Himachal Pradesh High Court
Ramesh Chand vs State Of H.P on 12 August, 2021
Bench: Anoop Chitkara
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. 378 of 2008
Between:-
RAMESH CHAND
S/O SH. PRITAM SINGH
R/O VILLAGE SAWARA NADASI,
P.S. PAONTA SAHIB,
DISTRICT SIRMAUR, HP
AT PRESENT SHOPKEEPER,
PAONTA SAHIB, AGED 40 YEARS
....APPELLANT
(BY SHRI DEEPAK KAUSHAL, ADVOCATE)
AND
STATE OF H.P.
..RESPONDENT.
(BY MR. NAND LAL THAKUR, ADDITIONAL
ADVOCATE GENERAL WITH MR. KUNAL
THAKUR, DEPUTY ADVOCATE GENERAL, MR.
RAM LAL THAKUR & MR. SUNNY DHATWALIA,
ASSISTANT ADVOCATES GENERAL)
This appeal coming on for orders this day, the Court
passed the following:
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2
JUDGMENT
.
FIR NUMBER 419/04 dated 3.11.2004, Police Station
Paonta Sahib, District Sirmaur under Section
20 of NDPS Act, Section 61(1)(a) of the
Punjab Excise Act as applicable to the state
of H.P. and Section 3 of H.P. Restaurant
(Consumption of liquor) Rules 1949
TRIAL COURT CASE 30-N/7 of 2007/06, decided on 6.6.2008, by
NO. learned Special Judge-II, Sirmaur District at
Nahan.
Chand
rNDPS Act
CHARGES & TRIAL COURT'S VERDICT
Accused Ramesh Section 20 of Accused
sentenced
convicted
and
undergo
rigorous imprisonment for a
period of two years and to
pay a fine of Rs. 10,000/-
and in default of payment of
fine, he shall undergo
further imprisonment for a
period of six months.
Section 61(1) Accused convicted and
(a) of the sentenced to undergo
Punjab Excise rigorous imprisonment for a
Act as period of one year and to
applicable to pay a fine of Rs. 10,000/-
the state of and in default of payment of
H.P. fine, he shall undergo
further imprisonment for a
period of six months.
Section 3 of Accused acquitted.
H.P. Restaurant
(Consumption
of liquor) Rules
Challenging the conviction and sentence for
possessing of illicit liquor as well as 150 grams of charas, the
accused has come up before this Court.
.
2. On 3rd November, 2004, a Police team, headed by
incharge of Police Post, Majra proceeded to detect crime and to
patrol their area. The entry to that effect was made in Daily
Diary Register, which is Ex.PW-1/A.
3. When the investigator Gurbax Singh PW-8 was
patrolling, near Baila then at around 5.15. p.m., he got a secret
information. The informant told him that Ramesh Chand
accused, who runs a tea stall at Baila, deals in illicit liquor and
country made liquor without licence. Even at present, he has
kept such stock in his shop, which can be recovered. On this the
investigator prepared Rukka Ex.PW-8/A and sent the same
through HC Jeet Singh PW-4, which led to registration of FIR
Ex.PW-10/A. After that the investigator associated Ram Krishan
PW-2 and Prithvi Singh PW-3, who was the resident of locality
as independent witnesses. Subsequently, the police team along
with independent witnesses proceeded towards the shop of
Ramesh Chand.
4. On reaching the shop, the investigator recovered six
bottles of illicit liquor as well as four bottles of country made
liquor. Further search of the shop led to the recovery of charas,
which when weighed on the scale lying in the shop itself, had
measured 150 grams. After that the investigator took samples of
Charas and sealed the samples as well as bulk charas and the
.
liquor and prepared the seizure memo Ex.PW-2/A. The
investigator conducted further investigation and arrested the
accused. Subsequently, the investigator produced the accused
along with the case property before SHO of Police Station
PW-10 Inspector Narveer Singh. The SHO sealed the case
property and handed it over to MHC Raj Kumar PW-6, who
entered the same in the Malkhana Register. On the next date i.e.
4.11.2004 the MHC handed over the sample of charas and the
liquor to PW-5 Constable Krishna Nand for getting it tested
from CTL Kandaghat.
5. As per the report of the laboratory Ex.PW-4/B, the
sample of charas tested positive and similarly as per the report
Ex.PW-4/C, the sample of liquor also tested positive. After
completion of the investigation the officer in charge launched
the prosecution by filing Police report.
6. On 3rd April, 2007, learned Special Judge-II Sirmaur
at Nahan framed charges under Section 20 NDPS Act for
possession of 150 grams of charas as well as Section 61(1)(a) of
the Punjab Excise Act as applicable to the State of Himachal
Pradesh for possessing illicit liquor and Section 3 of the H.P.
Restaurant (Consumption of Liquor) Rules 1949 for selling
liquor without licence. The accused did not plead guilty and
claimed trial.
.
7. The prosecution examined all the material witnesses
including the landlord of the shop. In the statement under
Section 313 Cr.PC, the accused admitted that he was a tenant at
the tea stall, but denied all other allegations.
8. Vide judgment captioned above, learned Special
9.
r to
Judge-II, Sirmaur at Nahan convicted and sentenced the accused
as mentioned above.
Challenging the said conviction, the accused has
come up before this Court by filing the instant appeal.
ANALYSIS AND REASONINGS.
10. As per the earliest report, which is daily diary entry,
mentioning the departure of the Police party for paroling
Ex.PW-1/A, there is no mention about the mode of
transportation. At the time of departure from police post, the
secret information was not received. The police party had left
the police post at 4.05 p.m. and as per the investigator PW-8, he
had received the secret information at 5.15 p.m., at a different
place. This Daily Diary entry even does not mention that the
investigator had also carried the investigation kit.
11. After the receipt of secret information, the
investigator associated Ram Krishan, PW-2 Prithvi Singh, PW-3
as independent witnesses. Both these witnesses in their
.
examination-in-chief did not support the case of the prosecution
and were declared hostile. In the leading question put by the
public prosecutor, both the witnesses admitted their signatures
on recovery memo and other memos, but stated that they had put
their signatures without reading its contents. PW-2 Ram
Krishan in his cross-examination stated that he had signed the
documents at the instance of the Police. PW-3 Prithvi Singh in
his cross-examination by defence stated that police had obtained
his signatures at that time when a bus was parked there. There
were 60-70 passengers in the bus and police officials were
standing near the bus. He stated that he has signed the
documents at the instance of police because he is President of
that area and he has to maintain cordial relations with the police.
12. PW-4 HC Jeet Singh, who was a member of the
police party and his name is also mentioned as an official who
had left the police post vide Ex. PW-1/A, testified about the
recovery of illicit liquor and charas from the accused.
13. PW-8 Investigator Gurbax Singh supported the case
of the prosecution including the seizure from the shop of the
accused. However, the accused denied the recovery and
although claimed false implication, but did not lead any
evidence in defence.
14. Law is well settled that burden is on the prosecution
.
to prove its case and once the prosecution discharged its initial
burden, only then the burden shifts on the accused. PW-4 HC
Jeet Singh in his cross-examination stated that when they had
left Police Post, Majra, they went by a vehicle, which dropped
them at Bypass, Majra. After that they went to Dhaulakuan in a
vehicle, but they forgot its description. From Dhaulakuan they
conducted routine patrolling and checking for excise. After that
from Dhaulakuan, they left for village Baila in a private vehicle,
however, he could not recollect that who owned the said vehicle.
He stated that the distance between Dhaulakuan and Baila is 25
kilometers. To the contrary the investigator Gurbax Singh, who
tested as PW-8 gave an entirely different story. In his cross-
examination he explicitly stated that the police party had left
police post Majra on two motorcycles and one scooter, in total
contradiction to the stand taken by another police witness PW-4.
15. Another contradiction, which had appeared in the
prosecution case is that as per the investigator PW-8 Gurbax
Singh, after receipt of secret information near the shop of
accused he had recorded the same and sent it for registration of
FIR through PW-4 HC Jeet Singh. He specifically stated in his
cross-examination that HC Jeet Singh had left for Police Station
on a motorcycle. To the contrary HC Jeet Singh, who has stated
that they had gone for patrolling in different vehicles and did not
.
mention about motorcycle and scooter. Corroborating his stand
by testifying that he had gone to Police Station, Paonta Sahib in
a private vehicle and even further stated that he had changed the
vehicles at Dhaulakuan on the way to Police Station. These
contradictions go to the roots of the case because they hit the
entire prosecution version about the time they had left the police
post, and received the secret information. It further contradicts
the mode in which secret information was sent to the police
station for registration of FIR coupled with the fact that the
independent witnesses did not support the case of the
prosecution and stated that they had signed the documents at the
instance of Police, dents the credibility of the entire prosecution
case. Given this evidence, the accused cannot be held guilty and
is entitled to benefit of doubt.
16. In Union of India v. Jarooparam, (2018) 4 SCC
334, Hon'ble Supreme Court held that the independent witnesses
portrayed by the prosecution have turned hostile and did not
support its case, and it is manifest from the record that they had
simply put their signatures on the papers at the whims of
investigating agency.
17. I have gone through the judgment of conviction passed by
learned trial Court and there is no reference to these
.
contradictions. Even otherwise the voluminous judgment of the
conviction calls for interference.
18. Given above, the appeal filed by the accused is
allowed and the judgment of conviction passed by learned trial
Court in the aforementioned case is set aside. Bail bonds, if any,
furnished by the accused are cancelled and discharged. Pending
application(s), if any, shall also stand disposed of.
(Anoop Chitkara)
August 12, 2021(ps) Judge
