Sanjay Karol, J (Oral)
Both the revision petitions are being disposed of by a common judgment, as they arise out of the very same judgment and common questions of fact and law are involved.
2. Assailing the judgment dated 16.12.2005, passed by the learned Additional Chief Judicial Magistrate, Chopal, in Criminal Case No.31-III of 2005, titled as State versus Surender Singh and another, as affirmed by the learned Sessions Judge, Shimla, vide judgment dated 18.4.2007, passed in Criminal Appeal No.4-S/10 of 2006, titled as Surinder Singh and another versus State of Himachal Pradesh, accused-petitioners Surender Singh (petitioner in Cr.R No.69/2007) and Joginder Singh (petitioner in Cr.R No.81/2007) have filed the present Revision Petitions under the provisions of Sections 397 read with Section 401 of the Code of Criminal Procedure, 1973.
3. It is the case of the prosecution that on 16.4.2005, police party comprising of ASI Narinder Singh, HHC Suresh Kumar, Constable Moti Lal and HHG Ranu Ram, left Police Post Nerwa, for the purpose of setting up a Nakka and traffic checking duty, in a private vehicle No.HP-63-0224. While the police party had set up a Nakka at Fedazpul, at about 4 a.m., one vehicle being driven by accused Surender Singh was stopped. Accused Joginder Singh was also sitting in the vehicle. In the vehicle, boxes of alcohol were loaded. Accused persons were asked to produce permit. Since they failed to do so, the boxes were unloaded and it was found that they contained alcohol of different brands, i.e. 20 boxes (240 bottles) of Sirmour No.1; 5 boxes (60 bottles) of Directors Special whisky; and 5 boxes (60 bottles) of Beer Superior.
4. Out of the entire quantity of alcohol, police took the samples in the following manner. From three boxes (out of 20 boxes) of Sirmour No.1, three bottles were taken out and one nip (Pawa) each from the bottles was drawn as sample; from two boxes (out of five boxes) of Directors Special Whisky, two bottles were taken out and one nip each from the bottles was drawn as sample; and from one box (out of five boxes) of Beer, one bottle was taken out and one nip from the said bottle was drawn as sample. In all six samples were drawn, which were sealed with seal impression âR. ASI Narinder Singh (PW-1) handed over the seal to HC Subhash Chand (PW-4). The remaining contraband substance was taken into possession and seized.
5. After the completion of search and seizure operations, ASI Narinder Singh prepared Rukka (Ex. PW-1/B) and sent the same, through Constable Moti Lal (PW-8) to the Police Station for registration of the case. SI/SHO Shri Chaman Lal (PW-2) received the Rukka, on the basis of which FIR No.34/05, dated 17.4.2005 (Ex. PW-2/A), under the provisions of Section 61-1-14 of the Punjab Excise Act, was registered at Police Station Chopal. The contraband was brought to the Police Station and deposited in the Malkhana. Shri Chattar Singh (PW-7) received the same. He handed over the sealed samples to Constable Jagdish Chand (PW-6) to be taken to the Forensic Science Laboratory, Kandaghat. On receipt of the report of the Chemical Examiner and completion of investigation, challan was presented in the Court for trial against the accused-petitioners.
6. Accused Surender Singh and Joginder Singh were charged for having committed an offence punishable under the provisions of Section 61-1-14 of the Punjab Excise Act as applicable to the State of Himachal Pradesh to which they did not plead guilty and claimed trial.
7. In order to establish its case, prosecution examined as many as eight witnesses. Statements of the accused persons, under the provisions of Section 313 of the Code of Criminal Procedure, 1973 were also recorded, in which they pleaded false implication.
8. After trial, both the accused persons were convicted of the charged offence and each of them was sentenced to undergo simple imprisonment for a period of six months and pay fine of Rs. 2,500/- each. In default of payment of fine, each of the accused was to further undergo simple imprisonment for a period of one month.
9. The lower Appellate Court has affirmed the judgment of conviction and sentence passed by the trial Court.
10. I have heard Mr. R.K. Bawa, learned Senior Advocate, ably assisted by Mr. Jivesh Sharma, Advocate, learned counsel for the petitioner-accused in Cr.R No.69 of 2007; Mr. Dalip K. Sharma, learned counsel for the petitioneraccused in Cr.R No.81 of 2007 and perused the record. Mr. R.S. Verma, learned Additional Advocate General has argued on behalf of the State.
11. Having heard learned counsel for the parties and perused the record, I am of the considered view that petitioners have made out a case for interference. The Courts below have not correctly and completely appreciated the evidence led by the prosecution, which has resulted into travesty of justice, inasmuch as the accused stand convicted and sentenced without any legal evidence. There is error apparent on the face of record. Contradictions in the testimony of the prosecution witnesses as also prosecution case are writ large. They are major and not minor, rendering the prosecution story to be vulnerable and testimonies of the witnesses to be unreliable.
12. In Krishnan and another v. Krishnaveni and another, 1997(4) S.C.C. 241, the Apex Court has held that when the High Court notices that there has been violation of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal Court in its judicial process or illegality of sentence or order.
13. Prosecution case only rests upon the testimonies of the witnesses, who are police officials. There are no independent witnesses. It is a settled proposition of law that simply because witnesses are police officials their testimonies are not be disbelieved or always require corroboration.
14. I am of the considered view that the genesis of the prosecution story that the police party had set up a Nakka at Fedazpul does not inspire confidence. It is not the case of prosecution that the police party had prior information about commission of any crime or likelihood of illicit trafficking of liquor, carried out in the area. Significantly, in Rapat (Ex. PW- 5/A) there is no mention about any prior information.
15. Perusal of Ex. PW-5/A would reveal that there is overwriting on the top. In figure â16, digit â6 has been overwritten so as to read that the document was prepared on 16th. This fact itself may not be significant, but the fact of the matter is that there is yet another interpolation in the body of the document. Word âprivate has been written over some white fluid, which apparently has been applied to an already written word. Also, police has not placed on record any document to show that the said private vehicle was hired by them, for the purpose of travelling to the place where Nakka was set up. Who brought this private vehicle and to whom did it belong, has not been explained.
16. ASI Narinder Singh (PW-1), HC Subhash Chand (PW-4) and Constable Moti Lal (PW-8), who were members of the police party, have in one voice, deposed that the vehicle, being driven by the accused, was intercepted at Fedazpul, where they had set up a Nakka. According to these witnesses, the vehicle was intercepted at 4 a.m. on 17.4.2005.
17. PW-1 in his unrebutted testimony states that it had taken him 2 to 3 hours to complete the investigation on the spot. Now significantly, after the samples were drawn this witness sent Rukka through Constable Moti Lal to the Police Station for registration of the case. Rukka which is dated 17.4.2005 and records the time of preparation to be 4.45 a.m., specifically mentions that samples stood drawn. Hence, either the witness is deposing falsely or a false document was prepared by him.
18. Constable Moti Lal does not state as to how he travelled to the Police Station. He also does not state that after getting the FIR registered in the Police Station, he returned to the spot.
19. PW-1 admits that there is a Rest House adjoining the place where Nakka was set up by him. He affirmatively states that he did not call anyone from the Rest House. Though, he volunteered to state that none was present there, but this testimony of his cannot be said to be inspiring in confidence, for the reason that he did not send anyone to ascertain as to whether someone was available in the Rest House or not.
20. If none was present at the Rest House, police party could have conveniently taken the vehicle to the Police Station for carrying out search and seizure operations, once they had come to know that the vehicle was loaded with alcohol and the accused persons did not have any permit. Why is it that police party did not do so, has not been explained. It is not the case of prosecution that the police party was busy with the Nakka as more vehicles were to be checked.
21. There is yet another major flaw in the investigation. ASI Narinder Singh (PW-1) admits that he is the complainant as also the Investigating Officer in the instant case. Having lodged the complaint, he should have, in the given facts and circumstances, particularly when no independent witness was associated by him, disassociated and not conducted the investigation. I am of the considered view that this fact has caused great prejudice to the accused persons.
22. Testimony of PW-1 itself cannot be said to be reliable, as there are contradictions in the statements of the police officials present on the spot, which on first brush appear to be minor, but when examined minutely and holistically, get magnified and turn out to be major.
23. PW-1 in Court has deposed that the vehicle, which was intercepted, was PICK UP MAHINDRA, whereas PW-4 and PW-8 have deposed that the vehicle was UTILITY of brand COMMANDAR. Further, according to PW-1, when the boxes were searched, they were not sealed, which version of his stands contradicted by PW-4 as also PW-8, according to whom before the bottles were taken out for the purpose of taking out samples, boxes were found to be sealed.
24. Significantly, in the present case, seal âR has not been produced in Court. PW-1 and PW-4 admit that the said seal was lying with PW-4. There is no explanation for nonproduction of the same in the Court.
25. PW-7, who is the Malkhana Incharge of Police Station Chopal, has deposed that the seized contraband was deposited by PW-4, who has contradicted such version by deposing that he had not deposited the samples in the Malkhana.
26. In the instant case, it be also noticed that there is yet another major flaw in the investigation by the police. Assuming that the contraband was actually recovered by the police party, police did not take samples from all the boxes. Samples only from few bottles out of some of the boxes, which they had opened, were taken. None of these witnesses have deposed that the remaining boxes were sealed; from outside appeared to be of the same make or brand; bearing serial numbers; the date of manufacture; or the place and the name of the manufacturer. All that these witnesses have deposed is that boxes of alcohol, as described above, were found in the vehicle. Inside the boxes could be anything. Police could not prove that the remaining boxes actually contained liquor. The samples cannot be said to be representative in character.
27. In similar circumstances, this Court in Mahajan versus State of Himachal Pradesh, 2003 Cr.L.J. 1346; State of H.P. versus Ramesh Chand, Latest HLJ 2007 (2) 1017; Dharam Pal and another versus State of Himachal Pradesh, 2009 (2) Shim. LC 208; and State of Himachal Pradesh versus Kuldeep Singh and others, 2010(2) Him.L.R. 825, acquitted the accused, as prosecution could not prove, beyond reasonable doubt, as to what was actually there in the remaining boxes.
28. As per version of PW-1, outside the boxes âSirmour No.1 was printed which version stands denied by PW-7. In the instant case, there is nothing on record to show that the remaining boxes were in fact containing liquor. Quantity of the remaining bottles of the boxes from which samples were drawn has also not been proved to be liquor. These aspects have not been considered by the Courts below. The cumulative effect is that the prosecution has failed to prove the charge against the accused, beyond reasonable doubt and as such judgments of the Courts below are not sustainable in law.
29. As a result of the above discussion, it cannot be said that prosecution has been able to prove its case, beyond reasonable doubt, by leading clear, cogent, creditworthy, reliable and independent piece of evidence. Conviction by the Courts below has resulted into miscarriage of justice.
30. Hence, for all the aforesaid reasons, both the revision petitions are allowed. Judgment dated 16.12.2005, passed by the learned Additional Chief Judicial Magistrate, Chopal, in Criminal Case No.31-III of 2005, titled as State versus Surender Singh and another, as affirmed by the learned Sessions Judge, Shimla, vide judgment dated 18.4.2007, passed in Criminal Appeal No.4-S/10 of 2006, titled as Surinder Singh and another versus State of Himachal Pradesh, stands set aside and the accused persons are acquitted of all the charges. Amount of fine, if deposited by the accused persons, be refunded to them. Personal and surety bonds furnished by the accused are discharged.
Both the revision petitions stand disposed of, so also the pending application, if any.