State of Himachal Pradesh vs Subhash Chand

Sanjay Karol, J—Assailing the judgment dated 29.12.2007, passed by Special Judge, Fast Track Court, Kullu, H.P. in Sessions Trial No. 33 of 2006, titled as State of Himachal Pradesh Versus Subhash Chand, State has filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973.

It is the case of prosecution that on 03.04.2006, Fateh Singh (P.W.2) and Gangbir Singh (P.W.3) alongwith police officials Sanjay Kumar and Ram Chand (both not examined) were on patrol duty towards Chheri nullah. At about 9.30 PM, they saw a vehicle coming from Fozal side. On signal, vehicle was stopped. Accused who was on the wheels, after stopping the vehicle, fled away from the spot. He was chased, but could not be apprehended. Inside the vehicle, police found 1.7 kgs of charas. Two samples of 25 grams each were drawn. Sample seal as also the bulk parcel were sealed with seal having impression ''A''. NCB form (Ex. PT) was filled up. Fateh Singh carried Rukka (Ex. PG) on the basis of which FIR No. 69 of 2006, dated 04.04.2006 (Ex. PQ) was registered at Police Station, Manali, District Kullu, H.P., under the provisions of Sections 20 and 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act). At the Police Station, Jagdish Chand (P.W.9) resealed case property, which was entrusted to MHC Naresh Kumar (P.W.8). Special report (Ex. PJ), so carried by Deepak Kumar (P.W.5) received by Dole Ram (P.W.4) in the office of Deputy Superintendent of Police, Manali. Report of Chemical analysis (Ex. PU) was obtained and taken on record. Investigation of the case was taken over by Lal Singh (P.W.10), who arrested the accused on 07.05.2006. With the completion of investigation, which prima facie revealed complicity of the accused in the alleged crime, Challan was presented by Lal Chand (P.W.11) in the Court for trial.

The accused was charged for having committed offences punishable under the provisions of Sections 20 & 25 of the NDPS Act as also Sections 181, 192 and 196 of the Motor Vehicles Act, 1988, to which he did not plead guilty and claimed trial.

In order to establish its case, in all, prosecution examined as many as eleven witnesses. Statement of the accused under Section 313 of the Code of Criminal Procedure was also recorded, in which he took the defence of false implication. No evidence in defence was led.

Trial Court, after appreciating the testimony of prosecution witnesses acquitted the accused. Hence the present appeal.

We have heard M/s. Ashok Chaudhary, V.S. Chauhan, learned Additional Advocate Generals assisted by Mr. J.S. Guleria, learned Assistant Advocate General, on behalf of the State as also Mr. B.S. Attri, 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 the 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." "

Presence of the police officials and the manner in which contraband substance was recovered cannot be said to have been proved beyond reasonable doubt through the testimonies of Fateh Singh (P.W.2) and Gangbir Singh (P.W.3). No statutory presumption of recovery of charas from the conscious possession of the accused can be said to be raised. Contradiction in the testimonies of witnesses has rendered the genesis of the prosecution case to be doubtful. Whether these police officials were present on the spot at all is in doubt.

According to Fateh Singh (P.W.2), accused left the vehicle in question and fled towards the nullah. At that time, police had set up a Naka. Whereas, according to Gangbir Singh (P.W.3), accused fled towards the jungle. This fact may not be relevant, but then it stands admitted by Fateh Singh that police party did not have search light with them. Light was coming only through the vehicle in which accused was sitting. Only head lights of the vehicle recovered by the police were on. It is not the case of the witnesses that the light inside the vehicle was on, as a result of which they could notice the accused. It is also not the case of prosecution that accused was known to them from before. Now if police officials had not seen the accused and there is nothing else to link the accused with the alleged crime, then obviously there is doubt with regard to identity of the accused in connection with the crime in question.

Why is it that Gangbir Singh (P.W.3) did not associate any independent witness. His version that he had asked Fateh Singh (P.W.2) and Sanjay Kumar (not examined) to search for one is obviously uninspiring in confidence, for Sanjay Kumar has not been examined and Gangbir Singh admits that Khiyali Ram Pradhan and Roshan Lal were present in the village. Fateh Singh could not find any independent witness, but then presence of Pradhan in the village stands admitted by the police officials. The testimonies of police officials, who carried out search and seizure operations cannot be said to be inspiring in confidence.

Gangbir Singh affirmatively states that he was suspecting some contraband substance to be inside the vehicle, which prompted him to search the same. Prior thereto, he endeavoured to associate independent witnesses. Now significantly search of the vehicle was to be carried out between sun set and sun rise. Why is it that he did not seal the vehicle or take it to the Police Station and search it in the presence of the independent witnesses, after furnishing information to superior officers, for it is nobody''s case that police officials had any apprehension of the vehicle being taken away by the accused or by someone else. There is also nothing on record suggesting reasons of belief having been reduced into writing by Gangbir Singh.

Even by way of link evidence, prosecution has not been able to establish its case. It has come on record that contraband substance, so recovered, was in the shape of 7 chocolate pieces wrapped in a polythene pack. Only two samples of charas were drawn from one polythene pack containing charas. Thus, the samples drawn were not representative in character.

Also from the version of Prem Prakash (P.W.6) and MHC Naresh Kumar (P.W.8), it cannot be said that the property was kept in safe custody and not tampered with. In fact, Constable Prem Prakash (P.W.6), who carried the sample to CTL, Kandaghat, did not support the prosecution and was declared hostile. He admits that there is overwriting on the documents.

According to Prem Prakash, five seals of impression ''A'' and three seals of impression ''D'' were affixed, which do not tally with the NCB form, so received by the laboratory. Version of MHC Naresh Kumar (P.W.8) of having filled up column No. 12 of NCB form is an improvement.

The sample sent to the laboratory was found to be of 30.8 grams. Whereas, it is the case of the prosecution that sample was only of 25 grams. The increase in the weight and that too after a period of four months remains unexplained.

Thus we do not find prosecution to have proved its case, beyond reasonable doubt, by leading clear, cogent, convincing piece of evidence with regard to recovery of contraband substance from the conscious and exclusive possession of the accused from his Maruti van No. HP.01-2810 which he was driving without having any driving licence, registration certificate as also insurance certificate. Contradictions in the statements of police officials are glaring, material and relevant, totally shaking the edifice of prosecution story. Witnesses are unreliable and their testimonies not free from embellishments/contradictions/variations.

The Court below, in our considered view, has correctly and completely appreciated the evidence so placed on record by the prosecution. It cannot be said that judgment of trial Court is perverse, illegal, erroneous or based on incorrect and incomplete appreciation of material on record resulting into miscarriage of justice.

The accused person 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 , since it cannot be said that trial Court has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice, no interference is warranted in the instant case.

For all the aforesaid reasons, present appeal, being devoid of merit, is dismissed, so also the pending application(s), if any. Bail bonds furnished by the accused are discharged. Record of the trial Court be immediately sent back.