STATE OF HIMACHAL PRADESH versus TRILOK CHAND & ANR.

STATE OF HIMACHAL PRADESH

TRILOK CHAND & ANR.

(Criminal Appeal Nos. 2133-2134 of 2011)

JANUARY 17, 2008

[N. V. RAMANA AND S. ABDUL NAZEER, JJ.]

Narcotic Drugs and Psychotropic Substances Act, 1985 – s.55– Contraband goods – Recovery of – Conviction of respondents-accused under s.20 and sentence of 10 years rigorous imprisonment– Acquittal by High Court – State’s appeal against acquittal on theground that High Court gave greater importance to trivialdiscrepancies in the prosecution case and without assigning anyplausible reason allowed the appeals of accused – Held: Thediscrepancies in the prosecution case highlighted were the evidenceof DW-1 that on the fateful day, police officials asked him to loadgunny bags lying outside the abandoned house; the evidence ofindependent witnesses to the effect that they were not present at thespot when the incident took place and that they were called to policestation and their signatures were taken on some papers – Thesediscrepancies were major in character – The evidence is lackingsupport to establish that the contraband was really recovered fromthe possession of the accused in the manner alleged by theprosecution on the said date and time – In view of number ofdiscrepancies in the prosecution case coupled with the contradictorystatements by prosecution witnesses, the prosecution story appeareddoubt – Prosecution having failed to establish the commission ofalleged offence by the accused beyond reasonable doubt, accused-respondents are granted benefit of doubt – Interference with theorder of acquittal not called for.

Dismissing the appeals, the Court

HELD: 1. The record showed that in order to satisfy therequirement of Section 55 of N.D.P.S. Act, the case property wasaccordingly tampered by the police. In the prescribed form, theplace of seizure was mentioned as Nagwain and not Panarsa Bridgeand the name of only one accused was shown from whom thecontraband was said to have been seized while he was carrying

[2018] 1 S.C.R.

Athree gunny bags. The name of other accused was addedafterwards to justify the fact that one person could not have carriedthree bags of contraband at time. In view of number ofdiscrepancies in the prosecution case coupled with thecontradictory statements by prosecution witnesses, the entireprosecution story vitiated and led for discrediting its version.BContradictions in the statement of the witnesses are fatal for thecase, though minor discrepancies or variance in their evidencewill not disfavour. Considering the circumstances of the case onhand, it can be said that the discrepancies are comparatively of amajor character and go to the root of the prosecution story. TheseCcannot therefore be ignored to give undue importance to theprosecution case. It is well settled that the Court can sift thechaff from the grain and find out the truth from the testimony ofthe witnesses. The evidence is to be considered from the pointof view of trustworthiness and once the same stands satisfied, it

ought to inspire confidence in the mind of the Court to acceptDthe stated evidence. [Paras 11, 12][260-C-G]2. The evidence is scanty and lacking support to establishthat the contraband was really recovered from the possession ofthe respondents in the manner alleged by the prosecution on thesaid date and time. It is imperative that the law the Court shouldEfollow for awarding conviction under the provisions of N.D.P.S.Act is “stringent the punishment stricter the proof.” In suchcases, the prosecution evidence has to be examined veryzealously so as to exclude every chance of false implication. But,in the case on hand, under the circumstances, the prosecutionFstory cannot be believed to award conviction to the accused-respondents. They deserve benefit of doubt. [Para 13][261-A-C]

State of H.P. v. Lekh Raj(2000) 1 SCC 247 : [1999] 4Suppl. SCR 286; Sukhdev Yadav v. State of Bihar(2001) 8 SCC 86 : [2001] 3 Suppl. SCR 91 – relied

Gon.

Case Law Reference

[1999] 4 Suppl. SCR 286relied onPara 12[2001] 3 Suppl. SCR 91relied onPara 12

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNos. 2133-2134 of 2011.

From the Judgment and Order dated 14.10.2009 of the High Courtof Himachal Pradesh at Shimla in Criminal Appeal Nos. 220 and 348 of2006.

D. K. Thakur, S. Ahmed, Varinder Kumar Sharma, Naresh K.Sharma, Advs. for the Appellant.

S. S. Ray, Vaibhav G., Ms. Rakhi Ray, Advs. for the Respondents.

The Judgment of the Court was delivered by

N. V. RAMANA, J. 1.These appeals are filed by the Statehaving aggrieved by the judgment and order dated 14[th] October, 2009passed by the High Court of Himachal Pradesh, allowing the CriminalAppeals filed by the accused—respondents herein against their convictionpassed by the trial Court under the Narcotic Drugs and PsychotropicSubstances Act (for short “the N.D.P.S. Act”). By the said order, theHigh Court set aside the order of conviction and sentence passed by thetrial Court against the accused—respondents herein.

2. In order to appreciate the merits of these appeals, brief factsas emerged from the prosecution case need to be noted at the outset.On 10[th] July, 2004, Anjani Kumar, Inspector, CID, Shimla (PW12), uponreceiving secret information that some people are pursuing the unlawfulbusiness of charas, proceeded towards Panarsa Bridge along with ASIGian Chand (PW 9) and Constable Rakesh Kumar (PW 8) and someother police personnel. Amar Chand (PW 1) and Kuldeep Kumar (PW2) who were going on that route at that time, also joined them aswitnesses. At around 11.30 p.m. in the night, the accused—respondentsherein arrived at that place carrying with them three gunny bags ofcontraband (Charas) and upon seeing police, they tried to run away.Police overpowered the accused and seized the contraband from theirpossession, prepared samples, sealed and marked them and registeredthe case. After investigation, charges were framed against the accusedand upon their denial, the case was committed for trial.

3. The Trial Court convicted the accused for the offence punishableunder Section 20 of the N.D.P.S. Act and sentenced them to undergorigorous imprisonment for period of ten years and to pay fine ofRs.1,00,000/- each and in default of payment of fine, to undergo furtherimprisonment for two years.

A4. Aggrieved by the order of conviction and sentence passed bythe trial Court, the accused filed appeals before the High Court and theHigh Court after analyzing the evidence allowed their appeals and setaside the conviction. Dissatisfied with the acquittal order passed by theHigh Court, the State is in appeal before us.B5. We have heard learned counsel appearing for the appellant –

5. We have heard learned counsel appearing for the appellant –State of Himachal Pradesh and the learned counsel appearing for therespondents as well, and carefully gone through the material on record.

6. It is submitted before us by the learned counsel for the Statethat while dealing with the appeals of the accused, the High Court hasCgiven greater importance to trivial discrepancies in the prosecution case.Ignoring the cogent evidence advanced by official witnesses, the HighCourt simply held that there were material contradictions in theirdepositions and without assigning any plausible reason allowed the appealsof the accused and thereby committed an error of law.

D7. Learned counsel appearing for the accused—respondents,however, supported the view taken by the High Court in acquitting theaccused.

8. Having given our thoughtful consideration to the rivalsubmissions and after going through the material available on record, weEnotice the following discrepancies in the prosecution case, which in ourconsidered opinion, bear greater importance in dealing with the case onhand :

(i) The evidence of Tulsi Ram (DW 2) makes it clear that on theday of incident i.e. 10-7-2004, when he was going to his houseFthrough Panarsa Bridge at about 4/5 p.m., police officials methim on the way near Panarsa Bridge. They asked him to loadthree gunny bags lying outside an abandoned house, into thevehicle. Accordingly he carried two gunny bags while one bagwas carried by the police officials and loaded them in the vehicle.GHe has also deposed that the police officials told him that thebags contained contraband material ‘charas’ and the same wasrecovered from the abandoned house.

(ii) PW 1 (Amar Chand) and PW 2 (Kuldip Kumar) who weresaid to be the independent witnesses, did not support the caseH

of prosecution. They clearly stated that they were not presentat the spot when the incident took place and denied the detainingof accused—respondents in their presence and allegedrecovery of contraband from the accused. In categorical terms,they deposed that they were called to the police station andtheir signatures were taken on some papers. Moreover, theyhave admitted that earlier also they were used by the police asprosecution witnesses in some other cases.

(iii) According to the depositions of police officials PW 9 (GianChand) was sent to shopkeeper Hem Raj (PW5) to borrowscale and weights on the intervening night of 10[th] & 11[th] July,2004, and the seized material was sent to malkhana. Contraryto this, PW 5 (Hem Raj) stated that the scale and weightswere borrowed from him by the police officials in the morning9 or 10 am on 11[th] July, 2004. The said PW5 was also declaredhostile. Not only this, according to Anjani Kumar (PW 12),Gian Chand (PW 9) left the spot to get scale and weights at11.30 p.m. returned to the spot at 8.15 p.m., ante time. Whereasanother witness Constable Rakesh Kumar (PW 8) deposedthat Gian Chand (PW 9) left the spot to bring scale and weightsat 1 a.m.

(iv)According to Anjani Kumar (PW 12), he called Rajinder Kumar(PW11) on his cell phone and asked to join him at Kullu whereasthe record shows that Rajinder Kumar (PW 11) joined PW 12at Panarsa and he has clearly denied to have received any callfrom PW 12.

(v)It is the case of the accused—respondents that while theywere taking tea at Dhaba, police arrived there and takenthem to police station and falsely implicated them in the case.This fact corroborates with the deposition of Bihari Lal (DW3), tea vendor, who stated that police officials came to hisshop and took away the accused on 11-7-2004.

9. Besides the above noted inadequacies, there are also certainother contradictory statements by the prosecution witnesses relating toother aspects of the case, per se, according to Rakesh Kumar (PW8),he carried the report (Ex.PH) to police station in truck, whereas PW-9 (Gaian Chand) states that PW8 travelled by scooter and the prime

Awitness Anjani Kumar (PW12) says that PW8 went to police stationand returned to the spot by foot.

10. One more important discrepancy in the prosecution case thatgives rise to suspicion of truthfulness of police officers is that, as deposedby Anjani Kumar (PW 12) the entire seized case property together withBsix sample parcels was deposited by him with Gandhi Ram (PW 6).Whereas Dabe Ram, SHO (PW4) says that Anjani Kumar (PW12)produced three bags and three sample parcels before him at 8.30 pm.On the other hand, the material on record proves the same wrong as atthe relevant time, PW12 was present at Sadar Police Station, Mandi andsent special report to Superintendent of Police (Ext. PW 11/A).

11. It also appears from the record that in order to satisfy therequirement of Section 55 of N.D.P.S. Act, the case property wasaccordingly tampered by the police. It is also relevant to mention herethat in the prescribed form, the place of seizure was mentioned asNagwain and not Panarsa Bridge and the name of only one accused i.e.DSantosh Kumar was shown from whom the contraband was said tohave been seized while he was carrying three gunny bags. As rightlyobserved by the High Court, it appears that the name of other accusedwas added afterwards to justify the fact that one person could not havecarried three bags of contraband at time.

12. Going by the number of discrepancies in the prosecution casecoupled with the contradictory statements by prosecution witnesses, theentire prosecution story vitiates and leads for discrediting its version.Contradictions in the statement of the witnesses are fatal for the case,though minor discrepancies or variance in their evidence will not disfavourF[See: State of H.P. Vs. Lekh Raj (2000) 1 SCC 247]. Considering thecircumstances of the case on hand, it can be said that the discrepanciesare comparatively of major character and go to the root of theprosecution story. We cannot therefore ignore them to give undueimportance to the prosecution case. It is well settled that the Court cansift the chaff from the grain and find out the truth from the testimony ofGthe witnesses. The evidence is to be considered from the point of viewof trustworthiness and once the same stands satisfied, it ought to inspireconfidence in the mind of the Court to accept the stated evidence [See:Sukhdev Yadav v. State of Bihar, (2001) 8 SCC 86].

13. In the light of the above discussion, in our considered opinion,the prosecution has failed to establish the commission of alleged offenceby the accused—respondents beyond reasonable doubt. The evidenceis scanty and lacking support to establish that the contraband was reallyrecovered from the possession of the respondents in the manner allegedby the prosecution on the said date and time. It is imperative that the lawthe Court should follow for awarding conviction under the provisions ofN.D.P.S. Act is “stringent the punishment stricter the proof.” In suchcases, the prosecution evidence has to be examined very zealously so asto exclude every chance of false implication. But, in the case on hand,under the above explained circumstances, the prosecution story cannotbe believed to award conviction to the accused—respondents. Theydeserve benefit of doubt. We are, therefore, in complete agreement withthe view taken by the High Court and see no reason to interfere with theorder impugned herein.

14. Accordingly, the Criminal Appeals stand dismissed.

Devika Gujral

Appeals dismissed.