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2023 Supreme(Online)(HP) 14760
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Tarlok Singh Chauhan, Satyen Vaidya, JJ
Ayush Ratwan – Appellant
Versus
State of H.P. – Respondent
Cr. Appeal No. 402 of 2019
For the Appellants/Petitioners: Sheetal Vyas
For the Respondents: Y.W. Chauhan, Sharmila Patial, J.S. Guleria
A conviction for possession of contraband based solely on police testimony cannot be sustained when there exist material contradictions regarding the location of the scene and the investigative procedure, as the prosecution must prove its case beyond reasonable doubt.
Headnote:(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 21 - Criminal Procedure Code, 1973 - Section 173 and 437A - Conviction for possession of contraband - Material contradictions regarding location and procedure - Witness accounts versus Investigation Officer’s version - Failure to correlate spot map with witness testimony - Benefit of doubt given to accused due to shattered prosecution story. (Paras 27, 28, 29, 30 and 32)
(B) Evidence - Police witnesses - Can form basis of conviction if reliable - Quality over quantity - Testimony found unreliable due to contradictions in material aspects and investigative manipulation. (Paras 22, 23, 24, 25 and 29)
Facts of the case:
The appellant was charged with possession of 30 bottles of Relaxcof syrup and 600 tablets of Tramadol Hydrochloride. Police alleged he was apprehended while trying to flee near Kasaul Bridge. The trial court convicted the appellant, but the High Court, upon reviewing the testimony of the patrolling officers and the investigation reports, found significant material discrepancies between the spot map and the testimony of the witnesses and the Investigating Officer regarding the location and documentation process.
Findings of Court:
The contradictions in the statements of the spot witnesses and the Investigating Officer, particularly regarding the location of the picket, the direction of movement, and whether documentation was performed inside or outside the police vehicle, created a serious doubt in the prosecution story.
Issues: Whether the prosecution successfully proved the conscious possession of contraband by the accused beyond reasonable doubt given the inconsistencies in the testimonies and documentary evidence.
Ratio Decidendi: If the evidence of police officers, while legally sufficient to convict, contains material contradictions and gaps that cast doubt on the integrity of the investigation, the court must resolve these doubts in favor of the accused.
Result: Appeal allowed; conviction set aside; appellant acquitted.
| Table of Content |
|---|
| 1. summary of trial court findings and investigative procedures. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12) |
| 2. prosecution evidence and police witness testimony details. (Para 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20) |
| 3. legal sufficiency of sole police officer testimony. (Para 21 , 22 , 23 , 24 , 25) |
| 4. critical analysis of material contradictions and evidentiary gaps. (Para 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34) |
| 5. final acquittal and procedural orders. (Para 35 , 36) |
This is an appeal by the convict against the judgment and sentence dated 2.7.2019, passed by learned Special Judge, Ghumarwin, District Bilaspur, H.P. in Sessions Trial No. 7-3 of 2016, whereby, the appellant has been convicted for the offence under Section 21 of the Narcotic Drugs & Psychotropic Substances Act (for short the Act) and has been sentenced to undergo rigorous imprisonment for a term of ten years and to pay a fine of Rs. 1,00,000/-. In default of payment of fine, the appellant has been further ordered to undergo rigorous imprisonment for a period of one year.
2. The prosecution had alleged that on 9.3.2016, the police officials from Police Station, Ghumarwin, District Bilaspur while on patrol duty had laid a ‘Naka’ (picket) near Kasaul Bridge at a distance of about six KMs from the Police Station. Appellant was spotted walking from Kasaul Bridge side to the side of village Badhrog with a white coloured carry bag in his hand. On noticing the presence of police, the appellant became perplexed. He turned back and started running towards the side of the rivulet through a ‘Katcha’ path after throwing the carry bag on the road. The appellant was apprehended by the police. On checking the carry bag thrown by the appellant on the road, 30 bottles of syrup named ‘Relaxcof’ and 600 tablets of Tramadol Hydrochloride were recovered. The ‘Relaxcof’ bottles were found to have contents of codeine phosphate and chlorpheniramine maleate.
3. Having found violation of the Act, 30 numbers of bottles of ‘Relaxcof’ recovered from the bag carried by the appellant were placed in a cloth parcel and the parcel was sealed with six seals having impression ‘S’. The box containing 600 tablets of ‘Tramadol Hydrochloride’ were also placed in a separate cloth parcel and the said parcel was also sealed with six seals having impression ‘S’.
4. Relevant columns of ‘NCB form’ were filled. Facsimile of seal impression ‘S’ was preserved on a separate piece of cloth and on NCB Form. Recovery memo in respect of the recovered 30 bottles of ‘Relaxcof’ and 600 tablets of ‘Tramadol Hydrochloride’ was prepared. The Investigating Officer clicked the photograph at the spot.
5. ‘Rukka’ was prepared by the Investigating Officer and was sent to Police Station for registration of FIR through Constable Raj Kumar No. 476. FIR was registered.
6. The Investigating Officer prepared the spot map and formally arrested the appellant. The seized contraband was produced before the SHO, Police Station Ghumarwin, who after conducting the re-sealing proceedings, handed over the sealed contraband to MHC of the Police Station for safe custody in Malkhana.
7. On 10.3.2016, special report under Section 57 of the Act was prepared and sent to SDPO Ghumarwin through Constable Vipan Kumar No. 139.
8. On 16.3.2016, the appellant made a disclosure statement that he could identify the spot where he had purchased 30 bottles of ‘Relaxcof Syrup’ and 600 tablets of ‘Tramadol Hydrochloride’ for a sum of Rs. 4000/- from Ajay Dhiman and Subhash Chand. The appellant identified the spot in presence of Chint Ram Pradhan of Gram Panchayat, Dabla and Ram Prakash, Ward Member of the said Panchayat.
9. On the basis of information provided by the appellant, two other persons namely Subhash Chand and Ajay Dhiman were arrested. While in police custody on 18.3.2016, accused Subhash Chand made a disclosure statement under Section 27 of the Indian Evidence Act to the effect that he could get rec
