Hari Om And Another vs State Of Himachal Pradesh

Satyen Vaidya, J

1.Appellants are in appeal before this Court against judgment dated 09.08.2017 and sentence order dated 17.08.2017 passed by learned Special Judge-II, Kinnaur at Rampur Bushehar, H.P. in Sessions Trial No. 19-R/3 of 2016, whereby they have been convicted for offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘the ND&PS Act’). Each of the appellants has been sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/-. In default of payment of fine, each of the appellants has been sentenced to further undergo simple imprisonment for six months.

The appellants were charged for being found in exclusive and conscious possession of Charas weighing 1 kg. 90 grams on 13.12.2015 at about 8.05 A.M.

The case of prosecution in nutshell was that on 13.12.2015 PW-7 HC Mohan Joshi alongwith PW-1 C. Vipin Kumar and PW-2 HHC Laxman Dass had left the Police Station, Anni, District Kullu at 4.08 A.M. on routine patrol duty in official vehicle driven by PW-1 C. Vipin Kumar. The Police party had stationed it at place Nigan. At about 8.05 A.M., one Maruti van bearing registration No. PB-10-DM-2016 was sited coming from direction of village Shawad. The vehicle was stopped for checking. The appellant Hari Om (A-1) was on the driver seat and appellant Subhash Chand (A-2) was occupying the front passenger seat. One carry bag was found lying between two front seats. The bag was checked and Charas weighing 1 kg. 90 grams was recovered therefrom in the shape of sticks and balls.

The identification memo of recovered contraband Ext. PW-1/A was prepared. The recovered Charas was sealed in a cloth parcel with seal impression “O”. NCB form Ext. PW-3/C was filled in triplicate. The specimen of seal impression “O” Ext. PW-4/B was taken on a piece of cloth. The recovered Charas alongwith vehicle, its key and documents were taken into possession vide memo Ext. PW-1/C. Photographs of the spot Ext. PW-7/A-1 to Ext. PW-7/A-3 were clicked with the mobile phone of PW-7 HC Mohan Joshi.

Rukka Ext. PW-6/C was scribed and sent to Police Station, Anni through PW-1 C. Vipin Kumar for registration of case. The spot map Ext.PW-7/B was prepared. The appellants were formally arrested vide arrest memos Ext.PW-7/C and Ext.PW-7/D respectively. The case was registered. After completion of spot investigation, the appellants alongwith case property were handed over to SHO Santosh Kumar, who re-sealed the case property and issued re-sealing certificate.

The special report Ext.PW-4/A was prepared on 14.12.2015 and was handed over to SDPO, Anni. The recovered contraband was got analyzed from SFSL, Junga. As per repot Ex. PX submitted by SFSL, Junga, the contraband was confirmed to be the sample of Charas.

On completion of investigation, the challan was filed against the appellants. The prosecution examined total eight witnesses. The appellants were examined under Section 313 Cr.P.C. They did not lead any defence evidence.

Learned trial Court having found the charge proved against the appellants, proceeded to convict and sentence them as above.

We have heard learned counsel for the parties and have also gone through the records of the case carefully.

The learned trial Court has found the testimonies of spot witnesses PW-2 HHC Laxman Dass and PW-7 HC Mohan Joshi convincing, reliable and trustworthy. Since learned trial Court placed reliance on the statements of PW-2 and PW-7, it did not find the non-association of independent witnesses to be material for assessing the merits of the case. It has been held that in the case of chance recovery, there was no requirement to associate independent witnesses. Learned trial Court also found the chain of link evidence to be complete and convicted the appellants on such hypothesis.

Though, the learned trial Court had taken into consideration the fact of discrepant entries in the log book of official vehicle of Police Station, brought to the notice by way of document Ext. D-1 on behalf of the appellants, but instead of weighing such evidence in favour of the appellants arrived at a conclusion that the entries in Ext. D-1 were forged and manipulated. Suspicion was raised regarding the connivance of appellants with PW-1 C. Vipin Kumar. On this basis alone, learned trial Court also drew an inference against PW-1 C.Vipin Kumar for having feigned ignorance to most of the questions in cross-examination.

Noticeably, on the application of prosecution under Section 311 Cr.P.C., the original log book of the official vehicle of Police Station, Anni was allowed to be produced in the Court and its extract was proved on record as Ext.PW-8/A. Even after perusing the entries in Ext. PW-8/A, learned trial Court maintained its stand as to the manipulative entries in the document and did not find any material to be favourable to the appellants.

At the very outset, we completely disagree with the findings recorded by learned trial Court with respect to the entries in the log book, whether it was by way of document Ext. D-1 or Ext. PW-8/A. The only difference that can be deciphered from the entries of documents Ex. D-1 and Ext. PW-8/A is in respect of the time of departure of vehicle on 13.12.2015 from Police Station. As per the entry in Ex. D-1, the time was 11.29 P.M. and as per Ext.PW-8/A it was 1.29 P.M. In our considered view, the highlighting of this discrepancy was unnecessary. What was identical and undisputed in both the documents was that the vehicle had arrived at Police Station, Anni on the previous day i.e. 12.12.2015 at 6.27 P.M. The mileage entry of the vehicle at arrival was 1,75, 891. The next entry is of date 13.12.2015 and if the time is taken to be on the basis of Ext. PW-8/A, the departure from Police Station was at 1.29 P.M. and the mileage entry again was 1,75,891. It clearly means that after arrival of the vehicle in Police Station on 12.12.2015 at 6.27 P.M., the vehicle departed from Police Station on the next day i.e., 13.12.2015 at 1.29 P.M. The places where the vehicle is stated to have been driven were Skelhar-Haripur-Shamshar.

Thus, the place i.e., Nigan where the appellants were allegedly apprehended is not one of the places mentioned in Ext. PW-8/A.

Further, it is not in dispute that the log book Ext. PW-8/A was of the same official vehicle in which PW-1, PW-2 and PW-7 had left Police Station at 4.08 A.M. on 13.12.2015. That being so, there is no entry in the log book Ext. PW-8/A regarding departure and arrival of the vehicle from and at Police Station, Anni till 1.29 P.M., whereas the prosecution case is that PW-1, PW-2 and PW-7 had left the Police Station, Anni in official vehicle at 4.08 P.M. and had returned in the same vehicle after 12.00 P.M. on the same day. This aspect of the matter has completely been missed by learned trial Court, which in our considered opinion, is a material omission. PW-8 HC Mohan Joshi has specifically stated that the entries in the log book are made by the driver and verified by the SHO. There is no explanation for omission with respect to the entry of official vehicle in the log book Ext. PW-8/A, which could lead to an inference that the police party including PW-1, PW-2 and PW-7 had left the Police Station at 4.08 A.M. and were on patrol duty till after 12.00 P.M. on 13.12.2015.

The above omission clearly creates a serious doubt in the prosecution story. None of the police officials including SHO of Police Station has explained such omission.

Further, the record reveals much more discrepancies, which if taken into consideration, will create more suspicion as to authenticity and veracity of police case. PW-7 HC Mohan Joshi during his cross-examination admitted that the document viz. ‘Rukka’ was scribed by HC Parminder Kumar on his instructions. He further admitted that statement of C. Vipin Kumar under Section 161 Cr.P.C. was also scribed by HC Parminder Kumar. However, HC Parminder Kumar had neither been cited as prosecution witness nor examined, whereas HC Parminder Singh had carried partial investigation in the case.

PW-7 also admitted that he prepared special report under Section 57 of the NDPS Act on 14.12.2015, but the said document did not find mention about the factum of handing over of case property to SHO on 13.12.2015 and conduct of its re-sealing process by the said official.

Similarly, PW-7 has admitted that in ‘Rukka’ and seizure memo Ext.PW-1/C, there is no mention of the photographs having been clicked on the spot. As per this witness, the photographs were clicked from his mobile but the evidence to prove the developing of photographs has been missing. The above omissions cannot be said to be minor or trivial. The said discrepancies coupled with the absence of entry in the log book are sufficient to suspect the prosecution case. In this view of the matter, the reliance on the statements of police witnesses alone cannot be held to be safe. The recovery was allegedly made at 8.05 A.M. and it is not the case of prosecution that despite efforts the independent witnesses could not be made available for association.

Though the statements of police witnesses alone if found credible can be taken to be sufficient for recording conviction, but in the case of serious discrepancies being found, the omission of the Investigating Officer to associate independent witnesses can also be looked at with suspicion. The law in this respect is well settled and reference can be made to Pramod Kumar vs. State (Government of NCT of Delhi) (2013) 6 SCC 588 and Sathyan vs. State of Kerala 2023 INSC 703.

In light of above discussion, we are unable to concur with the conclusion drawn by learned trial Court, which are against the material placed and proved on record. The appellants are entitled to benefit of doubt. Accordingly, the appeal is allowed. judgment dated 09.08.2017 and sentence order dated 17.08.2017 passed by learned Special Judge-II, Kinnaur at Rampur Bushehar, H.P. in Sessions Trial No. 19-R/3 of 2016, are set-aside. The appellants are acquitted of all the charges. Appellants be released forthwith, if not required in any other case.

Necessary release warrants be immediately prepared and sent to the concerned Jail authorities without delay.

The appellants are directed to furnish personal bonds in the sum of Rs.50,000/- each with one surety each in the like amount to the satisfaction of Registrar (Judicial) of this Court strictly in terms of provisions of Section 437-A Cr.P.C.

The appeal is, accordingly, disposed of, so also the pending miscellaneous application, if any.

Records be returned back to the learned trial Court forthwith.