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TMI Blog2015 (4) TMI 1338X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant Bhupender Chauhan has been convicted and sentenced to undergo 10 years rigorous imprisonment and to pay a fine of ₹ 1,00,000/- for his having committed offence punishable under Section 29 read with Section 20(b)(ii)(C) of the Narcotic Drugs Psychotropic Substances Act, 1985. In default of payment of fine, he has been sentenced to further undergo rigorous imprisonment for one year. 2. Brief facts of the case are that on 26.07.2010 at 6.00 PM, a police party consisting of SI Krishan Chand, LHC Hans Raj and C. Sohan Lal, PW-1 of PP, Sainj in Vehicle Tata Sumo No. HP-01K- 2095 driven by C. Bhushan Kumar proceeded towards Bihali, Lajri, Chor Nallah for patrolling vide rapat Ext. PW6/A. At about 7.15 P.M when the police party was present at Chor Nallah, the accused (Anil Kumar) was noticed coming from Banjar Side and on sighting the police party, he turned back and tried to escape, but he was nabbed on suspicion by the police. Name and address of the accused were ascertained. The site of occurrence was isolated, therefore, the investigating officer associated C. Sohan Lal and LHC Hans Raj as witnesses in the proceedings relating to search, seizure and recovery. SI Krishan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is Ex.PW10/A. The Investigating Officer prepared special report Ex.PW2/A and submitted the same before Dy. S.P., who after making endorsement thereon handed over it to PW-2 HC Harbans Kumar, who entered the same at Sr. No.50 in the relevant register, the abstract of which is Ex.PW2/B. 3. During the course of investigation, accused Anil Kumar made a disclosure statement Ex.PW1/G to the effect that he met Gopal alias Bangali on 25.7.2010, who arranged for his stay in house near Bus Stand Banjar. On 26.7.2010 opium and charas in a bag was given to him by said Gopal alias Bangali. Thereafter, accused Anil Kumar identified the house of Bhupender Chauhan and the Investigating Officer prepared identification memo Ex.PW13/C and site plan Ex.PW13/G. Accused Anil Kumar also identified the place where charas and opium were given to him. The Investigating Officer prepared identification memo Ex.PW1/H and spot map Ex.PW14/D. SHO Surender Pathak also took in to possession certificate Ex.PW13/D, learner's licence Ex.PW13/E and a diary of Bhupender Chauhan from his house. During the personal search of accused Anil Kumar visiting card of accused Bhupender Chauhan was recovered and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned trial Court, are not based on a proper appreciation of the evidence on record, rather, they are sequelled by gross mis-appreciation of the material on record. Hence, they contend that the findings of conviction be reversed by this Court, in the exercise of its appellate jurisdiction and be replaced by findings of acquittal. 9. On the other hand, the learned Additional Advocate General, appearing for the respondent-State, has, with considerable force and vigour, contended that the findings of conviction, recorded by the Court below, are based on a mature and balanced appreciation of evidence on record and do not necessitate interference, rather merit vindication. 10. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record. 11. 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, he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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. 13. Now for discerning from the evidence on record, for rendering an apt conclusion that the Investigating Officer despite availability of independent witnesses had omitted to endeavour to elicit their participation in the apposite proceedings, at the site of occurrence, for hence rendering them to be flawed as well as vitiated, an advertence to the testimony of PW-1 is required to be made. The testimony of PW-1 C. Sohan Lal as existing in his cross-examination portrays an admission on the part of this witness that the house of Ex-President of Panchyat Kotla is located between Larji Mour and Village Thuari. Moreover, there also exists an admission in his cross-examination qua the existence of three houses near the house of Dola Singh, whose house is located at a distance of 100 meters from Chour Nallah (site of occurrence). Apart from the fact that this wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The learned trial Court in having discarded the effect of or the impact of the testimony of the PW-1 and the testimony of the Investigating Officer which rather eroded the efficacy of the testimonies of the other official witnesses qua the factum as deposed by them has led its judgment to be ingrained with a legal fallibility of non appreciation of a valuable piece of evidence. Such non appreciation of a valuable piece of evidence by the learned trial Court has occasioned gross miscarriage of justice. In the exercise of its appellate jurisdiction, such gross miscarriage of justice is to be undone by this Court. As such, findings of conviction recorded by the learned trial Court necessitate interference. 16. On a formation of the aforesaid conclusion, the concomitant deduction is that the prosecution has been unable to prove the guilt of both the accused. 17. In view of above, we find that the findings of conviction, recorded by the learned trial Court below, are not based on a mature and balanced appreciation of evidence on record. Hence, the findings necessitate irreverence. Accordingly, both the appeals are allowed and the judgment rendered by the learned trial Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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