Date Of Decision: 6.11.2023 vs Bhupinder Singh & Others
2023 Latest Caselaw 17556 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Appeal No. 296 of 2011

.

Reserved on: 1.11.2023

Date of decision: 6.11.2023.

    State of H.P.                                                ...Appellant.





                                        Versus
    Bhupinder Singh & others                                                ...Respondents
    Coram:

The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Satyen Vaidya, Judge.

Whether approved for reporting?1 No.

For the appellant : Mr. Navlesh Verma, Additional

Advocate General.

For the respondents : Mr. Piyush Verma, Advocate.

Satyen Vaidya, Judge:

By way of instant appeal, State of Himachal

Pradesh has assailed the judgment dated 20.5.2011,

passed by learned Special Judge (Fast Track Court) Solan,

in case No. 18 FTC/7 of 2010, whereby the respondents

have been acquitted of the charge under Section 20 of the

Narcotic Drugs & Psychotropic Substances Act (for short

the Act).

Whether reporters of Local Papers may be allowed to see the judgment?

2. The case as set up by the prosecution against

the respondents was that on 16.1.2010, police officials

.

namely SI Rattan Singh, ASI Krishan Chand, HHC Bihari

Lal and C. Gargesh Kumar of Police Station CID, Shimla

left Shimla for patrol duty at 8.05 A.M. in official vehicle

No.HP-07A-032, driven by driver Rajinder Singh. After

visiting the places like Nohradhar and Rajgarh etc. in

District Sirmour, on way back at about 5.30 P.M. the

police party stopped one vehicle (Mahindra Bolero) bearing

registration No.HP-01A-1901 for checking near place

'Nauni' in District Solan. All the four accused were found

occupying the vehicle. SI Rattan Singh carried checking of

the vehicle and found one polythene bag lying in between

the occupants of front bench of the vehicle and another

backpack lying in between the occupants on the rear seat

of the vehicle. The polythene bag as well as the backpack

found in the vehicle contained charas. The total quantity

of charas recovered from both the bags was weighed and

found 9 kg 700 grams.

3. Identification memo in respect of recovered

substance Ext. PW-1/A was prepared. The recovered

charas was placed back in the backpack along with the

packet found in between of occupants of front bench of the

.

vehicle. The backpack along with articles therein was

placed in a white cloth parcel and sealed with six seals

having letter "P" inscribed on it. Facsimile of sample seal

was obtained and preserved as Ext. PW-1/B. Seizure

memo of the contraband as also the documents of the

vehicle Ext. PW-1/C was prepared. Columns 1 to 8 of NCB

Form Ext. PW-6/B were filled on spot. 'Rukka' Ext. PW-

7/A was prepared and was sent along with other seized

articles and NCB Form to Police Station, CID Shimla

through PW-5 Constable Gargesh Kumar. FIR Ext. PW-

6/A was registered. Resealing procedure was carried by

PW-6 Inspector Lal Singh. Resealing certificate Ext. PW-

6/C was prepared. The contraband along with other seized

articles, NCB Form and sample seals were deposited with

MHC Prakash Chand (PW-7), who made the relevant

entries in Malkhana Register Ext. PW-7/B.

4. On 18.1.2010, PW-9 SI Rattan Singh prepared

Special Report Ext. PW-3/A and sent the same to

Superintendent of Police (CID) Shimla through PW-4

Constable Govind Singh which was received in the office of

Superintendent of Police (CID) Shimla by PW-3 Constable

.

Naginder Kumar and presented before Superintendent of

Police (CID) Shimla on the same date.

5. On 18.1.2010, MHC Prakash Chand PW-7

dispatched the contraband along with related material to

SFSL, Junga through PW-8 HC Devinder Kumar. After

chemical examination, the SFSL Junga prepared its report

Ext. PW-9/L and the sample examined was found to be

that of Charas (Cannabis).

6. Site map Ext. PW-9/B was prepared. All the

respondents were arrested vide arrest memos Ext. PW-9/C

to PW-9/F.

7. On completion of investigation report under

Section 173 Cr.P.C. was presented. All the respondents

were charged for offence under Section 20 of the Act. They

pleaded not guilty and claimed trial. Prosecution examined

total 9 witnesses besides proving on record various

documents. Respondents were examined under Section

313 Cr.P.C. They also examined one witness in defence

and proved documents Ext. DW-1/A and DW-1/B i.e.

rough site map of the area and a certificate showing

distance from D.C. Office Chowk Solan to place known as

.

Dharja. Learned Special Judge acquitted all the

respondents of the charges framed against them, hence

this appeal.

8. We have heard learned counsel for the parties

and have also gone through the record carefully.

9. Mr. Navlesh Verma learned Additional Advocate

General contended that the prosecution had been able to

prove the charges against the respondents beyond all

reasonable doubts and their acquittal by the learned

Special Judge was wholly unwarranted and unjustified. It

was submitted that the learned Special Judge has gravely

erred in holding that there were contradictions in the

statements of prosecution witnesses, whereas none could

be pointed out. He urged that benefit of non examination of

independent witnesses has wrongly been granted to the

respondents. Since, it was a case of chance recovery, there

was no requirement to examine independent witnesses.

Challenge has also been made to the impugned judgment

on the ground that the learned Special Judge has given

precedence to minor embellishments in the prosecution

case which were not material.

.

10. After going through the statements of

prosecution witnesses and the documents placed on

record, we are of considered view that the judgment of

acquittal passed by the learned Special Judge needs no

interference for the reasons detailed hereinafter.

11. It is well settled that the cases attracting

stringent procedures and severe punishment require more

circumspection and scrupulousness in examination of

prosecution evidence in order to check and test its

genuineness and veracity. In Hanif Khan @ Annu Khan

vs. Central Bureau of Narcotics, 2020 (16) SCC 709,

the Hon'ble Supreme has observed as under:-

"8. We have considered the submissions on behalf of

the parties. The prosecution under the NDPS Act carries a reverse burden of proof with a culpable mental state of the accused. He is presumed to be guilty consequent to recovery of contraband from him, and it is for the accused to establish his innocence unlike the normal rule of criminal jurisprudence that an accused is presumed to be innocent unless proved guilty. But that does not absolve the prosecution from establishing a prima facie case only

whereafter the burden shifts to the accused. In Noor Aga v. State of Punjab, it was observed as follows:

58. Sections 35 and 54 of the Act, no doubt, raise

.

presumptions with regard to the culpable mental

state on the part of the accused as also place the burden of proof in this behalf on the accused; but a

bare perusal of the said provision would clearly show that presumption would operate in the trial of the accused only in the event the circumstances

contained therein are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied, would the legal burden shift.

r Even then, the standard of proof required for the

accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of the accused on

the prosecution is "beyond all reasonable doubt" but it is "preponderance of probability" on the accused. If the prosecution fails to prove the

foundational facts so as to attract the rigours of

Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established."

9. Because there is a reverse burden of proof, the prosecution shall be put to a stricter test for compliance with statutory provisions. If at any stage, the accused is able to create a reasonable doubt, as a part of his defence, to rebut the presumption of his guilt, the benefit will naturally have to go to him."

12. It is equally well settled that mere absence or

non association of independent witness is not fatal to the

.

prosecution case. However, in such circumstances, it is

called upon the courts to assess the versions of available

prosecution witnesses more minutely in order to negate the

possibility of any fuel play or mischief. In Raveen Kumar

vs. State of Himachal Pradesh 2020 (12) Scale 138, it

has been held as under:-

"19. It would be gainsaid that lack of independent

witnesses are not fatal to the prosecution case. 6 However, such omissions cast an added duty on Courts to adopt a greater degree of care while scrutinising the

testimonies of the police officers, which if found reliable can form the basis of a successful conviction".

13. Reverting to the facts of the case, prosecution

has examined PW-1 ASI Krishan Chand, PW-2 HHC Bihari

Lal, PW-5 Constable Gargesh Kumar and PW-9 SI Rattan

Singh as spot witnesses. Admittedly no independent

witness was associated by the police. As per prosecution

story, the respondents were apprehended at about 5.30

P.M. at some place between 'Nauni' and 'Giripul' in District

Solan. Though, the place where recovery of contraband

was allegedly effected is shown to be a secluded place but

undeniably the alleged spot of recovery is on Solan-

.

Rajgarh State Highway, which is a busy road with regular

traffic plying thereon. It also cannot be ignored that the

time of alleged recovery was not such when the police

could not have been able to secure independent witness.

Admittedly, the police party had been on patrol duty to

detect cases of violation of Excise Act and NDPS Act, as is

evident from GD Entry 7A Ext. PW-9/K. None of the spot

witnesses except PW-9 SI Rattan Singh had stated that any

effort was made to associate independent witness. PW-9 SI

Rattan Singh when confronted in cross-examination had

stated that he had made efforts to associate independent

witness but there was no residential house nearby. He had

made search of independent witness only for 4-5 minutes.

As noticed above, such statement of PW-9 has not been

supported or corroborated by any other spot witnesses.

14. It has come in evidence that in between 'Nauni'

and 'Giripul', there are other villages having few shops

each. Even 'Nauni' and 'Giripul' were not far off from the

place of alleged recovery. Strangely, all the spot witnesses

tried to feign ignorance about the localities, villages or

towns near the place of incidence. Their conduct gives rise

.

to suspicion, as they had travelled from the same road

earlier in the day and it was on their way back that the

recovery of contraband was allegedly made. In light of

above material on record, it cannot be said that the place

from where the recovery was alleged to have been effected

was totally secluded and hence the police was unable to

secure independent witnesses. Rather, there is no

convincing material to suggest that any effort was made to

associate any independent witness.

15. In the peculiar circumstances of the case, non

association of independent witness though cannot be said

to be fatal but definitely can be considered as a

circumstance sufficient to view the prosecution story with

some doubt.

16. Additionally, it can be seen that the records as

produced in evidence by the prosecution were not truthful.

Serious discrepancies in records have remained totally

unexplained. Rather, the prosecution witnesses have tried

to suppress the truth. Columns No. 1 to 8 of NCB Form

Ext. PW-6/B were allegedly filled by PW-9, SI Rattan Singh

on spot. Visibly, the entry against column No.5 of Ext. PW-

.

6/B was interpolated after using white fluid and said fact

was admitted by PW-9 without rendering any explanation.

As per PW-9, facsimile of seal "P" was taken on NCB form,

however, perusal of document reveals that apart from three

facsimiles of seal "P", another facsimile of letter "T" is

found inscribed on Ext. PW-6/B and again when PW-9 was

confronted with such fact, he had not been able to explain

the incongruity

17. 'Rukka' Ext. PW-7/A was purportedly prepared

by PW-9 on the spot at 7.00 P.M. and thereafter was sent

along with seized articles to Police Station at Shimla

through PW-5 Constable Gargesh Kumar. It is mentioned

in the 'Rukka' Ext. PW-7/A that the same was being sent

through fax besides by hand through PW-5. In the entire

prosecution evidence, no explanation has been submitted

whether the fax message was sent or not. In case the

'Rukka' was sent through fax, the FIR should have been

registered earlier on the basis of such fax message. The

above fact can be examined in light of another fact on the

record that the FIR was eventually registered at 10.30 P.M.

and the respondents had been arrested vide arrest memo

.

Ext. PW-9/C to PW-9/F at 9.15 P.M. which again give rise

to doubt as their could not have been formal arrest of all

the respondents without registration of the case.

18. As per PW-5, he had reached at Police Station

CID, Shimla along with Rukka and seized articles at about

10.30 P.M. on 16.1.2010. Rukka was handed over by him

to MHC PW-7, who had registered the FIR. The seized

articles were handed over to PW-6 Inspector Lal Singh, who

firstly carried the resealing procedure and thereafter

handed over the seized articles to PW-7 MHC Prakash

Chand for safe deposit in 'Malkhana'. PW-7 MHC Prakash

Chand also stated that the seized articles were deposited

with him by Inspector Lal Singh after resealing

proceedings. To the same effect has been the version of

PW-6 Inspector Lal Singh. However, the documents placed

on record belied their stands. Prosecution placed reliance

on a copy of relevant extract of 'Malkhana' Register Ext.

PW-7/B. PW-7 MHC Prakash Chand while appearing as

witness had brought the original Malkhana Register also.

On comparison of the contents of PW-7/B with original, it

transpired that both were different in material particulars

.

and even interpolations were carried in the original.

Learned Special Judge had got prepared a photocopy of the

original produced in the Court and allowed its placement

on record as Ext. PW-7/B-1. The comparison of both

reveals that in PW-7/B, PW-5 Constable Gargesh Kumar

was shown to have deposited the articles with MHC

whereas the document Ext. PW-7/B-1 reveals that certain

words were added later to show that the articles were

handed over by PW-6 Inspector Lal Singh. In Ext. PW-7/B,

the time of deposit was recorded as 11.00 P.M. whereas in

PW-7/B-1, time had been changed to 10.30 P.M. Further,

in column Nos. 5 to 8 on Ext. PW-7/B-1 there were entries

and affixation of stamps along with signatures of the police

officials whereas no such entries, stamps or signatures

were found in the corresponding columns of Ext. PW-7/B.

PW-7 MHC Prakash Chand admitted in his cross-

examination that there were additions and interpolations

in the original Malkhana Register. None of the police

officials including PW-7 had rendered any explanation for

such material discrepancies in the record.

.

19. The investigating officer PW-9 stated that he had

obtained Ext. PW-7/B from MHC before filing of challan,

which fact was also corroborated by MHC PW-7. It being

so, the interpolations and changes made in official records

that too related with criminal investigation for a serious

offence needs to be viewed seriously and with suspicion.

20. The fact that all the spot witnesses have feigned

ignorance about the exact spot position and its vicinity also

gives rise to suspicion in prosecution story. PW-1 had

admitted that the sun had not set at the time when the

recovery was effected. In such circumstances, the spot

witnesses could not be unaware about surrounding of the

area, especially when the place of alleged recovery was on a

busy state highway. The State University of Horticulture

and Forestry is situated at 'Nauni'. The area in question is

otherwise well connected and inhabited as suggested by

documents DW-1/A and DW-1/B.

21. When the sealed parcel containing contraband

was opened in the Court, two extra packets/ envelopes

were found inside the sealed backpack. These articles

nowhere found mention during the entire investigation.

.

Thus, it again remained unexplained as to how the

additional articles could found their way into a sealed

parcel containing contraband seized by the police.

22. Another fact that cannot be ignored is the

unexplained entries against columns No. 8 and 9 in NCB

Form Ext. PW-6/B.

r PW-6 Inspector Lal Singh disowned

said entries and had tried to explain that those were made

by the MHC whereas PW-7 MHC Prakash Chand nowhere

stated that such entries were incorporated by him. In

NCB form, Ext. PW-6/B as also in resealing certificate Ext.

PW-6/C, the time of deposit of seized articles with MHC

has been mentioned as 11.15 P.M. which again contradicts

the already discrepant entries in Ext. PW-7/B or PW-7/B-1

wherein the time of deposit was 10.30 PM or as changed to

11 PM.

23. In aforesaid backgrounds, the prosecution

cannot be said to have discharged the heavy burden

carried by it to prove the charges against the respondents

beyond all reasonable doubts. The various facts as noticed

above are sufficient to create serious doubt in the

prosecution case and thus, the respondents are entitled to

.

every benefit.

24. In result, the appeal fails and the same is

accordingly dismissed. Pending applications, if any, also

stand disposed of. Record be sent back forthwith.

                     r       to     (Tarlok Singh Chauhan)
                                           Judge

                                        (Satyen Vaidya)
    6th November, 2023                       Judge
          (kck)