Himachal Pradesh High Court
State Of Himachal Pradesh vs Chander on 2 May, 2016
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.116 of 2010 Date of Decision : May 2, 2016 .
State of Himachal Pradesh ...Appellant.
Versus
Chander ...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
rt
For the Appellant : Mr. R.S. Verma, Additional
Advocate General, Mr. Vikram
Thakur, Deputy Advocate
General, and Mr. J.S. Guleria,
Assistant Advocate General.
For the Respondent : Mr. Dibernder Ghosh, Advocate.
Sanjay Karol, Judge
Accused-respondent Chander and his co-
accused Rajesh & Nicolas Charles, who were charged for commission of offences, punishable under the provisions of Sections 20,21,27 and 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act), stand acquitted by the lower Appellate Court.
Whether reporters of the local papers may be allowed to see the judgment? ::: Downloaded on - 15/04/2017 20:15:23 :::HCHP
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2. Noticeably, accused Nicolas Charles had served the sentence, in terms of the judgment passed by the trial Court, but however, even in the absence of his .
appeal, by relying upon the law laid down by the apex Court in Raja Ram and others v. State of M.P., (1994) 2 SCC 568; Arokia Thomas v. State of T.N., (2006) 10 SCC 542; and Suresh Chaudhary v. State of Bihar, (2003) 4 of SCC 128, lower Appellate Court also acquitted the said accused in the appeals preferred by present respondent Chander rt and co-accused Rajesh. Correctness judgment dated 18.9.2009, passed by Additional Sessions of Judge, Fast Track, Kullu, in Criminal Apepal No.9 of 2008, tited as Chander v. State of Himachal Pradesh, is the subject matter of challenge in the present appeal.
3. In short, it is the case of prosecution that on 15.11.2006, at about 8 p.m., police party, comprising of ASI Lal Chand (PW-6), Constables Om Parkash (PW-2) and Rajeev Kumar (PW-3), caught the accused smoking a contraband substance. Accused were searched and 3 grams of brown sugar and 10 grams of Charas was recovered from their conscious and exclusive possession. ASI Lal Chand took the same into possession, vide ::: Downloaded on - 15/04/2017 20:15:23 :::HCHP ...3...
recovery Memo (Ex.PW-2/A) and sealed. Rukka (Ex.PW- 6/B was sent through Constable Om Parkash, which led to the registration of FIR No.280/06, dated 15.11.2006 (Ex.
.
PW-5/A), at Police Station, Manali, District Kullu, Himachal Pradesh, for commission of offence, punishable under the provisions of Sections 20,27 & 29 of the Act. With the file having been taken back to the spot, proceedings, of including filling up of the NCB form (Ex.PW-6/C) and arrest of the accused, were completed. Contraband rt substance was deposited with MHC Hari Singh (PW-4) and sent for chemical analysis. With the receipt of the report of the Chemical Analyst (Ex.PW-6/J) and completion of the investigation, which prima facie revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial.
4. Accused were charged for having committed offences punishable, under the provisions of Sections 20, 21, 27 read with Section 29 of the Act, to which they did not plead guilty and claimed trial.
5. In order to establish its case, prosecution examined as many as eight witnesses and statements of the accused, under the provisions of Section 313 of the ::: Downloaded on - 15/04/2017 20:15:23 :::HCHP ...4...
Code of Criminal Procedure, were also recorded, in which they took plea of innocence and false implication.
6. Based on the testimonies of witnesses and .
the material on record, trial Court convicted and sentenced all the accused. In an appeal, carried by accused Rajesh and Chander (present respondent), all the accused stand acquitted by the lower Appellate of Court. Hence, the present appeal by the State against accused-respondent Chander. No appeal stands filed by
7. rt the State against rest of the two accused persons.
Having heard learned counsel for the parties as also perused the record, we are of the considered view that no case for interference is made out. It cannot be said that the judgment passed by the lower Appellate Court is based incorrect or incomplete appreciation of the material on record, or that the Court below erred in seriously misconstruing and misapplying the provisions of law. It cannot be said that the decisions in the cases referred to supra have been erroneously applied in the given facts and circumstances of the case.
8. It is a settled principle of law that acquittal leads to presumption of innocence in favour of an ::: Downloaded on - 15/04/2017 20:15:23 :::HCHP ...5...
accused. To dislodge the same, onus heavily lies upon the prosecution. Having considered the material on record, we are of the considered view that prosecution .
has failed to establish essential ingredients so required to constitute the charged offence.
9. In Prandas v. The State, AIR 1954 SC 36, Constitution Bench of the apex Court, has held as under:
of "(6) It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High rtCourt has no power under S. 417, Criminal P.c., to reverse a judgment of acquittal, unless the judgment is perverse or the subordinate Court has in some way or other misdirected itself so as to produce a miscarriage of justice.
In our opinion, the true position in regard to the jurisdiction of the High Court under S. 417, Criminal P.c. in an appeal from an order of acquittal has been stated in - 'Sheo Swarup v. Emperor', AIR 1934 PC 227 (2) at pp.229, 230 (A), in these words:
"Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial ::: Downloaded on - 15/04/2017 20:15:23 :::HCHP ...6...
Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at .
his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and of principles well known and recognized in the administration of justice." "
10. rtIn view of there being serious doubt with regard to the genesis of the prosecution case, based on the contradictions, which are material, acquittal of accused Nicolas Charles is in accordance with the law laid down in Arokia Thomas (supra).
11. Police party, which was allegedly on patrol duty, found the accused smoking the contraband substance at a place known as Samaha. But then, there is nothing on record to substantiate such fact. When did the police leave the Police Station? Who were the members of the police party? How much time did it take the police party reach the spot? How did the police party travel? What all the police party do in between? are the questions which remain unanswered by the prosecution. ::: Downloaded on - 15/04/2017 20:15:23 :::HCHP
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Further how did Constable Om Parkash carry the Rukka to the Police Station and returned to the spot, also remains unexplained on record.
.
12. This by itself may not be fatal to the prosecution case, but then, it certainly casts doubt with regard to presence of the police party on the spot. But what totally shatters the prosecution is the of contradictions, which we find to be material, in the testimony of the police officials.
13. rt Significantly, the incident took 15.11.2006 at about 8 p.m. The place, according to the place on prosecution is not secluded. There is no explanation for not associating independent witnesses. At least some of the local residents, from the neighbourhood, could have been associated by the police, while carrying out the proceedings of recovery. Why it was not so done, remains unexplained.
14. We further find the following contradictions in the testimony of the police officials, rendering their statements to be extremely doubtful, if not false, and the prosecution case to be fatal; (i) according to ASI Lal Chand, accused persons were smoking the contraband ::: Downloaded on - 15/04/2017 20:15:23 :::HCHP ...8...
substance by burning silver paper, which version stands not corroborated by Constable Om Parkash and contradicted by Constable Rajeev Kumar (PW-3), who .
refers to the newspaper and not silver paper, (ii) according to ASI Lal Chand, six packets of contraband substance were recovered from the accused and the contraband substance was wrapped with newspaper, of whereas according to Constable Rajeev Kumar it was kept in a polythene envelope, (iii) we find that in the FSL rt report, there is no reference of the polythene envelope. This further renders the version of ASI Lal Chand of having sealed the contraband substance alongwith polythene envelope to be incorrect, (iv) there is also contradiction with regard to the timing and the place of filling up of the NCB form. According to ASI Lal Chand, all the columns of the NCB form were filled up on the spot, whereas according to Constable Rajeev Kumar, the columns were filled in the Guest House and not on the spot. Also, there appears to be doubt with regard to the date on which the NCB form stood deposited with MHC Hari Singh. Ex. PW-6/C is the NCB form and there appears to be overwriting of the date on which it was ::: Downloaded on - 15/04/2017 20:15:23 :::HCHP ...9...
deposited. Figure "5" has been overwritten to read figure "6".
15. Hence, from the material placed on record, .
prosecution has failed to establish that the accused- respondnent Chander and his co-accused persons are guilty of having committed the offence, they have been charged with. The circumstances cannot be said to have of been proved by unbroken chain of unimpeachable testimony of the prosecution witnesses. The guilt of the rt accused does not stand proved beyond reasonable doubt to the hilt. The chain of events does not stand conclusively established, leading only to one conclusion, i.e. guilt of the accused. Circumstances when cumulatively considered do not fully establish completion of chain of events, indicating to the guilt of the accused and no other hypothesis other than the same.
16. Hence, it cannot be said that prosecution has been able to prove its case, by leading clear, cogent, convincing and reliable piece of evidence so as to prove that the accused were found in conscious and exclusive possession of contraband substance. ::: Downloaded on - 15/04/2017 20:15:23 :::HCHP
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17. For all the aforesaid reasons, we find no reason to interfere with the judgment passed by the trial Court. The Court has fully appreciated the evidence so .
placed on record by the parties.
18. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Mohammed of Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad (2010) 1 SCC 94, it cannot be said rt that the Court below has not appreciated the evidence on record or that acquittal of correctly 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.
Appeal stands disposed of, so also pending application(s), if any.
( Sanjay Karol ), Judge.
( Ajay Mohan Goel ),
May 2, 2016(sd) Judge.
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