State of Himachal Pradesh vs Din Mohammed

Sanjay Karol, J—State has appealed against the judgment dated 4.1.2008 of the learned Special Judge, Chamba Division, Chamba, Himachal Pradesh, passed in Sessions Trial No. 24 of 2007, titled as State v. Din Mohammed, challenging the acquittal of respondent Din Mohammed (hereinafter referred to as the accused), who stands charged for having committed an offence punishable under the provisions of Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the Act).

It is the case of prosecution that on 7.1.2007, police party, comprising of ASI Onkar Singh, ASI Amar Singh (PW-8), HC Bhupinder, HC Dev Raj, Constable Chaman (PW-1), Constable Prabhat (PW-14), HHC Budhi Singh (PW-2), Constable Yaqub Mohammed and headed by Inspector Jatinder Kumar (PW-11), had set up a Naaka at Koti Chowk. At 12.15 p.m., they saw the accused coming from Sundla side, carrying a bag on his shoulder. Seeing the police party, accused turned back and tried to flee away. However, he was nabbed by Jatinder Kumar. On suspicion, the bag was searched, from which Charas, wrapped in a lion cloth, was recovered. Prabhat Kumar (PW-14) brought weights and scale from the shop of Sanjiv Kumar (PW-13). Upon weighment, Charas was found to be 1.5 kgs. Two samples, each weighing 25 grams, were drawn and sealed with seal of seal impression ''A''. The remaining bulk Charas was also sealed with the same seal impression. Search and seizure operations were carried out in the presence of independent witnesses, namely Pappu (PW-9) and Raman Kumar (PW-12). Original seal was handed over to Raman Kumar. Chaman Lal (PW-1) carried Rukka, on the basis of which FIR No. 12/07, dated 7.1.2007 (Ex. PW-6/A), for offence under the provisions of Section 20 of the Act, was registered at Police Station, Sadar, District Chamba, Himachal Pradesh. With the completion of proceedings on the spot, accused was arrested. The contraband substance was produced before ASI Mehar Singh (PW-7), who resealed the same with his seal of seal impression ''B''. Thereafter, the case property was entrusted to MHC Ramesh Chand (PW-6), who deposited the same in the Malkhana, after making entry in the Malkhana register. Madan Lal (PW-10) took the sample for analysis to the Forensic Science Laboratory and report (Ex. PW-11/H) was obtained 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.

Accused was charged for having committed an offence punishable under the provisions of Section 20 of the Act, to which he did not plead guilty and claimed trial.

In order to establish its case, prosecution examined as many as 14 witnesses and statement of the accused under the provisions of Section 313 of the Code of Criminal Procedure was also recorded, in which he took plea of innocence and false implication.

Based on the testimonies of witnesses and the material on record, trial Court acquitted the accused of the charged offence. Hence, the present appeal by the State.

We have heard Mr. Ashok Chaudhary, Mr. V.S. Chauhan, learned Additional Advocates General and Mr. J.S. Guleria, Assistant Advocate General, on behalf of the State as also Mr. Parveen Chauhan, Advocate, on behalf of the accused. We have also minutely examined the testimonies of the 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 essential ingredients so required to constitute the charged offence.

In Prandas Vs. The State, AIR 1954 SC 36 , 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 - ''Sheo Swarup and Others vs. The King-EmperorAIR 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."

We find that independent witnesses, Pappu (PW-9) and Raman Kumar (PW-12), in whose presence the search and seizure operations were carried out by the police party, have not supported the prosecution case at all. Not only that, we find statements of the police officials to be contradictory in nature and as such, we see no reason to interfere with the findings returned by the Court below.

Pappu and Raman Kumar, who were declared hostile, were cross-examined by the learned Public Prosecutor. Nothing fruitful could be elicited from their testimony. Both the witnesses have categorically deposed that police obtained their signatures on blank papers. Neither any proceedings were conducted, nor was the accused searched in their presence.

According to Pappu, police came to his shop at 10-11 a.m. and obtained his signatures, whereas Raman Kumar states that he had been harassed by the police and only thereafter he appended his signatures on the blank papers.

We find that Pappu Kumar is a stock witness. According to Jatinder Kumar (PW-11), there are 4-5 shops at the place where search and seizure operations were carried out. Also, other independent witnesses were available. If that were so, then why is it that Jatinder Kumar associated a stock witness, remains unexplained. Thus, a version different from the one, which the prosecution wants the Court to believe has emerged on record.

In Criminal Appeal No. 682 of 2015 (SLP (Crl.) No. 458 of 2013), titled as Makhan Singh v. State of Haryana, decided on 21.4.2015, the apex Court has held that testimony of independent witnesses cannot be ignored, particularly when it casts doubt on the recovery and genuineness of the prosecution version.

In almost identical circumstances, the apex Court in Jagdish and Another Vs. State of M.P., AIR 2000 SC 2059 : (2000) CriLJ 2955 : (2000) 6 JT 247 : (2000) 4 SCALE 381 : (2000) 9 SCC 155 : (2000) AIRSCW 1950 : (2000) 4 Supreme 341 , adopted the same approach.

We further find that police, in the instant case, has associated another person Sanjiv Kumar, who is also a stock witness. Police had brought scales from his shop. Why did police choose only this witness, remains unexplained. The witness appeared as a witness four times.

But what totally knocks down the substratum of prosecution case is the contradiction in the testimony of police officials present on the spot. In fact, we are of the view that Prabhat Chand (PW-14), Budhi Singh (PW-2) and Chaman Lal (PW-1) were not even present. They are not signatories to any of the documents. According to Jatinder Kumar, Rukka was taken to the Police Station through Chaman Lal, whereas according to Budhi Singh, it was he and Chaman Lal who had gone to the Police Station carrying the Rukka. It be only observed that Police Station was at a distance of 27 kms from Koti Chowk. Version of Chaman Lal and Budhi Singh of having traveled in a private vehicle to the Police Station does not inspire confidence at all. Further according to Jatinder Kumar, police party returned to the Police Station same day at 7 p.m. The accused was apprehended at 12.15 p.m. It has come in the version of Chaman Lal and Budhi Singh that it took more than one hour for the police party to prepare the Rukka. If the facts are considered in totality then how is that rukka was carried to the Police Station and with the registration of the F.I.R. file was brought back to the spot in such a short time. This fact acquires significance, in view of the distance and the timing so disclosed by the police officials. Within six hours, police party could not have reached the police station twice, once for getting the FIR registered and second time after concluding the proceedings on the spot.

According to Jatinder Kumar, he had been conversing with witnesses Pappu and Raman Kumar since 11.30 a.m. Also such conversation continued till 12.15 p.m., the time when the accused was spotted coming from Sundla side. But not only independent witnesses have denied such fact, we find such version to have been contradicted by Chaman Lal, according to whom, the witnesses arrived at the spot only at 12.05 p.m. Even though, Chaman Lal, Budhi Singh and Prabhat Chand record presence of independent witnesses on the spot and also state that Jatinder Kumar was having conversation with them, but when questioned further, most conveniently they feigned ignorance of the nature of such conversation. This only renders their presence on the spot to be doubtful.

In the instant case, we also find that the original seal has not been produced in the Court and thus possibility of the contraband substance being tampered with cannot be ruled out, more particularly when Jatinder Kumar himself has deposed that the contraband substance was wet and had lot of moisture, which was not so found at the time of its production in the Court.

Hence, it cannot be said that prosecution has been able to prove its case, by leading clear, cogent, convincing and reliable piece of evidence so as to prove that the accused was found in conscious and exclusive possession of 1.5 kgs of Charas.

The accused has 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., AIR 2010 SC 566 : (2010) CLT 222 : (2010) CriLJ 861 : (2009) 14 JT 6 : (2009) 13 SCALE 584 : (2010) 1 SCC 94 : (2009) 15 SCR 616 : (2009) 10 UJ 4781 , it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged.

Appeal stands disposed of, so also pending application(s), if any.