Himachal Pradesh High Court
District Kullu vs Unknown on 21 October, 2022
Bench: Sabina, Sushil Kukreja
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 21st DAY OF OCTOBER, 2022
.
BEFORE
HON'BLE MS. JUSTICE SABINA
&
HON'BLE MR. JUSTICE SUSHIL KUKREJA
CRIMINAL APPEAL No.485 of 2018
Between:- r
HET RAM
S/O SH. KHUB RAM,
AGED ABOUT 42 YEARS,
RESIDENT OF VILLAGE DHARA,
POST OFFICE FOZAL, TEHSIL AND
DISTRICT KULLU, H.P.,
AT PRESENT LODGED IN MODEL
CENTRAL JAIL NAHAN, DISTRICT
SIRMOUR, H.P.
......APPELLANT
(BY MR. AJAY CHANDEL, ADVOCATE)
AND
STATE OF HIMACHAL PRADESH
......RESPONDENT
(BY MR. KUNAL THAKUR, DEPUTY
ADVOCATE GENERAL )
RESERVED ON: 22nd SPETEMBER, 2022
DECIDED ON: 21st OCTOBER, 2022
::: Downloaded on - 21/10/2022 20:06:29 :::CIS
2
This appeal coming on for pronouncement of judgment
this day, Hon'ble Mr. Justice Sushil Kukreja, delivered the
following:
.
JUDGMENT
The instant appeal filed under Section 374 (2) of Code
of Criminal Procedure, lays challenge to judgment of conviction
and order of sentence dated 09.10.2018, passed by learned
Special Judge-II (Additional Sessions Judge), Kullu, District Kullu,
H.P. in Sessions Trial No.32 of 2017, titled State of Himachal
Pradesh Versus Het Ram, whereby the appellant (hereinafter
referred to as the accused), was convicted and sentenced to
undergo rigorous imprisonment for ten years and to pay fine of
Rs.1,00,000/- (rupees one lakh only) for the commission of
offence under Section 20 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (hereinafter referred as "NDPS Act") and in
default of payment of fine, the accused shall undergo simple
imprisonment for one year.
2. Brief facts of the case are that on 29.11.2016, HC Brij
Bhushan, Investigating Officer, alongwith C. Budhi Singh,
C.Yashpal and C. Karam Dass was present at Raison bridge on
Raison-Shirar road and at about 8:15 p.m., a person was noticed
coming from Shirar side going towards Raison. When the said
person was at a distance of 10-12 steps, police party put torch
.
light on him and on this, the said person got perplexed. He took
out a cloth packet (potli) from the pocket of his coat, threw it on
the side of the road and started walking fast. On this, HC Brij
Bhushan asked him about his whereabouts and that where he
was going, however, he tried to flee away from the spot. On
enquiry by the police personnel, accused told that he was going to
hospital to see his ailing relative admitted in the hospital at Kullu.
Thereafter, the accused was asked about the cloth packet thrown
by him, however, he had not given satisfactory reply but disclosed
his name as Het Ram, son of Khub Ram. He was enquired as to
what was inside the cloth packet and was also asked to bring the
said cloth packet. Thereafter, the accused brought the packet,
which was containing a white coloured bag knotted from the top
inside it and on opening the same, stick shaped black coloured
substance, wrapped in a transparent polythene, was found. Some
of the pieces of the contraband were checked, broken and smelt
by HC Brij Bhushan and on experience, he found that the said
substance was cannabis/ charas. All this had happened during
night time, therefore, there was no independent witness available
on the spot. Hence, C. Budhi Singh and C. Yashpal were
associated as witnesses and memo qua identification of
.
contraband was prepared. The recovered charas was weighed
alongwith carry bag, which was found to be 1kg 800 grams. The
recovered carry bag containing charas was put in a cloth parcel
and sealed with six seals of seal impression 'A' and sample of
seal impression 'A' was also separately taken on a piece of cloth.
During investigation, HC
r Brij Bhushan filled up the relevant
columns of NCB-I form and the seal after use was handed over to
C.Budhi Singh. The aforesaid parcel alongwith NCB-I form in
triplicate and sample seal was taken into possession. Thereafter,
Investigating Officer HC Brij Bhushan prepared rukka and sent
the same to the Police Station, Kullu, through C. Budhi Singh, for
registration of FIR. During investigation, case property alongwith
relevant documents and sample seal was sent to SFSL, Junga for
chemical analysis, through C. Budhi Singh.
3. On the receipt of the rukka, FIR No.245, dated
29.11.2016 was registered at Police Station Sadar Kullu, District
Kullu against the accused under Section 20 of the NDPS Act.
4. On the completion of the investigation and receipt of
the SFSL report, HC Brij Bhushan handed over the case file to
Inspector Anil Kumar for preparation of charge-sheet, who
prepared and presented the same in the Court.
.
5. Charge was framed by the learned trial Court against
the accused under Section 20 of the NDPS Act, vide order dated
09.06.2017. Accused did not plead guilty of the charge framed
against him and claimed trial.
6. In order to prove its case, the prosecution examined
as many as 9 witnesses. Statement of accused was recorded
under Section 313 Cr.P.C., wherein, he denied all set of
incriminating evidence led by the prosecution against him, besides
pleaded to be innocent and being falsely implicated. He further
stated that neither the police visited the spot, nor he was
apprehended there. All the documents were fabricated in the
police station and he was also compelled to sign the same in the
Police station.
7. On the basis of evidence led on record by the
prosecution, the learned trial Court held the accused guilty of his
having committed offence punishable under Section 20 of NDPS
Act and sentenced him as per description given hereinabove.
8. Being aggrieved and dissatisfied with the judgment of
conviction and order of sentence, passed by the learned trial
Court, accused approached this Court, praying therein for his
acquittal after setting aside the aforesaid judgment of conviction
.
and order of sentence.
9. I have heard learned counsel for the appellant as well
as learned Deputy Advocate General and also gone through the
record carefully.
10. The learned counsel for the appellant contended that
no independent witness has been associated by the prosecution
and the case of the prosecution is based on the testimony of the
police officials only, who are interested in the outcome of the
result of the case, therefore, the case of the prosecution has
become doubtful. He also contended that there are major and
material contradictions in the statement of the witnesses, which
render the prosecution case highly suspicious.
11. On the other hand, learned Deputy Advocate General
supported the judgment of the learned trial Court and contended
that since the charge against the accused has been duly proved
by the prosecution beyond reasonable doubt, the learned trial
Court has rightly convicted the accused on the basis of proper
appreciation of evidence.
12. The accused stood charged for commission of the
offence under Section 20 of the NDPS Act for having been found
.
in exclusive and conscious possession of charas, weighing 1kg
800 grams. To substantiate the said charge and to bring home the
guilt of the accused, the prosecution has examined as many as 9
witnesses. However, the case of the prosecution mainly rests
upon the statements of PW-8 C. Budhi Singh and PW-9 HC Brij
Bhushan. Both are the most material witnesses of the
prosecution, who have been examined primarily to prove the
search, recovery and seizure of charas, in question, from the
exclusive and conscious possession of the accused.
13. It is not disputed that the case of the prosecution is
based on the testimony of the police officials only and no
independent witness has been associated by the Investigating
Officer in the present case. We are conscious of the fact that the
conviction can be based upon the sole testimony of the police
officials, provided that such testimony is reliable, trustworthy and
confidence inspiring and the Court can definitely act upon the
same. But at the same time, if in the course of scrutinising the
evidence, the Court finds the evidence of the police officers as
unreliable and untrustworthy, the Court may disbelieve the same.
In view of the aforesaid settled legal position, it is to be examined
as to whether the search, recovery and seizure of the charas, in
.
question, is doubtful as contended by the learned counsel for the
appellant.
14. We have carefully perused the statements of police
witnesses, i.e. PW-8 C. Budhi Singh and PW-9 HC Brij Bhushan
and found that there are material contradictions in their
statements. PW-8 C. Bhudhi Singh stated that they had laid naka
at Raison Bridge, whereas, PW-9 HC Brij Bhushan stated that
they had gone down at NH near Raison at about 8.05 p.m., and
they had not laid naka on NH at Raison Bridge. PW-8 C. Bhudhi
Singh stated that during naka only one vehicle came, which was
stopped and checked in which two persons including driver were
sitting and they were appearing to be local whereas, PW-9 HC Brij
Bhushan stated that no vehicle came on the spot when the naka
was laid. PW-8, C. Budhi Singh deposed that they were standing
on the road at Raison Bridge and remained on the spot for about
one hour, whereas, PW-9 HC Brij Bhushan deposed that they
remained on the spot for about 3½ hours. PW-8 C. Budhi Singh
stated that photography was done at the spot by the Investigating
Officer and the entire proceedings were conducted on Raison
Bridge, whereas, PW-9 HC Brij Bhushan deposed that no
photographs were clicked on the spot and the entire proceedings
.
were conducted on the spot by sitting on parapet.
15. Therefore, if the entire testimony of the aforesaid
prosecution witnesses is read in harmony, then it can be safely
concluded that the police party had neither gone to the spot, nor
laid any naka there. The accused was neither apprehended on the
spot nor any charas was recovered from him. The said conclusion
can be arrived at for one more reason as the Investigating Officer
had not made any effort to join any independent witnesses from
the nearby locality despite the fact that some houses were
situated adjoining to the alleged place of occurrence and they
could have been easily associated. PW-8 C. Budhi Singh admitted
that the place of occurrence, i.e. Raison, is thickly populated and
the Investigating Officer also admitted in his cross-examination,
that there are 3-4 residential houses adjacent to the place of
occurrence. PW-8 C. Budhi Singh stated that Investigating Officer
had not sent any official to bring the independent witness and
PW-9 HC Brij Bhushan, the Investigating Officer, had also stated
that he had not deputed any official to bring the independent
witnesses from nearby locality or from the houses which are
adjacent to the alleged place of occurrence. This conduct of the
Investigating Officer has made the prosecution case doubtful and
.
unreliable. The non-joining of the independent witnesses
deliberately in spite of the availability gains significance in the
facts of the present case as there are major discrepancies in the
statement of officials witnesses. The Investigating Officer could
have joined independent witnesses from the nearby houses or
could have associated the occupants of the vehicles which
passed through the spot as alleged, even at some later stage, and
it would have proved the presence of the police party on spot.
However, there is total failure of the Investigating Officer to make
any effort to associate any independent witness. From the
evidence on record, it can be inferred that the police intentionally
did not associate any independent witness as the things did not
take place as projected by the prosecution.
16. The case of the prosecution is further surrounded with
suspicion with regard to sealing and re-sealing of the case
property as the link evidence is totally missing. As per docket
Ext.DA, the sample seals 'K' and 'T' were sent to SFSL, Junga,
whereas, the cloth parcel was sealed with six seals of seal
impression 'A' and resealed with three seals of seal impression
'H'. PW-6 HC Param Chand has specifically deposed that he kept
the case property in malkhana safely and after conducting the
.
proceedings under Section 52-A of the NDPS Act, the case
property was again kept by him in safe custody in the malkhana.
The prosecution has failed to explain as to why they had sent the
sample seals 'K' and 'T' alongwith case property to SFSL, Junga
as per docket Ext. DA, whereas, as per the prosecution case, the
seals, which were used, were 'A' and 'H'. PW-8 C. Budhi Singh
specifically admitted that he carried the sample seal impressions
'K' and 'T' alongwith the case property to SFSL Junga. Therefore,
in view of this discrepancy, it was incumbent upon the prosecution
to have produced the original seal in the Court, especially when
the prosecution case was based only on the testimonies of the
police witnesses. However, PW-8 C.Budhi Singh had not
produced the seal in the Court and had deposed that he had not
brought the seal as the same had been misplaced.
17. Moreover, the bulk charas allegedly seized from the
accused was never produced before the trial Court as a material
exhibit. In Ashok alias Dangra Jaiswal Versus State of Madhya
Pradesh, (2011) 5 Supreme Court Cases 123, the Hon'ble
Supreme Court in para-12 has held as under:-
"12. Last but not the least, the alleged narcotic
powder seized from the possession of the accused,
including the appellant was never produced before
.
the trial court as a material exhibit and once again
there is no explanation for its non-production.
There is, thus, no evidence to connect the forensic
report with the substance that was seized from the
possession of the appellant or the other accused."
18. In Jitendra and another Versus State of M.P.,
(2004) 10 Supreme Court Cases 562, it has been held by the
Hon'ble Supreme in para 6 as under:-
"6. In our view, the view taken by the High Court
is unsustainable. In the trial it was necessary for
the prosecution to establish by cogent evidence
that the alleged quantities of charas and ganja
were seized from the possession of the accused.
The best evidence would have been the seized
materials which ought to have been produced
during the trial and marked as material objects.
There is no explanation for this failure to produce
them. Mere oral evidence as to their features and
production of panchanama does not discharge the
heavy burden which lies on the prosecution,
particularly where the offence is punishable with a
stringent sentence as under the NDPS Act..........."
19. In the instant case, as already observed, the bulk
charas allegedly seized from the accused was never produced
.
before the trial Court as a material exhibit. During the examination
of Investigating Officer i.e. PW-9 HC Brij Bhushan, only two
sealed sample parcels Ext. P-1 and Ext. P-2 were produced, vide
Rapat Ext. PW9/F, however, the bulk charas has not been
produced. PW-6 HC Param Chand has specifically deposed that
he kept the case property in malkhana safely and after conducting
the proceedings under Section 52-A of the NDPS Act, the case
property was again kept by him in safe custody in malkhana. It is
not the case of prosecution that they have destroyed the case
property as in his cross-examination, PW-6 HC Param Chand
specifically admitted that the case property was still lying in the
malkhana. However, there is no explanation by the prosecution for
the non-production of the bulk charas as a material exhibit.
20. As per the prosecution, on 02.01.2017, the case
property was produced before the Court of learned Chief Judicial
Magistrate, Kullu for conducting proceedings under Section 52A of
the NDPS Act and the learned Chief Judicial Magistrate issued
certificate Ext.PW6/B. In the certificate Ext.PW6/B, the
correctness of the sample parcels allegedly taken at the time of
proceedings under Section 52 of the NDPS Act, had not been
certified by the learned Chief Judicial Magistrate as per the
.
provisions of Section 52A(2)(c). The prosecution has not
produced the alleged inventory prepared at the time of the
proceedings under Section 52A of the NDPS Act before the trial
Court, as such, the list of samples allegedly drawn under sub-
Section (2), the correctness of which are not at all certified by the
Magistrate, cannot be taken as the primary evidence in respect of
the alleged offence. There is, thus, no evidence to connect the
forensic report with the substance that was allegedly seized from
the accused.
21. Hence, in view of our aforesaid discussion, the
prosecution has failed to prove its case against the accused
beyond reasonable doubt. The testimony of prosecution witnesses
is infirm, contradictory and doubtful, which does not inspire
confidence. The trial Court has not taken note of the material
contradictions and discrepancies in the testimony of the
prosecution witnesses and, therefore, there has been a total
wrong appreciation of evidence on record, which has resulted in
miscarriage of justice.
22. Accordingly, the appeal is allowed and the impugned
judgment of conviction and order of sentence dated 09.10.2018,
.
passed by learned Special Judge-II (Additional Sessions Judge),
Kullu, District Kullu, H.P. in Sessions Trial No.32 of 2017, are set
aside. Appellant is acquitted of the charge framed against him
under Section 20 of the NDPS Act and he be set at liberty, if not
required in any other case. Office is directed to issue release
warrant forthwith.r
23. In view of the provisions of Section 437-A Code of
Criminal Procedure, 1973, appellant is directed to furnish a
personal bond in the sum of Rs.50,000/- with one surety in the like
amount, before the Registrar (Judicial) of this Court, which shall
be effective for a period of six months, with stipulation that in the
event of Special Leave Petition being filed against this judgment
or on grant of leave, the appellant aforesaid, on receipt of notice
thereof, shall appear before the Supreme Court.
( Sabina )
Judge
( Sushil Kukreja )
October 21, 2022 Judge
(VH)
