Tosham Kumar vs State Of Himachal Pradesh
2023 Latest Caselaw 13062 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

Cr. A. No. 371 of 2019 a/w Cr. A. No. 486 of 2019

.

                          Reserved on: 01.09.2023





                          Date of decision: 06.09.2023


    Cr. A. No. 371 of 2019





    Tosham Kumar                                       ...Appellant

                          Versus

    State of Himachal Pradesh                          ...Respondent

    Cr. A. No. 486 of 2019
    Rahul Deshwal r       Versus
                                to                     ...Appellant

    State of Himachal Pradesh                          ...Respondent

    Coram

The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Ranjan Sharma, Judge.

Whether approved for reporting? No.

For the Appellant(s) : Mr. N. S. Chandel, Sr. Advocate with Mr. Pranav Sharma, Advocate, for the

appellant in Cr. Appeal No. 371 of 2019.

Mr. Manoj Pathak, Adocate, for the appellant in Cr. Appeal No. 486 of 2019.

For the Respondent: Mr. I. N. Mehta, Sr. Addl. A.Gs. with Ms. Sharmila Patial, Addl. A.G., Mr. J. S.

Guleria, Dy. A.G. and Mr. Rajat Chauhan, Law Officer.

Tarlok Singh Chauhan, Judge.

Since both these appeals arise out of a common

judgment of conviction and sentence passed by the learned

Special Judge(1) Mandi, District Mandi, they were taken up

.

together for hearing and are being disposed of by a common

judgment.

2. The appellants, after trial, have been convicted and

sentenced to undergo rigorous imprisonment for a period of

ten years and to pay a fine of Rs. 1,00,000/- each for the

offence punishable under Section 20 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (for short 'ND&PS Act') and

in default of payment of fine, to further undergo simple

imprisonment for a period of one year each, and aggrieved

thereby have filed the instant appeals.

3. Case of the prosecution, in a brief, is that on

19.01.2016, HC Tek Chand (PW11), C. Kamal Kishore (PW2)

HHG Maan Singh and HHG Vijay Sen (PW3) were present at

A.P.M.C. barrier Pungh and had laid a Nakka in connection with

routine patrolling and traffic checking.

4. At about 5:45 p.m., one motorcycle bearing

registration No. HP-34B-7004 came there from Mandi side. The

motorcycle was signalled to stop. After stopping, the pillion

rider fled away from the spot, who was apprehended at a

distance of about 500 meters. He was then brought to the

place, where nakka had been laid by the police. Both the

persons got perplexed, due to this, I.O. got suspicion of having

some illegal article in their possession. PW-11 HC Tek Chand

directed PW-2 C. Kamal Kishore to bring independent

.

witnesses to the spot as he intended to conduct the search of

the motorcycle. HC Kamal Kishore (PW2) returned after some

time alongwith one independent witness of the locality namely

Aishwarya Singh (PW1). Thereafter, I.O. associated C. Kamal

Kishore (PW2) and Aishawrya Singh (PW1) as witnesses and

enquired the details of both the persons. The rider disclosed

his name as Tosham Kumar and the pillion rider disclosed his

name as Rahul Deshwal, who was having a black coloured bag

Ex.P-2 with him, upon which the words "APPOLO" were

inscribed on both sides.

5. During the search of the bag Ex.P-2, one payajama

Ex.P-6, one kurta Ex.P-7 and another white coloured carry bag

Ex.P-3, upon which "HIMACHAL GIFT CORNER MANU MARKET

MANALI HP" was inscribed, were found. The white coloured

carry bag was opened and upon checking the same, black

coloured substance in the shape of balls and pan cakes were

found, out of which some substance was wrapped in

polythene wrappers Ex.P-5 and some of it were lying

unwrapped. This black coloured substance was found to be

cannabis, on the basis of experience. The said bag was tied

with a knot. On opening the knot of the bag Ex.P-2, another

light green coloured carry bag Ex.P-3 was found. Upon

opening the said bag, black coloured substance in the shape

of balls and sticks was found, which was wrapped with

.

transparent polythene Ex.P-4. The recovered substance was

found to be cannabis (Ex.P-5) on the basis of experience. The

recovered cannabis Ex.P-4 was weighed with the help of

electronic weighing scale and the same was found to be 1

Kg.250 grams. Thereafter, the recovered cannabis was re-

packed in the same manner, in white coloured carry bag and

the payajama and kurta were also put in the black coloured

bag and the bag was then put in a cloth parcel and the parcel

was sealed with 8 impressions of seal "M" and relevant

columns of NCB forms Ex.PW7/C were filled in triplicate by the

1.O. (PW11). Sample of seal "M" Ex.PW1/E was taken on

separate pieces of cloth. Seal "M", after its use was handed

over to witness Aishwarya Singh (PW1). The cloth parcel Ex.P-

1 alongwith NCB forms, motorcycle No. HP-34B-7004 and

sample of seal were taken into possession vide seizure memo

Ex.PW1/A and one copy of seizure memo was handed over to

the accused persons free of costs. Thereafter, I.O. scribed

rukka Ex.PW11/A and sent the same to SHO P.S. Sundernagar

through C. Kamal Kishore, on the basis of which, FIR EX.PW9/A

was registered.

6. During investigation, I.O. prepared the spot map

Ex.PW11/B and recorded the statements of the witnesses as

per their version. The accused persons were associated in the

.

investigation and were arrested vide arrest memo Ex.PW1/B.

Thereafter, 1.O. produced the case property alongwith

relevant documents before SHO PS Sundernagar. Vijay Kumar

(PW9), who resealed the parcel with 6 seals of seal "V". SHO

PS Sundernagar also filled in the relevant columns of the NCB

r to form and prepared the sample of seal "V" Ex.PW9/B and

handed over the case property to MHC for depositing the

same in Malkhana, after preparing resealing certificate

Ex.PW9/C. Special report of the case Ex.PW4/A was also sent

to the SDPO Sundernagar. The parcel sent for forensic analysis

to FSL Junga and report Ex.PX thereof was produced.

7. On completion of the investigation, S.H.O. Police

Station, Sundernagar prepared the challan and presented the

same in the court against the accused persons for the

commission of offences punishable under Sections 20 and 29

of ND & PS Act. Copies of challan were supplied to the accused

persons.

8. On hearing the parties, charges were framed

against the accused persons for the aforesaid offence, to

which, they pleaded not guilty and claimed to be tried.

9. In order to prove its case 11 witnesses were

examined by the prosecution.

10. After closure the evidence of prosecution, the

.

accused persons were examined under Section 313 Cr.P.C.

However, no evidence in defence was led by the respondents.

11. It is vehemently argued by Shri N. S. Chandel,

Senior Advocate duly assisted by Mr. Pranav Sharma, learned

Advocate for the appellant in Cr.A. No. 371 of 2019 and Mr.

r to Manoj Pathak, learned Advocate, for the appellant in Cr. A. No.

486 of 2019, that there are number of circumstances

indicating that the whole prosecution story is fabricated and

the evidence of the prosecution cannot be relied upon at all.

12. Shri I. N. Mehta, learned Senior Additional Advocate

General, on the other side, argued that the appellants have

rightly been convicted by the learned Special Judge on legally

admissible evidence and such finding warrants no

interference.

13. We have heard the learned counsel for the

appellants and learned Senior Additional Advocate General for

the State and have gone through the record of the case.

14. As would be noticed, case of the prosecution is

that on 19.01.2016, HC Tek Chand (PW11) alongwith C. Kamal

Kishore (PW2), HHG Maan Singh and HHG Vijay Sen (PW3)

were on traffic checking at Pungh near Krishi Upaj Centre,

when at about 5:45 p.m., motorcycle HP-34B-7004 coming

from Mandi side was signalled to stop by the Investigating

Officer (PW11). Respondent Tosham was the rider and the

.

other respondent, namely, Rahul Deshwal, was the pillion

rider. When Tosham stopped the motorcycle, respondent Rahul

Deshwal claimed to have fled away and apprehended by the

raiding party at a distance of 500 meters away from the spot.

It is further case of the prosecution that the bag so carried by

respondent Rahul Deshwal was checked and 1.250 grams of

charas was recovered. Aishwarya Singh (PW1) is claimed to be

an independent witness associated by the raiding party.

15. As per the further case of the prosecution, the

respondents were apprehended at 5:45 p.m. and the

photographs were clicked by Vijay Sen (PW3). According to

Investigating Officer (PW11), the photographs were clicked at

6:45 p.m. However, now in case the photographs are perused,

the same clearly not only indicate but reveal that these have

been clicked in broad day light where the entire background is

visible. It cannot be disputed that at 6:45 p.m., it would be

absolutely pitch dark, as the sun would have set by 5:45 p.m.

or else say 6:00 p.m. Clearly, in such circumstances, the entire

prosecution case appears to be false and fabricated.

16. If this was not enough, it would be noticed that as

per the statement of Vijay Sen (PW3), the photographs were

clicked from the camera of HC Tek Chand (PW11),

Investigating Officer, whereas PW11 in his deposition stated

that the photographs were clicked by HHG Vijay Sen (PW3)

.

from his personal mobile.

17. Further, as per Ext.PW6/A, the raiding party had

departed from the Police Station at 10:17 A.M. and this is so

stated even by the Investigating Officer (PW11), however, the

case of the prosecution is completely falsified by the

statement of C. Kamal Kishore, who in his cross examination

stated that the police party left the police station at 5:00 p.m.

and reached the place of nakka at 5:45 p.m.

18. Apart from the above, as per C. Kamal Kishore

(PW2), respondent Rahul Deshwal was chased by the

Investigating Officer and HHG Maan Singh, whereas as per

Vijay Sen (PW3), the pillion rider was chased by Investigating

Officer, HHG Maan Singh and C. Kamal Kishore. Whereas, the

Investigating Officer (PW11) in his cross-examination, stated

that respondent Rahul Deshwal was apprehended by HHG

Maan Singh and C. Kamal Kishore.

19. Further, as per C. Kamal Kishore (PW2),

Investigating Officer (PW11) conducted the proceedings while

sitting on the chair, which was arranged from the barrier. He

further stated that employees of Krishi Upaj Centre/barrier had

refused to become witnesses. Whereas PW3 Vijay Sen stated

that "Investigating Officer asked the people present in APMC

to be witnesses but they refused".

20. In this background, now, in case the statement of

.

Investigating Officer (PW11) is perused, he stated that "I have

not made effort to associate the employees of Krishi Upaj

Kender, as independent witness". Apart from this, the

Investigating Officer, further contradicts the version of PW2 C.

Kamal Kishore regarding the Investigating Officer having

conducted the proceedings while sitting on the chair, when he

states that he conducted the entire investigation by standing

by the side of the road.

21. Further, as per the Investigating Officer, when he

apprehended respondent Rahul Deshwal, he suspected that he

may be carrying a "Bomb" and as such he deputed C. Kamal

Kishore to bring an independent witness. Now, in case, the

Investigating Officer had suspected the respondent Rahul

Deshwal to be carrying a bomb, his first reaction would have

been to keep himself at a distance and call for the bomb

squad rather than searching for an independent witness or

thereafter search the bag of respondent Rahul Deshwal.

22. Lastly and more importantly, the prosecution

claimed to have associated an independent witness, however,

this witness when examined has not supported the case of the

prosecution, making the entire case more suspicious. As per

the said witness, the recovery was not effected in his presence

because by the time he reached at the spot, the bag was

already opened. His version clearly creates a gap in the story

.

of the prosecution.

23. In Sanjit Kumar alias Munna Kumar Singh vs.

State of Chattisgarh, AIR 2022 SC 4051, the Hon'ble

Supreme Court held that if an independent witness comes up

with the story, which creates a gaping hole in the prosecution

24.

r to theory about the very search and seizure, then the case of the

prosecution should collapse like pack of cards.

All these factors cumulatively raise suspicion that

the whole case of the prosecution was false, concocted and

fabricated or else the prosecution would not have converted

"day" into "night" and vice-versa. In any case, the prosecution

has miserably failed to prove its case beyond reasonable

doubt. The evidence led by the prosecution is not at all

credible or trustworthy.

25. In fact, there was no requirement of the police to

have fabricated the story in a manner they have done, in

case, the version put-forth by them was true and trustworthy.

26. In view of the aforesaid discussion, the judgment

of conviction and sentence, as recorded by the learned Special

Judge, being not legally sustainable is set aside. Accordingly,

the appellants are ordered to be released immediately, if not

required in any other case(s).

27. The Registry is directed to prepare release warrant

.

of the appellant. In view of the provisions of Section 437A

Cr.P.C., each of the appellants is directed to furnish personal

bonds in the sum of Rs.50,000/- with one surety of the like

amount to the satisfaction of the learned Registrar (Judicial) of

this Court, which shall be effective for a period of six months

with a stipulation that in an event of an SLP being filed against

this judgment or on grant of the leave, the appellants on

receipt of notice thereof shall appear before the Hon'ble

Supreme Court.

28. The instant appeal is allowed in the aforesaid

terms. Pending application, if any, also stands disposed of.

                                            (Tarlok Singh Chauhan)





                                                    Judge


                                              (Ranjan Sharma)





    06.09.2023                                      Judge
          (sanjeev)