State of Himachal Pradesh vs Mukesh Kumar

Sanjay Karol, J.—State has appealed against the judgment dated 5.1.2012 of the learned Special Judge, Fast Track Court, Kangra at Dharamshala, Himachal Pradesh, passed in S.C. RBT No. 26/D/VII-07, titled as State v. Mukesh and another, challenging the acquittal of respondents Mukesh Kumar and Sunil Kumar (hereinafter referred to as the accused), who stand 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).

Case set up by the prosecution is that on 19.6.2007, police party, headed by ASI Jitender Kumar (PW-6), and comprising of Amrik Singh (PW-1), Mohinder (PW-2), Manoj Kumar (PW-3), Kailash Chand and Kuldeep Singh was present at Ghurlu Pul, in relation to traffic checking duty. At about 2.20 a.m., vehicle bearing No. HP-40A-2598 came from Yol side. Accused Mukesh Kumar was on the driver''s seat and co-accused Anil Kumar was sitting beside him. The vehicle was checked and from the bag lying inside the vehicle, Charas was recovered, which upon weighment was found to be of 850 grams. Two samples of 25 grams each were drawn, which were sealed with seal impression ''A''. NCB form (Ex. PW-6/A) was filled up in triplicate. Impression of the seal was taken on a piece of cloth (Ex. PW-6/E) and the seal was handed over to Amrik Singh (PW-1). Contraband substance was seized vide Memo (Ex. PW-1/A), in the presence of Mohinder Singh (PW-2) and Amrik Singh. Ruka (Ex. PW-6/B) was sent through Manoj Kumar (PW-3) to Police Station, Dharamshala, where FIR No. 120/07, dated 19.6.2007 (Ex. PW-6/C), under the provisions of Section 20 of the Act, was registered. With the completion of spot investigation, Jitender Kumar handed over the contraband substance and the samples to SHO R.P. Jaswal, who resealed the same with his seal impression "T". Thereafter, it was handed over to MHC Anil Kumar (PW-8), who deposited the same in the Malkhana and kept it in safe custody. Sealed sample was sent for chemical analysis and report (Ex. PW-6/F) from the FSL, Junga was obtained by the police. Special report (Ex. PW-4/B) was also sent to the superior officer. 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 were charged for having committed an offence punishable under the provisions of Section 20 of the Act, to which they did not plead guilty and claimed trial.

In order to establish its case, prosecution examined as many as 9 witnesses and statements of the accused under the provisions of Section 313 of the Code of Criminal Procedure were also recorded, in which he took plea of innocence.

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. B.S. Parmar, learned Additional Advocate General, on behalf of the State as also Mr. Amrinder Singh Rana, 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, , 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." "

ASI Jitender Kumar (PW-6) states that on 19.6.2007, he had set up a Naka at Ghurlu Pul, when accused came in a vehicle, which was searched and from the bag lying inside the vehicle, Charas was recovered. Samples were drawn; NCB form was filled up; ruka was sent to the Police Station; as also report was sent to the superior officer. His testimony is corroborated by Amrik Singh, Mohinder Singh and Manoj Kumar. However, in cross-examination part of the testimonies of all these witnesses, we find that there are major contradictions, rendering the prosecution case to be fatal.

Now, Jitender Kumar admits that it was a case of routine checking and no memo of personal search was prepared. It has come on record through the testimonies of these witnesses that in fact accused were searched personally. Amrik Singh does state that before searching the vehicle, memorandum was prepared. Now where is that memorandum? Why has it not been produced on record? Genesis of prosecution story of having set up a naka and checked the vehicle in routine does not appear to be correct, for according to Mohinder Singh "HC, Amrik Singh had received secret information at police station". Now, if this were so, then why is it that no entry with regard to the same was made in the Police Station or any action taken under the provisions of Section 42 of the Act? Not only that, according to Jitender Kumar, police party left Police Station at about 11 a.m., for "traffic checking", whereas according to Mohinder Singh, police party left Police Station at 11.15 a.m. The witness is categorical about the timing, which version is corroborated by Amrik Singh. It is in this background statement of Mohinder Singh that Amrik Singh had received secret information at Police Station at about 4-5 p.m. acquires significance. Who is telling the truth is not clear. Also, why material fact was concealed from the Court is not evident. It be only observed that the police party belonged to the CIA staff, Dharamshala and as such unless there was a special reason they had no occasion to have set up a naka. As to whether naka was set up or not itself is in doubt, for according to Amrik Singh, 23 vehicle were searched, whereas according to Mohinder Singh only 15 vehicles were searched, and according to Manoj Kumar, 4-5 vehicles were searched.

There is nothing on record to show that police party made serious endeavour for associating independent witnesses. It is not that the contraband substance was recovered from a place, which was inaccessible by road or that there was no habitation nearby. Police could have associated independent witnesses, for it is admitted by Jitender Kumar that Dari Bazaar and Sheela Chowk are just at a distance of 2, 3 kms, respectively, where Government officials reside. Police party did have a vehicle with themselves.

Special report also does not reflect true and correct facts, for police had prior information but such fact was not recorded therein.

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 were found in conscious and exclusive possession of 850 grams of Charas.

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

The accused 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., , 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.