The State Of Himachal Pradesh vs Trilok Chand

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No(s). 2133-2134/2011

STATE OF HIMACHAL PRADESH Appellant(s)

VERSUS

TRILOK CHAND & ANR. Respondent(s)

JUDGMENT

N.V. RAMANA, J.

1. These appeals are filed by the State having aggrieved by

the judgment and order dated 14th October, 2009 passed by the

High Court of Himachal Pradesh, allowing the Criminal Appeals

filed by the accused—respondents herein against their conviction

passed by the trial Court under the Narcotic Drugs and

Psychotropic Substances Act (for short “the N.D.P.S. Act”). By the

said order, the High Court set aside the order of conviction and

sentence passed by the trial Court against the accused— Signature Not Verified

respondents herein.

Digitally signed by VISHAL ANAND Date: 2018.01.22 14:43:25 IST Reason: 2

2. In order to appreciate the merits of these appeals, brief

facts as emerged from the prosecution case need to be noted at the

outset. On 10th July, 2004, Anjani Kumar, Inspector, CID, Shimla

(PW12), upon receiving a secret information that some people are

pursuing the unlawful business of charas, proceeded towards

Panarsa Bridge along with ASI Gian Chand (PW 9) and Constable

Rakesh Kumar (PW 8) and some other police personnel. Amar

Chand (PW 1) and Kuldeep Kumar (PW 2) who were going on that

route at that time, also joined them as witnesses. At around 11.30

p.m. in the night, the accused—respondents herein arrived at that

place carrying with them three gunny bags of contraband (Charas)

and upon seeing police, they tried to run away. Police overpowered

the accused and seized the contraband from their possession,

prepared samples, sealed and marked them and registered the case.

After investigation, charges were framed against the accused and

upon their denial, the case was committed for trial.

3. The Trial Court convicted the accused for the offence

punishable under Section 20 of the N.D.P.S. Act and sentenced

them to undergo rigorous imprisonment for a period of ten years

and to pay a fine of Rs.1,00,000/- each and in default of payment of

fine, to undergo further imprisonment for two years. 3

4. Aggrieved by the order of conviction and sentence passed

by the trial Court, the accused filed appeals before the High Court

and the High Court after analyzing the evidence allowed their

appeals and set aside the conviction. Dissatisfied with the acquittal

order passed by the High Court, the State is in appeal before us.

5. We have heard learned counsel appearing for the

appellant – State of Himachal Pradesh and the learned counsel

appearing for the respondents as well, and carefully gone through

the material on record.

6. It is submitted before us by the learned counsel for the

State that while dealing with the appeals of the accused, the High

Court has given greater importance to trivial discrepancies in the

prosecution case. Ignoring the cogent evidence advanced by official

witnesses, the High Court simply held that there were material

contradictions in their depositions and without assigning any

plausible reason allowed the appeals of the accused and thereby

committed an error of law.

4

7. Learned counsel appearing for the accused—respondents,

however, supported the view taken by the High Court in acquitting

the accused.

8. Having given our thoughtful consideration to the rival

submissions and after going through the material available on

record, we notice the following discrepancies in the prosecution

case, which in our considered opinion, bear greater importance in

dealing with the case on hand :

(i) The evidence of Tulsi Ram (DW 2) makes it clear that on the

day of incident i.e. 10-7-2004, when he was going to his house

through Panarsa Bridge at about 4/5 p.m., police officials met

him on the way near Panarsa Bridge. They asked him to load

three gunny bags lying outside an abandoned house, into the

vehicle. Accordingly he carried two gunny bags while one bag

was carried by the police officials and loaded them in the

vehicle. He has also deposed that the police officials told him

that the bags contained contraband material ‘charas’ and the

same was recovered from the abandoned house.

5

(ii) PW 1 (Amar Chand) and PW 2 (Kuldip Kumar) who were said

to be the independent witnesses, did not support the case of

prosecution. They clearly stated that they were not present at

the spot when the incident took place and denied the

detaining of accused—respondents in their presence and

alleged recovery of contraband from the accused. In categorical

terms, they deposed that they were called to the police station

and their signatures were taken on some papers. Moreover,

they have admitted that earlier also they were used by the

police as prosecution witnesses in some other cases.

(iii) According to the depositions of police officials PW 9 (Gian

Chand) was sent to shopkeeper Hem Raj (PW5) to borrow scale

and weights on the intervening night of 10th & 11th July, 2004,

and the seized material was sent to malkhana. Contrary to

this, PW 5 (Hem Raj) stated that the scale and weights were

borrowed from him by the police officials in the morning 9 or

10 am on 11th July, 2004. The said PW5 was also declared

hostile. Not only this, according to Anjani Kumar (PW 12),

Gian Chand (PW 9) left the spot to get scale and weights at

11.30 p.m. returned to the spot at 8.15 p.m., ante time.

Whereas another witness Constable Rakesh Kumar (PW 8) 6

deposed that Gian Chand (PW 9) left the spot to bring scale

and weights at 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

whereas the record shows that Rajinder Kumar (PW 11) joined

PW 12 at Panarsa and he has clearly denied to have received

any call from PW 12.

(v) It is the case of the accused—respondents that while they were

taking tea at a Dhaba, police arrived there and taken them to

police station and falsely implicated them in the case. This fact

corroborates with the deposition of Bihari Lal (DW 3), a tea

vendor, who stated that police officials came to his shop and

took away the accused on 11-7-2004.

9. Besides the above noted inadequacies, there are also

certain other contradictory statements by the prosecution witnesses

relating to other aspects of the case, per se, according to Rakesh

Kumar (PW8), he carried the report (Ex.PH) to police station in a

truck, whereas PW-9 (Gaian Chand) states that PW8 travelled by a

scooter and the prime witness Anjani Kumar (PW12) says that PW8

went to police station and returned to the spot by foot. 7

10. One more important discrepancy in the prosecution case

that gives rise to suspicion of truthfulness of police officers is that,

as deposed by Anjani Kumar (PW 12) the entire seized case property

together with six 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 at the relevant time, PW12 was present at Sadar

Police Station, Mandi and sent special report to Superintendent of

Police (Ext. PW 11/A).

11. It also appears from the record that in order to satisfy the

requirement of Section 55 of N.D.P.S. Act, the case property was

accordingly tampered by the police. It is also relevant to mention

here that in the prescribed form, the place of seizure was mentioned

as Nagwain and not Panarsa Bridge and the name of only one

accused i.e. Santosh Kumar was shown from whom the contraband

was said to have been seized while he was carrying three gunny

bags. As rightly observed by the High Court, it appears that the

name of other accused was added afterwards to justify the fact that

one person could not have carried three bags of contraband at a

time.

8

12. Going by the number of discrepancies in the prosecution

case coupled with the contradictory statements by prosecution

witnesses, the entire 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 disfavour [See: State of H.P. Vs.

Lekh Raj (2000) 1 SCC 247]. Considering the circumstances of the

case on hand, it can be said that the discrepancies are

comparatively of a major character and go to the root of the

prosecution story. We cannot therefore ignore them to give undue

importance to the prosecution case. It is well settled that the Court

can sift the chaff from the grain and find out the truth from the

testimony of the witnesses. The evidence is to be considered from

the point of view of trustworthiness and once the same stands

satisfied, it ought to inspire confidence 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 offence by the accused—respondents beyond reasonable

doubt. The evidence is scanty and lacking support to establish that 9

the contraband was really recovered from the possession of the

respondents in the manner alleged by the prosecution on the said

date and time. It is imperative that the law the Court should follow

for awarding conviction under the provisions of N.D.P.S. Act is

“stringent the punishment stricter the proof.” In such cases, the

prosecution evidence has to be examined very zealously so as to

exclude every chance of false implication. But, in the case on hand,

under the above explained circumstances, the prosecution story

cannot be believed to award conviction to the accused—

respondents. They deserve benefit of doubt. We are, therefore, in

complete agreement with the view taken by the High Court and see

no reason to interfere with the order impugned herein.

14. Accordingly, the Criminal Appeals stand dismissed.

………………..............J. (N.V. RAMANA)

...............................J. (S. ABDUL NAZEER) NEW DELHI, JANUARY 17, 2018.