Jammu & Kashmir High Court
Prem Kumar vs Ut Of Ladakh Through I/C Sho P/S Nubra on 17 October, 2024
Author: Sanjay Dhar
Bench: Sanjay Dhar
Sr. No. 40
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Case: Crl A(D) No. 8/2021
Prem Kumar, ...Petitioner(s)/Appellant(s)
S/o Tek Bahadur,
R/o Gaisi Ward No. 6, District
Rukum,Police Station Juajasi Nepal
at Present: Nubra,
A/P - Lodged in District Jail Leh.
Through: Mr. Meharban Singh, Advocate.
V/s
UT of Ladakh through I/c SHO P/s Nubra. .... Respondent(s)
Through: Mr. Rohan Nanda, CGSC
CORAM: HON'BLE MR. JUSTICEATUL SREEDHARAN, JUDGE
HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
ORDER
17.10.2024
(ATUL SREEDHARAN-J)
The present appeal has been filed by the appellant who is
aggrieved by the judgment of conviction dated 06.06.2016passed in File No.
08 in case FIR no. 10 of 2014 of Police Station Nubra. He has already
completed nine years of his sentence from a total of eleven years that was
imposed upon him by the learned Trial Court. The appellant is aggrieved
that the conviction recorded against him has been based on a wrong
marshalling and appreciation of evidence adduced against him during the
course of trial.
2. Brief facts of the case are as follows. On 24.09.2014, it is the case of
the prosecution that the appellant who is the resident of Nepal entered via
Manali and reached Leh and that upon seeing the Police party, the appellant
tried to conceal himself. It is further the case of the prosecution that the
appellant was carrying Charas in a blue colour bag. Pw-1-Inspector Mohd.
Yousf, was the first Station House Officer (SHO) during whose tenure most
of the investigation had taken place. He is the complainant and also the
Investigating Officer (IO) in this case. The three official witnesses besides
the IO who have been examined in this case are the Personal Security
Officers attached with PW-1 (the SHO).
3. The brief facts which have already been given constitute a part of his
examination- in- chief. In cross examination, the witness says the personal
search of the witness was not taken and he does not mention the blue
coloured bag. Thereafter, the contra band that was seized from the appellant
was weighed on the spot and the same was suspected to be Charas being 01
kilogram and 760 grams. The same was deposited in the Malkhana in the
custody of PW-6-Thupston Wangchuk, by the Investigating Officer which,
according to the prosecution, remained in the Malkhana till the charges sheet
was prepared and in-between, the same was taken out for the purpose of
being sealed by the Magistrate and after that it was brought back to the
Malkhana and deposited there.
4. Learned counsel for the appellant submits that there are multiple
contradictions in the case of the prosecution. In order to buttress his case, he
has referred to the statement of PW-4-Sonam Wangdus, who is the PSO to
PW-1. He says that personal search was carried out but he does not know
what was recovered from the appellant. He further says that he saw the
accused with the bag but did not see the accused concealing the bag. He also
states that the Lambardar was called to the spot but before the arrival of the
Lambardar the bag was seized. He has added in his deposition that the
Magistrate was not called and that this witness did not see the
appellant/accused concealing the bag.
5. Thereafter, the Ld. Counsel for the appellant has referred to evidence
of PW-5-Constable Lobzang Rigzin, who is also the PSO of PW-1. He stated
that they were searching for another person who was an accused in FIR No.
8. It is relevant to mention here that FIR no. 8 was another case and the
Police, while in search of the accused in FIR No. 8 chanced upon the
appellant. PW-5 further says that before anyone was called, the bag was
searched. The personal search of the appellant was conducted and nothing
was recovered. In contradiction to the statement of PW- 4 and 5, learned
counsel for the appellant has referred to the statement of PW-2 who is the
independent witness and posted as Lambardar whose name is Tsering
Motup. He says that the bag was taken out from the bushes in his presence
and the search was conducted after he reached. He further says that the
Policemen had taken the bag to the bushes and search the same in his
presence. He further says that his statement under Section 164-A of CrPC
was recorded before the Judicial Magistrate by the second SHO in this case.
Learned counsel for the appellant submits that the statement of PW-2, the
Lambardar, is in contradiction with the statement of Pw-4 and 5, who says
that the search was already conducted of the bag even before anyone else
arrived at the scene which includes herein the Lambardar, while the
Lambardar says that the search was conducted in his presence.
6. Pw-12 has been referred to briefly by the learned counsel for the
appellant who is second SHO, named Inspector Jamiang Tsepel, but nothing
relevant or of significant importance for either the prosecution or the defence
is stated by this witness.
7. The next witness is Pw-8 Mohd. Shabir, who is the Tehsildar. He says
that the SHO concerned produced three packets for resealing which he
resealed. This according to the learned counsel for the appellant is a direct
contraction with the statement of PW-6- Thupston Wangchuk, who is
Malkhana Incharge. In order to substantiate his argument, he has drawn
attention of this Court to the statement of Thupston Wangchuk, wherein he
says one packet was brought by PW-1. He further says that no documentation
relating to the substance accompanied it. He further says that the material
remained in the Malkhana till the charge sheet was prepared but was taken
out in-between for resealing by the Magistrate. He further states that while
one pack was taken away from the Malkhana by then IO, three packets were
brought to the Malkhana after sealing. He has further placed before the
learned the Trial Court, copy of the Malkhana register's entry which is seen
by the Court and is marked as 'Mark-P1'. It is relevant to mention here that
the original Malkhana register was never produced before the Trial court for
comparison with the copy.
8. Learned counsel for the Union Territory while opposing the appeal
has stated that the judgment of conviction passed by the learned Trial Court
is well considered and the marshalling of evidence has been appropriate and
meaningful. As regards the contradiction between the statements of Mohd.
Shabir, the Tehsildar and that of Thupston Wangchuk, who is the Malkhana
In-charge, learned counsel for the respondent- UT submits that with
reference to exhibit PW8, which is a Letter dated 13.09.2014 allegedly
prepared by the Tehsildar himself and which Tehsildar has admitted has
been prepared and signed by him. In that letter one packet of the contraband
was produced before the Magistrate which the Magistrate records was
weighed and thereafter split into three separate packets. Learned counsel for
the UT submits that the defence has never cross-examined PW-8 on this
aspect in order to put before him the contradiction in his deposition on oath
before the Trial Court and the contents of the letter which is exhibit PW-8.
Under the circumstances, learned counsel for the UT submits that the
learned Trial Court rightly relied upon the exhibit PW-8 to arrive at the
conclusion that the statement that he made that three separate packets were
brought by the IO which were weighed mixed together into one homogenous
mass and, thereafter, split into three separate packets once again, may have
been on account of loss of memory or confusion. Therefore, the learned
Trial Court has answered this contradiction in the aforesaid terms.
9. Heard the learned counsels for the parties and perused the record of
the Trial Court. The date of the incident is undisputed which is 24.09.2014.
It is also the undisputed case that the apprehension of the appellant herein
was by way of a chance apprehension and on that date, the Police personnel
were searching for another accused in another case being FIR No. 8. There is
definitely a contradiction in the manner in which the search was conducted
as is reflected from the statements of PW-4 and 5 who have stated that
personal search was carried out of the accused, but they do not know what
was recovered from him which is in contradiction to what PW-1 states that
the personal search of the accused was never carried out. Besides, PW-4 and
PW-5 have stated that the search was already carried out when no one was
there besides the first SHO and PW-4 and 5. While the Lambardar who is
PW-2 specifically states that the search was conducted in his presence after
he arrived. There is a contradiction in the narrative of the prosecution herein
in the manner in which search and seizure was carried out.
10. The most crucial part in this case is the safe custody of the article and
also what was sent to the FSL. As far as the safe custody is concerned, PW6
clearly states that a packet was brought before him by the SHO and without
any accompanying documentation which he kept in his Malkhana. He
further states that the sample continued to remain in the Malkhana till the
charge sheet was prepared, but for the period that it was taken for resealing
by the Magistrate. He further states that three packets were brought back to
the Malkhana from the Magistrate's Office by the SHO and deposited again
in the Malkhana. Firstly, there seems to be the controversy with regard to
what went from the Malkhana and what was returned to it. This when seen
along with the statement of PW-8 Mohd. Shabir who categorically states that
three packets were brought before him which were weighed and then mixed
together to form one homogenous mass which was again separated into three
packets. The account given by this witness in his deposition before the Trial
Court is graphic. It cannot be said that there was loss of memory. Besides, if
the document which is exhibit PW-8, which is the letter dated 30.09.2014,
was to be relied upon by the Trial Court, then clarification ought to have
been sought by the prosecutor by placing the same before Pw-8 to explain
the discrepancy. However, this was never done. Therefore, in view of the
contradiction between PW-8's statement in court and the contents of the
letter proved by PW-8, which is exhibit PW8, the benefit of the same must
go to the accused.
11. Out of the three packets that were brought back to the Malkhana,
sample was sent from only one packet. The FSL report shows that one
packet was sent to the FSL which was found to be Charas. However, the
contents of other two packets are not known. And the fact that the safe
custody has not been proved on account of 'Mark-P-1' which is a
photocopy of the Malkhana Register could not have been relied upon at all
for the reason that the original documents was very much in the custody of
Police was never produced before the Trial Court. It is the only original
document could have been seen and marked as exhibit. In such a cases, the
procedure that the Trial Court ought to have adopted is to see the original
Malkhana register, compare the copy and mark the copy as exhibit PX/c,
being the copy after giving an endorsement in the copy saying that the
original has been seen and compared with copy and the same were identical.
However, that was never done. Therefore, the question of safe custody in the
Malkhana is also under cloud of doubt.
12. Thus, on the basis of what has been argued, considered and
appreciated by this Court. We hold that the prosecution has not been able to
prove the case against the appellant beyond reasonable doubt. The appeal is
allowed. The impugned order is set aside. The appellant is acquitted and
shall be released forthwith if not required in any other case.
Disposed of accordingly.
(SANJAY DHAR) (ATUL SREEDHARAN)
JUDGE JUDGE
Jammu
17.10.2024
Sunita/PS
Whether the order is speaking. Yes
Whether the order is reportable. No
