Himachal Pradesh High Court
Lal Chand vs State Of H.P on 29 February, 2020
Bench: Dharam Chand Chaudhary, Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Criminal Appeal No.660 of 2017
Reserved on : 20.11.2019
Date of Decision : 29.2.2020
.
Lal Chand ...Appellant.
Versus
State of H.P. ...Respondent.
Coram:
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting? Yes.
For the Appellant : Mr. Dibender Ghosh, Advocate, as
r Legal Aid Counsel.
For the Respondent : Mr. Vikas Rathour & Mr. Narinder
Guleria, Additional Advocates
General.
Vivek Singh Thakur, Judge
The present appeal has been preferred by
accused-convict-appellant Lal Chand against the
judgment dated 25.3.2017, passed by learned Additional
Sessions (Special) Judge, Kullu, District Kullu, Himachal
Pradesh, in Sessions Trial No.38 of 2015, titled as State of
Himachal Pradesh v. Lal Chand, whereby the accused has
been convicted for having committed an offence under
Section 20 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (hereinafter referred to as the
NDPS Act) and sentenced to undergo rigorous
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imprisonment for a period of 10 years and to pay a fine of
`1,00,000/-, and further to undergo simple imprisonment
for a period of one year in case of default of payment of
.
fine.
2. We have heard learned counsel for the
accused, learned Additional Advocate General, and also
gone through the record.
3. Prosecution case in brief is that a police
party, headed by ASI Dinesh Kumar (PW-9), consisting of
HHC Tikkam Ram (not examined), HHC Chet Ram (PW-8),
had left Police Station, Sadar (Kullu) in official vehicle,
bearing No.HP-34A-9986, being driven by Constable
Karam Chand (not examined), for patrolling in the
jurisdiction of Police Station, Sadar (Kullu), after making
DD Entry No.7, dated 28.3.2015 at 4 a.m. (Ex.PW-5/A). At
about 5.15 am, when police party was present near Raugi
Nala, on the road from Kullu to Manali, a person, carrying
a bag in his hand, was noticed coming on foot from
Manali side to Kullu side, who, on noticing the police
party, took about turn and started running towards
Manali, whereupon he was chased and apprehended by
ASI Dinesh Kumar (PW-9), with the help of other police
officials, at a distance of 10 metres and was asked reason
for running from the spot, but he could not give
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satisfactory answer. On asking about his carry bag, he
started trembling and did not answer anything, causing
suspicion of carrying stolen articles and necessitating the
.
search of his bag. As per prosecution case, at that time,
there was no movement on the road and the place was
secluded. Therefore, PW-9 ASI Dinesh Kumar sent HHC
Tikkam Ram in search of witneses towards Kayas, who
returned after about 20 minutes and informed that he did
not find any person, which led to the forming of search
party by associating PW-8 HHC Chet Ram and HHC
Tikkam Ram (not examined), for carrying out search and
seizure procedure. Before conducting search of the
accused, the police party gave its search to the accused
vide Memo Ex. PW-8/A, and thereafter during search of
the bag of the accused, stick-shaped black substance was
found wrapped in a transparent polythene envelope. On
the basis of experience, after smelling the substance, it
was identified as charas. After weighing the same,
alongwith the carry bag, on Electronic Weighing Machine,
it was found to be 2.015 kg. Thereafter, the contraband
substance, alongwith the carry bag, was sealed in a cloth
parcel with seal impression 'I' and taken into possession
vide Memo Ex.PW-8/E, which was signed by the accused
and two witnesses, namely PW-8 HHC Chet Ram and
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Tikkam Ram, copy of which was also supplied to the
accused, free of cost. Facsimile of the seal Ex.PW-8/B
was also taken on a piece of cloth. Thereafter, Ruka
.
(Ex.PW-8/C) was prepared and sent to Police Station,
Kullu, through PW-8 HHC Chet Ram, who reached the
Police Station at 9.15 a.m. and handed over the same to
SHO Anil Kumar (PW-4). On the basis of Ruka, FIR
No.77/15, dated 28.3.2015 (Ex.PW-4/A) was registered at
9.15 a.m. and after making endorsement (Ex.PW-4/B) on
the Ruka, the case file was handed over to PW-8 Chet
Ram for giving it to Investigating Officer ASI Dinesh
Kumar.
4. It is the case of prosecution that the accused
was arrested on the spot at about 10.30 a.m., after giving
him information about his arrest vide Memo Ex.PW-8/F,
which was signed by the accused as well as Tikkam Ram
(not examined) and PW-8 Chet Ram. After arrest of the
accused, his personal search was conducted vide Memo
Ex.PW-8/G, according to which a Mobile Phone, a copy of
Memo Ex.PW-8/E and an amount of `620/- were found
being carried by him.
5. Statements of witnesses were recorded under
Section 161 of the Code of Criminal Procedure and Spot
Map (Ex.PW-9/A) was prepared by the Investigating
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Officer (PW-9) on the spot and thereafter case property
alongwith accused was taken to the Police Station and
produced before PW-4 Inspector Anil Kumar (SHO) at 2.05
.
p.m. and in this rgard GD Entry No.16A (Ex.PW-2/A) was
made in Daily Station Diary of the Police Station.
Thereafter, PW-4 had resealed the parcel of the
contraband substance with seal 'S' and filled the relevant
column of NCB Form in triplicate and had taken sample of
seal 'S' on a separate piece of cloth (Ex.PW-4/C).
Thereafter, the case property alongwith documents was
handed over to MHC Rakesh Kumar (PW-3) by PW-4
Inspector Anil Kumar, after making GD Entry No.18A,
dated 28.3.2015 (Ex.PW-2/B) in the Daily Station Diary, at
2.25 p.m. PW-3 MHC Rakesh Kumar, after entering the
case property and the documents at Sr. No.1753 in the
Malkhana Register (Abstract Ex.PW-3/B), had kept the
same in Malkhana.
6. PW-9, the Investigating Officer prepared
Special Report (Ex.PW-6/A) on 29.3.2015 and had sent it
to the Additional Superintendent of Police, which was
received by him at 5.20 p.m. and was handed over to PW-
6 Constable Ajay Sharma, his Assistant Reader, who had
made entry in the Register at Sr. No.24 (Abstract Ex.PW-
6/B).
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7. On 30.3.2015, the recovered contraband was
sent for Chemical Examination by PW-3 MHC Rakesh
Kumar through PW-1 Constable Mahesh Kumar, vide RC
.
No.112/15 (Ex.PW-3/C), alongwith Forwarding Letter
(Ex.PW-4/D). PW-1, after depositing the case property
with State Forensic Science Laboratory, Junga, had
handed over the receipt thereof to PW-3 HHC Rakesh
Kumar.
8. On receipt of the report (ExPW-9/B) of the
Chemical Examiner and completion of investigation,
challan was presented in the Court for trial.
9. On fining prima facie complicity of the
accused in the alleged crime, he was charge-sheeted for
having committed an offence under Section 20 of the
NDPS Act. The accused had pleaded not guilty and
claimed trial.
10. To bring home the guilt of the accused,
prosecution examined as many as 9 witnesses.
Statement of the accused under Section 313 of the Code
of Criminal Procedure was also recorded, in which he took
the following defence:
"I am innocent. In fact, on 27.3.2015 at
7.00 P.M., I was waiting for the bus at Bus
Stand Kullu for Manali side and I was under the
influence of liquor. One unclaimed bag was
found underneath the bench made for the
passengers to sit at Bus Stand. Other
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passengers were also there. All the passengers
denied the ownership of the unclaimed bag.
On search of the bag charas was recovered
from the said bag on the Bus Stand. I was
under intoxication and could not reply
satisfactorily at the Bus Stand. Therefore, on
.
suspicion I alongwith the bag was brought to
Police Station for thorough investigation and on
suspicion on 28.3.2015 at morning time false
case was made against me."
The accused had chosen not to lead any evidence in
defence.
11. On conclusion of trial, accused stands
convicted and sentenced, as aforesaid.
12. Learned counsel for the accused has pointed
out that
r there are glaring contradictions and
discrepancies in the evidence of the prosecution, going to
the root of the genesis of the prosecution story, for which
the accused is entitled for acquittal. He has pointed out
that it is claim of the prosecution that the accused was
apprehended at 5.15 a.m. and HHC Tikkam Ram, who
was sent for search of independent witnesses, came back
after 15-20 minutes and thereafter official witnesses were
associated in the search and seizure procedure and after
giving their search to the accused, personal search of the
accused was conducted, meaning thereby that search of
the accused was conducted at about 5.30-5.35 a.m., but
in Memo of personal search of officials (Ex.PW-8/A), time
of giving personal search by these officials has been
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mentioned as 5.20 a.m. and further in the NCB form the
time of recovery of the contraband substance has been
mentioned as 7.15 a.m., which indicates that the entire
.
story of recovery of contraband substance has been
cooked up by the prosecution by sitting in the Police
Station, which probablizes the defence of the accused
that he was apprehended a day before the alleged
recovery on Bus Stop, while he was intoxicated, after
thrusting upon him the recovery of contraband substance
from an unclaimed bag lying on the Bus Stand. Further
that it is the prosecution case in the Special Report
(Ex.PW-6/A) that photographs were taken on the spot, but
no such photographs have been produced in the Court,
rather it is claimed by the prosecution witnesses in the
Court that no photographs were taken on the spot, which
again creates serious doubt about the case of the
prosecution, and lastly it is submitted that there being
habitation and market within a radius of 100-300 metres
from the spot of the alleged recovery, and also alleged
spot of recovery being on the Kullu-Manali National
Highway, no efforts, made to join independent witnesses,
have been proved on record and only official witnesses
have been cited as available witnesses. It is further
contended that PW-8 and PW-9 have admitted that
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vehicles were crossing from the road, but there is nothing
on record to reflect that any effort, to associate any
occupant of those vehicles, was made by the
.
Investigating Officer.
13. Mr. Sunny Dhatwalia, learned Deputy
Advocate General, has submitted that the contradictions
and discrepancies pointed out by the learned counsel for
the accused are minor in nature and do not go to the root
of the case and thus are not of any help to the accused.
He has supported the impugned judgment and reasons
enumerated therein by the learned Special Judge.
14. It is claim of prosecution that the accused
was noticed on the spot at 5.15 a.m. In Ruka (Ex.PW-
8/C), Special Report (Ex. PW-6/A) and FIR (Ex.PW-4/A), it
is categorically stated that when HHC Tikkam Ram, who
was sent by PW-9 ASI Dinesh Kumar in search of
independent witnesses, returned empty handed after 20
minutes, then the police officials, PW-8 Chet Ram and
HHC Tikkam Ram, were associated as witnesses for
conducting the search of the accused, and thereupon
they gave their search to the accused. Believing the
prosecution case as such, the time of giving personal
search by the police officials must be 5.30-5.35 am,
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however, in the Memo of Search (Ex.PW-8/A), this time is
mentioned as 5.20 a.m.
15. In his deposition in Court, PW-8 Chet Ram has
.
categorically stated that after associating himself and
HHC Tikkam Ram in the investigation, the Investigating
Officer gave his personal search to the accused and
regarding that Memo Ex.PW-8/A was prepared and he had
signed the said Memo in Red Circle 'A'. He is silent about
his personal search and that of HHC Tikkam Ram, having
been given to the accused a claimed by PW-9ASI Dinesh
Kumar in his deposition as also in Memo Ex.PW-8/A,
which renders not only Memo Ex.PW-8/A but also the
sequence of events, as claimed by the prosecution, to be
doubtful.
16. Further, even if timings mentioned in Ex.PW-
8/A are ignored, there is another document NCB Form
Ex.PW-3/A filled-in by the Investigating Officer on the
spot, wherein in Column-3, time of seizure has been
mentioned as 7.15 a.m. There is a gap of two hours
between recovery of contraband substance and taking
the same into possession, as if we believe the Ruka,
Special Report and also the Memo Ex.PW-8/A, time of
recovery is about 5.30 a.m. Wherefrom the time of
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seizure has been mentioned in NCB Form Ex.PW-3/A as
7.15 a.m., is not clear.
17. As per statement of Investigating Officer (PW-
.
9), the police party remained on the spot for about three
hours, meaning thereby that the police party was on the
spot till 8.15-8.30 a.m. Even if further margin of half an
hour is given, the police party should have left the place
by 9 a.m. In the Memo of information of arrest Ex.PW-
8/F, the accused has been shown to have been arrested
at 10.30 a.m. on the spot near Raugi Nala. According to
PW-8 Chet Ram he returned to the spot with the case file
at 10.30 a.m., after registration of FIR at 9.15 a.m. If PW-
9 Investigating Officer is believed, the police party was
not there after 9 a.m., then how the accused was
arrested at 10.30 a.m., on the spot, and to whom PW-8
Chet Ram met and handed over the case file on the spot
at 10.30 a.m., are the facts which could not be reconciled
with the other timings of the story mentioned in the
prosecution case.
18. In Special Report (Ex.PW-6/A), it is
categorically mentioned by the Investigating Officer that
the Site Map was prepared and the photographs on the
spot were taken, but no such photographs have seen
light of the day during trial. In their cross-
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examination, PW-8 Chet Ram and PW-9 ASI Dinesh Kumar
have stated that no photographs were taken. Special
Report was prepared by PW-9 Investigating Officer on the
.
very next day of the alleged recovery of the contraband
substance, i.e. on 29.3.2015, which was sent by him to
his superior, i.e. Additional Superintendent of Police,
wherein he has categorically recorded that photographs
of the spot were taken. In his deposition in Court, he has
not clarified the same despite the fact that mention of
taking photographs
r in Special Report (Ex.PW-6/A),
prepared by him, was put to him and he had admitted the
same to be correct. There is no explanation on record,
either documentary or oral, to reconcile this discrepancy.
19. Ex.PW-8/G is a Memo of personal search of
the accused, conducted after his arrest, wherein recovery
of Mobile Phone and some cash alongwith a copy of
seizure memo has been indicated. At the bottom of this
Memo there is an endorsement, alleged to have been
made by the accused, wherein he has stated that he has
received his Mobile Phone and Cash. The accused was
arrested and articles recovered during his personal
search (Jamatalashi) were taken into possession by the
police and thereafter the said articles were to be returned
only after his release, that too under the orders of the
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competent Court or authority only. It is not clear that
under what circumstance and for what reason and under
which provision, these articles have been shown to have
.
been returned to the accused, that too on the Memo of
personal search conducted on his arrest. The arrested
person cannot be allowed to carry his mobile phone or
cash with him in any eventuality. In the given facts and
circumstances, it is another circumstance to discredit
prosecution story.
20. r It is the case of prosecution that the accused
was arrested at 10.30 a.m. and thereafter his personal
search was conducted vide Memo Ex.PW-8/G, but in GD
Entry Ex.PW-2/A, entry made after resealing the case
property in the Police Station by PW-4 Inspector Anil
Kumar, it has been mentioned that after handing over the
accused by PW-9 to PW-4, he was interrogated and
thereafter, after conducting his personal search, he was
lodged in the Lock-up, but no Memo of such personal
search has been produced in Court. In case personal
search had already been conducted on the spot, there
was no occasion to conduct the personal search again. It
again creates doubt about fairness of investigation.
21. It is claimed by prosecution that recovery of
contraband was effected on the National Highway at
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about 5.20-5.35 a.m. in the month of March. It is not
dark in the morning in the month of March at 5.30 a.m. It
was not absolutely secluded place as it has also come in
.
evidence in cross-examination of PW-8 Chet Ram, though
denied by PW-9 Dinesh Kumar, that habitation at Raison
was at a distance of 150 metres from the spot and during
that period vehicles were also crossing the spot. HHC
Tikkam Ram was sent in search of independent witnesses
but in which direction, he was sent or he went, has not
been clarified in the evidence on record.
r No one was
available or someone available had refused to become a
witness has also not been clarified. The facts could have
been clarified by HHC Tikkam Ram but incidentally he has
not been examined by the prosecution. It is also true
that, for more than one reason, it may not be possible for
prosecution every time to arrange or to make available
and associate independent witnesses to witness the
search and seizure process during police investigation.
Keeping in view the stringent provisions of NDPS Act and
consequences thereof, affecting the personal liberty of
accused, the Legislature as well as Courts have legislated
and evolved procedure to provide fair investigation,
safeguarding the interest of accused, and for this reason
necessity of associating independent witnesses at the
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time of search and seizure process is pressed into.
However, in exceptional circumstances, in cases where
satisfactory and plausible explanation for non-joining or
.
non-availability of independent witnesses is there, Courts
do not reject the case of prosecution only for not joining
or associating independent witnesses. In present case,
no plausible, satisfactory explanation has come on record
for not joining or associating the independent witnesses.
The only version of PW-8 Chet Ram and PW-9 ASI Dinesh
Kumar, available on record, speaks that HHC Tikkam Ram
was sent for search of independent witnesses but after
20 minutes he reported non-availability of the same. As
stated supra, reason for the same has not come on
record despite the fact that there was habitation at a
distance of 150 metres and the alleged spot of recovery
is National Highway, wherefrom vehicles were also
crossing.
22. It is also settled law that in absence of
independent witnesses, testimony of official witnesses is
not to be discarded only on this count. In case evidence
on record, otherwise is found cogent, reliable and
trustworthy, conviction can be based upon the testimony
of official witnesses only. But, in present case,
prosecution has chosen not to produce even the available
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official witness(es). There are only four main witnesses
of the spot, out of them PW-9 ASI Dinesh Kumar, HHC
Tikkam Ram and Driver Constable Karam Chand
.
remained on the spot throughout, during investigating,
whereas PW-8 HHC Chet Ram had left the spot at 8.30
a.m. and, according to him, he had returned to the spot
at 10.30 a.m. Between 8.30 a.m. and the time when the
police left the spot, only PW-9 HHC Tikkam Ram and
Driver Constable Karam Chand were present on the spot,
but the prosecution has not examined HHC Tikkam Ram,
who alongwith Shri Nihal Chand, Additional
Superintendent of Police was given up being repetitive in
nature, as the contents of recovery memo and Special
Report have been proved by other witnesses. Constable
Karam Chand, Driver of official vehicle, has not been
cited as witness nor has been examined. It is true that it
is quality of evidence not quantity which matters but at
the same time considering the facts and circumstances of
present case, where no independent witness is there and
punishment for offence charged is also stringent,
prosecution should have examined available witnesses to
corroborate version of Investigating Officer PW-9 Dinesh
Kumar.
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23. PW-9 ASI Dinesh Kumar is Investigating
Officer. To corroborate his statement in entirety,
examination of Tikkam Ram was necessary, as he was
.
the person who was with PW-9 during the entire
investigation. PW-8 HHC Chet Ram remained with the
Investigating Officer for a specific period and rest of the
investigation, which was conducted in the presence of
Tikkam Ram was to be corroborated/proved by him.
Therefore, withholding the examination of HHC Tikkam
Ram is also fatal to the prosecution.
24. According to PW-8 Chet Ram, after departing
from the spot at 8.30 a.m., he reached in Police Station at
9.15 a.m. and thereafter FIR Ex.PW-4/A was recorded by
PW-4 Anil Kumar and the case file was handed over to
PW-8 Chet Ram at 9.45 a.m. who reached back on the
spot at 10.30 a.m. According to PW-4 Anil Kumar, he had
received the file at around 8.30 a.m. Arrival of PW-8 Chet
Ram in the Police Station is 9.15 a.m. How can and
wherefrom Ruka was received by PW-4 Anil Kumar at
8.30 a.m. is irreconcilable. Further, according to the
prosecution story, police party was having official vehicle
and Investigating Officer PW-9 Dinesh Kumar has
expressed his ignorance about the means by which PW-8
Chet Ram had gone to Police Station and returned from
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there, which indicates that the official vehicle was not
used by PW-8 Chet Ram for going and coming back. By
arranging the means for visit to and return from the
.
Police Station, PW-8 Chet Ram had taken 45 minutes for
one side journey. It is also prosecution case, as has come
in deposition of PW-9 Dinesh Kumar, that police party had
left the spot after three hours and even after giving
concession of half an hour, at the most, the police party
had left the place at 9 a.m. Contrary to this, it has also
come in evidence that police party was on the spot till
10.30 a.m. In any case, if this discrepancy is ignored for
a moment, there is no evidence that police party had
stayed on the spot after 10.30 a.m. Therefore, at least,
after 10.30 a.m., the police had left for the Police Station,
but as per GD Entry No.16 (Ex. PW-2/A), police party had
arrived in the Police Station at 2.05 p.m. After consuming
time to arrange the means to reach and come back from
Police Station, a police official has taken 45 minutes, to
cover the distance from spot to Police Station, whereas
by using the official vehicle, the police party had taken 4-
5 hours to reach the Police Station from the spot. In Ruka
Ex.PW-8/C, distance of place of recovery from the Police
Station has been mentioned as 15 kms. It is again
unbelievable that for travelling a distance of 15 kms, that
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too on National Highway, in official police vehicle, the
police party consumed 4-5 hours. In these circumstances,
testimony of police official with respect to timings
.
claimed in the documents, as well as in their deposition,
is not trustworthy.
25. It is also noticeable that appellant-Accused
has raised specific defence that on 27.3.2015 at 7.30
p.m., when he was intoxicated and was not able to reply
the interrogation of the police official, at a Bus Stop
where other passengers alongwith luggage were also
present and Charas was found in an unclaimed bag lying
there, then he was apprehended and taken to the Police
Station for thorough investigation and on suspicion, on
28.3.2015, a false case was foisted upon him.
Suggestions have also been put to PW-2 Saroj Kumari
and PW-5 Khub Ram that Daily Station Diary entries, i.e.
No.7 Ex.PW-5/A, No.16 Ex.PW-2/A and No.18 Ex.PW-2/B
are fabricated. To prove movement of police party, i.e.
departure at 4 a.m., from the Police Station and return at
2.05 p.m. to the Police Station, prosecution has relied
upon GD Entry No.7 dated 28.3.2015 (Ex.PW-5/A) and GD
Entry No.16 dated 28.3.2015 (Ex.PW-2/A), and for
establishing the resealing of case property and depositing
the same in Malkhana and putting the accused in Lockup
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at 2.25 p.m., prosecution has placed on record copy of
GD Entry No.18 dated 28.3.2015 (Ex.PW-2/B). For
proving Ex.PW-5/A, Ex.PW-2/A and Ex. PW-2/B,
.
prosecution has examined PW-2 Lady Constable Saroj
Kumari and PW-5 HHC Khub Ram. These Reports have
been disputed on behalf of accused by putting suggestion
to the witnesses that the aforesaid Reports were
fabricated lateron, meaning thereby the timing of entry of
these GD entries in Daily Station Diary has been disputed
by the accused.
r No doubt, a Certificate Ex.PW-2/C has
been placed on record, wherein PW-2 Saroj Kumari has
certified that Rapt Nos.16 and 18 dated 28.3.2015 were
entered by her in the official Computer, which is an
electronic device maintained in the Police Station by her
and that at the time of making entries and also taking out
the print of the same the system was in working order
with proper power supply and no tampering, addition,
alteration or editing had been done to any of the contents
of the electronically generated document, either by her
or any other person. A similar certificate (Ex. PW-5/C)
has been produced on record by PW-5 Khub Ram with
respect to copy of Report No.7. But these Certificates do
not certify that these reports were entered in Daily
Station Diary at the time as reflected in these copies of
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reports nor there is such assertion in the deposition of
PW-2 Saroj Kumar and PW-5 Khub Ram. Normally,
contents, including the data and time contained in the
.
copies of such reports, are considered to be true and
correct and are believed by the Courts, but when timings
thereof are disputed by the accused and it is claimed that
these documents are fabricated and timings thereof are
manipulated and further that evidence otherwise on
record is indicating irreconcilable timing of events and
ultimately not establishing convincing story on record, it
becomes imperative for the prosecution to prove the
timing of preparation of record of such electronic
documents, particularly computer generated copies, by
placing on record the METADATA of such documents,
which contains the complete details of computerised
documents from date and time of its origination till taking
out the copy thereof, including indication of alteration,
modification or addition/subtraction therein and details
thereof. In present case, CIPA Certificates placed on
record are silent about the same. Relevant witnesses are
also silent about timings of origination of these
documents. In such a situation METADATA of these
documents would have thrown light in regard to
authenticity as METADATA of a document speaks itself.
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26. As stated supra, production of MATADATA of
a document may not be necessary in all cases but where
story of prosecution is otherwise doubtful and
.
construction/ preparation of documents has been alleged
to be fabricated, production of METADATA by prosecution
shall definitely clinch such issues as to our knowledge
METADATA of a document cannot be tampered and in
case of modification, alteration or tampering, these
activities will also be reflected alongwith date and time of
origination of document, in METADATA which is not
available in present case. Therefore, for want of reliable
evidence with respect to Ex.PW-2/A, Ex.PW-2/B and
Ex.PW-5/A, the timing of preparation thereof cannot be
treated to have been proved beyond reasonable doubt.
27. Each contradiction, discrepancy or
embellishment in the prosecution case, if considered
singly, may not be fatal, but the cumulative effect of the
aforesaid contradictions, discrepancies and
embellishments definitely renders the prosecution story
to be doubtful as conjunctive reading of the entire
evidence creates doubt about the manner of recovery, as
claimed by the prosecution. It is cardinal principle of the
criminal jurisprudence that where there is a doubt,
benefit of the same is to be extended to the accused.
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28. Keeping in view the increasing menace of
drug addiction, an accused, for transporting the
contraband, does not deserve leniency, however, at the
.
same time it is also settled that stringent the
punishment, higher the assurance of evidence for
conviction and sentencing is required. Therefore, for
awarding stringent punishment, strict proof of
commission of offence, by leading cogent, reliable,
tangible and convincing evidence is necessary, which is
lacking in present case for the discussion herein above as
we see that the very genesis of the case of prosecution
has been shaken and, therefore, the accused deserves
benefit of doubt.
29. Accordingly, the appeal is allowed and the
impugned judgment is set aside. Consequently, the
conviction and sentence imposed upon the accused are
also set aside and he is acquitted of the charged offence,
by giving him benefit of doubt. The amount of fine, if
stands deposited by the accused, be refunded to him.
The accused is ordered to be released, if not required in
any other case. Release warrants be prepared and
issued accordingly.
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30. We place on record our appreciation for the
assistance rendered by Mr. Dibender Ghosh, learned
Legal Aid Counsel.
.
Appeal stands disposed of, so also pending
application(s), if any.
( Dharam Chand Chaudhary ),
Judge.
( Vivek Singh Thakur ),
February 29, 2020(sd) Judge.
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Cr. Appeal No. 660 of 2017
Per Dharam Chand Chaudhary, J.
.
Though, I agree with the view of the matter taken by my brother Vivek Singh Thakur, J., in allowing this appeal and acquittal of the accused from the charge framed against him under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985, however, not on all the reasons recorded in the judgment.
2. Be it stated that brother Thakur, J, has rightly observed that with the increasing menace of drug addiction, the drug peddlers do not deserve any leniency. The offence committed by the accused is thus not only heinous, but also serious in nature, because the illicit trafficking of drugs not only affect a particular individual, but the society at large and in particular, our young generation. The Act in fact is a piece of social legislation enacted with the sole idea to curb illicit trafficking of drugs. There is need to maintain a balance between the various safeguards available to an offender under the Act vis-à-vis rights of the society as a whole. Therefore, the Courts seized of the matter should ignore the variation of time if not fatal to the prosecution case. No doubt, in the case in hand, the accused was apprehended at 5:15 AM and the IO PW-9 ASI Dinesh Kumar, PW-8 HHC Chet Ram and HHC Tikam Ram have given their personal search to the accused at 5:20 AM. The record further reveals that the personal search was given to the accused by the police officials when HHC Tikam ::: Downloaded on - 29/02/2020 20:27:16 :::HCHP ...26...
Ram was deputed in search of independent witnesses returned to the spot after 15-20 minutes. Therefore, the variance of 15-20 minutes may be on account of memory faded away with the .
passage of time is not fatal to the prosecution case.
3. If coming to the NCB form Ext. PW-3/A, as per the same, 7:15 AM is the time of seizure of the contraband allegedly charas recovered from the accused and not that of its recovery.
The seizure takes place after the recovery of the contraband and the seizure memo is prepared after sealing process is over.
4. The memo Ext. PW-8/A amply demonstrates that besides IO PW-9 ASI Dinesh Kumar, the accused had also conducted the personal search of PW-8 HHC Chet Ram and HHC Tikam Ram. Though, PW-8 HHC Chet Ram has not stated anything in this regard while in the witness-box, may be due to an oversight, however, the memo Ext. PW-8/A has to be believed to be true as the witness may omit to say something but a document never tells a lie. Even, PW-9 ASI Dinesh Kumar, the I.O. while in the witness-box has also supported the prosecution case in this regard.
5. The recovery of the contraband in the case in hand is after 5:30-5:35 AM, whereas the time of seizure thereof as per Ext.
PW-3/A is 7:15 AM. In a case of this nature, sometime is required for preparation of parcel of clothes and some time to sew the same after the recovered contraband is kept therein and also some time for conducting sealing and sampling process. Thereafter, the ::: Downloaded on - 29/02/2020 20:27:16 :::HCHP ...27...
seizure memo is also prepared. Since this process takes considerable time, therefore, the possibility of the seizure of the contraband, having taken place at 7:15 AM cannot be ruled out.
.
As per the statement made by PW-9 ASI Dinesh Kumar, the police party remained on the spot for about 3 hours. He has not given any specific time and the period about 3 hours he has given is as per his estimation. Therefore, even if the time of the arrest of the accused as per arrest memo Ext. PW-8/F is 10:30 AM, the same is also not a circumstance to be taken to render the prosecution story doubtful.
6. The accused has been arrested after PW-8 HHC Chet Ram returned to the spot from Police Station with case file at 10:30 AM as has been stated by him while in the witness-box. As a matter of fact, PW-8 HHC Chet Ram has produced the rukka in the Police Station at 9:15 AM. This timing reconcile with the time of receipt of information in the Police Station as per the entries in the FIR Ext. PW-4/A. The file was handed over to him by PW-4 Anil Kumar at 9:45 AM. As per further version of PW-8, he handed over the file to the I.O on the spot at 10:30 AM. Therefore, it is thereafter the accused has been arrested. The possibility of the police party was on the spot at that time cannot be ruled out.
7. It is the Public Prosecutor seized of the prosecution best person to adjudge desirability and suitability of the witness(s) to be examined in the Court or given up. It is not the quantity of the evidence collected by the Investigating Agency and produced ::: Downloaded on - 29/02/2020 20:27:16 :::HCHP ...28...
during the course of trial in the Court, but its quality. Above all, it is the accused entitled to the benefit of doubt in case the evidence produced is not cogent and reliable and even there is also no legal .
requirement to examine each and every witness associated by the Investigating Officer during the course of search and seizure.
8. It is 5:15 AM, the time when the police apprehended the accused at the place of recovery and the time of writing rukka 8:30 AM as find recorded in the FIR Ext. PW-4/A. The time of receipt of rukka by PW-4 Anil Kumar is not 8:30 AM and rather 9:15 AM. As a matter of fact, 8:30 AM is the time of writing rukka Ext. PW-8/C. Ext. PW-4/B on the rukka is the endorsement made by PW-4 Anil Kumar qua registration of FIR No. 77/2015 on 28.3.2015, however, without mentioning any time of making such endorsement.
9. The defence of the accused that he was apprehended on 27.3.2015 at bus stop by the police while intoxicated and was not able to give reply qua the recovery of an unclaimed bag by the police is highly imaginary and germane of his mind as he never complained so before the Court below when produced at the time of obtaining his arrest. Anyhow, the plea raised by the accused in his defence is of no consequence in a criminal case as the onus to prove its case beyond all reasonable doubt is always on the prosecution. The prosecution, therefore, cannot take any benefit out of the plea even if falsely raised by the accused in his defence.
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10. In the case in hand, non-joining of independent witnesses, though could have been easily associated, had the I.O.
been interested to do so because the seizure has taken place .
around 7:15 AM and the place of recovery Raugi Nala situated on National Highway the movement of vehicles from both sides would have started by that time. The prosecution witnesses itself have also admitted so while in the witness box. Not only this, but village Kais is also situated nearby the place of recovery. I.O. PW-9 ASI Dinesh Kumar, therefore, to the reasons best known to him was not interested in associating the independent witnesses to witness the search and seizure. The photographs, as per the special report Ext. PW-6/A, have also not been produced in evidence. There was no occasion to have returned the cell phone and the currency notes recovered during the personal search of the accused at the time of his arrest. The investigation on the spot was complete with the arrest of the accused at 10:30 AM, therefore, it also remained unexplained as to how the I.O. had taken more than 3 hours to reach at the Police Station i.e. 2:05 PM from the spot.
These are the circumstances which render the prosecution story as highly doubtful. Therefore, the findings of conviction recorded against the accused cannot be said to be legally and factually sustainable.
The appeal, therefore, succeeds and the same is accordingly allowed. Consequently, the impugned judgment is quashed and set aside. The accused is acquitted of the charge ::: Downloaded on - 29/02/2020 20:27:16 :::HCHP ...30...
framed against him. Personal bonds furnished by the accused stand cancelled and surety discharged.
.
(Dharam Chand Chaudhary), Judge.
February 29, 2020. (Vivek Singh Thakur),
(karan- )
- Judge.
r to
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