High Court of H.P.

IN THE HIGH COURT OF HIMACHAL PRADESH,

SHIMLA.

Cr. Appeal No.143 of 2011.

Judgment reserved on: 6

th

May 2016

Decided on: 28

th

June 2016

State of H.P. ....Appellant

Versus

Mousam Deen a nd another …Respondents

Coram

The Hon’ble Mr. Justice Dharam Chand Chaudhary, Judge.

The Hon’ble Mr. Justice Chander Bhusan Barowalia , Judge.

Whether approved for reporting?

1

Yes

For the petitioner: Mr. D.S. Nainta and

Mr. Virender Verma, Additional

Advocate Generals

For the respondents: Mr. Ramesh Sharma, Advocate.

Dharam Chand Chaudhary, J.

Learned Special Judge, Fast Track Court,

Chamba, has acquitted the accused Mousam Deen and

Madho Ram of the charge under Sections 20, 25 and 29

of the Narcotic Drugs and Psychotropic Substances Act,

1

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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1985, hereinafter referred to as “the Act” in short, vide

judgment dated 29.10.2010, passed in Sessions Trial

No.16/2010, under challenge in this appeal.

2. The complaint is that learned trial Court has

not appreciated the evidence available on record in its

right perspective and to the contrary based the findings

on hypothesis, surmises and conjectures. The

testimony of the prosecution witnesses has been

discarded for untenable reasons, particularly when they

had no enmity with the accused persons. The use of

Motorcycle No.HP-44-1787 for the commission of

offence is duly proved from the evidence as has come

on record by way of the testimony of its registered

owner PW-5 Nand Lal and the application Ext.PW5/A,

he filed for release of the same. The findings that the

case property had reached well before 11.55 p.m. are

wrong, as in view of Rapat Ext.PW2/C, the case

property was brought to Police Station at 11.15 p.m.

The re-sealing was completed by 1 .00 a.m. i.e. on

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18.1.2010, the following day. The independent

witnesses PW-6 Parveen Kumar and PW -7 Hem Raj

have falsely deposed while in the witness box and

undue weightage should have not been given to their

testimony. The cogent and reliable evidence having

come on record by way of the testimony of the official

witnesses PW-8 HC Virender, PW-9 HC Kewal Krishan

and the I.O. PW-13 HC Kartar Singh has also been

wrongly ignored and brushed aside. The prosecution

has proved its case against the accused persons with

the help of cogent and reliable evidence and as such

there was no occasion to the trial Court to have given

the benefit of doubt to the accused. The impugned

judgment, therefore, has been sought to be quashed

and set aside and both the accused convicted for the

offence they committed.

3. On 17.1.2010 around 9.30 a.m., Police Party

headed by ASI Nasib Singh, HC Kartar Singh (PW13),

HC Virender Singh (PW8), HHC Kewal Krishan (PW9)

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and Constable Mohammad Aslam, left the Police Station

for laying “Nakka” and also patrolling in the area

towards village Koti, Kandla and Badoh side. Rapat

No.3 Ext.PW1/A was entered in this regard in Rapat

Rojnamcha. The Nakka was laid at Gunnu Nullah.

They started checking the vehicles. A Motorcycle

bearing Registration No.HP-44-1787 arrived at the

place of Nakka around 2.50 p.m. The same was being

driven from Badoh side to Chamba. Both the riders

were carrying bags on their back. They were signalled

to stop the motorcycle. The person driving the

motorcycle, however, did not stop the same and fled

away towards Chamba side. The motorcycle was

chased with a private vehicle. Around 200 metres away

from Kandla, there was a sharp curve. When the

motorcyclist applied brakes, the motorcycle skidded

and fell down. PW6 Parveen and PW7 Hem Raj, the

passersby got attracted to the sound of skidding of the

motorcycle. Therefore, they came to the place where

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the motorcycle had skidded. The motorcyclists were

overpowered by the police. On inquiry, the rider

disclosed his name as Mousam Deen (accused No.1) ;

whereas the pillion rider Madho Ram (accused No.2).

They both were informed by PW -13 HC Kartar Singh

that since they did not stop the motorcycle and rather

fled away from the place of Nakka, therefore, there is

suspicion that they are in possession of some narcotic

substance and carrying the same, hence their search is

required. They were also apprised vide memos.

Ext.PW6/A and PW6/A -1 qua their legal right of being

searched before a Magistrate or a Gazetted Officer.

They, however, opted for their search by the police

itself. On this PW-13 and other official witnesses

including the independent witnesses PW -6 Parveen

Kumar and PW-7 Hem Raj had given their search to the

accused persons first. Nothing was recovered from

them and a memo. Ext.PW1/C was prepared in this

regard. It is thereafter, the personal search of the

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accused was conducted. Nothing incriminating was

recovered from their personal search and also on the

search of the motorcycle. PW -13 HC Kartar Singh

when searched the bag of Mousam Deen, carrying on

his back, Charas weighing 6.500 Kgs, kept in a

polythene bag, was recovered therefrom. It is

thereafter, the bag being carried by accused Madho

Ram was searched and Charas weighing 5 Kgs, kept in

a plastic bag, was recovered. The Charas recovered

from both the accused was wrapped in plastic bags and

put in the same bags which both the accused were

carrying on their back. Both the bags were parcelled in

a piece of cloth and sealed with 5 seals of impression

“K”. Specimen of seal “K” Ext.PW2/A was taken

separately. The recovered Charas was taken into

possession vide memos. Ext.PW6/B and Ext.PW6/D.

NCB Form Ext.PW13/C and Ext.PW13/D were

completed in triplicate on the spot itself. Impressions

of seal “K” were also put thereon. The seal after its use

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was handed over to PW-7 Hem Raj. It is thereafter,

Rukka Ext.PW13/A w as prepared and sent to Police

Station for Registration of FIR. On the basis whereof

FIR Ext.PW10/A was recorded by ASI Mukesh Kumar,

PW-10. A copy thereof Ext.PW12/C was sent

separately through PW-9 HHC Kewal Krishan to S.P.

Office Chamba. The accused were apprised about the

grounds of arrest vide memos. Ext.PW6/F and

Ext.PW6/G. Their personal search was also condu cted

vide memos. Ext.PW6/H and Ext.PW6/J. All the

documents were prepared on the spot in the presence

of official as well as both the independent witnesses i.e.

PW6 Parveen Kumar and PW -7 Hem Raj, who have

signed the same.

4. The map Ext.PW13/B was also prepared

on the spot. Special Re port Ext.PW12/B and

Ext.PW13/E, in duplicate, was prepared and sent to the

office of S.P. Chamba through PW -9 HHC Kewal

Krishan. The statements of the witnesses PW7 Hem

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Raj (Ext.PW13/F) and that of PW-6 Parveen Kumar

(Ext.PW13/G) were also recorded alongw ith the

statements of other official witnesses. The case

property was produced at 11.55 p.m. alongwith both

accused before PW-10 ASI/SHO Mukesh Kumar, Police

Station Chamba. He resealed the same with seal “H”

and the facsimile of the seal was taken on th e NCB

Form. The case property thereafter was handed over

to MHC, Police Station, Chamba alongwith the seal and

NCB Form. Memo. Ext.PW 2/B w as prepared in this

regard. Rapat Ext.PW2/C qua re-sealing of the case

property was entered in the Rojnamcha.

5. On 18.1.2010, PW-11 HC Pawan Kumar vide

RC No. 5/2010 had handed over the parcels, containing

the recovered Charas duly sealed with seals “K” and

“H” alongwith NCB Forms in triplicate to PW -3

Constable Joginder Singh, who deposited the same in

FSL Junga on 20.1.2010 in the same condition. On

receipt of the report Ext.PX from FSL, Junga a nd

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completion of the investigation, a report under Section

173 of the Code of Criminal Procedure was prepared

and filed in the Court.

6. Both the accused came to be tried by learned

Special Judge, Fast Track Court, Chamba. Learned

trial Court on going through the report and also the

documents annexed therewith , prima-facie found

involvement of both accused in the commission of

offence, punishable under Section 20 of the Act and

charge against them was framed accordingly. They,

however, pleaded not guilty to the charge and claimed

trial. The prosecution, therefore, has produced the

evidence in support of the charge framed against each

of them.

7. As already discussed, PW-6 Parveen Kumar

and PW-7 Hem Raj are the independent witnesses;

whereas PW-8 HC Virender, PW-9 HHC Kewal Krishan,

PW-10 ASI Mukesh Kumar and PW -13 HC Kartar Singh,

the I.O. being the members of police raiding party are

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the official witnesses. Remaining witne sses PW-1

Constable Rajesh Kumar, PW -2 constable Deepak

Kumar, PW-3 Constable Joginder Singh, PW4 ASI

Kuldeep Singh, PW-11 MHC Pawan Kumar and PW -12

HC Subhash, who in one way of the other remained

associated with the investigation of the case, have also

been examined in order to substantiate the charge

against the accused persons. Besides, the reliance has

also been placed on the documentary evidence, as

aforesaid.

8. Learned trial Judge on appreciation of the

oral as well as documentary evidence has, how ever,

arrived at a conclusion that the independent witnesses

have not supported the prosecution case and that the

statements of the official witnesses besides

contradictory in nature are also inconsistent and as

they have improved their earlier version, two possible

views emerge on record. The accused were therefore

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given the benefit of doubt and consequently acquitted

of the charge.

6. There are two sets of witnesses examined by

the prosecution in order to sustain the charge against

the accused persons i.e. PW6 Parveen Kumar and PW7

Hem Raj, the independent witnesses. They have been

examined to prove the manner in which the search and

seizure has taken place on the spot; whereas PW8 HC

Virender, PW9 HHC Kewal Krishan and the I.O PW -13

HC Kartar Singh, are the official witnesses. Another

material witness examined by the prosecution is PW -5

Nand Lal. The witnesses examined in the 3

rd

set are

PW-1 Constable Rajesh Kumar, who has entered Rapat

Rojnamcha Ext.PW1/A qua departure of the police

party for patrolling and laying Naka; PW-2 Constable

Deepak Kumar has been examined to prove the

production of the case property by PW -13, the I.O.,

before SHO and re-sealing thereof; PW-3 Constable

Joginder Singh, had taken the parcel containing the

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case property to FSL, Junga to get the same analyzed

there; PW-4 Kuldeep Singh, while acting as officiating

SHO, Police Station, Chamba, has prepared the Challan

and presented the same in the Court ; PW-10 ASI

Mukesh Kumar, before whom the case property was

produced. had re-sealed the same; PW-11 Pawan

Kumar, the MHC, Police Station Chamba, with whom

the case property was deposited by PW -10, the

officiating SHO and PW-12 HC Subhash, Reader to S.P.

Chamba, who has proved the copy of Special Report

Ext.PW12/A. These witnesses, there fore, remained

associated in one way or the other during investigation

of the case and as such examined to link remaining

evidence available on record.

7. The re-appraisal of the evidence so produced

by the prosecution reveals that although PW-5 Nand

Lal, who is the owner of motorcycle No.HP -44-1787,

has not supported the prosecution case to the effect

that his motorcycle was taken on that day by accused

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Mousam Deen, yet , in the given facts and

circumstances, he has intentionally and deliberately

withheld the factual position from the Court and may

be to help the accused persons for some extraneous

consideration for the reason that in his cross -

examination he has admitted that application

Ext.PW5/A for the release of the motorcycle was filed

by him in the Cour t. He has also admitted his

signature on this document. True it is that he has

denied that his motorcycle was misused by accused

Mousam Deen and that he had given the same for

being used by the said accused. It is also denied by

him that the said accused was nabbed alongwith his

motorcycle. According to him, the motorcycle was

sought to be released on the ground that in case the

same remains in police custody, its condition was likely

to be deteriorated. The contents of the application

Ext.PW5/A, however, falsify his testimony because in

the application it is mentioned that accused Mausam

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Deen is his friend and that they are residents of same

Illaqua. On the day of occurrence, i.e. 17.1.2010,

accused Mausam Deen came to him and borrowed

motorcycle from him at the pretext that his sister was

seriously ill and taken to Civil Hospital, Chamba for

treatment and that he intends to go to Chamba to

know about her well being. He, therefore, on the

request of said accused had given motorcycle to him.

He came to know from a news item published in “Dainik

Jagran” that the said accused and one more person

have been nabbed by the police with Charas and that

his motorcycle was also impounded. The contents of

the application Ext.PW5/A further reveal that the

motorcycle was handed over by him to accused

Mausam Deen for its lawful use with the understanding

that the same will not be misused. It is with these

submissions, he had sought the release of the

motorcycle from police custody. The motorcycle was

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accordingly released in his favour. The Supurdari bond

is Ext.PW5/B.

8. PW-5 Nand Lal, therefore, is a liar.

When he has admitted that Application Ext.PW5/A was

made at his instance and portions D to D and E to E

thereof are correct, his testimony while in the witness

box that he himself was driving the motorcycle on that

day to Parel for getting the same serviced there and

that he was intercepted at Gunnu Nullah where the

police had laid the “Nakka” and that portions A to A, B

to B and C to C of Ext.PW5/A are incorrect, leads to the

only conclusion that he has deposed falsely while in the

witness box to help the accused. This witness,

therefore, has rendered himself liable to be dealt with

in accordance with law, which aspect of the matter

shall be considered and adjudicated upon in the later

part of this judgment. However, at this stage, in view

of the own statement of PW-5 it would not be improper

to conclude that on the day of occurrence, he had given

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his motorcycle to accused Mausam Deen. Whether it is

this motorcycle which has been used for the purpose of

carrying the contraband, allegedly Charas, is a question

to be answered in the light of the evidence available on

record.

9. The independent witnesses, PW-6

Parveeen Kumar and PW -7 Hem Raj, who allegedly got

attracted when the motorcycle being driven by the

accused at a high speed skidded on a curve and met

with an accident, have not supported the prosecution

case, because as per their version they were made to

put their signatures on blank papers. PW -6 tells us

that he is a shopkeeper at village Koti. It is about 3.30

p.m. when he was present in the shop, a scooty arrived

there and its rider was speaking in Punjabi language.

The scooty was stopped by the police and his

signatures were obtained on blank papers as well as on

one parcel. PW -7 also tells us that nothing was

recovered in his presence and his signatures were also

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obtained on blank papers. He has also denied the

prosecution story that he alongwith PW-6 was coming

from Kandla side and at a dista nce of 200 metres

ahead of Kandla, they got attracted when a motorcycle

skidded on a curve and fell down and that the rider and

pillion rider of the motorcycle were intercepted by the

police. According to him, it was not a motorcycle, but a

scooty, which was being plied. This witness has not

said anything as to at what place his signatures were

obtained by the police on blank papers. When

questioned as to whether he used to sign the blank

papers, the answer was that normally he does not sign

the blank papers. The explanation as forthcoming is

that he signed the blank papers on account of

terrorized by the police officials. When further cross-

examined as to whether any complaint was made by

him against the police officials who made him to sign

the blank papers under threat or pressure, the answer

was in negative.

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10. Interestingly, PW6 and PW7 have admitted

their signatures on consent memos. Ext.PW6/A & Ext.

PW6/A-1; recovery memos. Ext.PW6/B & Ext.PW6/D;

personal search memo. of police officials Ext.PW6/C ;

recovery memo. of motorcycle Ext.PW6/E; arrest

memos Ext.PW6/F & PW6/G and memos. Ext.PW6/H &

PW6/J qua personal search of the accused persons. All

these documents amply demonstrate that there is no

question of obtaining the signatures of these witnesses

on blank papers. Had their signatures been obtained

on blank papers, the proper adjustment of the space

over which the contents of these documents have been

written and the adjustment of the space for the

signatures of these witnesses would have not been

possible and in that event the author of these

documents would have made the adjustment of the

space either by squeezing the contents thereof or

broadening the space. The documents demonstrate

that no such adjustments have been made while

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writing the contents of these documents and the space

meant for signature of the witnesses. It is significant

to note that both PW6 and PW7 have not divulged as to

where they were made to put their signatures on blank

papers. It is also not their case that they were made to

sign blank papers in the Police Station. No doubt they

have denied that the motorcycle skidded on a curve

and met with an accident, however, both of them have

admitted that a scooty appeared and its rider w as a

person speaking in Punjabi language. They have not

said anything as to where that scooty appeared. In the

considered opinion of this Court, both of them have

withheld the true facts from the Court for the reasons

best known to them. Therefore, PW6 and PW7 seem to

have deposed falsely while in the witness box and as

such rendered themselves liable to be dealt with and

punished, in accordance with law.

11. Learned trial Judge has not appreciated

the evidence of PW-5, PW-6 and PW-7 in its right

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perspective and rather given undue weightage to their

version that their signatures were obtained on blank

papers, while extending the benefit of doubt to them.

12. The fact, however, remains that

irrespective of the independent witnesses have not

divulged true facts while in the witness box, their

respective testimony has caused major dent in the

prosecution story qua the manner in which, as per the

prosecution case, the search and seizure has taken

place on the spot.

13. The official witnesses PW8 HC Virender

and PW9 HHC Kewal Krishan both have supported the

prosecution case, however, as per the findings recorded

by learned trial Judge, the evidence as has come on

record by way of their testimony, is contradictory in

nature, hence not reliable. The findings so recorded are

legally sustainable or not need re-appraisal of the

testimony of these witnesses.

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14. As per the version of PW-8 and PW-9 on

17.1.2010 around 2.50 p.m. they alongwith I.O. PW-13

Kartar Singh and Constable Mohammad Aslam were

present at Gunnu Nullah. They had laid Nakka there.

The police party had spotted the accused persons

coming on a motorcycle and carrying bags on their

back. They were signalled to stop the motorcycle, but

is rider accelerated the speed and did not stop the

same. The motorcycle was chased and nabbed at a

place 5 kilometres away from the place of Nakka where

the same fell down while its rider was negotiating a

curve in speed. PW-6 and PW-7 were attracted to the

place of accident on hearing the noise emanated due to

fall of motorcycle. The rider and pillion rider were

nabbed by the police and they disclosed their names as

Mousam Deen and Madho Ram , respectively.

15. Since the accused had fled away from

the place of Nakka, therefore they were suspected to

be in possession of some narcotic substance. Hence

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their consent was obtained vide memos. Exts. PW6/A

and PW6/A-1 for being searched by the police party

present there. Consequently, after offering their own

search by the police officials and that of also the

witnesses to the accused, firstly the search of the bag

which was being carried by accused Mousam Deen on

his back was conducted and Charas weighing 6.500

Kgs. was recovered from a plastic “Boru” kept therein.

Similarly, on search of the bag being carried by

accused Madho Ram, Charas weighing 5 Kgs. was

recovered therefrom which was also kept in a plastic

“Boru”. The recovered Charas was sealed in the

respective bags with 5 impressions of seal “K” on each

parcel and taken into possession in the presence of the

witnesses vide recovery memo. Exts. PW6/D and

PW6/E. The y also took the specimen o f seal “K”

Ext.PW2/A on a piece of cloth and filled up NCB forms

on the spot. The seal after its use, as per this witness,

was handed over to Hem Raj. Their testimony also

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substantiates the prosecution case qua the Rukka

having been sent to Police Station, Chamba and the

motorcycle taken into possession vide memo.

Ext.PW6/E. They further substantiates the prosecution

case qua grounds of arrest disclosed to both the

accused vide memos. Exts. PW6/F and PW6/G.

16. The prosecution case that the police

party was on patrol duty finds corroboration from the

Rapat Rojnamcha Ext.PW1/A. It is PW -1 who has

entered this Rapat in the Rojnamcha. The production

of the case property before the officiating SHO is

established from the statement of PW-2 Constable

Deepak Kumar. The same as per the version of PW -2

was produced by the IO PW -13 HC Kartar Singh at

11.30 p.m. It took about 25 minutes to complete the

re-sealing process.

17. PW-3 Constable Joginder Singh tells us

that the parcels containing the contraband allegedly

Charas duly sealed with 5 impressions of seal “K” and 3

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that of “H” alongwith NCB Form in triplicate were

handed over to him vide RC No.5/2010. He has proved

the prosecution case qua deposit of the case property

in the same condition in the Malkhana. The report

Ext.PX reveals that the contraband sent for analysis,

being the extract of cannabis, was Charas. It is

thereafter PW-4 ASI Kuldeep Singh, the officiating SHO

has prepared the Challan and filed the same in the

Court.

18. The fact, however, remains that neither

seal “K” nor seal “H” were produced during the course

of trial. PW-7 Hem Raj to whom the seal was allegedly

handed over after its use, has not supported the

prosecution case in this regard. Had the seal been

given to said Shri Hem Raj, receipt thereof should have

been obtained from him. The non -production of the

seal raises suspicion that the recovered contraband was

“Charas” alone and not tampered with. Admittedly,

one more case was registered on the same day and the

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occurrence having taken place in the same area under

the Act. The parcels containing the recovered

contraband in that case were also sealed/re-sealed with

the same seals i.e. “K” and “H”. On this score also, the

possibility of exchange of the case property of one case

with another and tampering the same cannot be ruled

out more particularly, when there are contradictions

and improvements in the prosecution evidence, hence

the same does not inspire confidence.

19. Learned trial Judge has noted such

contradictions and improvements in detail. The version

of PW-8 HC Virender that the police party had checked

4 vehicles during the period from 2.30 p.m. to 3.30

p.m. seems to be not correct. As per the prosecution

case, the accused slipped away from the mo torcycle

around 2.50 p.m. and the same was chased and then

nabbed at a distance of 5 kilometres from the place of

Nakka. Therefore, sufficient time was not available

with the police party to have checked 4 vehicles before

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arrival of the offending motorcycle at the place of

Nakka. According to PW-8, all the memos. were not

prepared by the time, the Rukka was sent to the Police

Station. However, it is not so, because the Ruk ka

reveals that seizure memos. and NCB Forms were also

complete by that time. Acco rding to PW-8, he had

associated HC Kartar Singh (PW -13, the IO of this

Case) to witness the recovery effected by him in

another case which was registered vide FIR

No.11/2010. He failed to disclose the proof of the

vehicle in which the motorcycle was brought to police

station. There is again no evidence that the vehicle

was hired to carry the motorcycle to Police Station. As

per further version of PW-8 one more person named

Jyoti Parkash accused in FIR No.11/2010 was also

apprehended by them and in that case, I.O. of this case

PW-13 HC Kartar Singh was associated as one of the

witnesses to witness the search and seizure. ASI

Naseeb Singh was one of the members of the raiding

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party. He was not associated during the investigation of

this case and that of FIR No.11/2010. Since said

Naseeb Singh had played vital role in nabbing the

accused, his non-joining as a witness, renders the

prosecution story highly doubtful. On one hand PW-8

has stated that after the investigation of case FIR

No.11/2010, the accused and ASI Naseeb Singh were

staying in the vehicle, whereas on the other, said

Naseeb Singh, as per his version, had already left for

the Police Station in a vehicle in which the motorcycle

was carried. There is no proof that the motorcycle was

brought to the Police Station in the same vehicle.

20. The overwriting in respect of FIR

number is there on parcels Exts. P1 and P5 and the

same assumes significance when one more case was

detected, registered under the Act and investigated on

the same day and in the same area. Learned trial

Judge has rightly concluded that there was every

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possibility of mixing of the case property with that of

the other case detected on that day.

21. It has also come in evidence that PW-8

used to be a witness in the cases registered under the

Act and investigated by PW-13 HC Kartar Singh;

whereas PW-13 in the cases investigated by PW -8.

This has also rendered the version of PW -8 highly

improbable being an interested witness.

22. If coming to the testimony of PW-9 HHC

Kewal Krishan, he was present at the place of

occurrence till the stage of reducing the Rukka into

writing, because it is he who had taken the same to the

Police Station for registration of the case. He delivered

the Rukka in the Police Station and a copy thereof at

the residence of Superintendent of Police and thereafter

handed over the file to the I.O. at 9.15 p.m. at Koti. At

what time the I.O. reached at Koti from the place

where the accused were nabbed, no explanation is

forthcoming. As per his version 5 -6 vehicles had

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appeared at the place of Nakka by the time, the

offending motorcycle arrived there. In this regard, he

has contradicted PW-8, because as per his version only

4 vehicles were checked by that time. According to

him, ASI Naseeb Singh was on the spot throughout;

whereas as per the version of PW-8 said Naseeb Singh

had also chased the motorcycle in the vehicle of I.O.

PW-13 HC Kartar Singh. Not only this, but Naseeb

Singh had also given his search to the accused

alongwith other official witnesses. The entries in

Malkhana register Ext.PW2/C reveals that the case

property was deposited at 11.55 p.m. When the police

party had reached at 11.55 p.m. and the parcels

thereafter were resealed by the SHO, which might have

taken some time, how it was possible to have deposited

the case property at 11.55 p.m. itself in the Malkhana.

23. When as per the version of PW-13, the

police officials had money and cell-phones with them,

why such articles were not disclosed in the search

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memo. Ext.PW6/G. The timing he gave qua preparation

of various memos., is also not possible. If it is believed

that the case property of both the cases was deposited

at 11.55 p.m. in the Malkhana , it leads to the only

conclusion that the same was brought much earlier as

sufficient time would have been taken to re-seal the

same. FIR number is not there on certain documents

i.e. Exts. PW6/C, PW6/F, PW6/G, PW6/H, PW6/J and

spot map Ext.PW3/B. Similarly, FIR number is also not

there in the statements of witnesses recorded under

Section 161 Cr. P.C. No plausible explanation is

forthcoming qua this aspect of the matter also. Since

one more case was detected, registered and

investigated by PW-8 on the same day and in that very

area, the possibility of the case property having been

tampered with cannot be ruled out.

24. The present in view of the discussion

hereinabove is a case where the independent

witnesses, in the opinion of this Court have deposed

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falsely, but their testimony casts cloud on the

prosecution story and as regards the official witnesses,

their evidence is contradictory in nature, that too on

material aspects. This has rendered the prosecution

story highly doubtful. With such type of avidence

available on record it is not possible to record the

findings of conviction against the accused. In the

criminal administration of justice, the view of the

matter favourable to the accused has to be taken and

benefit of doubt given to them. Otherwise also, in the

Act, there is provision of stringent punishment, if an

offender is found to hav e committed the offence.

Therefore, in order to hold an offender guilty of the

commission of offence under the Act, cogent, reliable

and unimpeachable evidence is required to be produced

and proved.

25. The present is even not a case where

presumption as envisaged under Section 35 can be

raised against the accused for the reason that the

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prosecution has failed to discharge initial burden upon

it.

26. The crux of what has been said

hereinabove, therefore, would be that the charge

against both the accused is not proved beyond all

reasonable doubt, therefore, they could not have been

convicted and sentenced by learned trial Court. They

have rightly been given the benefit of doubt and

resultantly acquitted of the charge framed against each

of them. This appeal, therefore, fails and the same is

accordingly dismissed. Consequently, the judgment

under challenge to the extent of acquittal of the

accused persons is affirmed. Personal bonds furnished

by them shall stand cancelled and the surety bonds

discharged.

27. Before parting with the case, we would be

failing in our duty, if ignore the manner in which PW-5

Nand Lal, the owner of the motorcycle , used for the

commission of offence, PW-6 Parveen Kumar and PW -7

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Hem Raj, the independent witnesses have conducted

themselves while in the witness box. Taking note of

the statements, they made while in the witness box, we

have prima-facie formed an opinion that they have not

disclosed true facts. PW-5 Nand Lal even has made the

statement contrary to the averments in applica tion

Ext.PW5/A, he filed for release of the motorcycle used

by the accused for the commission of the offence. It is

further observed that these witnesses have rendered

themselves liable to be dealt with in accordance with

law and this aspect of the matter has been left open to

be considered in this part of the judgment.

28. Section 340 of the Code of Criminal

Procedure takes care of such a situation. The

provisions contained under the Section ibid reveal that

if on an application made to it or otherwise, the Court

is of the opinion that it is expedient and in the interest

of justice that an inquiry should be made into any

offence referred to in clause (b) of sub-Section (1) of

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Section 195 of the Code, which appears to have been

committed in relation to proceeding of a case in that

Court, the Court shall hold a preliminary inquiry and

after recording a finding that by producing a document

or giving a statement in evidence, an offence referred

to in clause (b) of sub-Section (1) of Section 195 of the

Code is made out, order to make a complaint in writing

to a Magistrate of the first class having jurisdiction over

the matter.

29. Section 340 of the Code of Criminal

Procedure contemplates a preliminary inquiry to be

conducted by the Court to form an opinion that it is

expedient and in the interest of justice to hold inquiry

into the offence which appears to have been

committed. It is not mandatory for the trial Court to

hold preliminary inquiry, because it has the opportunity

to see the witness while in the witness box and to

observe his demeanour. We, however, feel that the

appellate Court, having no such opportunity to observe

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the demeanour of the witness, should hold an inquiry

and give an opportunity of being heard to him, before

forming an opinion that an offence within the meaning

of clause (b) of sub-Section(1) of Section 195 of the

Code of Criminal Procedure appears to have been

committed by him. It is only thereafter, an order qua

filing a complaint, as contemplated under Section 340

of the Code of Criminal Procedure, should be passed.

30. Therefore, before initiating any action

against PW-5 Nand Lal, PW-6 Parveen Kumar and PW-7

Hem Raj, we deem it expedient and in the interest of

justice to call upon them to show cause as to why an

action be not initiated against them in the light of the

observations in this judgment. Consequently, there

shall be a direction to the Registry to issue show cause

notice to all the three witnesses, namely PW-5 Nand

Lal, PW-6 Parveen Kumar and PW -7 Hem Raj for

29.7.2016 and the proceedings be registered against

them separately. A copy of judgment be also sent to

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each of them alongwith show cause notice. Office of

learned Advocate General to collect notices from the

Registry of this Court for onward transmission to the

Superintendent of Police, Chamba, for effecting service

thereof upon the witnesses aforesaid well before the

date fixed. The record of the trial Court be retained for

being referred to at the time of further consideration of

the matter, after taking on record the version of the

witnesses, to be referred to as ‘the respondents’ in the

proceedings ordered to be drawn separately against

them.

(Dharam Chand Chaudhary),

Judge

June 28, 2016 (ss) (Chander Bhusan Barowalia)

Judge.

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