State of Himachal Pradesh vs Kailash Mehta

Sanjay Karol, J.—State has appealed against the judgment dated 15.12.2007 of the learned Special Judge, Fast Track Court, Una, District Una, Himachal Pradesh, passed in Sessions Case No. 6/07, titled as State v. Kailash Mehta, challenging the acquittal of respondent Kailash Mehta (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 and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act).

It is the case of prosecution that on 15.2.2007, when a police party, headed by HC Subhash Chand (PW-10), comprising of Constables Gurdial Singh (PW-1), Surinder Singh (PW-2), Mohinder Kumar (PW-3) and Rajesh Kumar, was on patrol duty, at about 5.15 p.m., Constable Anil Kumar (PW-11) furnished information that accused Kailash Mehta was selling Ganja in the huts near Kushat Ashram. Proceedings, under the provisions of Section 42 of the Act, were drawn and information sent to the Superintendent of Police, Una, on the basis of which FIR No. 72/07, dated 15.2.2007 (Ex. PW-9/D) was registered at Police Station, Una. HC Subhash Chand associated independent witnesses Surinder Kumar (PW-4) and Sukh Dev (not examined) and raided the premises. After informing the accused of his statutory rights and obtaining his consent (Ex. PW-3/A), accused was searched. From the bag carried by the accused, 2 kgs of Ganja was recovered. Two samples, each weighing 200 grams, were drawn. Bulk parcel and the samples were sealed with seal of seal impression ''B'' and taken into possession vide Memo (Ex. PW-3/C). Impression of the seal was also taken on a piece of cloth (Ex. PW-10/C). Accused was arrested vide Memo (Ex. PW-3/D). NCB form was filled up in triplicate. Case property was produced before SI Karam Chand, who resealed the same with his seal of seal impression ''J''. Thereafter, it was deposited in the Malkhana with MHC Rajesh Kumar (PW-5), who kept the same in safe custody. Report of the Forensic Science Laboratory (Ex. PW-9/A and 9A/A) 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 11 witnesses and statement of the accused under the provisions of Section 313 of the Code of Criminal Procedure was also recorded, in which he pleaded 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. V.S. Chauhan, learned Additional Advocate General, on behalf of the State as also Mr. Jagdish Thakur, 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." "

To us, genesis of the prosecution story does not appear to be true. Anil Kumar (PW-11) does not disclose the basis on which he received the secret information. He admits not to have confirmed the same.

Be that as it may, we find version of the police officials to have been contradicted by independent witness, in whose presence the alleged recovery was effected. According to police officials Mohinder Kumar (PW-3) and Subhash Chand (PW-10), there was no shop onside Kushat Ashram, the place from where recovery was effected from the accused. This version stands contradicted by the site plan (Ex. PW-10/B), so prepared by the Investigating Officer.

Independent witness Surinder Kumar has not supported the prosecution. He only signed the memos as the police commanded him to do so. Another independent witness Sukhdev Singh has not been examined in Court.

HC Subhash Chand has contradicted the version of Anil Kumar (PW-11), with regard to the distance between the place where the information was furnished to him and the police station. How the ruka was taken to the Police Station remains unexplained. There is contradiction with regard to recording of the information; timing of registration of FIR; and the seizure of the case property. Subhash Chand does not even remember who recorded statements of the witnesses, under the provisions of Section 161 of the Code of Criminal Procedure. Investigation was not entrusted to an independent police official.

One finds that the seal with which the case property was resealed by Karam Chand has not been produced in Court. Why so? has not been explained. Possibility of the contraband substance being tampered with, as is rightly held by the trial Court, cannot be ruled out. On this count, testimony of MHC Rajesh Kumar acquires significance, as according to him no seals were deposited with him. Why so? has not been explained.

Mohinder Kumar (PW-3) admits that accused is an illiterate person. If that is so, then how documents (Ex. PW-3/A, 3/B, 3/C and 3/D) bear his signatures.

From the material placed on record, prosecution has failed to establish that the accused is guilty of having committed the offence, he has been charged with. The circumstances cannot be said to have been proved by unbroken chain of unimpeachable testimony of the prosecution witnesses. The guilt of the accused does not stand proved beyond reasonable doubt to the hilt. The chain of events does not stand conclusively established, leading only to one conclusion, i.e. guilt of the accused. Circumstances when cumulatively considered do not fully establish completion of chain of events, indicating to the guilt of the accused and no other hypothesis other than the same.

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 2 kgs of Ganja.

For all the aforesaid reasons, we find no reason to interfere with the judgment passed by the trial Court. The Court has fully appreciated the evidence so placed on record by the parties.

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.