State of Himachal Pradesh vs Chander Kiran

Sanjay Karol, J.—Assailing the judgment dated 21.01.2008, passed by Special Judge, Fast Track, Kullu, H.P., in Sessions Trial No. 22/07, titled as State Versus Chander Kiran & another, State has filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973.

It is the case of prosecution that on 17.11.2006, police party comprising Fateh Singh (PW.1), Mohan Lal, Deepak Kumar (both not examined), headed by SI Lal Singh (PW.2) left the Police Post for setting up Naka at Nashala Jungle. At about 11.15 PM, accused came on a motorcycle bearing registration No. HP-34A-5106. On suspicion, they were searched. From the bag which they were carrying, charas was recovered. Independent witnesses could not be associated. As such, accused were brought to Police Post, Patlikuhl, where by associating Fateh Singh (PW.1) and Mohan Lal as witnesses, Lal Singh (PW.2) seized the contraband substance, which upon weighment was found to be of 2 kgs. Two samples of 25 grams each were drawn from the bulk parcel. Sample as well as remaining bulk parcel were sealed with seal impression ''T''. NCB forms (Ex.PF) in triplicate were filled up. Special report (Ex.PJ) was sent to the superior Officer. Rukka (Ex.PG) was sent through Fateh Singh (PW.1) to Police Station, Manali, on the basis of which FIR No. 283 of 2006, dated 18.11.2006 (Ex.PS) was registered, under the provisions of Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act), against the accused. At about 5.15 AM, Lal Singh (PW.2) arrived at Police Post, Patlikuhl. Whereafter, accused were arrested vide memos (Ex.PD and Ex.PE respectively). Case property was produced before SHO Sanjay Sharma (PW.9), who resealed the same with his seal having seal impression ''L'' and deposited the same with MHC Hari Singh (PW.3). On 19.11.2006, Mohinder Pal (PW.5) took the case property to be deposited at CFSL, Chandigarh, but since it was not accepted, he returned to Manali on 23.11.2006. Again Naresh Chand (PW.8), who was discharging duties as MHC, on 28.11.2006 sent the case property through Mohinder Pal (PW.5), who deposited the same at CFSL, Chandigarh. Report of the chemical analyst (Ex.PX), so prepared by the Laboratory, was taken on record by the police. With the completion of investigation, which prima facie revealed complicity of the accused in the alleged crime, Challan was presented in the Court for trial.

The accused were charged for having committed offences punishable under the provisions of Sections 20 and 29 of the NDPS Act, to which they did not plead guilty and claimed trial.

In order to establish its case, in all, prosecution examined as many as nine witnesses. Statements of the accused under Section 313 of the Code of Criminal Procedure were also recorded, in which they took defence of false implication. In defence two witnesses were examined.

Trial Court, after appreciating the testimony of prosecution witnesses acquitted the accused. Hence the present appeal.

We have heard M/s B.S. Parmar, Ashok Chaudhary, V.S. Chauhan, learned Addl. AGs., assisted by Mr. Vikram Thakur, learned Dy. AG., on behalf of the State as also Mr. Ajay Chandel, Advocate, on behalf of the accused. We have also minutely examined the testimonies of witnesses and other documentary evidence so placed on record by the prosecution. Having done so, we are of the considered view that no case for interference is made out at all. We find that the judgment rendered by the trial Court is based on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record. There is neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice.

It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. Having considered the material on record, we are of the considered view that prosecution has failed to establish the essential ingredients so required to constitute the charged offence.

In Prandas Vs. The State, , Constitution Bench of the apex Court, has held as under:

"(6) It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under S. 417, Criminal P.C., to reverse a judgment of acquittal, unless the judgment is perverse or the subordinate Court has in some way or other misdirected itself so as to produce a miscarriage of justice. In our opinion, the true position in regard to the jurisdiction of the High Court under S. 417, Criminal P.C. in an appeal from an order of acquittal has been stated in - AIR 1934 227 (Privy Council), in these words:

"Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice.""

In the instant case, we find prosecution has not been able to establish that the case property, so produced in Court, was the one which was actually seized on the spot. Link evidence is absolutely missing. According to Lal Singh (PW.2), charas so recovered from the accused, upon weighment, was found to be of 2 kgs. Two samples of 25 grams each were drawn. Samples and bulk parcel were sealed with three seals having seal impression ''T''. SHO Sanjay Sharma (PW.9) who admits such fact further states that he resealed the same with three seals having seal impression ''L''. Noticeably before trial, case property was produced before the concerned Magistrate and dealt with under the provisions of Section 52-A of the Act. Certificate (Ex.PK) is on record. Surprisingly case property produced before the Magistrate, as per certificate so produced on record, contained eight seals. Now the concerned Magistrate has not been examined in Court to explain the discrepancy in the seals or prove the case property so produced before him to be the one seized in the case in question. Also police officials Lal Singh (PW.2), Hari Singh (PW.3), Mohinder Pal (PW.5) Naresh Chand (PW.8) and SHO Sanjay Sharma (PW.9) have also not explained this discrepancy, which we find is fatal being material. Not only that, in the certificate itself there is an order for retention of representative sample packet of 25 grams, even that was never produced in Court. As such, on what basis prosecution has linked the case property to the one seized by the police so recovered from the conscious possession of the accused remains unexplained. Even the application moved under Section 52-A of the Act has not been produced on record. Also no record of destruction of case property pursuant to order passed by trial Court has been placed on record.

We further find version of prosecution case of recovery of contraband substance from the conscious possession of the accused to be contradicted by Fateh Singh (PW.1) and Lal Singh (PW.2). According to Fateh Singh, charas in the shape of sticks and balls was recovered on the spot. This was when accused were apprehended on suspicion. Whereas, according to Lal Singh, since no independent witness could be associated at the spot, accused and the bag were brought to Police Post, Patlikuhl, where after associating Fateh Singh and Mohan Lal (both police officials), bag was searched, wherefrom contraband substance was recovered. Thus, there is major contradiction with regard to the place of recovery of charas rendering the prosecution story to be absolutely doubtful.

Further version of police officials of having attempted to associate independent witnesses does not inspire confidence, for after all police did cross Patlikuhl, which is a habitable place. It is nobody''s case that none was staying in the village at that time. No endeavour was made to associate local representatives or renowned persons. All this further renders the prosecution case to be doubtful.

We do not find prosecution to have proved its case, beyond reasonable doubt, by leading clear, cogent, convincing piece of evidence with regard to recovery of contraband substance from the conscious possession of the accused. Contradictions in the statements of the police officials are glaring, material and relevant totally shaking the edifice of the prosecution story. Testimony of police officials, uninspiring in confidence, does not prove the prosecution case beyond reasonable doubt.

The Court below, in our considered view, has correctly and completely appreciated the evidence so placed on record by the prosecution. It cannot be said that judgment of trial Court is perverse, illegal, erroneous or based on incorrect and incomplete appreciation of material on record resulting into miscarriage of justice.

The accused persons have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Md. Ankoos and Others Vs. The Public Prosecutor, High Court of A.P., , since it cannot be said that trial Court has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice, no interference is warranted in the instant case.

For all the aforesaid reasons, present appeal, being devoid of merit, is dismissed, so also the pending application(s), if any. Bail bonds furnished by the accused are discharged. Record of the trial Court be immediately sent back.