement with regard to the seal of the samples drawn at the time of recovery, which was allegedly sent to C.T.L Kandaghat for chemical examination sealed with seal impression "P" and the seal was handed of over to PW-6, independent witness. Similarly, PW-4 in his statement stated that after drawing the samples from the rt recovered cans, sample were sealed with seal impression "P"
and the same was handed over to PW-6, independent witness. However, PW-1 in his cross-examination stated that he cannot tell the name of the person to whom the seal was actually handed over.
23. Though, both the prosecution witnesses PW-1 and PW-4 stated with regard to the seal of the sample but factum with regard to alleged recovery as well as alleged sealing of sample was actually denied in toto by the so called independent witness, PW-6. Moreover, record nowhere reveals that sample seal "P" with which allegedly samples were sealed was never produced in the Court.
Aforesaid omission on the part of prosecution in not ::: Downloaded on - 15/04/2017 20:33:54 :::HCHP ...27...
producing the sample seal "P" with which the alleged samples were sealed in the court demolished the case of the .
prosecution in toto. Aforesaid omission on the part of prosecution, which has been not noticed by both the Courts below while convicting the accused, has rendered the case of the prosecution doubtful and untrustworthy.
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24. In this regard, reliance is placed on judgment rendered by the Hon'ble Apex Court in State of Rajasthan v.
rt Gopal, 1998 (8) SCC 499, relevant paras of the aforesaid judgments is reproduced herein below:
"2. In passing the order of acquittal, the High Court has noted that the seizure of the narcotic substance was doubtful because the seal on the sample sent for chemical analysis could not be compared with the seal on the seized article kept in the Police Malkhana because the seal on the sample sent to analyst could not be produced in the Court for verification. Even the seal which was put on the seized article kept in the Police Malkhana could not be ascertained excepting the word "Ajmer". It may be stated here that since the said article had been seized on the railway platform according to the prosecution case, the seal of the Stationmaster ::: Downloaded on - 15/04/2017 20:33:54 :::HCHP ...28...
had been used, but the Stationmaster was not examined to prove whether the seal put on the .
sized article and kept in the Police Malkhana really contained the seal of the Stationmaster."
25. Reliance is also placed on judgment passed by our own High Court in Nanha v. State of H.P., Latest HLJ 2011 (HP) 1195. Paras No. 7 to 9 are extracted herein below:-
of "7. Adverting to the points urged by learned counsel appearing for the appellant that the seal rtused has not been produced in court, we note that this Court in Criminal Appeal No. 308 of 1996, decided on October 21, 2009, State of H.P V. Tek Chand, reported in Latest HLJ 2010(HP)497,Holds-
"9 PW1 Hukam Chand , MHC, with whom the case property was deposited by PW 4 Ravinder Singh, also did not say that any specimen seal impression has been deposited along with parcel containing the samples and the bulk Charas. It is only PW2 HC Raj Sigh , who took over the charge of MHC from PW1 Hukam Chand, who stated that he sent one of the two samples along with sample seals to the Chemical Examiner, through Constable Mani Ram. Mani Ram who was examined as PW3, did not say that any specimen seal impressions were also carried by him along with the sample. He simply stated that he carried one sealed parcel which was handed over to him PW2 HC Raj Singh. On the docket with which the sample was sent to the ::: Downloaded on - 15/04/2017 20:33:54 :::HCHP ...29...
Chemical Examiner i.e. Ext.PC, facsimiles of the seals used in sealing the parcels are not there. That means specimen impressions of the seals used in sealing the .
sample parcels, which was sent to the laboratory, were not available with the Chemical Examiner, for comparison with the seal impressions on the parcel containing sample . Therefore , the report Ext. PC cannot be said to have been sufficiently linked with of the samples allegedly separated from the recovered stuff.
8. Adverting to the facts on record, we find from rtExt. PW-8 /A that the facsimile of the seal not having been affixed on this document. Further we also note that PW-5 Constable Yoginder Singh states;
".........All the parcels were sealed with seal 'D' initially. The seal 'S' was made of some metal. The seal has not been brought by me today as the same has been lost. No report qua missing of the seal was lodged by me with anyone .
9. The seal was in possession of the prosecution as established form the evidence of PW-7 Constable Ramesh Kumar, who says that he had deposited this in the Kandaghat Laboratory. What happened to the seal after that is not clear neither it is clear as to why the facsimile is not affixed on the NCB form."
26. Consequently, in view of the aforesaid discussion and analysis of the evidence available on record, this Court ::: Downloaded on - 15/04/2017 20:33:54 :::HCHP ...30...
has no hesitation to conclude that the prosecution has miserably failed to prove its case beyond reasonable doubt.
.
In the present case, story put forth by the prosecution with regard to constitution of the raiding party as well as recovery shown by the prosecution from the conscious and exclusive possession of the accused is totally unreliable and of untrustworthy and is not worth lending any credence, especially in view of the material brought on record be it rt ocular or documentary by the prosecution to substantiate its pleas. Moreover, there is no plausible explanation worth the name on record to suggest that it was beyond the control of raiding party to associate independent witness at the time of the alleged recovery, especially when there is overwhelming evidence on record to suggest that in and around the house of the accused number of houses were there and at 7: 00 AM peoples from the locality could be easily associated.
Another story put forth by the prosecution that independent witness in the shape of PW-6 was associated has fallen to ground in view of statement given by PW-6, who has not supported the case of the prosecution at all. On the top of it, as discussed above, prosecution has no where produced the ::: Downloaded on - 15/04/2017 20:33:54 :::HCHP ...31...
seal impression "P" with which the case property was allegedly sealed in the Court, rather PW-1 in his cross-
.
examination stated that he does not know the name of witness to whom the seal was actually handed over. Though, there are number of discrepancies, as has been pointed above, which are sufficient to dismiss the story put forth by of the prosecution but mere non-production of the seal "P" with which the samples were sealed is sufficient to conclude that rt the prosecution has failed to prove its case beyond reasonable doubt.
27. Consequently, In view of the aforesaid discussions, the judgment dated 24.8.2007 passed by learned Sessions Judge, Kullu, HP in Criminal Appeal No.28 of 2005 as well as judgment of conviction and sentence passed by learned Judicial Magistrate Ist Class, Manali District Kullu, HP dated 1.10.2005 in criminal case No.38-I/2005/8-III/2005 are set-aside and quashed. The petitioner is acquitted of the charge framed against him. Bails bonds are discharged. The fine amount, if any, deposited by the petitioner-accused be refunded to him.
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The present criminal revision stands disposed of, so also pending application(s), if any.
.
(Sandeep Sharma )
June 3, 2016 Judge.
(shankar)
of
rt
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