. IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 782 of 2008 Judgment Reserved on 15th May, 2019 Date of Decision 28th June, 2019 State of Himachal Pradesh Appellant Versus [ENTITY] Respondent Coram The Hon'ble Mr. Justice [ENTITY], J.
The Hon'ble Mr. Justice [ENTITY], J. Whether approved for reporting?1 Yes For the Appellant: Shri [ENTITY] and Shri [ENTITY], Deputy Advocate General.
For the Respondent: Shri [ENTITY], Advocate.
[ENTITY], J.
This appeal has been preferred by State against judgment dated 29.8.2009 passed by learned Sessions Judge, Kinnaur at Rampur, in [CASE NUMBER] titled State of H.P. vs. [ENTITY], whereby respondent [ENTITY] stands acquitted in case FIR No. 109 of 2006 dated 26.11.2006 Whether Reporters of Local Papers may be allowed to see the judgment? Yes registered at Police Station [ENTITY] under [SECTION] of the [ACT], (hereinafter referred to .
as 'the [ACT]').
2. We have heard Mr. [ENTITY], learned Additional Advocate General as well as Mr. [ENTITY], learned counsel for the respondent, and have also gone through the record.
3 The prosecution case is that the police party, headed by SI/SHO [ENTITY] (PW7), consisting of [ENTITY] (PW1), [ENTITY] (PW2) and [ENTITY] had left the Police Station, [ENTITY], at about 8.40 AM for patrolling and traffic checking towards Shamshar etc. after recording DDR No. 5 dated 26.11.2006 (Ext.PX). This police party, at about 10 AM, while patrolling at Shamshar curve (moad), noticed a person coming from Kandu Gadd towards [ENTITY] having a plastic bag in his hand, who, on noticing the police party, became perplexed, which caused suspicion leading to inquiry about his name and address and thereafter search of his bag was conducted after giving him notice under [SECTION] of [ACT], Ext.PW1/A, whereupon charas weighing 1 Kg. 500 grams was recovered from the bag carried by him, out of which two samples of 25 grams each were taken and thereafter entire bulk and two samples were sealed in different packets with seal impression 'K' and were taken in possession vide memo Ext.PW1/C. Entire search and seizure proceedings were witnessed by PW1 [ENTITY] and PW Bhup .
Singh (not examined). Copy of memo was also supplied to the respondent/accused under his signatures and NCB form Ext.PW7/A was filled in, in triplicate, specimen seal impression Ext.PW1/F was also taken on NCB Form and separate piece of cloth. After completing the search and seizure proceedings, rukka Ext.PW6/A was prepared by PW7 [ENTITY] and was sent to the Police Station through PW2 [ENTITY] for registration of FIR, who had handed over it to PW6 [ENTITY], whereupon PW6 [ENTITY] had registered FIR Ext.PW6/B and handed over the copy thereof along with case file to PW2 [ENTITY] for giving it to PW7 [ENTITY]. PW7 Investigating Officer had recorded the statements of witnesses and prepared the site plan Ext.PW7/B and had arrested the respondent giving information about his arrest to his brother [ENTITY] as per memo Ext.PW1/D, as desired by the respondent/accused.
4 On arrival at the Police Station, PW7 [ENTITY] had deposited the case property along with documents in the Malkhana through PW6 [ENTITY], who had made entries in Malkhana Register in this regard, copy of extract whereof is Ext.PW6/C. 5 On 27.11.2006, PW7 [ENTITY] had prepared the special report Ext.PW3/A and the same was delivered to SDPO .
[ENTITY] through PW4 [ENTITY] at 10.15 AM on the same day. PW3 [ENTITY], the then Reader to SDPO [ENTITY], after receiving the said special report, had entered the same in his register at Sr. No. 1625.
6 On 28.11.2006 PW6 [ENTITY] through PW5 [ENTITY] had sent one sample of recovered contraband to Central Forensic Science Laboratory, Chandigarh for chemical analysis vide [CASE NUMBER] Ext.PW6/D. However, the sample was not accepted in the Laboratory and was returned back for completing certain formalities and after removing the objections, the sample of recovered contraband was again taken to CFSL Chandigarh on 4.12.2006. Report Ext.PC was received from CFSL Chandigarh, wherein it was found that it was a sample of charas. On completion of investigation, challan was presented in the Court.
7 On the basis of record, placed before it, the trial Court, on finding prima facie complicity of respondent/accused in the commission of offence, framed the charge under [SECTION] of [ACT] against the respondent wherein the respondent had pleaded not guilty and claimed trial.
8 Prosecution has examined seven witnesses and has produced the documentary evidence to establish its case, .
whereas after recording statement under [SECTION] [ACT], respondent had chosen to examine HC [ENTITY], as DW1. On conclusion of trial, the trial Court has acquitted the respondent/accused, hence the State is in appeal.
9 As per prosecution story, the place of apprehending the respondent and recovering the contraband from his possession, is secluded one and as at that time no independent witness was available on the spot, therefore, PW1 [ENTITY] and PW [ENTITY] were associated as the witnesses to the search and seizure by the Investigating Officer. Prosecution has examined Investigating Officer SI/SHO [ENTITY] (PW7), [ENTITY] (PW1) and [ENTITY] (PW2) as spot witnesses to the recovery of contraband, whereas [ENTITY] was given up by learned Public Prosecutor being a witness of the same sequence. PW6 has performed the duty of MHC for registering of FIR, after receiving [ENTITY], accepting the deposit of case property in Malkhana by entering the same in Register. PW3 [ENTITY], PW4 [ENTITY] and PW5 [ENTITY] have performed their duties respectively as Reader to SDPO(PW3), carrier of special report to SDPO [ENTITY] (PW4) and carrier of the sample to CFSL Chandigarh twice (PW5). PW1, PW2 and PW7 in their depositions in Court have substantially corroborated the prosecution case.
10 PW7 [ENTITY], Investigating Officer, in his deposition in Court, has corroborated the prosecution case. Two witnesses PW1 [ENTITY] and PW2 [ENTITY], by and large, have corroborated the prosecution story except both of them have added that personal search of accused was conducted and nothing incriminatory was found from his personal search, whereas prosecution case ,as placed on record in notice U/[SECTION] of [ACT], (Ext.PW1/A), seizure memo (Ext.PW1/C), [ENTITY] (Ext.PW6/A) and FIR (Ext.PW6/B) as well as in deposition of PW7 Investigating Officer is that polythene bag being carried by the respondent was only searched. Not only in above referred documents, prepared on 26.11.2006, but in special report dated 27.11.2006 (Ext.PW3/A) also, it is mentioned that after obtaining oral as well as written consent of respondent, [ENTITY] of his polythene bag was carried out. No doubt, [ENTITY] means personal search, but here in the present case, everywhere on the documents, it is categorically mentioned that [ENTITY] of bag was undertaken. It appears that poor Investigating Officer was not even having the knowledge of meaning of word '[ENTITY]' so used for conducting the search of polythene bag. He has used the words '[ENTITY] of polythene bag was undertaken'. The fact that no personal search of respondent was carried out is also .
substantiated from the facts that neither there is any personal search memo available on record, nor has been referred in any of the documents prepared during search and seizure proceedings undertaken during search of bag being carried by the respondent in his hand.
11 Incident is of 26.11.2006, whereas PW1 and PW2 have been examined in Court on 15 th February, 2008. It appears that they have tried to become more wise by adding the procedural fact on record for the fact that notice under [SECTION] of [ACT] was given to accused and his written consent for his personal search to the police was also undertaken thereon.
The fact remains that neither as per documents on record nor as per statement of Investigating Officer, PW7, it can be construed that personal search of respondent was ever conducted at the time of recovery of contraband. Therefore, keeping in view the manner in which contraband was recovered from the possession of respondent, provisions of [SECTION] of [ACT] are not applicable. As there was no necessity to issue the notice under [SECTION] of [ACT], any defect in the said notice/consent memo (Ext.PW1/A) hardly makes any difference. The trial Court in its reasons for rejecting the claim of prosecution has also observed that accused was apprised his right to have searched .
before the Gazetted Officer, Magistrate or the Police and as third option to search before the police, other than two options of Gazetted Officer or Magistrate, was observed to have been given to respondent, notice under [SECTION] of [ACT] was found defective, resultantly vitiating the entire search and seizure procedure. As observed supra, provision of [SECTION] of [ACT] was not applicable in the present case, even if it is considered applicable, as per record, fact referred by the trial Court that third option of search by police has been extended or communicated to the respondent has been found false as evident from consent memo Ext.PW1/A and seizure memo Ext.PW1/C. Anyhow, in given facts and circumstances of present case, [SECTION] of [ACT] is not applicable as no personal search of accused has been claimed to have been conducted.
12 It is true that keeping in view the stringent punishment for commission of offence under the [ACT] and also issue of personal liberty of accused, Legislature as well as the Courts have provided and evolved safeguards to protect the personal liberty by insisting for joining of independent witnesses at the time of carrying out search and seizure procedure during apprehension of transportation/recovery of contraband. However, it may not be possible, in all times, to associate and join .
independent witnesses on account of non-availability for various reasons. Therefore, considering that police/official witnesses are also like other witnesses, where the deposition of official/police witnesses have been found cogent, reliable, trustworthy and convincing, the Courts have not hesitated from punishing the culprits even in absence of independent witness. However, where the integrity and veracity of official/police witnesses are doubtful, the Courts have always given its benefit to accused on the basis of cardinal principle of criminal jurisprudence that where there is doubt then benefit is to be extended to the accused.
13 In the present case, there is no major infirmity or discrepancy or contradiction in the depositions of official witnesses in Court with respect to the prosecution case as putforth in the challan except the one, as referred supra. It has also come on record that during cross examination of witnesses, PW1 [ENTITY] has explained that no private witness was available and therefore, no such witness could be associated.
PW2 [ENTITY] has also stated like this. Similarly, PW7 Investigating Officer, in his cross examination, though has admitted that passage was thoroughfare but has explained that spot of recovery was secluded place and therefore, any witness from locality could not be associated. To these three witnesses, .
no suggestion has been put about availability of witnesses on the spot or possibility of presence of any independent witness at some distance or with regard to any habitation nearby the place where contraband was recovered from the accused/respondent.
Therefore, non-joining of independent witnesses, as explained by official witnesses, has not been questioned by and on behalf of the respondent.
In his statement under [SECTION] [ACT], the respondent has taken the ground that on 25.11.2006 at about 8.30 AM, he had reached Luhri by a mini bus and at that time [ENTITY] had misbehaved with him and had taken him to the Police Post and had also taken Rs.42,000/- from his pocket whereafter, at about 11.30 AM, police from the Police Station, [ENTITY] had come and taken him to [ENTITY] and thereafter a false case was foisted upon him. Strangely enough, no such question/suggestion was ever put to PW1 [ENTITY] during his cross examination or PW2 [ENTITY] who were examined in February, 2008. However, the suggestion has been put to PW7, who was examined in April, 2008, that [ENTITY] had hot exchange with the accused at Luhari when he was going in bus from Karsu to Rampur leading to foisting of case upon respondent. There was no suggestion to PW1 and PW2 regarding .
this altercation in February, 2008, whereas allegations of altercation with [ENTITY] were alleged for the first time in April, 2008 in cross examination of PW7 and in May, 2008, in statement under [SECTION] [ACT], grabing of Rs.42,000/- from the pocket of accused was also added. Had it been the true, the respondent would have made a complaint to the appropriate authority at the initial stage and respondent did not raise any such issue neither immediately after his arrest or foisting of false case upon him, nor also during the cross examination of relevant material witnesses. Therefore, this defence appears to have been a result of an afterthought.
15 Learned counsel for the respondent, by referring documents Ext.PW1/A, Ext.PW1/B, and Ext.PW1/D, has submitted that there are cutting, over-writing and discrepancies over these documents with reference to name of witness [ENTITY] which indicates that these documents have not been prepared on the spot and also that [ENTITY] was not present on the spot and these documents have been prepared and signed at the Police Station. In the memo of consent Ext.PW1/A, word "Aarkshi"
(constable) has been written by doing over writing on the name of [ENTITY]. It is a fact that [ENTITY] was also present on the spot and [ENTITY] and [ENTITY] were also present and .
I.O. had associated [ENTITY] and [ENTITY] as witnesses to the search and seizure procedure, whereas through [ENTITY] the [ENTITY] was sent to the Police Station. Therefore, writing the name of [ENTITY] instead of [ENTITY] during the process of preparing consent memo and later on correcting it as [ENTITY] is not fatal to the prosecution case.
16 Similarly, in Ext.PW1/B [ENTITY] has been mentioned as HC [ENTITY] and in Ext.PW1/D, he has been mentioned as [ENTITY]. In these three documents, [ENTITY] has signed as [ENTITY] and his signatures in these documents have neither been disputed nor are different in nature. On these three documents, the signatures of [ENTITY] are identical. Therefore, we find that cuttings/over-writing so pointed out by learned counsel for the respondent are not material in nature. Perusal of document Ext.PW1/D clearly indicates that this document has been prepared in natural course as after signatures of respondent, a little space is left for mentioning the name of witness and same has been mentioned in that small place. Had these documents been prepared, as alleged by learned counsel for the respondent, these natural cuttings and adjustments would not have been there in these documents.
17 Prosecution has not examined [ENTITY] by giving up him. Investigating Officer has appeared as PW7 and two other witnesses PW1 and PW2 have corroborated the major portion of his statement, which is in consonance with prosecution case. In their cross examination, nothing favourable to the accused was elicited. Therefore, giving up the examination of [ENTITY] being a witness of same sequence is also not fatal to the prosecution. Had there been any material contradiction or discrepancy going to the root of genesis of prosecution case, there would have been necessity to examine [ENTITY] compulsorily.
18 Learned counsel for the respondent has also pointed out that there is lapse on the part of police in depicting movement of samples sent to CFSL Chandigarh in correct manner. He has pointed out that in RC dated 28.11.2006 (Ext.PW6/D), there is reference of departure of PW5 [ENTITY] along with sample of charas and other relevant documents, whereas the said sample was delivered in CFSL Chandigarh on 5.12.2006 and in extract of Malkhana register (Ext.PW6/C) also, sending of sample to CFSL Chandigarh has been claimed on 28.11.2006 and there is no explanation as to where PW5 [ENTITY], along with sample, remained from 28.11.2006 to .
5.12.2006. PW5 [ENTITY], in his deposition in Court has categorically stated that the sample was handed over to him on 28.11.2006 which was returned by CFSL Chandigarh with objections and in turn, he had handed over it back to [ENTITY],PW6, who again had handed over it to him on 4.12.2006 which was deposited by him in CFSL Chandigarh and receipt thereof was handed over to PW6 on 7.12.2006. In his cross examination, there is no suggestion to him that he had not approached the CFSL Chandigarh after receiving it on 28.11.2006 and that there was no objection raised by CFSL Chandigarh and he had taken the sample somewhere-else or the sample was replaced by him. The nature of cross examination is such that instead of doubting the claim of prosecution it stands further clarified by PW5 [ENTITY] during his cross examination by explaining that sample was taken to Chandigarh on 30.11.2006 after getting the docket prepared from [ENTITY]. Judicial notice of the fact can be taken that during winter season journey from [ENTITY] to [ENTITY] consumes a complete one day i.e. about 12 hours journey.
Further PW6 [ENTITY] has committed irregularity by not entering the return of sample in Malkhana on 30.11.2006 and thereafter handing over the same on 4.12.2006 after removing the objections, but keeping in view the other overwhelming evidence .
on record proving the recovery of charas from conscious possession of respondent and the fact that in cross examination of PW5 [ENTITY], his version, stated in examination in chief, has not been disputed, this faulty performance of duty by PW6 [ENTITY] is not affecting the merits of the case of prosecution against the respondent.
19 Learned counsel for the respondent has also raised the issue that in the present case, complainant as well as Investigating Officer is one and same Officer and therefore, keeping in view the pronouncement of Apex Court in [ENTITY] vs. State of Punjab reported in AIR 2018 SC 3853, the respondent is entitled for acquittal and has rightly been acquitted by the trial Court. This plea is not available to respondent as the Apex Court in case [PRECEDENT] has clarified that the judgment passed in [ENTITY]'s case shall not affect the status of cases instituted/filed prior to the said judgment, rather this judgment shall have the prospective applicability/effect and all pending criminal prosecutions, trials and appeals prior to the law laid down in [ENTITY]'s case supra shall continue to be governed by the individual facts of the case.
20 From the aforesaid evidence on record, prosecution has been able to establish that there was recovery of contraband from the possession of respondent on 26.11.2006 as claimed by prosecution. Therefore, presumption under [SECTION] and [SECTION] of [ACT] comes into play and in such a situation, there is reverse onus on the accused to prove the case otherwise. In the present case, the respondent is resident of District Kaithal, State of Haryana and he was found at a place which is interior place of Himachal Pradesh and respondent has not brought anything on record to justify his presence in such a remote area of Himachal Pradesh for any other lawful reason except for indulging in the trafficking of drugs.
21 In the absence of independent witness on record, we have scrutinized the evidence of official witnesses with more carefulness and as discussed above, we find that there is cogent, reliable, trustworthy and convincing evidence on record which establishes that accused was found in possession of charas as alleged by prosecution and therefore, he is liable to be convicted for the same.
22 The trial Court has failed to appreciate the evidence on record in right perspective and has acquitted the accused on .
the grounds which were not material in nature or having impact on the veracity of prosecution case and also relied upon the factors which were not material so as to doubt the veracity of prosecution case. Rather, as discussed above, evidence on record has established the prosecution case qua the recovery of charas from the conscious possession of respondent. Therefore, the judgment passed by the trial Court acquitting the respondent is set aside and respondent is convicted for commission of offence under [SECTION] of [ACT].
23 As quantum of recovery is concerned, as per prosecution case, 1 Kg. 500 grams charas was recovered from the respondent and after taking out two samples of 25 grams each, the remaining contraband was sealed in parcel and samples were also sealed in two different parcels. Bulk of charas claimed to be recovered from the respondent is Ext.P2 but during investigation and thereafter also, only one sample of 25 grams of charas was sent to CFSL Chandigarh for chemical analysis and as per chemical analyst report Ext.PX the sample was found to be of charas.
24 As per ratio laid down by the Apex Court in [ENTITY] vs. State of Goa, reported in (1993)3 SCC .
145 the amount of contraband, recovered from the respondent, cannot be held more than that which was sent to the Chemical Analyst and was affirmed by the Forensic Science Laboratory as a contraband. The failure to send the entire mass for chemical analysis would result to draw inference that said contraband has not been analyzed and identified by CFSL as the charas.
25 Learned Single Judge of this Court in [PRECEDENT], after relying upon the judgment in [ENTITY]'s case supra, has held that only analyzed quantity of contraband can be said to have been recovered from the respondent. Applying the ratio of law laid down by the Apex Court and followed by learned Single Judge of this Court, we find that in the present case quantity of recovered contraband is to be taken as 25 grams only and therefore, respondent can be convicted for recovery of 25 grams charas from his conscious possession for which punishment has been provided under [SECTION] for a term which may extend the six months or with fine which may extend to Rs.10,000/- or/with both.
26 Respondent was arrested by police on 26.11.2006 and he remained in custody during the entire trial till .
pronouncement of final judgment on 29.8.2008. Therefore, he has already served the sentence more than the period prescribed for commission of offence proved on record committed by him.
Therefore, no further sentence is required to be imposed upon him. The bail bonds, so furnished by the respondent stand discharged. Appeal is allowed in aforesaid terms. Record be sent back forthwith.
([ENTITY]) Judge June 28, 2019 ([ENTITY]), ms Judge