State of Himachal Pradesh vs Dharmender Singh and Others

Sureshwar Thakur, J.—The State of Himachal Pradesh is aggrieved by the renditions of the learned Special Judge-III, Solan of 21.2.2013, in Sessions Trial No. 4 FTC/7 of 2011, whereby the charge framed against the accused for theirs having allegedly committed an offence punishable under Section 20 of the NDPS Act, on appreciation of evidence by it, was held to be NDPS Act, on appreciation of evidence by it, was held to be unsustainable. Consequently, the learned trial Court acquitted the respondents of the charge of theirs having committed an offence under Section 20 of the NDPS Act.

The State of Himachal Pradesh is aggrieved by the renditions of the learned trial Court, hence has through the instant application at hand sought leave of this Court to impugn the renditions of the learned trial Court.

The prosecution story, in brief, is that on 31.8.2010, S.I. Chita Ram posted at the relevant time in Special Investigation Unit, Solan, accompanied by police personnels including HHC Hem Raj was doing patrolling towards Salogra, Solan. At about 3.30. PM, when he arrived at Baghor, a place ahead of Salogra, he noticed a maruti car bearing No. HP-64-1933 parked on the side of National Highway 22. Three persons out of whom the present accused subsequently identified to be amongst those persons were seen smoking. The smoke billowed out therefrom emitted smell of Charas. So, on the basis thereof, he accompanied by police personnels started moving towards those persons. Having seen them coming, accused as well as their third companion fled therefrom towards the hill on the side of the road. The accompanying police personnels tried to apprehend the accused as well as their companion, but they succeeded in fleeing therefrom. While fleeing, they were calling each others name as Bunty and Satish and exhorting each other to run fast. In the meantime Sanam Chhiber and Tek Chand came at the spot. S.I. Chita Ram carried search of the aforementioned car in their presence and during search, a yellow coloured bag was recovered from inside the dash board of the car. The bag when checked was found containing stick shaped black substance which on checking was found to be Charas. The Charas so recovered was weighed and it was found 120 gms. The Charas so recovered was put back into the same bag and thereafter it was wrapped in cloth and a parcel thereof was prepared which was sealed with nine seals of seal impression ''H'', specimen thereof was separately taken and also embossed on the seizure memo prepared in this behalf and the NCB form in triplicate, relevant columns whereof were also filled in by the S.I. Chita Ram and seal after use was handed over to Tek Chand. The above named witnesses also appended their signatures on recovery memo, specimen impression of seal and parcel. S.I. Chita Ram prepared detailed Ruka and thereafter sent it along with entire case property including the sealed parcel and the car through C. Nanak Chand, to Police Station, Sadar, Solan for registration of formal FIR and depositing. At the spot, S.I. Chita Ram prepared site plan of the place of recovery and recorded the statements of witnesses. On the next day, he prepared special report and sent it to ASP, Solan as per requirement under Section 57 of the NDPS Act, 1985. During the course of investigation, third companion of the accused namely Sudesh appeared before S.I. Chita Ram and disclosed that having noticed the accused persons, he had alighted from the private bus to simply smoke Charas stuffed cigarette and also disclosed the identity of the accused. The sealed parcel along with seal impressions and copies of seizure memo and NCB form were sent by the MHC of Police Station, Solan to FSL, Junga for chemical examination and the same after examination was found to be of Charas.

After completion of the investigation, challan, under Section 173 of the Cr.P.C. was prepared and filed in the Court. The trial Court charged the accused for his having committed offence punishable under Section 20 of the NDPS Act, to which he pleaded not guilty and claimed trial.

In order to prove its case, the prosecution examined as many as 10 witnesses. On closure of the prosecution evidence, the statements of the accused under Section 313 Cr.P.C. were recorded, in which they pleaded innocence. On closure of proceedings under Section 313 Cr.P.C. the accused persons were given an opportunity to adduce evidence in defence and they did not choose to adduce any evidence in defence.

On appraisal of the evidence on record, the learned trial Court returned findings of acquittal in favour of the accused/respondents.

The State of H.P. is aggrieved by the judgment of acquittal, recorded by the learned trial Court. Shri M.A. Khan, ld. Additional Advocate General, has concertedly and vigorously contended that the findings of acquittal, recorded by the learned trial Court, are not based on a proper appreciation of the evidence on record, rather, they are sequelled by gross mis-appreciation of the material on record. Hence, he contends that leave to appeal be granted by this Court.

The Investigating Officer had in the apposite proceedings relating to search, seizure and recovery of contraband Ext.P.3 from the alleged conscious and exclusive possession of the accused from bag Ext.P.2 under memo Ext.PW.1/A associated two independent witnesses. However, the independent witnesses, who were associated by the Investigating Officer in the apposite proceedings have while respectively deposing on oath as PW-8 and PW-10 omitted to lend support to the genesis of the prosecution version. PW-8 in his deposition recorded on oath has deposed that though he on the relevant day and time at the purported site of occurrence had seen the police personnels sitting near a water spring, yet has denied the propagation by the prosecution that he had seen any vehicle parked on the side of the road, besides he denied his having seen any person/persons smoking cigarettes near the car and theirs on noticing the police personnel fleeing therefrom. The denial by PW-8 of his having seen any vehicle parked on the side of the road at the purported site of occurrence, also the denial on his part that he saw any person/persons smoking cigarettes in the car and theirs on noticing police personnel fleeing therefrom, necessarily begets an inference of his not corroborating the prosecution version of the Investigating Officer having at the site of occurrence seen a vehicle parked at the side of the road and of some persons in its vicinity smoking cigarettes and on noticing the police personnel theirs having fled therefrom. Lack of corroboration by PW-8 to the genesis of the prosecution version renders it to suffer erosion besides renders it to remain unestablished by the independent witness.

Apart therefrom with another independent witness to the apposite proceedings, PW-10 in his deposition on oath having in its entirety denied the prosecution case facilitates an easy inference from this Court that the prosecution version anchored upon the depositions of the official witnesses cannot receive approbation from this Court, especially when hence even the testimonies of the official witnesses acquire the taint of interestedness. Even when the testimonies of the official witnesses stand discredited, for omission on the part of the independent witnesses aforesaid to lend vigorous corroboration to them, yet even the testimonies of the official witnesses are not free from the taint of intra-se contradictions which taint imbuing their testimonies renders them to be both uninspiring as well as untrustworthy. The taint of intra-se contradictions existing in the testimonies of the official witnesses is amanable on a discerning evaluation of the testimonies of PW-1 and PW-7, inasmuch as PW-1 has deposed that when he arrived at the site of occurrence, he had seen the accused smoking a cigarette outside the car, whereas PW-7 in an open and rife contradiction thereto has deposed that he had seen the accused occupying the car wherefrom billows of smoke emitting the smell of Charas emanated, which led them to proceed towards the car, which heading of the police officials towards the car led the accused to flee from the site of occurrence. Obviously the manner in which PW-1 and PW-7 official witnesses have deposed qua theirs having noticed the presence of the accused at the site of occurrence upsurges a rife contradiction intra-se their testimonies on oath. With intra-se contradictions aforesaid emerging in their respective testimonies on oath the genesis of the prosecution version gets discredited.

Be that as it may, even the factum of the instrument used by the Investigating Officer to weigh the recovered Charas has been contradictorily deposed by PW-1 and PW-7, inasmuch as PW-1 has deposed that the recovered Charas was weighed with an electronic scale, whereas PW-7 has deposed that it was weighed with traditional weights and scales. The aforesaid intra-se contradictions qua the instrument used by the Investigating Officer to weigh the recovered Charas, is a material contradiction and tears apart the veracity of the genesis of the prosecution version.

None of the official witnesses were previously aware about the identity of the accused. The accused had fled away from the site of occurrence. However, the Investigating Officer did not record their key characteristic, identifiable features, which had led him to nab the accused. Non-depiction of in the apposite Ruka or in the FIR of the key identifiable features of the accused even on whose absence the Investigating Officer nabbed them whereas whose unfoldment in the aforesaid would have facilitated the holding of a test identification parade, renders vulnerable to skepticism the nabbing of the accused by the Investigating Officer besides constrains an inference that the nabbing of the accused by the Investigating Officer arose from suspicion rather than with his having firm evidence in his possession qua theirs being the persons who allegedly committed the offence. The factum of the accused being the persons who were purportedly seen by the Investigating Officer at the site of occurrence in the manner as enunciated in the Ruka and in FIR, besides in the recorded testimonies on oath before the learned trial Court, especially when precedingly no test identification parade was carried out in the manner ordained by law, wherein hence the identity of the respondents herein to be the persons, who were witnessed by the Investigating Officer in the manner expostulated in the Ruka and in the FIR lodged qua the occurrence could have been with vigor and formidability established, obviously in absence thereof is hence rendered infirm besides it can be tenably concluded that the respondents herein had been merely on suspicion of the Investigating Officer nabbed by him. Moreover, the identity of the accused to the Investigating Officer was purportedly disclosed by one of their companion Sudesh Thakur, yet he remained not charge sheeted. Nonetheless, it was entailed upon the Investigating Officer to record his statement either under Section 161 or under Section 164 of the Cr.P.C. However, the statement of Sudesh Thakur who apprised the Investigating Officer about the identity of the accused and led him to arrest them, remains un-recorded at the instance of the Investigating Officer. Obviously he did not come to be either cited or examined as a prosecution witness, whereas only in the event of his having stepped into the witness box he would have given leverage to the factum as espoused by the prosecution of his having disclosed to the Investigating Officer the identity of the accused, whereupon the Investigating Officer nabbed them.

In sequel, the apt inference ensuing from the aforesaid omissions is that the Investigating Officer had proceeded to on mere conjectures or on surmisal foundations identify the respondents to be the persons seen by him in the manner as constituted in the genesis of the prosecution case in the vicinity of the car wherefrom Charas Ext.P.1 was recovered from bag Ext.P.2 under memo Ext.PW.1/A at the purported site of occurrence. Necessarily then the identification of the accused on mere conjectures or surmises cannot constitute a sound legal foundation for constraining a finding from this Court that hence the prosecution has been able to infallibly establish the identity of the accused to be the persons who had been as deposed by the official witnesses seen at the purported site of occurrence in the manner as deposed by each of them.

The car from which the Charas Ext.P.1 from bag Ext.P.2 under memo Ext.PW.1/A was recovered was owned by PW-5, the father of accused Satish. However, the prosecution has not been able to elicit from his deposition on oath the germane fact of on the relevant date his son, accused Satish having driven the car, rather with this witness in his deposition recorded on oath by the learned trial Court having portrayed therein that on the relevant day the car from which the recovery of Charas Ext.P.1 from bag Ext.P.2 under memo Ext.PW.1/A was effected, was driven by Puran Bahadur. Hence, the presence of the accused in or around the vicinity of the car wherefrom the recovery of contraband was effected becomes wholly suspect.

In view of the above discussion, the learned trial Court is to be concluded to have appreciated the evidence in a mature and balanced manner and its findings, hence, do not necessitate interference. Therefore, the application for leave to appeal is dismissed being devoid of any merit and the findings rendered by the learned trial Court are affirmed and maintained.