State of Himachal Pradesh vs Nand Lal

Sanjay Karol, J.—State has appealed against the judgment dated 22.1.2013 of the learned Special Judge (Additional Sessions Judge), Mandi, District Mandi, Himachal Pradesh, passed in Sessions Trial No. 44 of 2010, titled as State of Himachal Pradesh v. Nand Lal, challenging the acquittal of respondent Nand Lal (hereinafter referred to as the accused), who stands charged for having committed an offence punishable under the provisions of Section 20(b)(ii)(B) of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the Act).

Case of prosecution is that on 30.1.2010, ASI Rajinder Kumar (PW-9), alongwith police party, comprising of HHC Ram Lal (PW-8), Rakesh Kumar and Chet Ram, were present at Naresh Chowk, in connection with Nakabandi. At that time, independent witnesses Rakesh Kumar and Hira Singh were also present. Police party saw the accused coming towards Bus Stand, carrying a red coloured bag in his hand. Seeing the police party, he tried to flee away, but however, after covering certain distance, was apprehended. On apprehension that he may be carrying some contraband substance, he was searched. 250 grams of Charas was recovered from the bag, which the accused was carrying with himself. The same was sealed with seal impression ''M''. Ruka (Ex. PW-9/B) was prepared and sent through Ram Lal (PW-8) to Police Station, BSL Colony, Sundernagar, where FIR No. 29 dated 30.1.2010 (Ex. PW-4/A), under the provisions of Section 20 of the Act was registered. Contraband substance was seized and accused was arrested. With the completion of necessary formalities, case property was entrusted to SHO Madan Dhiman (PW-4), who resealed the same with his seal impression ''A'' and deposited with MHC Durga Dass (PW-5). The sealed parcel was sent through Constable Hari Singh (PW-1) to the Forensic Science Laboratory for analysis and report (Ex. PW-6/A) taken on record. 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(b)(ii)(B) of the Act, to which he did not plead guilty and claimed trial.

In order to establish its case, prosecution examined as many as 9 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 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. B.S. Parmar, learned Additional Advocate General and Mr. J.S. Guleria, Assistant Advocate General, on behalf of the State as also Mr. Sandeep Sharma, 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.""

In the instant case, we find that independent witness Hira Singh (PW-2) has not supported the prosecution case at all. Despite extensive cross-examination by the learned Public Prosecutor, after the witness was declared hostile, nothing fruitful could be elicited from his testimony. Though he admits his signatures on seizure memos (Ex. PW-2/A to 2/C), but clarifies that they were not written in his presence nor was he made aware of the contents thereof. He explains that many persons had gathered near Naresh Chowk. He states that nothing was recovered from the accused in his presence.

Significantly, the other independent witness Rakesh Kumar was not examined by the prosecution, for the reason that he was won over. Now, there is nothing on record to establish such fact.

In Gurminej Singh and others Vs. State of Punjab, , the apex Court held that dropping a witness on the specious plea that he was won over without laying the foundation therefor is generally to be frowned upon. But each case has to be considered on its separate facts.

In State of Rajasthan Vs. Om Prakash, , the Apex Court held as under:-

"14. In State of H.P. v Gian Chand [2000(1) SCC 71] Justice Lahoti speaking for the Bench observed that the Court has first to assess the trustworthy intention of the evidence adduced and available on record. If the court finds the evidence adduced worthy of being relied on then the testimony has to be accepted and acted on though there may be other witnesses available who could have been examined but were not examined."

When we come to the testimonies of police officials, in the instant case, we find them not to be inspiring in confidence. ASI Rajinder Kumar (PW-9) states that Naka had been set up at Naresh Chowk. There is nothing on record to establish that police party had left the police station for such purpose. Genesis of the prosecution story, to us, appears to have not established on record. That apart, this witness states that Ruka was sent to the Police Station, but then whether the file after registration of the FIR was brought back to the spot or not, has not been conclusively established. This renders the prosecution story of having prepared the documents on the spot to be doubtful. Further, according to ASI Rajinder Kumar, after the property was seized and sealed, the seal was entrusted to the independent witness. Now, this seal has not been produced on record. This renders the prosecution case to be fatal, for it cannot be ruled out that the contraband substance was not tampered with.

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 250 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 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., , 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.