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Un-shattered testimony of official witnesses can be relied upon solely in order to prove guilt of the accused

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Appeal No.656 of 2017.

Reserved on : 29.10.2018.

Date of Decision : 05.11.2018.

.

Neer …Appellant.

Versus

State of Himachal Pradesh …Respondent.

Coram
The Hon’ble Mr. Justice Sanjay Karol, Judge.
The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge. Whether approved for reporting?1 Yes.

For the appellant : Mr. Inder Rana, Advocate.
For the respondent : Mr. Vikas Rathore, Additional Advocate General with Mr. J.S. Guleria, Deputy Advocate General.

Chander Bhusan Barowalia, Judge.

The present appeal is maintained by the

appellant/accused/convict (hereinafter referred to as “the accused”),

laying challenge to judgment dated 12.7.2017, passed by learned Special Judge-II, Kinnaur at Rampur Bushehar, H.P., in Sessions Trial No.1-R/3 of 2014/16, whereby the accused was convicted for the commission of the offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as “NDPS Act”).

2. The key facts necessary for adjudication of this appeal can tersely be summarized as under:

On 2.2.2014 at about 4:15 PM near Bhangidwar on Chawai road, District Kullu, accused was found in exclusive and conscious possession of 1.600 Kg. of charas, when PW-9, SI Bhag Singh alongwith Whether reporters of Local Papers may be allowed to see the judgment? Yes.

other police officials were traveling in official vehicle bearing No.HP34A-

3830, on routine patrolling duty. At that time, accused came from Chawai side and was going towards Anni, he was holding a bag of green colour in .

his right hand, when he noticed the police party, he got perplexed and turned back. Thereafter, he was apprehended by the police party and on inquiry, he disclosed his name, as Neer-accused. Investigating Officer, got suspicion regarding the possession of narcotic substance and on asking about the contents of bag, he could not give any satisfactory explanation.

The accused was apprised of his legal right to be searched either in the presence of Magistrate or any Gazetted Officer, vide memo Ex.PW7/A, however, the accused consented that he wants to give search to the police party on the spot. The place was secluded and no independent witness was available, so PW-9, Bhag Singh, was directed to bring independent witness from Chawai side, but he returned back after 20 minutes, but no independent witness could be found. Thereafter, PW-9, Investigating Officer, Bhag Singh, associated PW-7, HC Anoop Ram and PW-8 HHC Pritam Singh, both official witnesses gave personal search to the accused, vide memo Ex.PW7/B, but nothing incriminating was recovered in his possession. Thereafter, the bag of the accused, in which words ‘Gagan Basmati Rice’ was scribed, was checked. After opening the zip of bag Ex.PB, black colored substance was found in two transparent polythene bags Ex.PC and Ex.PD, which were wrapped with cello tape. The back colored substance was in the shape of balls and on checking, it was found to be charas. It was weighed and found to be 1.600 Kg charas. The recovered charas alongwith carry bag was put into a cloth parcel Ex.PA and cloth parcel was sealed with six seal impressions of ‘O’ and seal impression ‘O was also taken on separate piece of cloth Ex.PW7/C.

Thereafter, Investigating Officer, filled NCB form Ex.PW3/C, in triplicate and sample of seal was also drawn on NCB form. The entire contraband alongwith sample seal and NCB form was taken into possession, vide memo Ex.PW7/D. Thereafter, Investigating Officer, Bhag Singh (PW-9) prepared rukka Ex.PW6/A and sent to Police Station, Anni through PW-6, Constable Prittam Singh and after receipt of rukka in the Police Station, on the basis of which, FIR Ex.PW6/B was registered. Investigating Officer, Bhag Singh (PW-9) prepared site plan Ex.PW9/A, recorded the statement of witnesses and arrested the accused, vide memo Ex.PW9/B. Thereafter, Investigating Officer, produced the accused alongwith case property to PW-6, Rohit Mrigpuri, who resealed the parcel with three seal impression of ‘X’. However, in the relevant column in NCB form and impression of seal ‘X’ was also taken on separate piece of cloth Ex.PW6/C and thereafter, he deposited the entire case property alongwith sample seals and NCB form in Malkahana Incharge, PW-3, MHC, Pushap Raj. On 3.2.2012, MHC, Pushap Raj, handed over the case property to PW-1, Constable Jaswant Singh to deposit in SFSL, Junga, vide RC Ex.PW3/B. PW-1, Constable Jaswant Singh deposited the case property in SFSL, Junga, and handed over the receipt to PW-3, Pushap Raj. PW-9, SI Bhag Singh, has also sent Special Report Ex.PW2/B to Additional Superintendent of Police, Kullu, through HHC Darshan Singh. The report of SFSL, Junga, Ex.PX, was received in Police Station Anni, in which, the recovered substance was found to be charas. After completion of investigation, challan was prepared and presented in the Court.

3. The prosecution, in order to prove its case, examined as many as nine witnesses. Statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, wherein he pleaded not guilty. The accused lead evidence in his defence.

4. The learned Trial Court, vide impugned judgment dated 12.7.2017, convicted the accused for the commission of the offence punishable under Section 20 of the NDPS Act, and sentenced him to undergo rigorous imprisonment for ten years and to pay fine of rupees one lac and in default of payment of fine, accused was further ordered to undergo simple imprisonment for a period of three months.

5. Mr. Inder Rana, learned counsel for the accused/appellant has argued that the judgment of conviction passed by the learned Trial Court is complete mis-appreciation of evidence on record. He has argued that the prosecution has failed to prove the guilt of the accused beyond the shadow of reasonable doubt. In support of his arguments, he has also relied upon the judgment in State of Punjab vs. Hari Singh and others (2009) 4 Supreme Court Cases 200, on this aspect.

6. Conversely, Mr. J.S. Guleria, learned Deputy Advocate General has argued that the prosecution has proved the guilt of the accused beyond the shadow of reasonable doubt and thus, well reasoned judgment of learned Trial Court is not required to be interfered with.

7. In order to appreciate the rival contentions of the parties, we have gone through the record carefully.

8. PW-1, Constable Jaswant Gupta, deposed that on 3.2.2014, seal parcel having 10 seal impressions ‘O’ and three seals of seal impression ‘X’ alongwith docket and documents was handed over to him by MHC Pushap Dev (PW-3) at FSL, Junga and he, after depositing the same, handed over the receipt to MHC.

9. PW-2, HHC Kashmi Ram, deposed that while he was working as Reader to Additional Superintendent of Police, Kullu on 4.2.2014, Special Report with respect to case FIR No.12/14, was received by Additional Superintendent of Police, Kullu, Nihal Chand, who after making endorsement on the spot handed over Special Report to him and he made entry with respect to Special Report in the register at Sr. No.14, copy of the relevant entry of the register, Ex.PW2/A. In his cross-examination he has denied that there was delay in sending Special Report, which was not received by the Office of Deputy Superintendent of Police, Anni.

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10. PW-3, ASI Pushap Dev, who remained posted as MHC at Police Station, Anni, has deposed that he received sealed parcel duly sealed with 10 seal impressions of seal ‘O’ and three seals of seal impressions ‘X’, NCB-1 form in triplicate and specimen seals ‘O’ and ‘X’ for their deposit in Malkhana and after entering them at Sr. No.343 in the Malkhana register and had deposited the case property safely. He exhibited the relevant entry of abstract, Ex.PW3/A. He deposed that on the next date i.e. 3.2.2014, he had sent sealed parcel alongwith NCB-1 form in triplicate, sample seals ‘O’ and ‘X’ for their safe deposit at FSL, Junga through Constable Jaswant Gupta (PW-1), after preparing Road Certificate and filling the relevant NCB form. Constable Jaswant Gupta, after depositing the same in FSL, Junga and handed over the seal to him.

11. PW-4, Narender Kumar, who has partly investigated the matter and recorded the statement of ASI Pushap Dev (PW3) and Constable Jaswant Gupta (PW-1). He deposed that he recorded the statement of witnesses as per their version. PW-5, HHC Darshan Singh, stated that he has taken Special Report to ASI Bhag Singh on 4.2.2014.

12. PW-6, Inspector Rohit Mrigpuri, deposed that on 2.2.2014, at about 6:00 PM, on receipt of rukka Ex.PW6/A, from PSI Bhag Singh through Constable Pritam Singh, he registered FIR Ex.PW6/B, which bears his signatures in red circle ‘A’. He deposed that he made endorsement in rukka Ex.PW6/A, which bears his signatures. Thereafter, he deposed that on the same day, at about 9:15 PM, accused alongwith the case property, NCB-1 form in triplicate and sample seal ‘O’ were produced before him by PSI Bhag Singh. The seal impressions having 10 seals of impression ‘O’, stated to be containing charas. Thereafter, he resealed the seal impression ‘X’ and filled in the relevant column of NCB-1 form in triplicate, Ex.PW3/C and put impression of seal ‘X’. He took specimen of seal ‘X’ which was taken on a piece of plain cloth and is Ex.PW6/C and deposited the case property with MHC at the Police Station. He further deposed that he prepared challan and presented the same in the Court. He has stated in his cross-examination that he has not associated any witness while resealing the sample neither he weighed the parcel.

13. PW-7, HC Anoop Ram, deposed that on 2.2.2014, he alongwith ASI Bhag Singh, LHC Hans Raj, Constable Pritam Singh had gone towards Gugra Chawai for routine patrol checking in official vehicle bearing registration No.HP34-A-3830, which was being driven by Constable Mukesh Kumar, when they reached near Bhangi Dwar, at about 4:15 PM, one person came towards them from Chawai side, on foot carrying a bag on his right hand and noticed the police, he started fleeing towards Chawai side, the man was over powered by the police official. The police enquired about his whereabouts and disclosed his name, as Neer-accused, present in the Court on that day. He has asked the accused that he being suspected that he was carrying narcotics substance, but the accused could not give any satisfactory answer. The accused opted to be searched before the police party and memo regarding option Ex.PW7/A was prepared. He has stated that there was lonely place and no independent witness was found. Investigating Officer, Bhag Singh (PW-9) sent Constable Prittam Singh (PW-8) to search for independent witnesses, but he could not found independent witness for 20 minutes, when he came back 20 minutes, no independent witness was found. Investigating Officer, Bhag Singh (PW-9) associated Constable Prittam Singh (PW-8), as witness gave personal search to the accused, vide memo Ex.PW7/E and thereafter, the bag of the accused was searched, which was containing two transparent parcels wrapped with cello tape, these two bags were having round shaped black substance, on checking, it was found to be cannabis. On being weighed with electronic weighing machine, it was found to be 1 Kg & 600 grams charas, which was again put in the same envelope and bag was put in cloth parcel and sealed with 10 seal impressions ‘O’. Impression of seal ‘O’ was also taken on separate piece of cloth, Ex.PW7/C. Investigating Officer, Bhag Singh (PW-9) prepared NHC form Ex.PW3/C and the same was filled in triplicate and seal impressions ‘O’ was also drawn. He identified the recovered substance in the Court to be the same. In his cross-examination, he has stated that they started from Police station at 3:00 PM and reached on the spot at 4:15 PM. He has stated that they had gone to Chawai on that day, which is 02 KM away from the alleged place of occurrence. He has denied that there are houses beyond ‘nullah’. He has stated that houses are approximately 02 KM away from the alleged place of recovery. He has admitted that Anni is 12 KM from Chawai by road. He has stated that Constable Prittam Singh (PW-8) went towards Chawai in search of independent witnesses. He has denied that accused was arrested in white Xylo car bearing No.HP-01K-4343, which was being driven by one Govind of Chawai area. He has denied that Govind is indulged in illegal activities under police protection. He has denied that the contraband was recovered from the stereo of said Xylo vehicle.

14. PW-8 HHC Prittam Singh, deposed that he remained posted as Constable General Duty at Police Station, Anni. On 2.2.2014, when he alongwith HC Anoop Ram, LHC Hans Raj, PSI Bhag Singh, had gone towards Shamshar, Gugra and Chawai in official vehicle bearing registration No.HP-34A-3830 driven by Constable Mukesh Kumar, when they reached at Bhangi Dwar, at about 4:15 PM, accused came from Chawai side, the accused was carrying bag in his right hand. On asking the police party, he started running back, whereas, other police officials over powered and caught him. On enquiry, he disclosed his name as Neer-accused and the same person, who was present in the Court on that day.

Investigating Officer, Bhag Singh (PW-9) suspected that he was carrying contraband in the bag, so he gave option to be searched before any Magistrate or Gazetted Officer, vide memo Ex.PW7/A. Investigating Officer, Bhag Singh (PW-9) asked him to bring independent witness and went towards Chawai side in search of witnesses, but no independent witness was found and he returned back after 20 minutes. He stated that Investigating Officer, Bhag Singh (PW-9) associated with Anoop Ram (PW-7) as witnesses and gave personal search to the accused, vide memo Ex.PW7/B, which bears his signature at point ‘B’. Thereafter, when the accused was searched, cannabis was found in the bag in two transparent bags in the shape of balls, which were scrapped with cello tape. The carry bags were having round shaped substance, on checking, it was found to be cannabis, which was weighed with electronic weighing machine and it was found 1 Kg. 600 grams charas. The recovered contraband was put in the same polythene bag and was put in the same manner in that bag and bag was put in the cloth parcel and parcel was sealed with seal impressions ‘O’ at 10 places. Investigating Officer, Bhag Singh (PW-9) also filed NCB form in triplicate , the sample of seal was also drawn on separate piece of cloth, Ex.PW7/C and the documents were prepared, which bears his signatures and thereafter, Investigating Officer, Bhag Singh (PW-9) prepared rukka Ex.PW6/A and handed over the same to him. He took rukka to Police Station and handed over to MHC, Police Station, Anni, on the basis of which, FIR was registered. In his cross-examination, he has deposed that there are shops and houses at Gugra. He has stated that Chawai, is situated at approximately 2 KM away from the place of recovery. He has admitted that there are three villages in between Chawai and alleged place of occurrence. He has stated that he does not know how many persons passes during that time. The time between 4:15 PM to 5:30 PM, when they remained on the place of occurrence. He stated that he went to Police Station, on small vehicle by lift, which was on the same place. He stated that he does not know the number and owner of the vehicle. He stated that he does not remember whether Investigating Officer, Bhag Singh (PW-9) had given option to the accused to search before the Police or not. He has denied that accused was apprehended in Xylo vehicle.

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.

15. PW-9, SI Bhag Singh, deposed that he remained posted as Investigating Officer in Police Station, Anni, in the year 2014. On 2.2.2014 at about 4:15 PM, he alongwith HC Anup Ram, Constable Hans Raj, while traveling in a official vehicle bearing No.HP34A-3830, being driven by Constable Mukesh Kumar, were on routine patrolling duty. They noticed that at place Chawai road near Bhangidawar around 4:15 PM, one person coming from Chawai side and was going towards Anni side, he was holding the bag of green in colour in his right hand, on noticing, the police party got perplexed and turned back. On enquiry, he disclosed his name, as Neer-accused and the same person, who was present in the Court on that day. Being suspicion that he was carrying some contraband and on asking about the contents of the bag, the accused was unable to give satisfactory explanation, the accused was apprised of his legal right to search in presence of Magistrate or Gazetted Officer, vide memo Ex.PW7/A. The accused gave his option to search before the police, thereafter, the bag which was being carried by the accused and having words ‘GAGAN PURE BASMATI RICE’ and was searched after opening the zip of the bag, the black colour substance was found in two transparent polythene bags, which were wrapped by cello tapes. The recovered contraband was weighed alongwith transparent polythene and the cello tape on electronic weighing machine and it was found 1 Kg. 600 grams. The recovered contraband was repacked in the same manner and the same was put in the same green coloured bag and green coloured bag put in cloth parcel.

.

The cloth parcel was sealed with ten impressions of seal ‘O’. Sample of seal ‘O’ Ex.PW7/C, was taken on separate piece of cloth. NCB form Ex.PW3/C in triplicate were filled in on the spot and impression of seal ‘O’ was put on the NCB form. The seal ‘O’ after its use was handed over to Constable Prittam Singh (PW-8). The said cloth parcel alongwith sample of seal ‘O’ and NCB form in triplicate were taken into possession, vide memo Ex.PW7/D. Thereafter, he prepared rukka Ex.PW6/A and sent the same through Constable Prittam Singh to Police Station, Anni. During the course of investigation, he prepared spot map Ex.PW9/A. He also recorded the statement of witnesses, as per their version. The accused was interrogated and arrested vide memo Ex.PW9/B. Thereafter, he proceeded towards Police Station, Anni, on the way near bus stand alongwith the case file. Thereafter, he recorded the statement of Constable Prittam Singh, as per his version. He sent Special Report to Additional Superintendent of Police, Kullu Ex.PW2/B and handed over the case file to Station House Officer, Rohit Mrigpuri, to re-seal the case property and sent the Special Report Ex.PW2/B to Additional Superintendent of Police Kullu, through HHC Darshan Singh. In his cross-examination, he has stated that they reached at the spot 5-10 minutes prior to when they noticed the accused. He stated that there was no prior information. He has stated that there are many curves on the road. He stated that he does not know that there are shortcuts road from Chawai to Anni via Khamarala and Shamshur. He stated that accused might be going to some another place and not at Anni. He stated that he prepared site plan on the spot. He stated that as to where Gogra village on the spot map Ex.PW9/A. He admitted that there are 10-15 shops and houses at Gogra Chowk. He also admitted that there are apple orchard and houses near the alleged spot. He noticed the bag in the hand of the accused at the first instance. He has stated that he does not conduct the personal search of the accused before searching of his bag. He stated that accused voluntarily expressed his consent to be searched by the police present on the spot.

He stated that accused did not try to throw away his bag or to run away from the spot. He has further stated that he turned back and tried to run.

He has denied that cannabis was recovered from the stereo of Xylo vehicle bearing No.HP01K-4332 driven by Govind Singh. He denied that Bhag Chand son of Het Ram, was also present in the vehicle. He stated that in NCB form Ex.PW3/C, the time of seizure has been stated to be 5:30 PM, thereafter, the time of sending of rukka has been inadvertently written and the seizure was made at about 5:00 PM. He stated that rukka was scribed and sent at about 5:30 PM. He stated that he does not notice any vehicle or any pedestrian on the spot during the proceedings. He stated that he does not remember, who had recorded the statement of Constable Prittam Singh. He has stated that he had instructed Constable Prittam Singh to produce the seal ‘O’ in the Court.

16. The accused, in his statement, under Section 313 of the Code .

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of Criminal Procedure has denied the case in totality and witnesses have deposed falsely, he is innocent and false case has been planted against him. DW-1, Bhag Chand, deposed that accused dealing with clothes and purchase of garlic in the area. On 2.2.2014, he was going to Shimla, in connection with his treatment of gangrene in Xylo vehicle, one Govind, who was residents of Chawai and he boarded the taxi from Dhar. The accused boarded taxi from Chawai, at a place near Gugra, which is about 3 KM away from Chawai. The police stopped the vehicle and on checking, the police recovered cannabis from the speaker box of stereo of the vehicle. Thereafter, he returned home and Govind remained on the spot and the accused was taken away by the police in another vehicle. In his cross-examination, he has denied that his monthly medical expenses are `2300/- to `4800/-. He further stated that he hired taxi, as his condition was bad. He has stated that he has again agreed to pay `4000/-, as taxi fair to Govind, but he refused to go ahead, as accused was known to him.

17. From this evidence of the prosecution and defence, following points emerge :

a) that there were houses and orchards of the villagers near the place of occurrence, which is admitted by the witness of recovery and Investigating Officer, Bhag Singh (PW-9);
b) As per Investigating Officer, Bhag Singh (PW-9) place known as Gugra is 2 KM away from the place of occurrence;
c) If one has come on foot, there are shortcuts also;
.
d) Independent witnesses, as per Investigating Officer, Bhag Singh (PW-9) and HHC Prittam Singh (PW-8), could not be associated as they were not available on the spot;
e) PW-8, HHC Prittam Singh, has deposed that he had gone to Police Station from the place of occurrence in a small vehicle, which was on the spot. Investigating Officer, Bhag Singh (PW-9) has deposed that he could not notice, how many vehicles passes through the spot in between 4:00 PM to 5:30 PM, when they were present on the spot;
f) Investigating Officer, as per PW-8, Prittam Singh, has given rukka to MHC for registration of FIR, but as per PW-6, Inspector Rohit Mrigpuri, he received rukka through Constable Pritam Singh and registered FIR. Investigating Officer, Bhag Singh (PW-9) has stated that he has not given option to the accused to be searched by the police, but PW-7, HC Anoop Ram, has stated that he does not know whether Investigating Officer, Bhag Singh (PW-9) had given option to the accused that he can be searched by the police or not.
18. Now, in the light of above facts, it is amply clear that independent witnesses were available on the spot, when PW-8 HHC Prittam Singh, has stated that there was a small private vehicle standing on the spot, when Investigating Officer, Bhag Singh (PW-9) has stated that he does not know how many vehicles passes .
through. PW-7, HC Anoop Ram, PW-8, HHC Prittam Singh and Investigating Officer, Bhag Singh (PW-9) have specifically stated that houses and apple orchards are near by the place. It is a clear case that there is bazaar at place Gugra, at a distance of 2 KM and vehicle was available with the police. Now, when independent witnesses were available, but not associated, even then, if the statement of official witnesses are confidence inspiring, conviction can be based upon their un-shattered testimony. Now, we have analyzed the testimony of police official.
19. As has been discussed hereinabove, PW-8 HHC Prittam Singh, has not given the number of private vehicle, in which time police came from the spot. At the same point of time, he has stated that he does not know, who was driver and owner of the vehicle, which statement is not believable, when he knows each and every count, what has happened on the spot. The delivery of Special Report on the third day to the Additional Superintendent of Police, Kullu and not to Deputy Superintendent of Police, there is a specific suggestion, when Deputy Superintendent of Police, has refused Special Report unexplained, but ignorance of PW-7, HC Anoop Ram, whether Investigating Officer, Bhag Singh (PW-9) has given option to the accused searched before the police officer is also one of the ingredient, which makes the prosecution case unreliable. In these circumstances, we also find that the sample seal with which, parcel .
was sealed with ten impressions of seal ‘O’, as per Investigating Officer, Bhag Singh (PW-9) was given to PW-8, Prittam Singh, has deposed that he has asked PW-8, HHC Prittam Singh to bring the seal in the Court. At the same point of time, HHC Prittam Singh, (PW-8) has not stated anything on record, whether the seal is with him or he has lost the seal or whether he has not brought the seal in the Court. Though, non-production of the seal is not such a serious consequence, however, in the present case, when the recovery is suspicious, non-production of seal is to be considered to hold the accused innocent.

20. The arguments of learned counsel appearing on behalf of the parties is considered viz-a-viz and the evidence, as discussed hereinabove shows that the prosecution has failed to prove the guilt of the accused beyond the shadow of reasonable doubt and that accused was found in exclusive and conscious possession of 1 Kg.
600 grams of charas, as alleged. The statement of police witnesses is not confidence inspiring and are full of contradiction, at the same point of time, independent witnesses, which were abundantly available were not associated and seal was not produced in the Court, makes out a case to set aside the judgment of conviction and sentence passed by the learned Trial Court, as the prosecution has failed to prove the guilt of the accused beyond the shadow of reasonable doubt.
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21. The net result of the above discussion is that the prosecution has failed to prove the guilt of the accused beyond the shadow of reasonable doubt and the findings of guilt, as recorded by the learned Trial Court, needs to be set aside. Accordingly, the appeal is allowed and the judgment of the learned Trial Court is set aside. The accused is acquitted and ordered to be released forthwith. Fine amount, if already deposited, be refunded to the accused. Since the accused is in jail, he be released forthwith, if not required in any other case.
22. The Registry is directed to prepare the release warrant of the accused and send the same to the Superintendent of Jail concerned in conformity with this judgment forthwith.
23. In view of the above, the appeal, so also pending application (s), if any, stand (s) disposed of.

(Sanjay Karol)
Judge

(Chander Bhusan Barowalia)
Judge

05th November, 2018

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