Between vs And

                            1




    IN THE HIGH COURT OF HIMACHAL PRADESH
               AT SHIMLA

             ON THE 12TH DAY OF AUGUST, 2021




                                                  .

                     BEFORE





          HON'BLE MR. JUSTICE ANOOP CHITKARA

          CRIMINAL APPEAL NO.198 OF 2008





    BETWEEN:-
    RAJ KUMAR,

    SON OF SHRI KESAR SINGH,

    RESIDENT OF VILLAGE KHINDER,
    POST OFFICE PADHIEUN,


    TEHSIL SADAR, DISTRICT MANDI,
    HIMACHAL PRADESH




                                   .... APPELLANT





    (BY SHRI LAKSHAY THAKUR, ADVOCATE)





    AND
    STATE OF HIMACHAL PRADESH
                                   ..... RESPONDENT.


    (SHRI    NAND     LAL   THAKUR,            ADDITIONAL
    ADVOCATE     GENERAL,   SHRI     KUNAL            THAKUR,




                                 ::: Downloaded on - 31/01/2022 22:51:57 :::CIS
                                      2




    DEPUTY ADVOCATE              GENERAL AND SHRI RAM
    LAL THAKUR &                 SHRI SUNNY DHATWALIA,
    ASSISTANT        ADVOCATES           GENERAL,             FOR         THE




                                                             .

    STATE.
    ____________________________________________________________________





             This Appeal coming on for orders this day, Hon'ble

    Mr. Justice Anoop Chitkara, delivered the following:





                           JUDGMENT

FIR Number r314 of 2004 dated 26.8.2004, under Section 20 of the ND&PS Act, registered at Police Station, Sadar, District Mandi, H.P.

Sessions Trial 25 of 2004, decided on 18.3.2008 by Special Judge-

No. II, Mandi, District Mandi, H.P.

CHARGES & TRIAL COURT'S VERDICT Accused Raj Section 20 of Accused convicted and Kumar ND&PS Act sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.20,000/- and in default of payment of fine, he shall further undergo rigorous imprisonment for three months.

Challenging the conviction and sentence captioned above for possession 400 grams of Charas, the convict has come up .

before this Court by filing the instant appeal.

2. On 26.8.2004, SHO of Police Station, Sadar Mandi Inspector N.K. Sharma (PW-1), alongwith HHC Sarwan Kumar and C. Khem Singh (PW-2) were on patrolling duty. At around 1:30 p.m., when they were present at the alley of college hostel and they reached near the gate, then they noticed one person who had rucksack on his back was coming down the hill. On seeing the Police, the said person immediately started running down the hill. The SHO and the Police Officials nabbed him and inquired his name. He revealed his name as Raj Kumar, appellant herein. The Police Officials searched the rucksack which he was carrying and the Police Officials recovered black coloured substance from it. Based on the experience, the Police Officials found it to be the Charas. Subsequently, they carried the Charas to the sop of Raj Kumar (PW-9) and it weighed 400 grams. The Police Officials separated two samples of 25 grams each and sealed the samples and bulk Charas in separate ::: Downloaded on - 31/01/2022 22:51:57 :::CIS 4 parcels. After that, they affixed seal of impressions "N" on the parcels and filled NCB form. After use, the seal was handed .

over to C. Sarwan Kumar. Subsequently, SHO prepared seizure memo (Ex.PW2/B) and also prepared Rukka (Ex.PW10/A) and sent the same to MHC of his Police Station for registration of FIR mentioned above.

3. On receipt of Rukka, MHC registered FIR (Ex.PW4/A) mentioned above. The Investigator drew the site map (Ex.PW10/B), completed other formalities and arrested the accused. On reaching the Police Station, Investigator deposited the case property with MHC Khem Chand (PW-2) who entered the same in Malkhana register. On 2.9.2004, C. Param Dev (PW-1) who was officiating as Constable sent the sample for testing to CTL, Kandaghat through C. Shaffi Mohammad (PW-

8). The CTL, Kandaghat tested the contents of samples positive for Charas vide report (Ex.PW10/D). After completion of investigation, the Officer-in-Charge launched prosecution against the accused.

4. Vide order dated 30.7.2005, learned Special Judge framed charges against the accused for offence punishable .

under Section 20 of the ND&PS Act for possessing 400 grams of Charas. The accused did not plead guilty and claimed trial.

5. During trial, the prosecution examined in all ten witnesses, including shopkeeper Raj Kumar (PW-9). In statement under Section 313 Cr.PC., the accused denied all the circumstances as incorrect. However, the accused did not lead any evidence in defence.

6. Vide judgment captioned above, learned Special Judge accepted the prosecution case and hold the accused guilty for possessing 400 grams of Charas and sentenced him as mentioned above.

7. Challenging the conviction and sentence, the convict filed the instant appeal before this Court.

ANALYSIS AND REASONING

8. As per the case of prosecution, Investigator (PW-10) Inspector N.K. Sharma alongwith HHC Sarwan Kumar (not examined) and C. Khem Chand (PW-1) were on patrolling ::: Downloaded on - 31/01/2022 22:51:57 :::CIS 6 duty. The prosecution did not place on record the entries of Daily Diary register regarding the departure of SHO from the .

Police Station. Thus, in the absence of such entries, there is not even any evidence to decipher that what was the mode of travel of Police team and whether they were carrying investigation kit with them or not. Be that as it may, a perusal of site plan (Ex.PW10/B) explicitly reveals that the spot from where the accused was nabbed was adjacent to Padhal ground. The place in site plan is adjacent to the National Highway-21 and the time of the incident was 1:30 p.m. During the statement on oath, Inspector N.K. Sharma (PW-10) admitted that he had nabbed the accused near the girl's hostel at Government College, Mandi. Similarly, the other Police Official C. Khem Chand (PW-2) stated that they were on patrolling duty on bus-stand and College area and they had nabbed the accused near the hostel gate of College compound at Mandi. A perusal of the seizure memo (Ex.PW2/B), Rukka (Ex.PW10/A), FIR (Ex.PW4/A) and special report under Section 57 of the ND&PS Act (Ex.PW3/A) coupled with site plan (Ex.PW10/B) ::: Downloaded on - 31/01/2022 22:51:57 :::CIS 7 specifically mentioned that the Police did not even try to associate any independent witness. Out of these Police .

Officials, HHC Sarwan Kumar was not examined. The Investigator SHO (PW-10) Inspector N.K. Sharma as well as C.

Khem Chand (PW-1) did not utter a single word that they had tried to associate any independent witness. It is strange that when Raj Kumar was available in the shop where the Charas was weighed, what stopped the Police from associating any independent witness.

9. Even association of Raj Kumar is full of doubts. As per Rukka (Ex.PW10/A) after the Police had recovered Charas from the rucksack then it is explicitly stated in the Rukka that the Charas was weighed in the shop of Raj Kumar. Thus, it is not the case of the prosecution in the initial document that even the accused was taken to the shop of Raj Kumar (PW-9) when Charas was weighed there.

10. Shopkeeper Raj Kumar testified as PW-9 and did not support the case of the prosecution. After being declared hostile, in the leading question put by the Public Prosecutor, he ::: Downloaded on - 31/01/2022 22:51:57 :::CIS 8 denied all the prosecution case, except his signatures on the memo. In cross-examination by accused, Shopkeeper Raj .

Kumar (PW-9) explained that the Police had not read over and explained the papers to him and further that he refused to sign the papers and told the Police that he would not sign any paper pertaining to the Court, but Police officials took his signatures by assuring him that it was just for the sake of formality and thus in good faith he put his signatures on the same. The most material part of his evidence is that in examination-in-chief he stated that it was incorrect that SHO N.K. Sharma and MHC alongwith accused had come to his shop. A perusal of the document prepared on the spot i.e. seizure memo (Ex.PW2/B) is silent, as to whether Charas was taken to the shop of Raj Kumar or even Raj Kumar accused was also taken to the shop of Raj Kumar alongwith Charas. On perusal of FIR (Ex.PW4/A), which is based on Rukka (Ex.PW10/A) also explicitly states that the Charas was taken to the shop of Raj Kumar and there is no mention that even accused was taken to ::: Downloaded on - 31/01/2022 22:51:57 :::CIS 9 the shop of Shopkeeper Raj Kumar. Given this, the independent witness Raj Kumar (PW-9) even did not notice the accused.

.

11. The time of incident is 1:30 p.m. i.e. day time and the place was near the College adjacent to National Highway.

Despite all this, even after the chance recovery before taking samples and sealing of the contraband at the time of its weight being measured and other documents being prepared, no independent witness was associated. Not only this, as per the seizure memo (Ex.PW2/B) and other documents, Rukka (Ex.PW10/A, FIR Ex.PW4/A and special report (Ex.PW3/A), the seal after use was handed over to HHC Sarwan Kumar, who was the member of the Police team. However, the prosecution did not examine him to prove the safe custody of the seal.

12. In Krishan Chand v. State of HP, (2018) SCC 222, Hon'ble Supreme Court holds:

"15. From the evidence which has come on record, it is quite clear that the place, where the accused is alleged to have been apprehended, cannot be said to be an isolated one as the house of Govind Singh DW-2 is ::: Downloaded on - 31/01/2022 22:51:57 :::CIS 10 situated on the edge of Patarna bridge. Thus the version of the complainant PW-6 that independent witnesses could not be associated .

as it was an isolated place does not inspire confidence. Moreover, from the evidence of Govind Singh PW-2 the case of the prosecution regarding apprehension of the accused, at Patarna bridge, while being in possession of bag containing 7 kgs of charas, becomes highly doubtful because had he been so apprehended, by the police, this fact was to come to his notice, for the reason, that his house is situated at the edge of the bridge in which he resides, along with his family.

16. The Complainant PW-6 is not the scribe/author of the various memos including the entries as made in column Nos. 2 and 7 of NCB form. It has been stated by Umesh Kumar PW-4 that the complainant had prepared the search memo of witnesses, seizure memo, arrest memo, seal of H and NCB form in his own hand. The above version had been contradicted by the complainant PW-6 himself.

17. In our opinion, the High Court failed to appreciate that the harsher is the punishment, the more is the strictness of proof required .

from the prosecution and that failing to associate independent witnesses at the time of recovery created a dent in the case of prosecution.

18. As rightly pointed out by the counsel for the appellant that the High Court failed to appreciate that in the absence of independent witnesses, the evidence of the police witnesses must be scrutinized with greater care especially when police witnesses contradicted themselves on the issue as to in whose hand writing the seizure memo, the arrest memo, consent memo and the NCB form were written and the evidence adduced by the prosecution is not reliable.

19. The High Court has not appreciated the fact that PW-4 contradicted himself when he stated that it was dark at 5.00 a.m. but no search lights or the head lights of the vehicles were switched on at the time of preparing the search memo and other documents at the spot. The High Court failed to appreciate that ::: Downloaded on - 31/01/2022 22:51:57 :::CIS 12 recovery of knife at the time of opening the bag before the Court while there was no mention of the same in the seizure memo .

create serious doubt in the prosecution case.

20. It is settled law that the testimony of official witnesses cannot be rejected on the ground of non-corroboration by independent witness. Though, in the present case, the prosecution, in support of its case, has examined the Complainant PW-6 and Umesh Kumar PW-4 who have supported the alleged recovery of charas from the accused.

However, there are material contradictions, as pointed in their statements, which make the prosecution case highly doubtful. In our considered view, the High Court by not taking into account the contradictions in the evidence adduced held that in case there are minor contradictions in the depositions of the witnesses, the same are bound to be ignored and convicted the appellant as aforesaid.

21. In view of the material contradictions which have come on record, we find that the High Court wrongly convicted the appellant as the evidence adduced by the prosecution ::: Downloaded on - 31/01/2022 22:51:57 :::CIS 13 was not carefully scrutinized by the High Court. We are of the considered opinion that the High Court committed error in convicting .

and sentencing the appellant."

13. An analyses of the entire evidence reveals that the Investigator did not associate any independent witness and he did not offer any explanation for non-association of the witnesses. Similarly, there is no explanation worth acceptance for non-examination of HHC Sarwan Kumar to whom the seal was handed over.

14. The law is well settled that graver the offence stricter the proof. Reference be made to legal maxim in criminal cases, the evidence proved should be clearer than the light and reference be also made to criminalibus probaliones debent esse luce clariores.

15. Thus, non production of initial departure report, non association of independent witnesses and non examination of HHC Sarwan Kumar, to whom the seal was handed over, do not prove the case of the prosecution beyond reasonable doubts.

16. Given above, the appellant-accused is entitled to the benefit of doubt. I have gone through the voluminous judgment .

of conviction, in which this aspect has not been dealt with.

17. In view of the above discussion, the present appeal is allowed and the conviction and sentence awarded by learned Special Judge-II, Mandi, District Mandi vide its judgment dated 18.3.2008, is set aside. Bail bonds are discharged.

Pending application(s), if any, are also closed.

Anoop Chitkara, Judge.

August 12, 2021 (ks).