Himachal Pradesh High Court

Date Of Decision: 5Th November vs State Of Hp on 5 November, 2024

Author: Vivek Singh Thakur

Bench: Vivek Singh Thakur, Virender Singh

                                              1                         ( 2024:HHC:10659 )


                                                            ( 2024:HHC:10659 )


              IN THE HIGH COURT OF HIMACHAL PRADESH
                              SHIMLA

                           Cr. Appeal No 200 of 2022
                           Date of Decision: 5th November, 2024.

Roshan Lal                                                   ...Appellant

                                   Versus


State of HP                                              .....Respondent.
Coram:

The Hon'ble Mr. Justice Vivek Singh Thakur, Judge. The Hon'ble Mr.Justice Virender Singh, Judge. Whether approved for reporting?1

For the Appellant: Mr. G.R. Palsara, Advocate.

For the Respondent: Mr. Manoj Chauhan, Additional Advocate General.

Vivek Singh Thakur, J

Present appeal has been preferred by the convict

Roshan Lal against judgment/order dated 13th June, 2022,

passed by the Special Judge, Sarkaghat, District Mandi,

Camp at Joginder Nagar in Sessions Trial No. 129/21/17,

titled State of HP vs. Roshan Lal and another whereby

appellant/convict for recovery of 1.8 Kg. charas from the car

being driven by him, has been convicted and sentenced to

undergo rigorous imprisonment for 10 years and to pay fine

in the sum of Rs.1 lacs under Section 20 of Narcotics Drugs

1 Whether reporters of the local papers may be allowed to see the judgment?

2 ( 2024:HHC:10659 )

and Psychotropic Substances Act (in short 'NDPS Act') and

in default of payment of fine, to further undergo simple

imprisonment for 6 months, whereas, co-accused Gurdass

Chand has been acquitted.

2 Under instructions, it has been informed by

learned Additional Advocate General that no appeal has

been preferred by the State against acquittal of Gurdass

Chand.

3 Prosecution case is that on 21.12.2016 during

Naka laid by the police party at Sliding Point Harabag in

District Mandi on National Highway 154, consisting of SHO

Sanjeev Kumar, Police Station Joginder Nagar (PW13), ASI

Rajesh Kumar (not examined), C. Vikram Singh (PW10), C.

Sunny Kant (PW7) and C. Dharamveer (not examined)

accompanied by driver of official vehicle HHG Praveen

Kumar (not examined), at about 7.15 AM, a car bearing

Registration No. HP-01M-1792, being driven by appellant

Roshan Lal, was stopped by the Police Party and during

checking in presence of independent witness, for suspicion

of transportation of stolen property or any other material,

1.8 Kg. charas was found kept under the left front seat of

the car wherein, except driver, no other one was present.

3 ( 2024:HHC:10659 )

4 The aforesaid allegedly recovered 1.8 Kg. charas

was taken in possession vide recovery memo Ext.PW1/A

after seizing and keeping the same in parcel by affixing

sample seal thereon in the presence of independent witness

PW1 Gaurav Kumar and other police officials. The memo

was signed by independent witness PW1 Gaurav Kumar and

PW10 C.Vikram Singh as well as Roshan Lal. The car, being

driven by appellant, was also taken in possession along with

its documents i.e. copy of RC Ext.R-1, Fitness Certificate

Ext.R-2, Sale Agreement Ext.PW3/A executed between

Jagdish and Raj Kumar wife of Gurdass and Driving Licence

of Roshan Lal Ext.PW13/C and key vide memo Ext.PW1/B

which was also signed by aforesaid persons. SHO prepared

the Ruka Ext.PW13/D and handed over it to PW7 Sunny Kant

for registration of FIR at Police Station Joginder Nagar. Spot

map Ext.PW13/E was prepared, statements of witnesses

were recorded on the spot. Thereafter, appellant Roshan Lal

was arrested after registration of FIR and information of his

arrest was given to his wife.

5 Entire investigation was photographed by ASI

Rajesh Kumar through mobile of SHO. Photographs were

placed on record as Ext.PW13/F-1 to Ext.PW13/F-8. PW7

C.Sunny Kant came back to the spot along with FIR.

4 ( 2024:HHC:10659 )

Thereafter, his statement was recorded and FIR number was

filled in the documents at the relevant places. After that,

police party along with appellant-accused and his car came

to the Police Station. Car was brought to the Police Station

by HHG Praveen Kumar.

6 In the Police Station, search of appellant was

conducted under Sections 51 and 52 of NDPS Act and memo

Ext.PW8/A was prepared in this regard and during search,

one Micromax mobile was recovered from the appellant

wherefrom one Airtel SIM and one BSNL SIM were recovered

bearing Nos. 98166-13409 and 94189-39109. The memo

was signed by C.Sunny Kant, C. Vikrant Singh and appellant

Roshan Lal.

7 The contraband, in sealed parcel along with NCB

Form and sample seal, was handed over to Malkhana

Munshi of Police Station Joginder Nagar I.e. (PW5) HHC

Mohan Lal.

8 On 22.12.2016, application Ext.PW13/G was

moved before the Judicial Magistrate First Class, Joginder

Nagar under Section 52-A(2) of NDPS Act along with

Inventory Ext.PW13/H and case property after receiving

from Malkhana Munshi was produced before the Magistrate

and Magistrate passed order dated 22nd December, 2016 5 ( 2024:HHC:10659 )

Ext.PW13/H-1 and issued certificate Ext.PW13/H-2 under

section 52A(3) of NDPS Act. Thereafter, parcel sealed by the

Magistrate was handed over to SHO along with sample seal

Ext.PW13/H-3, which, in turn, were handed over to

Malkhana Munshi. The photographs of the proceedings

under Section 52-A were placed on record as Ext.PW13/H-4

to Ext.PW13/H-18.

9 On 22.12.2016, SHO prepared the special report

which was handed over to PW9 LC Anshu to deliver it to

SDPO Padhar. PW9 Anshu delivered the same to the Reader

of SDPO, PW8 Desh Raj, on the same day at 5.20 PM who

placed it before the SDPO and after seeing and endorsing

the same, SDPO handed over it to the Reader for entering in

the Special Report Register and special report along with

original was produced in the Court and copy of Report and

extract of Register were exhibited as Ext.PW8/A and

Ext.PW8/B.

10 During investigation, Call Details of SIMs

recovered from mobile of Roshan Lal were procured by

Investigating Officer for period from 1.12.2016 to

21.12.2016. From the Call Details, it transpired that on

21.12.2016, one call was made by appellant Roshan Lal

from his mobile and one call was received from mobile No. 6 ( 2024:HHC:10659 )

94594-26238. On investigation, that number was found in

the name of Gurdass, husband of Raj Kumari, who,

according to agreement Ext.PW3/A, was owner of vehicle.

After obtaining call details of Gurdass Chand and Customer

Identification Form, Gurdass was also arrested by invoking

provisions of Sections 27-A and 29 of NDPS Act.

11 Contraband recovered from the car, was sent to

State FSL Junga HP through PW4 C. Baldev Kumar on

22.12.2016, who handed over it in Laboratory on

23.12.2016. Vide report Ext.PW13/J, received from FSL, it

was revealed that exhibit was extracted from cannabis and

sample of charas.

12 To prove the call details and users thereof, PW2

Hanumant Rai Nodle Officer BSNL has been examined.

13 Raj Kumari,wife of co-accused Gurdass Chand,

owner of car in reference, has also been examined as PW3.

PW5 HHC Mohan Lal Munshi Malkhana Police Station

Joginder Nagar has also been examined. He has deposed

with respect to deposits of sealed parcels along with NCB

Form and sample seal in the Malkhana by SHO Sanjeev

Kumar on 21.12.2016 and handing over the same to SHO

Sanjeev Kumar on 22.12.2016 for producing the same

before the Magistrate and re-deposit thereof by SHO in the 7 ( 2024:HHC:10659 )

evening of 22.12.2016 as well as thereafter handing over

the contraband to PW4 Baldev Singh for chemical analysis

from FSL Junga. PW12 Pushpender is Criminal Ahalmad of

the Court of learned Additional Sessions Judge-II, Mandi,

who has proved that vehicle was released in favour of Raj

Kumari. PW11 HC Kamlesh Kumar has proved the issuance

of CCTNS Certificate of FIR No. 209/16 and GD entry No.4

dated 21.12.2016.

14 PW1 Gaurav is independent witness. PW6 HHC

Suresh Kumar was MC at Police Station Joginder Nagar who

has recorded Daily Diary No.4 Ext.PW6/A in the Computer of

the Police Station.

15 Ext.PW6/A is the departure report of Police Party

indicating that it was recorded on 21.12.2016 at 5.30 AM.

PW7 C. Sunny Kant is the spot witness who had brought

Ruka to the Police Station for registration of FIR and

thereafter, came back to the spot. PW10 C. Vikram Singh is

also a spot official witness who has witnessed the entire

process. PW13 Dy.SP Sanjeev Kumar is the Investigating

Officer.

16 Other members of police party namely ASI

Rajesh Kumar, C.Dharamveer Singh and HHG Praveen

Kumar have not been examined.

8 ( 2024:HHC:10659 )

17 PW1 Gaurav, who is an independent witness to

the alleged recovery has not supported the prosecution

case with deposition in examination-in-chief that he did not

recognize accused Roshan Lal in the Court and police did

not recover any incriminating article from the possession of

accused Roshan Lal in his presence. Thereafter, for resiling

from his earlier version, recorded by police under Section

161 Cr.P.C., he was declared hostile and permitted to be

cross examined by learned Public Prosecutor on the request

made on behalf of the State.

18 In cross examination, PW1 Gaurav Kumar has

admitted his presence in the photographs along with police

and accused Roshan Lal and has also admitted his

signatures on the memos prepared and relied upon by

prosecution at the time of alleged recovery. He has also

admitted the recording of his statement but the crux of his

statement is that on 21.12.2016, the vehicle being driven

by this witness was stopped by police near Sliding Point

Harabagh at about 6 AM and it was dark at that time but he

did not see the charas in Taxi No. HP-01M-1792, and Police

took out a white coloured bag from their vehicle and put the

same in taxi in his presence and took the photographs. He

stayed there for 10-12 minutes and was directed by police 9 ( 2024:HHC:10659 )

to come to Police Station Joginder Nagar, and Taxi and

appellant Roshan Lal were also taken by police officials to

the Police Station. He has further admitted that, as

appearing from photographs, a house and shop belonging

to Geeta Ram were also existing on the spot where Geeta

Ram along with children and wife was residing. According to

him, on reaching the Police Station at 7 AM, his signatures

were taken by the police in the compound of Police Station

by saying that he had been cited as witness only and it was

only the formality, and he left the Police Station at 8 AM.

According to him, in his presence only photographs were

snapped and nothing else had occurred in his presence.

19 PW3 Raj Kumari has admitted the ownership of

vehicle with deposition that vehicle was being managed and

driven by her husband Gurdass, but at the time of alleged

recovery of contraband, her husband had suffered fracture

in his arm and was not able to drive the car and therefore,

he had given the car to appellant Roshan Lal for driving and

rest of her statement recorded under Section 161 Cr.P.C.

has been denied by her. Whereupon, she, for resiling from

previous statement, was declared hostile and permitted to

be cross examined by the prosecution, as requested by

learned Public Prosecutor. Nothing incriminating substance 10 ( 2024:HHC:10659 )

could be elucidated from her cross examination against

appellant Roshan Lal or her husband.

20 In absence of support of independent witness,

the veracity of prosecution case is to be assessed and

evaluated on the basis of statement of official/police

witness(s).

21 It is settled law that evidence of officials/police

witnesses cannot be discarded only for the reason that they

are police/official witnesses and thus are interested in

success of criminal trial. Conviction can be based only upon

the statements of official witnesses, in case their

statements are found trustworthy, cogent, reliable and

convincing proving the prosecution case beyond reasonable

doubt.

22 Though police/official witnesses are on the same

footing, like other witnesses, however, it is also settled law

that in absence of independent witnesses or absence of

support of independent witnesses, the deposition of police

official witnesses is required to be assessed with more care

and caution and the discrepancies, improvements and

contradictions etc., which may be considered minor or

ignorable in case of independent witnesses, may be fatal for

the prosecution case in the deposition of official witnesses, 11 ( 2024:HHC:10659 )

for the reason that they are well conversant with the facts

of the case, procedure of law, having experience in

appearing as official witnesses in various cases and also for

the reason that when independent witness associated by

police is not supporting the prosecution case, the veracity of

prosecution witnesses is to be evaluated with higher degree

of caution.

23 In the present case, out of 6 spot official

witnesses only 3 official witnesses namely PW7 C.Sunny

Kant, PW10 C.Vikram Singh and PW13 Dy.SP Sanjeev Kumar

(SHO) have been examined. In case their deposition is

found to be reliable, then only there shall be need to

consider other evidence including assessment and

evaluation of remaining official witnesses who have

performed their role in complying with various procedures

prescribed under law for completing the investigation and

preparing the challan. But in case version of spot official

witnesses examined in Court is not found trustworthy, then

there would be no need to discuss the remaining evidence.

24 No doubt, in cases of NDPS Act, there is reverse

onus upon the accused to prove his innocence but for

attracting such reverse onus, prosecution has to prove its

case, if not beyond reasonable doubt, but to the extent of 12 ( 2024:HHC:10659 )

preponderance of probability leading to prima-facie

conclusion that accused has committed the alleged offence.

25 In prosecution case, departure of the police party

has been claimed to be at 5.30 AM from the Police Station

as per GD Entry No. 004 (Ext.PW6/A).

26 PW7 C. Sunny Kant has deposed that SHO

Sanjeev Kumar had assigned the duty to the members of

the police party in the evening of 20.12.2016 for laying

Naka for patrolling and Nakabandi towards Harabag on

21.12.2016. According to him, they left the Police Station at

5.15 AM and reached at Harabag at 6.30 AM after covering

the distance of 4 Km and they checked the vehicles from

6.30 AM to 9 AM with further submissions that they checked

four vehicle at Harabag upto 7.30 AM and thereafter, they

did not check any vehicle with further explanation that SHO

was only checking documents of vehicle and documents of

car, in reference, were also checked by SHO and car, in

reference, was checked by SHO on suspicion of some theft

articles. He has stated that there was no information of any

theft in Police Station.

27 According to PW10 C.Vikram Singh, he was

verbally directed by the SHO to accompany him to lay down

Naka and traffic checking at Sliding Zone Point Harabag, 13 ( 2024:HHC:10659 )

and they departed the Police Station at 6.15 AM and

reached the spot at 6.30 AM and remained on the spot till

9.45 AM and reached back in Police Station at 10 AM.

According to him also, they checked only 4-5 vehicles

except the vehicle in reference, and thevehicles were

checked by the Team jointly. He has stated that there was

no information about theft in the Police Station Joginder

Nagar in those days.

28 According to PW13 Dy.SP Sanjeev Kumar, he

called the police team in the morning of 21.12.2016 only,

but through MHC, who made phone calls at about 5 AM to

the police officials/members of the raiding party, residing in

the private accommodation(s) and he reached in Police

Station at 5.20 AM and by that time, all members of the

Police Party had gathered in the Police Station and at 5.30

AM they straightway went to Sliding Point Harabag and

reached there at about 5.45 AM and laid Naka there to

detect the theft cases as during those days, in the

jurisdiction of Police Station Joginder Nagar, many theft

cases were reported.

29 According to PW7, appellant reached on the spot

at 7.20 AM, whereas according to PW13 at 7.15 AM and

according to PW10, at 7.30 AM. Such discrepancy is minor 14 ( 2024:HHC:10659 )

discrepancy. But on considering the other discrepancies

and contradictions between the statements of official

witnesses, the cumulative effect of discrepancies leads to

the conclusion that there is something wrong in the

prosecution story and real facts are being concealed from

the Court.

30 PW7 firstly states that all vehicles were

thoroughly checked by the Investigating Officer in his

presence. He again stated that Investigating Officer was not

checking the vehicles but only the documents, and car, in

reference, was checked by him for suspicion, despite the

fact that there was no information with respect to theft in

those days. Whereas, PW13 SHO/Investigating Officer is

claiming that there were number of cases of theft in Police

Station which compelled him to lay Naka on that day.

31 According to PW7 C. Sunny Kant, he went to

Police Station at 9.05 AM with ruka and came back on the

spot at 11.50 AM in a private bus. Whereas, according to

PW10 Vikram Singh, police party had returned to the Police

Station at about 10 AM. According to SHO PW13, Police

Party remained on the spot upto 12.45 PM. Whereas

according to PW1 Gaurav, the police Party along with

accused and him was in Police Station at 7 AM where he 15 ( 2024:HHC:10659 )

remained till 8 AM. According to PW10 C. Vikram Singh, PW7

C.Sunny Kant had returned on the spot at about 9.30 to

9.45 AM.

32 In case Police Party had come back to Police

Station before 10 AM, then, underwhat circumstances, PW7

C. Sunny Kant reached at 11.50 AM on the spot and handed

over the file and copy of FIR. According to PW13 SHO, PW7

had returned the spot at 12.10 PM.

33 According to PW10 C.Vikram, appellant Roshan

lal was taken by police in the official vehicle and the car was

brought to the Police Station by HHG Praveen Kumar.

Whereas, according to PW7 C. Sunny Kant, SHO alone came

in car of accused and accused was brought by other police

officials in the police vehicle which was being driven by HHG

Praveen Kumar.

34 According to PW7, SHO had given personal

search to Gaurav Kumar and C.Vikram Singh before

entering into the vehicle. Whereas, according to PW10

police officials had not given their search to accused.

35 PW13 has also stated that he had not offered any

search to appellant Roshan Lal before searching the vehicle.

According to PW10, SHO had not asked for any documents

of the vehicle in reference with explanation that because on 16 ( 2024:HHC:10659 )

seeing the police, Roshan Lal got frightened whereupon

suspicion regarding theft and contraband etc. arose.

According to PW7, car was searched by SHO. Whereas,

according to PW10, SHO entered the vehicle from front left

door and Sunny Kant and Dharam Veer entered from rear

doors of car and dickey was searched by HHG Praveen

Kumar.

36 According to PW13, it was only he who opened

all the doors of car and checked the entire vehicle with

categorical statement that no police official had entered the

vehicle and he checked the dickey after opening the same.

37 According to PW7 C. Sunny Kant, he clicked the

photographs of spot through mobile of SHO. PW10 has also

stated that PW7 Sunny Kant clicked the photographs,

whereas PW13 SHO has categorically stated that it was ASI

Rajesh Kumar who clicked the photographs through his

mobile.

38 According to PW7, Ruka and other documents

were prepared by Investigating Officer/SHO. PW10 has also

stated so but with further submission in the cross

examination that documents Ext.PW1/A and Ext.PW1/B as

well as Ruka might have been written by ASI Rajesh Kumar.

He was not clear and sure on this point.

17 ( 2024:HHC:10659 )

39 PW13 Investigating Officer has stated that all

memos and documents were scribed by ASI Rajesh Kumar.

40 PW7 has admitted the existence of shop on the

shop belonging to Geeta Ram and according to him,

Investigating Officer had made an attempt for independent

witnesses but shop was closed at that time. He has

admitted that in statement recorded under Section 161

Cr.P.C., it has not been recorded that SHO had tried to

search for independent witnesses near the shop.

41 According to PW10, there was one shop at the

Sliding Point and 100 metres away from spot there were

shops and residential house in the Lower Harabag. He has

expressed his ignorance about the fact that shop belongs to

Geeta Ram with residential house in the same premises but

he has categorically stated that Investigating Officer did not

send any official to bring independent witness from Lower

Harabag, whereas PW13 Investigating Officer has stated

that he did not make effort to associate second independent

witness nor he sent any official in search of second

independent witness from the nearby vicinity. He has

admitted the existence of Fast Food Corner owned by Geeta

Ram but with ignorance that he was residing there along

with family.

18 ( 2024:HHC:10659 )

42 According to PW10 and PW7, NCB Form was filled

in by Investigating Officer. Whereas, according to

Investigating Officer/PW13 the form was filled in by ASI

Rajesh Kumar at 8.15 AM.

43 Investigating Officer has also admitted that he

did not collect independent witness regarding the

abetement, instigation and conspiracy to substantiate the

commission of offence by Gurdass under Section 20-A of

NDPS Act. He has also admitted that Gurdass was maternal

uncle of appellant Roshan Lal and it is but natural for them

to talk with each others.

44 Though it is true that it is not quantum but the

quality of evidence which matters and, therefore, it is not

necessary to examine all prosecution witnesses. On giving

up the examination of prosecution witnesses, the

prosecution case cannot be rejected only on this count. But

when there are material discrepancies and contradictions in

statements of prosecution witnesses examined in Court that

too official witnesses then it creates a negative impact upon

the prosecution story attracting adverse inference for not

examining the other spot witnesses and it gives the

impression that in case of examination of other witnesses,

the truth may have surfaced on record before Court and 19 ( 2024:HHC:10659 )

there may have been much more discrepancies and

contradictions in the prosecution case.

45 It is also apt to record that higher the

punishment provided for an offence, greater the degree of

reliable evidence is required for punishing, convicting and

sentencing the accused especially keeping in view the right

of life and liberty as provided under the Constitution, more

particularly under Article 21 of the Constitution of India. For

stringent provisions of law, providing the presumption

against the accused for recovery of contraband, there is

requirement of convincing and reliable evidence of higher

degree.

46 For the discussion made herein-above, we are of

considered opinion that veracity of prosecution official

witnesses is not reliable, cogent, trustworthy and convincing

so as to draw conclusion that prosecution has been able to

discharge its initial onus so as to prove its case beyond

reasonable doubt warranting the conviction of appellant.

Therefore, the impugned judgment/order of conviction and

sentence imposed upon the appellant deserves to be

interfered with and accordingly, judgment dated 13th June,

2022 is set aside and resultantly, conviction and sentence 20 ( 2024:HHC:10659 )

imposed upon the appellant stand set aside and appellant

Roshan Lal is acquitted of the offence charged.

47 In view of the provisions of Section 437-A of the

Code of Criminal Procedure [Section 481 of the Bharatiya

Nagarik Suraksha Sanhita, 2023 (BNSS)], the

appellant/accused is directed to furnish his personal bond in

the sum of Rs.25,000/- with one surety in the like amount to

the satisfaction of the learned Registrar (Judicial) of this

Court/learned Trial Court, within four weeks, which shall be

effective for six months with stipulation that in the event of

Special Leave Petition being filed against this judgment, or

on grant of the leave, the appellant/accused, on receipt of

notices thereof, shall appear before the Hon'ble Supreme

court.

48 Registry is directed to take appropriate action for

issuance of release warrants of appellant Roshan Lal

forthwith.

Appeal is allowed and disposed of in aforesaid

terms.

(Vivek Singh Thakur), Judge.

November 05,2024                                                (Virender Singh)
(ms)                                                                Judge






         MONIKA

DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone=09a754be1f9ae53b994894bc6597483238021db de1da2f19bc81f42aeeae45c9, PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER=68c329e0dc13db432efa2962635912f

SOOD b84af9556580e15591ff972d7dbfd3fc7, CN=MONIKA SOOD Reason: I am the author of this document Location: