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2017 Supreme(HP) 1391
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Sanjay Karol, ACJ.
Davinder Kumar - Appellant
Versus
State Of Himachal Pradesh - Respondent
Criminal Appeal No. 65 of 2009
Decided On : 17-11-2017
Mr. Ajay Chandel, Advocate, for the Appellant; Mr. R.S. Verma and Mr. M.L. Chauhan, Addl. Advocate Generals, for the Respondent/State; Ms. Shreya Chauhan, Advocate, for the Amicus Curiae
The prosecution must establish the recovery of contraband substances from the accused's conscious possession beyond reasonable doubt, and the absence of independent witnesses during search and seizure operations may affect the credibility of the prosecution's case.
Headnote:
Narcotic Drugs - Conviction under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 20
Fact of the Case:
The accused was convicted for possessing charas under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The police party claimed to have recovered the contraband substance from the accused's conscious possession, but the accused denied the charges and claimed to have been falsely implicated.
Finding of the Court:
The court found that the prosecution's evidence was doubtful and contradictory, and the trial court's findings were based on incorrect and incomplete appreciation of testimonies, resulting in a miscarriage of justice. The accused was acquitted due to the prosecution's failure to establish the recovery of the contraband substance from his conscious possession.
Issues: The issues revolved around the reliability of the prosecution's evidence, the lack of independent witnesses during the search and seizure operations, and the contradictions in the testimonies of the police officials.
Ratio Decidendi: The court emphasized the duty of the appellate court to appreciate the evidence on record and give the benefit of reasonable doubt to the accused in an appeal against conviction. It also highlighted the requirement for stringent proof in cases involving grave punishment and the importance of independent witnesses during search and seizure operations.
Final Decision: The accused was acquitted, and the judgment of conviction and sentence was set aside. The court also ordered the refund of the fine amount and discharge of the accused's bail bonds.
JUDGMENT
Sanjay Karol, A.C.J. - Assailing the judgment dated 30.3.2009, passed by the learned Special Judge, Hamirpur, H.P., in Sessions Trial No. 21 of 2008, titled as State of Himachal Pradesh vs. Davinder Kumar, whereby the appellant-accused stands convicted 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) and sentenced to undergo rigorous imprisonment for a period of six months and pay fine of Rs. 2,000/-, he has filed the present appeal under the provisions of Section 374(2) of the Code of Criminal Procedure, 1973.
2. It is the case of prosecution that on 12.2.2008, police party headed by SI Fauja Singh (PW-8) were travelling in a vehicle and at about 3.00 p.m. at a place known as Kot, they saw the accused, who seeing the police party got perplexed and tried to flee. However while doing so, he threw a packet which the police picked and on opening found charas. Total quantity was of 200 grams. Two samples of 10 grams each were drawn. The samples as also the bulk parcel were separately sealed with seal impression - S and taken into possession vide recovery memo (Ext. PW-1/A). Fauja Singh filled up NCB forms (Ext. PW-8/A) on the spot, where after, ruka (Ext. PW-4/A) was sent through Const. Jitender Kumar (PW-4) which led to registration of F.I.R. No. 35/2008, dated 12.2.2008 (Ext. PW 9/A) at Police Station Sadar, Hamirpur, Distt. Hamirpur, H.P., against the accused under the provisions of Section 20 of the Act. With the completion of codal formalities on the spot, accused was arrested. The case property was produced before SHO Anjni Kumar (PW-9), who after resealing the same with seal impression-H, entrusted MHC Vijay Parkash (PW-6), Incharge of the Maalkhana, with the same for keeping it in safe custody. Const. Sant Ram (PW-5) took the sample parcel for chemical analysis to the State Forensic Science Laboratory, Junga, and report (Ext. PW-9/E) taken on record. Also special report (Ext. PW-7/A) was sent to the office of Superintendent of Police, Hamirpur. 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.
3. 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.
4. In order to establish its case, prosecution examined as many as nine witnesses and statement of the accused under Section 313 of the Code of Criminal Procedure was also recorded, in which he took the following defence:
"... I am innocent. I have been falsely implicated. In fact, a bus had collided with a car because of which, the road was blocked and I alongwith my friend were forcibly apprehended and thrown in the vehicle and mercilessly beaten. A false case has been planted upon me by the police"
5. It is a matter of record that accused did not lead any evidence in defence.
6. Appreciating the material placed on record by the prosecution, trial Court convicted the accused for the charged offence and sentenced as aforesaid. Hence the present appeal.
7. Having heard learned counsel for the parties as also perused the record, this Court is of the considered view that the reasoning adopted by the trial Court is perverse and not based on correct and complete appreciation of testimonies of the witnesses, evidence and other material placed on record, causing serious prejudice to the accused, resulting into miscarriage of justice.
8. In Shivaji Sahabrao Bobade and another vs. State of Maharashtra, (1973) 2 SCC 793, the apex Court, has held that:
".......Lord Russel delivering the judgment of the Board pointed out that there was "no indication in the Code of any limitation or restriction on the High Court in the exercise of its powers as an appellate Tribunal", that no distinction was drawn "between an appeal from an order of acquittal a
