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Monday, January 22, 2018

STATE OF HIMACHAL PRADESH Appellant(s) VERSUS TRILOK CHAND & ANR. Respondent(s) - Narcotic Drugs and Psychotropic Substances Act (for short “the N.D.P.S. Act”). = 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. - 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.

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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—
respondents herein.
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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.
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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.
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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.
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(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)
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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.
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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.
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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
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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.

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