2015 (4) TMI 1338 - HC - Indian Laws

Smuggling - Charas - Opium - Contraband Item - false implication, pleading innocence - offences punishable under Section 29 read with Sections 20(b)(ii)(C) and 18 of the NDPS Act - HELD THAT - Even though the prosecution witnesses have deposed in tandem and in harmony qua each of the links in the chain of circumstances commencing from the proceedings relating to search, seizure and recovery of the contraband till the consummate link comprised in the rendition of an opinion by the FSL on the specimen parcels sent to it for analysis, hence, portraying proof of unbroken and unsevered links, in the entire chain of the circumstances, therefore, it is argued that when the prosecution case stands established, it would be legally unwise for this Court to acquit the accused. Besides, it is canvassed that when the testimonies of the official witnesses, unravel the fact of theirs being bereft of any inter-se or intra-se contradictions hence, consequently they too enjoy credibility. The factum of parcel, Ex. P-1 containing charas, Ex.P6 and parcel, Ex.P-2 containing opium, Ex.P-9, weighing respectively 4 Kg, 800 grams and 300 grams having been recovered from the exclusive and conscious possession of the accused at the site of occurrence under recovery memo Ex.PW1/D has been clinchingly proved by the testimonies of the official witnesses. The testimonies of the official witnesses, when they have deposed in tandem, harmony and in unison qua the apposite proceedings relating to search, recovery and seizure of items of contraband having commenced and concluded at the site of occurrence besides when their testimonies are bereft of any intra se or inter se contradictions, as such inspire the confidence of this Court, to hence, prod it to record findings of conviction against the accused - The non association of independent witnesses in the apposite proceedings by the Investigating Officer would not have either rendered flawed not would it have imbued the genesis of the prosecution case with fatality, yet when despite availability, the Investigating Officer omitted to or did not concert to make arduous efforts to mobilize or elicit their participation in the apposite proceedings at the site of occurrence, marshals an inference that his lack of concert to solicit the participation of the independent witnesses in the apposite proceedings at the site of occurrence, was prodded by an oblique motive on the part of the Investigation Officer to conceal the truth or also gives leeway to an inference that the proceedings as conducted at the site of occurrence are imbued with intransparency, hence, vitiated. Lack of sincere efforts on the part of the Investigating Officer to solicit the participation of independent witnesses in the apposite proceedings at the site of occurrence, sequels an apt deduction that the Investigating officer was goaded by an oblique motive to do so or he intended to smother or hide the truth qua the genesis of the prosecution version which hence stands flawed as well as vitiated. Thus, the concomitant deduction is that the prosecution has been unable to prove the guilt of both the accused - the findings of conviction, recorded by the learned trial Court below, are not based on a mature and balanced appreciation of evidence on record. Both the accused/appellants are acquitted of the offences charged. Fine amount, if any, deposited by the accused/appellants be refunded to them - appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
1. Validity of the search, seizure, and recovery process.
2. Non-association of independent witnesses in the investigation.
3. Evaluation of prosecution and defense evidence.
4. Adequacy of the trial court's appreciation of evidence.

Detailed Analysis:

1. Validity of the Search, Seizure, and Recovery Process:
The prosecution's case began with the apprehension of the accused Anil Kumar on 26.07.2010 by a police party during patrolling. Upon search, a dark-green rucksack containing 4 Kg, 800 grams of charas and 300 grams of opium was recovered. The search and seizure were conducted by SI Krishan Chand, and the contraband was sealed and sent for analysis, confirming the substances as charas and opium. The trial court found these procedures to be in compliance with the law.

2. Non-association of Independent Witnesses:
A significant issue was the non-association of independent witnesses during the search and seizure. Despite the presence of habitation near the site of occurrence, the Investigating Officer did not make efforts to involve independent witnesses. This omission was highlighted by the defense and noted by the court as a serious lapse, suggesting potential oblique motives by the Investigating Officer to conceal the truth. The court found this non-association to vitiate the transparency and reliability of the proceedings.

3. Evaluation of Prosecution and Defense Evidence:
The prosecution presented 14 witnesses to establish the chain of custody and the guilt of the accused. The defense argued that the trial court's conviction was based on a misappreciation of evidence. The appellate court scrutinized the testimonies and found that the prosecution witnesses, although consistent, were not corroborated by independent witnesses, weakening the prosecution's case. The defense also brought forth evidence suggesting false implication and procedural lapses.

4. Adequacy of the Trial Court's Appreciation of Evidence:
The appellate court critically evaluated the trial court's judgment and found it lacking in a balanced appreciation of the evidence. The trial court failed to consider the impact of the non-association of independent witnesses and the potential motives behind such omissions. This oversight led to a miscarriage of justice, necessitating the appellate court's intervention.

Conclusion:
The appellate court concluded that the prosecution failed to prove the guilt of the accused beyond a reasonable doubt due to significant procedural lapses and the non-involvement of independent witnesses. The findings of conviction by the trial court were thus set aside, and the accused were acquitted of all charges. The fine amounts, if any, were ordered to be refunded, and the accused were to be released immediately if not required in any other case.