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Appeal No. 343 of 2011*\r\n\r\n12.4.2016. Present: Mr. D.S. Nainta and Mr. Virender Verma, Addl. AGs with Mr. Pushpinder Jaswal, Dy. AG, for the appellant-State.\r\n\r\nMr. N.S. Chandel, Advocate, for accused-respondent No. 1.\r\n\r\nMr. Praveen Chauhan, Advocate, vice Mr. Manoj Pathak, Advocate, for accused-respondents No. 2 and 3.\r\n\r\nOriginal Counsel, representing the accused-respondents No. 2\r\n\r\nand 3, is stated to be out of station. As prayed, list on *2.5.2016.*\r\n\r\n(Dharam Chand Chaudhary), Judge.\r\n\r\n(Chander Bhusan Barowalia), Judge.\r\n\r\nApril 12, 2016, *(vs)*","aiAnalysis",{"_312":320,"_314":321,"_316":322,"_318":-5},"HPHC010075142011-order-10.pdf","HPHC010075142011-order-10.md","## **Cr. Appeal No. 343 of 2011**\r\n\r\n07.10.2016 Present: Mr. D. S. Nainta and Mr. Virender Verma, Additional Advocate Generals for the Appellant.\r\n\r\n> Mr. N. S. Chandel, Advocate, for accused-respondent No.1.\r\n\r\nArguments heard. Judgment reserved.\r\n\r\n**(Dharam Chand Chaudhary) Judge**\r\n\r\n **\\*brb\\* Judge**\r\n\r\n**October 07, 2016 (Vivek Singh Thakur)**",{"_312":324,"_314":325,"_316":326,"_318":-5},"HPHC010075142011-order-11.pdf","HPHC010075142011-order-11.md","## Cr. Appeal No. 343 of 2011\r\n\r\n24.3.2017. Present: Mr. D.S. Nainta and Mr. M.A. Khan, Addl. AGs, for the appellant.\r\n\r\n> Mr. Dinesh Thakur, Advocate, for accusedrespondent No. 1.\r\n\r\nMr. Vikas Chandel, Advocate, vice counsel for accused-respondents No. 2 and 3.\r\n\r\nArguments heard. Reserved for pronouncement of\r\n\r\njudgment.\r\n\r\n (Dharam Chand Chaudhary), Judge.\r\n\r\n> (Vivek Singh Thakur), Judge.\r\n\r\nMarch 24, 2017, *(vs)*",{"_312":328,"_314":329,"_316":330,"_318":-5},"HPHC010075142011-order-12.pdf","HPHC010075142011-order-12.md","## *Cr. Appeal No. 343 of 2011*\r\n\r\n**21.8.2017 Present**: Mr.D.S. Nainta, Additional Advocate General, for the appellant.\r\n\r\n> Mr.N.S. Chandel, Advocate, for accused/respondent No. 1.\r\n\r\n> Mr.Vikas Chandel, Advocate, vice counsel for accused-respondents No. 2 and 3.\r\n\r\nCertain points which had invited our attention, now stands clarified. Reserved for pronouncement of judgment.\r\n\r\n## *(Dharam Chand Chaudhary), Judge.*\r\n\r\n*(Vivek Singh Thakur), Judge.* \r\n\r\n*21st August, 2017 (KRS)*",{"_312":332,"_314":333,"_316":334,"_318":-5},"HPHC010075142011-order-13.pdf","HPHC010075142011-order-13.md","## IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA\r\n\r\n Cr. Appeal No. 343 of 2011 Judgment reserved on 21.08.2017 Date of Decision 12th September, 2017\r\n\r\nState of Himachal Pradesh ….Appellant\r\n\r\nVersus\r\n\r\nMohit and others ….Respondents\r\n\r\nCoram\r\n\r\nThe Hon'ble Mr. Justice Dharam Chand Chaudhary, J.\r\n\r\n\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\r\n\r\n\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\r\n\r\n### The Hon'ble Mr. Justice Vivek Singh Thakur, J.\r\n\r\nWhether approved for reporting?1\r\n\r\n| For the Appellant: | Mr.D.S.Nainta
and
Mr.Virender
Verma,
Additional
Advocates
General. |\r\n|----------------------------|--------------------------------------------------------------------------------------------------|\r\n| For Respondent No.1: | Mr.N.S.Chandel,
Advocate
with
Mr.Dinesh Thakur, Advocate. |\r\n| For Respondents Nos. 2 and | For Respondents Nos. 2 and 3: Mr. Manoj Pathak, Advocate with
Mr.Vikas Chandel, Advocate.
|\r\n\r\n\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\r\n\r\n# Vivek Singh Thakur, J.\r\n\r\nState has preferred present appeal against acquittal\r\n\r\nof respondents by learned Special Judge (II), Kinnaur at Rampur,\r\n\r\n*¹ Whether Reporters of Local Papers may be allowed to see the judgment? Yes* \r\n\r\nvide judgment dated 30.3.2011, passed in sessions trial No. 15- AR/3 of 2008/2010, title State vs. Mohit and others, in case FIR No. 70 of 2008, dated 22.6.2008 registered at Police Station Ani, under Sections 18, 20 and 29 of Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to the Act).\r\n\r\n2. Case of the prosecution is that during intervening night between 21st and 22nd June, 2008, after 1 AM, PW11 ASI Prem Lal along with PW4 HHC Roshan Lal, C. Sunder and HHG Daya Ram, during Nakabandi duty, was returning to police station Ani and on reaching behind Kiran Bazar at 1.30 AM a vehicle, coming from Ani side towards Luhari, was noticed, which was stopped by giving signal by police party. In the said vehicle four persons were sitting. On asking by PW11, driver of vehicle handed over his driving licence as well as documents of vehicle. Vehicle was not having registration certificate but driver produced documents indicating temporary registration No. HR-99-BY.Temp-3059. Papers of vehicle were returned but licence of driver was with PW11. Occupants of vehicle could not satisfactorily explain for travelling during midnight, whereupon on suspicion PW11 along with other police officials, started checking the vehicles and found a packet concealed in stepney of vehicle. The moment PW11 started opening the packet, all four persons fled away from spot by taking benefit of darkness but leaving the vehicle there. Police party unsuccessfully attempted to apprehend these persons by chasing them. In recovered packet, other packets containing charas and opium were found. As there was no arrangement of light on the spot, place was secluded one and there was no possibility of crossing another vehicle on the spot at that time and also because of night there was non-availability of independent witnesses, it was not plausible to carry on proceedings on the spot. Therefore, PW4 HHC Roshan Lal and C.Sunder Singh were associated as witnesses in proceedings and vehicle in question was brought to old bus stand near police station along with accompanying police officials with the help of driver Dalip Singh and HHG Daya Ram was retained with intercepted vehicle.\r\n\r\n3. Police party headed by PW11 Prem Lal, reached at police station at about 2.30 AM and arrival report No.3 dated 22.6.2008 was recorded. PW11 informed PW5 SHO Nathu Ram about the incident, who in turn, deputed police officials/parties to search accused vide report No. 5 dated 22.6.2008 Ext.PW6/D recorded at 3.05 AM. Licence of driver of vehicle, left with PW11, revealed name and address of driver of vehicle as Pawan Kumar son of Sube Singh resident of VPO Chiri Rohtak (Haryana). On weighing charas and opium of four packets, found in recovered packet of cloth, in presence of witnesses associated in proceedings, charas weighing 1.430 Kg., 1.740 Kg. and 3.285 Kg was found in three different packets, whereas in fourth packet 320 grams opium was found. Two samples each from all packets were taken and samples as well as remaining contraband in respective packets were sealed with seal 'T' and packets of remaining contraband were marked as P-1 to P-4 and samples were marked as S-1 to S-8 and NCB form was filled in triplicate and seal was handed over to PW4 HHG Roshan Lal after taking the specimen of seal Ext.PW4/B on cloth and on NCB forms Ext.PW5/C. Thereafter ruka Ext.PW11/A was prepared and handed over to PW5, in pursuance to which FIR Ext.PW5/A was registered at 4.20 AM and endorsement thereabout Ext.PW5/B was made by PW5 on the ruka at 5.50 AM as PW11 also produced case property including samples, specimen impression of seal and NCB form before PW5 regarding which Ext.PW6/F report No. 8 dated 22.6.2008 was recorded. PW11 resealed the parcels of samples as well as remaining contraband with seal 'H' and after taking specimen impression of seal Ext.PW4/C and filling columns of NCB form Ext.PW5/C deposited case property in malkhana with PW6 MHC Rajinder Singh at 6.15 AM vide\r\n\r\nExt.PW6/G report No. 9 dated 22.6.2008. PW6 entered the same at Sr. No. 170 (Ext.PW6/A) in the Malkhana register. Special report Ext.PW1/A prepared by PW11 ASI Prem Lal was also submitted to Reader to Dy.S.P. Ani at 6.15 PM on 22.6.2008 through PW1 HHC Kashmi Ram. Copy of FIR was also delivered to Sub Divisional Judicial Magistrate, Ani at 5.10 PM on 22.6.2008.\r\n\r\n4. PW7 ASI Ludar Singh was also instructed by PW5 to search culprits towards Dalash, who at about 2.30 PM had a clue from driver and conductor of a bus coming from Dalash side about persence of strangers, who alighted from bus on the last curve whereupon PW7 along with police officials reached at the place, informed by bus driver and conductor and found respondents there. Police party apprehended two of respondents whereas respondent Ajmer Singh jumped down the hill from road. However, he was also impressed upon by PW7 to come back and surrender. All of them were brought to police station Ani and produced before investigating officer on reaching there at 7 PM. Respondent Mohit Kumar produced documents i.e. delivery challan Ext.P-17, pollution under control certificate Ext.P-18 and application for inspection of vehicles Ext.P-19 and photocopy of voter ID card to investigating officer which were taken in possession vide memo Ext.PW4/G and respondents were\r\n\r\narrested vide memos Ext.PW4/D, Ext.PW4/E and Ext.PW4/F. Three sample parcels of charas and one sample parcel of opium were sent to State Forensic Science Laboratory by PW6 HC Rajinder through PW2 C.Hans Raj vide road certificate Ext.PW2/A who delivered the same in State Forensic Science Laboratory against proper receipt on road certificate and deposited the road certificate with PW6 Rajinder Kumar on his return. On 9.3.2010 all remaining eight sealed pracels (four of samples + four of remaining contraband) were also sent to State Forensic Science Laboratory by PW8 HC Anup Kumar through PW9 C.Puran Chand vide road certificate Ext.PW8/A, which were delivered in State Forensic Laboratory against proper receipt which was deposited in police station by PW9 on his return. PW9 Puran Chand also brought sealed parcels back along with reports from State Forensic Science Laboratory on 8.5.2010 and deposited the same in malkhana.\r\n\r\n5 On completion of investigation challan was presented in Court. During trial parcels of remaining bulk of recovered contraband were produced in the Court on 27.2.2010 by PW10 C.Chande Ram after receiving the same from Malkhana on that day and on the very same day it was deposited in the Malkhana. On that day application of the State filed under Section 311 Cr.P.C. was allowed and State was permitted to send entire bulk of remained contraband to State FSL for chemical analysis. Thereafter on 9.3.2010 entire bulk was sent to State FSL for chemical examination by MHC PW8 Anoop Kumar through PW9 Puran Chand on 8.5.2010, parcels of contraband and chemical analysis reports from State FSL were also brought back and deposited in the Malkhana by PW9. As per chemical examination report Ext.PW8/C recovered contraband Ext.P1, Ext.P2 and Ext.P4 and samples thereof were found to be charas and in Ext.P3 and its sample was found to be opium. Chemical Analyst report of State FSL along with supplementary challan under Section 173 Cr.P.C. was filed in Court on 5.6.2010 and thereafter trial was completed.\r\n\r\n6. According to defence taken by respondents, none of them were travelling in pick-up vehicle at the time of recovery of contraband from it and respondent No.1 Mohit, owner of vehicle, was contacted on his mobile phone from P.S. Ani, after having his mobile number scribed on body of vehicle, informing that his vehicle had been found abandoned in Ani bazar and after receiving the call, he tried to contact his driver Vishal on his mobile but his number was not responding. Whereafter he requested respondent No. 2 Ajmer and respondent No. 3 Pawan to accompany him to Ani as he had never visited the said place. They boarded Haryana Roadways bus from Chandigarh going to Rampur and after alighting at Sainj, they reached Police Station Ani at about 2.30 PM where police started harassing them and after taking documents and their bus tickets in possession, they were implicated in present case.\r\n\r\n7. Prosecution has examined eleven witnesses to prove its case. Respondents, after recording of statements under Section 313 of Code of Criminal Procedure, has chosen not to lead any evidence in their defence. On conclusion of trial, respondents stand acquitted.\r\n\r\n8. We have heard learned Additional Advocate General appearing on behalf of State and also learned counsel appearing on behalf of respondents and have also perused the record.\r\n\r\n9. PW1 has proved delivery of special report to SDPO/Dy.S.P., Ani in present case on 22.6.2008 at about 6.15 PM by producing copy of same Ext.PW1/A having endorsement of receipt thereon. PW6 Rajinder Kumar has proved deposit of four big parcels and eight sample parcels duly sealed with seals 'H' and 'T' along with specimen impression of seal and NCB form in triplicate in Malkhana, which were handed over to him by PW5 SHO Nathu Ram on 22.6.2008 and entered by him in malkhana register at Sr. No. 170 (Ext.PW6/A). He also corroborated handing over three sample parcels of charas and one sample of opium to PW2 C.Hans Raj along with documents, NCB form and specimen impression of seal in State Forensic Science Laboratory vide RC Ext.PW2/A. He further certified that during his custody sealed exhibits remained intact. PW2 has proved delivery of four sealed parcels in State Forensic Science Laboratory vide road certificate No. 36 of 2008 Ext.PW2/A on 24.6.2008. In cross examination he has denied that no exhibits were handed over to him to be delivered at State Forensic Science Laboratory vide RC Ext.PW2/A.\r\n\r\n10. PW10 C. Chande Ram has proved production of sealed exhibits in Court on 27.2.2010 after receiving the same from PW8 MHC Anup Kumar and also returning these exhibits in malkhana on same day after producing in the Court. He further certified that during his possession these parcels were not tampered.\r\n\r\n11. PW8 HC Anup Kumar has proved handing over eight sealed parcels duly sealed with seals 'T' and 'H' along with Court seal to PW9 C.Puran Chand on 9.3.2010 for delivering the same in State Forensic Science Laboratory vide RC No. 126/09-10 Ext.PW8/A and NCB form Ext.PW8/B along with specimen\r\n\r\nimpression of seals. He also proved bringing back sealed exhibits along with report Ext.PW8/C from State Forensic Science Laboratory by PW9 C.Puran Chand on 8.5.2010. He proved entries made in malkhana register in this regard.\r\n\r\n12. PW9 Puran Chand has corroborated the fact of receiving eight sealed parcels along with other documents for handing over in State Forensic Science Laboratory and also depositing RC with PW8 H.C. Anoop Kumar having receipt thereon with regard to deposit of these articles in laboratory. He also certified that there was no tampering with sealed exhibits during his possession. He further proved bringing back sealed exhibits along with report Ext.PW8/C from State Forensic Science Laboratory on 8.5.2010.\r\n\r\n13. Report Ext.PW6/D was recorded at instance of PW5 Nathu Ram who was SHO at that time. As per PW11 Prem Lal, after recovering contraband at about 1.30 AM near Kiran Bazar, he reached in police station at about 2.30 AM regarding which DD report No. 3 (Ext.PW6/C) was entered in police station. As per his deposition in Court, he informed PW5 Nathu Ram about fleeing of accused from spot. As per prosecution case, after receiving this information PW5 Nathu Ram deputed police parties in search of accused regarding which DD entry Ext.PW6/D was made at 3.05 AM. In the meanwhile, PW11 Prem Lal prepared ruka and handed over the same to PW5 Nathu Ram at 4.20 AM who in turn registered FIR Ext.PW5/A at 4.20 AM. Thereafter, PW11 Prem Lal produced case property sealed with seal 'T' along with sample seal and NCB-I form in triplicate before PW5 Nathu Ram SHO and vehicle along with key and stepeny was handed over to MHC at 5.50 AM regarding which report No. 8 dated 22.6.2008 Ext.PW6/F was recorded whereafter PW5 Nathu Ram resealed parcels with seal 'H' and affixed seal on NCB-I forms also and after taking sample seal, deposited case property along with sample seals and NCB-I form with MHC at 6.15 AM regarding which DD report No. 9 dated 22.6.2008 Ext.PW6/G was recorded.\r\n\r\n14. As per deposition of PW5 Nathu Ram in Court, he came to know about recovery of contraband when I.O. came to the police station from spot but he also stated that I.O. had told him about fleeing of accused at the time of handing over of ruka and not at the time when I.O. reached in police station from spot. Ruka was handed over at 4.15 AM whereas I.O. reached in police station at 2.30 AM and PW5, at 3.05 AM, deputed police parties to search accused.\r\n\r\n15. According to Ext.PW6/D, HHG Jeevan Singh was deputed with PW7 ASI Luder Singh and HC Punne Ram along with\r\n\r\nC.Beli Ram were deputed towards Luhari side and C.Hans Raj along with HHG Jai Singh was sent towards Samash. After closing line in the end of this report, that report is recorded, it was further added that official vehicle No. HP-34-398 along with driver Dalip Singh and HHG Duni Chand was also deputed with police officials. With whom out of three police parties, official jeep with driver and HHG Duni Chand was sent, is not clear in this report.\r\n\r\n16. As per report No. 5 dated 22.6.2008 Ext.PW6/D police parties were departed in search of absconding accused at the time of recording the said report i.e. at 3.05 AM. PW7, in Court, deposed that he could not say time of his departure from Police Station in the morning. According to log book of official vehicle, extract of which has been placed on record in defence as Ext.DB and Ext.DC, vehicle was with PW7 ASI Ludar Singh from 8 AM to 6 PM on that day i.e. 22.6.2008 and before that since 21.6.2008 from 10 PM to 6 AM on 22.6.2008, it was with PW11 ASI Prem Lal.\r\n\r\n17. PW3 Joban Dass has deposed that on 22.6.2008 he was sent by SHO P.S. Ani at 10 AM towards Runa, Thanog and Thashog to have information about absconding persons and on inquiry about them he came to know that three persons had\r\n\r\ngone towards Dalash after inquiring about path leading to Dalash and thereafter he returned back to police station and informed PW5 SHO Nathu Ram accordingly. In his cross examination he expressed his inability to disclose identity of persons from whom he made inquiry. He also stated that distance of Thanog to Ani is about 10 K.m. and that he went on foot to the area to which he was deputed and he returned to police station in the evening at about 7 PM.\r\n\r\n18. As per Ext.PW6/D, PW7 ASI Ludar Singh along with HHG Jeewan Singh was sent towards Dalash at 3.05 AM. PW3 Joban Dass deposed that he was sent by PW5 Nathu Ram at about 10 AM towards Runa, Thanog and Thashog and he went on foot. From his statement it is evident that he went alone.As per Ext.DB, Ext.PW6/E and also deposition of PW7 ASI Luder Singh, official vehicle was with him and he was at Luhri at about 10/11 AM. According to Ext.PW6/D, HHG Jeewan Singh also should have been with him. PW3 Joban Dass stated that he was sent from police station by PW5 Nathu Ram at 10 AM towards Runa, Thanog and Thashog. There is nothing on record to suggest that PW2 Joban Dass and HHG Jeewan Singh are one and the same person. According to Ext.PW6/E, report No. 26 dated 22.6.2008 at 7 PM, PW7 ASI Ludar Singh accompanied by C.Bhup Singh,\r\n\r\nHHG Duni Chand returned to police station in official vehicle No. HP-34-0298 being driven by Dalip Singh along with absconding accused. PW7 Luder Singh never said that PW3 Joban Dass or HHG Jeevan Singh was with him but stated that he had left police station in the morning in the official vehicle with C.Bhup Singh, HHG Duni Chand and driver C.Dalip Singh. In Ext.PW6/D there is no reference of C.Bhup Singh being sent with ASI Ludar Singh or even any other police party as his name does not figure in the said report. As per Ext.PW6/D, HHG Jeevan Singh was deputed with PW7 but on return he was not with PW7. Where, when and how HHG Jeewan Singh parted with PW7 ASI Ludar Singh and C.Bhup Singh joined him, is not clear from record.\r\n\r\n19. As per prosectuion case, contraband was recovered by PW11 Prem Lal and accused were apprehended by PW7 Ludar Singh whereas as per admission of PW7 Ludar Singh in his cross examination, entry has been made in his service book for 'C' certificate for seizure of contraband in case FIR of present case.\r\n\r\n20. Prosecution has examined PW4 HHC Roshan Lal and PW11 ASI Prem Lal to prove recovery of contraband from vehicle and fleeing of respondents from the spot and also for the purpose of identification of respondents as the same persons who fled from spot. Both of them corroborated the prosecution story with regard to intercepting the vehicle, recovery of contraband from its stepney, fleeing of occupants thereof from the spot, unsuccessful chasing attempt to apprehend them, associating PW4 Roshan Lal and C.Sunder Singh (not examined) as witnesses in proceedings, bringing the vehicle from spot with help of driver Dalip Singh and carrying on remaining proceedings in police station. They also deposed that respondents were apprehended by PW7 Ludar Singh near Soedhar and brought to police station at about 7 PM on 22.6.2010 where respondent Mohit produced documents of vehicle which were taken in possession vide seizure memo Ext.PW5/G and respondents were arrested after disclosing grounds of their arrest and informing about their arrest vide memos Ext.PW4/D, Ext.PW4/E and Ext.PW4/F.\r\n\r\n21. PW5 SHO Nathu Ram stated that on 22.6.2008 after receiving ruka from ASI Prem Lal, he registered FIR Ext.PW5/A and made endorsement Ext.PW5/B on ruka and on the same day resealed parcels of case property submitted by PW11 to him along with specimen impression of seal and NCB forms and also took specimen impression of seal Ext.PW4/C and filled NCB form Ext.PW5/C and deposited the case property along with documents in malkhana. He further deposed that he had sent police party in search of accused and on same day, at about 7 PM, PW7 ASI Ludar Singh had produced the accused in police station who were handed over to investigating officer.\r\n\r\n22. PW7 ASI Ludar Singh in his deposition in Court stated that on 22.6.2008 when he was at Luhri, he received instructions from PW5 SHO Nathu Ram to lay nakabandi at place Jajjar as accused had fled away from Ani. He also stated about receiving of instructions at 2 PM with respect to description of accused, their dress, name of one accused as Pawan Kumar driver and to move towards Dalash whereafter on reaching Soedhar, driver of a transport bus coming from Dalash side, on inquiry, disclosed three persons had alighted from bus at Dalash, whereupon, he cordoned off the area and in forest two accused whose names were Mohit and Pawan Kumar were overpowered whereas third accused Ajmer was overpowered at a some distance. He identified all accused present in Court, who were apprehended by him and produced before SHO in police station.\r\n\r\n23. As per Nakal rapat No. 28 Ext.PW6/B, PW11 Prem Lal had departed for nakabandi towards Nagan etc. on 21.6.2010 at 10 PM which fact is corroborated by extract of log book Ext.DC wherein the vehicle No. HP-34-0298 used by him has been shown to be departed at 10 PM from police station. As per rapat No. 3 Ext.PW6/C, he reached back in police station at 2.30 AM after intercepting vehicle in question.\r\n\r\n24. PW11 ASI Prem Lal stated that he had informed PW5 immediately after reaching in police station about fleeing of occupants of vehicle whereas PW5 denied this fact in his statement in Court but Rapat Ext.PW6/D recorded at the instance of PW5, at 3.05 AM corroborates statement of PW11. But PW5 Inspector Nathu Ram, in his deposition in Court specifically stated that he was not informed about this fact by PW11 before handing over the ruka and it was only at the time of handing over of ruka he was informed about this. As per evidence on record, ruka was handed over to PW5 by PW11 at 4.20 AM. If it was so then it was not possible for PW5 to send police parties in search of respondents at 3.05 AM.\r\n\r\n25. In report Ext.PW6/D, it is not mentioned that with whom and in what direction the official vehicle No. HP-34A-298 with driver and HHG Duni Chand was sent. However, as per extract of log book Ext.DB, admitted to be correct by PW7 ASI Ludar Singh, he had departed in this official vehicle at 8 AM from police station towards Luhri, Jajjar, Soedhar, Dalash etc. As per Ext.PW6/D, PW7 was deputed for search of accused at 3.05 AM. There is nothing on record to show that PW7 had left police station at 3.05 AM, but in his statement he stated that he left police station in the morning but time was not remembered by him. As per extracts of log book Ext.DB and Ext.DC the vehicle was with PW11 ASI Prem Lal till 6 AM and with PW7 ASI Ludar Singh from 8 AM.\r\n\r\n26. Entries of daily diary and log book with respect to timings are in conflict with each other and there is discrepancy in these entries, which has not been explained by prosecution witnesses rather they have further complicated the facts by deposing either casually or in the hob-nobbing with accused despite the fact that one of them i.e. PW7 had been rewarded for excellent work in present case. Record reflects that despite deputing police officers/officials at 3.05 AM to search accused, they left Police Station leisurely according to their convenience, in deviation and definace to direction of PW5 Nathu Ram as recorded in Ext.PW6/D.\r\n\r\n27. In Ruka Ext.PW11/A, consequently in FIR Ext.PW5/A, it is stated that at the time of interception of vehicle, papers of vehicle, after checking, were returned but before returning driving licence of driver Pawan Kumar, which was in the hand of PW11, on starting checking of vehicle by police, all occupants of vehicle skipped from the spot. This fact is also mentioned in special report Ext.PW1/A submitted to SDPO Ani at 6.15 PM on 22.6.2010. As per endorsement of SDPO, report was seen by him at 10 AM on 23.6.2010. The said driving licence was taken in possession vide seizure memo Ext.PW4/A by I.O. along with other case property in presence of witnesses PW4 HHC Roshan Lal and C.Sunder Singh. In ruka, FIR, special report and seizure memo contain details of driving licence of Pawan Kumar bearing No. 113945 dated 19.3.2008 valid upto 18.3.2008 for driving LMV (NT), left by driver with I.O. PW11 before fleeing.\r\n\r\n28. The seizure memo Ext.PW4/A was prepared after 2.30 AM after arrival of PW11 in Police Station but before 4.20 AM before submitting Ruka to PW5 SHO Nathu Ram. Entire case property except driving licence was deposited in Malkhana. In his cross examination PW11 has stated that driving licence was not an article to be deposited in Malkhana. There is no reference of driving licence of Pawan Kumar in rapat No. 3 Ext.PW6/C, but this report is only with respect to arrival of police party in Police Station. For not mentioning of the said fact in rapat No. 6 relating to submition of ruka to PW5 SHO Nathu Ram, PW11 explained that in this report only gist of ruka was recorded. There is no reference of driving licence of Pawan Kumar or description of accused in report No. 5 dated 22.6.2008 Ext.PW6/D vide which\r\n\r\npolice officials were deputed by PW5 SHO to search accused. It was recorded at 3.05 AM and at that time Ruka was yet to be prepared and submitted. Ruka was submitted at about 4.20 AM whereafter in Ruka, FIR and special report, name of Pawan Kumar and reference of his driving licence is there.\r\n\r\n29. PW7 ASI Ludar Singh deposed that he had left Police Station in official vehicle along with constable Bhup Singh, HHG Duni Chand and driver Dalip Singh and when he was present at Luhari at 10/11 AM, PW5 ASI Nathu Ram instructed him to lay naka at Jajjar for tracing occupants of vehicle and description of accused was conveyed to him at 2 PM whereas as per Ext.PW6/D at 3.05 AM, when he was deputed to search accused, PW11 with driving licence of Pawan Kumar and also other police officials of his Naka party having knowledge of description of absconding accused were present in police station. Driving licence having details of accused with his photograph, was a vital information and clue with police. But non-supply of the said information and departure of police parties in search of accused without any description of accused, which was available with I.O. and other police officers, reflects incompetence of concerned police officers.\r\n\r\n30. Neither memo of personal search (Jama Talashi) at the time of arrest has been exhibited nor entry of deposit of articles taken in possession at that time has been placed and exhibited on record. Copy of malkhana entry No. 170 is exhibited as Ext.PW6/A which also contains some portion of Entry No. 171 with respect to deposit of articles taken in possession during personal search (Jama Talashi) of respondents at the time of their arrest, perusal of which reveals that mobile phone Nokia 1110 was also taken in possession from respondent Mohit. But for reasons best known to police, no efforts appear to have taken for ascertaining location of respondents with the help of call details and location of mobile.\r\n\r\n31. As evident from copy of FIR Ext.PW5/A, it's copy was delivered to Sub Divisional Judicial Magistrate Ani on 22.6.2008 at 5.10 PM and special report was delivered to Dy.S.P. at 6.15 PM. As per claim of respondents accused, they reached in police station at their own at 2.30 PM on 22.6.2008 on calling of police and thereafter police robed them. In such eventuality, it would not have possible for police to submit copy of FIR to concerned Magistrate at 5.10 PM and special report to Dy.S.P. at 6.15 PM after completing all formalities.\r\n\r\n32. Incident is of 22.6.2008. PW5 SHO Nathu Ram was examined on 10.12.2009 whereas PW7 Ludar Singh and PW11 Prem Singh were examined on 27.02.2010 and 9.12.2010. PW5, PW7 and PW11 were examined after 1½, 1¾ and 2½ years after this incident. Therefore, discrepancies in their statements with respect to time etc. were bound to occur as power to observe, retain and narrate always differs from person to person. For other evidence on record such discrepancies are not fatal for prosecution case.\r\n\r\n33. It is settled that though the investigating agency is expected to be fair and effiecient, but any lapse on its part cannot per se be a ground to throw out the prosecution case when there is overwhelming evidence on record to prove the offence. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities and must be conducted under such rules as well protect the innocent, and punish the guilty. In the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect as to do so would tantamount to playing into the hands of the investigating officer if the investigation is\r\n\r\ndesignedly defective. The prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not and contaminated conduct of officials should not stand in the way of evaluating the evidence by the Courts. (See Zahira Bahibullah Sheikh (5) vs. State of Gujarat (2006)3 SCC 374, Dhanaj Singh vs. State of Punjab (2004)3 SCC 654, Karnel Singh vs. State of M.P. (1995)5 SCC 518, Paras Yadav vs. State of Bihar (1999)2 SCC 126, Ram Bihari Yadav vs. State of Bihar (1998)4 SCC 517, Amar Singh vs. Balwinder Singh (2003)2 SCC 518 and State of Karnataka vs. Suvarnamma and another (2015)1 SCC 323).\r\n\r\n34. It is also held by the Apex Court that investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the court in the case cannot be allowed to depend solely on the probity of investigation and even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinized independent of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and pre-eminence in criminal trials over the action taken by investigating officers. Criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case and the investigating officer is not obliged to anticipate all possible defences and investigate in that angle. In any event, any omission on the part of the investigating officer cannot go against the prosecution. Interest of justice demands that such acts or omission of the investigating officer should not be taken in favour of the accused or otherwise it would amount to placing a premium upon such omissions. (SeeState of Karnataka vs. K. Yarappa Reddy (1999)8 SCC 715 & V.K. Misra and another vs. State of Uttarakhand and another (2015)9 SCC 588)\r\n\r\n35. In present case, though for laxity on part of police officials including the driver of official vehicle in making entries either in log book or in DDR in casual manner, there are discrepancies with respect to direction and time of departure of police officials/official vehicle to apprehend absconding accused. But so far as recovery of contraband is concerned from vehicle owned and possessed by respondent No. 1 Mohit, that has been duly proved on record.\r\n\r\n36. Now the question for consideration, which arises, is that whether respondent No.1 Mohit being owner of vehicle is liable to be punished for recovery of contraband from vehicle owned by him.\r\n\r\n37. Defective or illegal investigation and also lapse and irregularities in investigation, maintaining log book and recording proper DDRs and also failure in depicting exact times in police record and stating it in the Court is not sufficient to reject the prosecution case in present case against respondent No.1 Mohit for the reason that prosecution case is substantiated by other reliable evidence on record. Incompetent prosecution agencies, driven by extraneous consideration, should not be allowed to take the Court for ride particularly in offences having effect not only on individual but society at large. Committing mistake in awarding medal/certificate of appreciation to a police officer can also not be ground to reject the prosecution case. Mistakes committed by police officials resulting into discrepancies are not fatal to the prosecution case as the same does not affect the recovery of contraband from vehicle owned by accused Mohit for which accused Mohit has failed to give satisfactory explanation.\r\n\r\n38. In criminal cases the onus to bring the facts on record is upon the prosecution. However, Section 106 of Indian Evidence Act is exception to the same and facts within exclusive knowledge of accused are to be brought on record by accused only, in case they are required to be explained for proving his innocence.\r\n\r\n39. In Gian Chand and others vs. State of Haryana (2013)14 SCC 420, the Apex Court has held as under:-\r\n\r\n> \"22. In State of West Bengal v. Mir Mohammad Omar & Ors. (2000)8 SCC 382, this Court held that if the fact is specifically in the knowledge of any person, then the burden of proving that fact is upon him. It is impossible for the prosecution to prove certain facts particularly within the knowledge of accused. Section 106 is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the Section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the Court to draw a different inference.\r\n\r\n> \"38……Section 106 of the Evidence Act is designed to meet certain exceptional cases, in which, it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused.\" (SCC p. 393, para 38) (emphasis supplied)\r\n\r\n(See also: Shambhu Nath Mehra v. The State of Ajmer AIR 1956 SC 404; Gunwantlal v. The State of Madhya Pradesh AIR 1972 SC 1756; Sucha Singh v. State of Punjab AIR 2001 SC 1436; Sahadevan v. State (2003)1 SCC 534; Durga Prasad Gupta v. The State of Rajasthan, (2003) 12 SCC 257; Santosh Kumar Singh v. State, (2010) 9 SCC 747; Manu Sao v. State of Bihar (2010) 12 SCC 310; Neel Kumar v. State of Haryana (2012) 5 SCC 766).\"\r\n\r\n40. It is held by the Apex Court in Sunil Mahadeo Jadhav vs. State of Maharashra (2013) 15 SCC 177 as under:-\r\n\r\n> \"36. Section 106 of the Evidence Act states that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Since it was Accused 1 who had arrested the deceased at 00.45 a.m. on 17.12.1985 and kept the deceased in police lock-up after his arrest was compelte, it was for Accused 1 to explain the injuries on the body of the deceased other than those which were noticed in Ext.76. Accused 1 has not stated anything in this regard in his statement under section3 13 of the Code of Criminal Procedure, 1973 (for short \"CrPC\") nor adduced any evidence in defence to explain these injuries. In the absence of any explanation by Accused 1 or any evidence adduced on behalf of Accused 1 to explain these injuries on the body of the deceased, there can be no escape from the conclusion that these injuries have been caused on the body of the deceased by Accused 1 and no one else.\"\r\n\r\n41. Statement under Section 313 Cr.P.C. is not a substantive piece of evidence but it can be considered to corroborate the facts on record. False plea taken in reply to question under Section 313 Cr.P.C. in given facts and circumstances can be considered as completion of missing link in chain of circumstances against the accused. But it does not absolve prosecution from discharging its onus to prove its case as it cannot be substituted to evidence to be led by prosecution for proving basic facts of the case. Entire case of prosecution cannot be based on plea taken by accused in his statement under Section 313 Cr.P.C.\r\n\r\n42. It is also settled that to discharge reverse onus by accused, statement under Section 313 Cr.P.C. being a statement without oath with no opportunity of cross examination, is not a substantive piece of evidence and accused is required to lead evidence under Section 315 Cr.P.C.\r\n\r\n43 In Selvi and others vs. State of Karnataka (2010)7 SCC\r\n\r\n263 the Apex Court has held that not only does an accused person have the right to refuse to answer any question that may lead to incrimination, there is also a rule against adverse inferences being drawn from the fact of his/her silence and Section 313 (3) Cr.P.C. lays down that the accused shall not render himself/herself liable to punishment by refusing to answer such questions, or by giving false answers to them. Further, proviso (b) to Section 315 (1) Cr.P.C. mandates that even though an accused person can be a competent witness for the defence, his/her failure to give evidence shall not be made the subject of any comment by any of the parties or the court or give rise to any presumption against himself or any person charged together with him at the same trial. However, as held by the Apex Court in State of Himachal Pradesh vs. Wazir Chand and others (1978)1 SCC 130, where the commencement or genesis of the occurrence is not available because there was no witness to the occurrence available, the only direct version of the commencement of the occurrence would be found in the statement of the accused, if he chooses to give out his version of the occurrence and further held that his statement has to be considered in the light of the evidence adduced by the prosecution and weighing his statement with the probabilities of the case either in his favour or against him.\r\n\r\n44. In Raj Kumar Singh alias Raju alias Batya versus State of Rajasthan (2013)5 SCC 722 after considering pronouncements in State of Maharashtra vs. Sukhdev Singh (1992)3 SCC 700, Mohan Singh vs. Prem Singh (2002)10 SCC 236, Dharnidhar vs. State of U.P. (2010)7 SCC 759, Dehal Singh vs. State of H.P. (2010)9 SCC 85, State of M.P. vs. Ramesh (2011)4 SCC 786, Rafiq Ahmad vs. State of U.P. (2011)8 SCC 300, Ramnaresh vs. State of Chhattisgarh (2012)4 SCC 257, Brajendrasingh vs. State of M.P. (2012)4 SCC 289, and Munish Mubar vs. State of Haryana (2012)10 SCC 464, the Apex Court held as under:-\r\n\r\n> \"41. In view of the above, the law on the issue can be summarised to the effect that statement under Section 313 Cr.P.C. is recorded to meet the requirement of the\r\n\r\nprinciples of natural justice as it requires that an accused may be given an opportunity to furnish explanation of the incriminating material which had come against him in the trial. However, his statement cannot be made a basis for his conviction. His answers to the questions put to him under Section 313 Cr.P.C. cannot be used to fill up the gaps left by the prosecution witnesses in their depositions. Thus, the statement of the accused is not a substantive piece of evidence and therefore, it can be used only for appreciating the evidence led by the prosecution, though it cannot be a substitute for the evidence of the prosecution. In case the prosecution's evidence is not found sufficient to sustain conviction of the accused, the inculpatory part of his statement cannot be made the sole basis of his conviction. The statement under Section 313 Cr.P.C. is not recorded after administering oath to the accused. Therefore, it cannot be treated as an evidence within the meaning of Section 3 of the Evidence Act, though the accused has a right if he chooses to be a witness, and once he makes that option, he can be administered oath and examined as a witness in defence as required under Section 315 Cr.P.C. An adverse inference can be taken against the accused only and only if the incriminating material stood fully established and the accused is not able to furnish any explanation for the same. However, the accused has a right to remain silent as he cannot be forced to become witness against himself.\"\r\n\r\n45. By refering Munish Mubar vs. State of Haryana (2012)10 SCC 464 and Rohtash Kumar vs. State of Haryana (2013)14 SCC 434 wherein State of Maharashtra vs. Suresh (2000)1 SCC 471, Musheer Khan vs. State of M.P. (2010)2 SCC 748, Sunil Clifford Daniel vs. State of Punjab (2012)11 SCC 205, it is reiterated by the Apex Court in S. Govindraju vs. State of Karnataka (2013)15 SCC 315 that\r\n\r\n> \"29. It is obligatory on the part of the accused while being examined under Section 313 Cr.P.C., to furnish some explanation with respect to the incriminating circumstances associated with him, and the Court must take note of such explanation even in a case of circumstantial evidence in order to decide whether or not the chain of circumstances is complete. When the attention of the accused is drawn to circumstances that inculpate him in relation to the commission of the crime, and he fails to offer an appropriate explanation, or gives a false answer with respect to the same, the said act may be counted as providing a missing link for completing the chain of circumstances. (Vide: Munish Mabar v State of Haryana, (2012)10 SCC 464).\r\n\r\n> 30. This Court in Rohtash Kumar v. State of Haryana, (2013)14 SCC 434) held as under: (SCC p.448, para 31)\r\n\r\n> \"31. Undoubtedly, the prosecution has to prove its case beyond reasonable doubt. However, in certain circumstances, the accused has to furnish some explanation to the incriminating circumstances, which have come in evidence, put to him. A false explanation may be counted as providing a missing link for completing a chain of circumstances\". (Emphasis supplied)\r\n\r\n46. In Kuldeep Singh and others vs. State of Rajasthan,\r\n\r\n(2000)5 SCC 7, the Apex Court has held as under:-\r\n\r\n\"18. In the case of Swapan Patra vs. State of W.B. (1999)1 SCC 242 it has been held that it is a well-settled principle that in a case of circumstantial evidence when the accused offers an explanation and that explanation is found to be untrue then the same offers an additional link in the chain of circumstances to compelte the chain. The same principle is reiterated in the case of State of Maharashtra vs. Sures (2000)1 SCC 471. In this case it has been held that a false answer offered by the accused when his attention was drawn to a cricumstance renders that circumstance capable of inculpating him. It is held that in a situation like this a false answer can also be counted as providing \"a missing link\" for completing the chain.\"\r\n\r\n47. In Manu sao vs. State of Bihar 2010)12 SCC 310, the Apex\r\n\r\nCourt has held as under:-\r\n\r\n\"12. Let us examine the essential features of this Section 313 Cr.P.C. and the principles of law as enunciated by judgments, which are the guiding factors for proper application and consequences which shall flow from the provisions of Section 313 of the Code.\r\n\r\n13. As already noticed, the object of recording the statement of the accused under Section 313 of the Code is to put all incriminating evidence against the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. At the same time, also to permit him to put forward his own version or reasons, if he so chooses, in relation to his involvement or otherwise in the crime. The Court has been empowered to examine the accused but only after the prosecution evidence has been concluded. It is a mandatory obligation upon the Court and besides ensuring the compliance thereof the Court has to keep in mind that the accused gets a fair chance to explain his conduct. The option lies with the accused to maintain silence coupled with simplicitor denial or in the alternative to explain his version and reasons, for his alleged involvement in the commission of crime. This is the statement which the accused makes without fear or right of the other party to cross- examine him. However, if the statements made are false, the Court is entitled to draw adverse inferences and pass consequential orders, as may be called for, in accordance with law. The primary purpose is to establish a direct dialogue between the Court and the accused and to put to the accused every important incriminating piece of evidence and grant him an opportunity to answer and explain. Once such a statement is recorded, the next question that has to be considered by the Court is to what extent and consequences such statement can be used during the enquiry and the trial. Over the period of time, the Courts have explained this concept and now it has attained, more or less, certainty in the field of criminal jurisprudence.\r\n\r\n14. The statement of the accused can be used to test the veracity of the exculpatory of the admission, if any, made by the accused. It can be taken into consideration in any enquiry or trial but still it is not strictly evidence in the case. The provisions of Section 313 (4) explicitly provides that the answers given by the accused may be taken into consideration in such enquiry or trial and put in evidence against the accused in any other enquiry or trial for any\r\n\r\nother offence for which such answers may tempt to show he has committed. In other words, the use is permissible as per the provisions of the Code but has its own limitations. The Courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this Section should not be considered in isolation but in conjunction with evidence adduced by the prosecution.\"\r\n\r\n48. In Sidhartha Vashisht vs. State (NCT of Delhi) (2010)6 SCC\r\n\r\n¹ the Apex Court has held that while answer given by the accused to question put under section 313 of the Code are not per se evidence because, firstly, it is not on oath and, secondly, the other party i.e. the prosecution does not get an opportunity to cross-examine the accused, it is nevertheless subject to consideration by the Court to the limited extent of drawing an adverse inference against such accused for any false answers voluntarily offered by him and to provide an additional/missing link in the chain of circumstances.\r\n\r\n49. After considering Asraf Ali vs. State of Assam (2008)6 SCC 328 and Manu Sao vs. State of Bihar (2010)12 SCC 310, the Apex Court, in Munna Kumar Upadhyay vs. State of Andhra Pradesh (2012)6 SCC 174, has held as under:-\r\n\r\n \"76. If the accused gave incorrect or false answers during the course of his statement under Section 313 Cr.P.C., the court can draw an adverse inference against him…..\"\r\n\r\n50. In Nagesh vs. State of Karnataka (2012)6 SCC 477 the\r\n\r\nApex Court has held as under:-\r\n\r\n\"32. It is also possible and permissible that an accused may remain silent but in that circumstance and with reference to the facts and circumstances of a given case, the court may be justified in drawing an adverse inference against the accused…….The trend of cross-examination on behalf of the accused implies admission of the death of the deceased having taken place in the premises in question by taking poison, however, the accused have failed to offer any explanation therefor which was least expected of him.\"\r\n\r\n51. In Dharam Deo Yadav vs. State of Uttar Pradesh (2014)5\r\n\r\nSCC 509 the Apex Court has held as under:-\r\n\r\n\"37. The accused, in his examination under Section 313 Cr.P.C., had denied the prosecution case completely, but the proseuction has succeeded in proving the guilt beyond reasonable doubt. Often, false answers given by the accused in Section 313 Cr.P.C. statement may offer an additional link in the chain of circumstances to complete the chain. See Anthony D'Souza vs. State of Karnataka (2003)1 SCC 259. We are, therefore, of the considered view that both the trial Court as well as the High Court have correctly appreciated the oral and documentary evidence in this case and correctly recorded the conviction and we are now on sentence.\"\r\n\r\n52. In Nagaraj vs. State (2015)4 SCC 739 the Apex Court has held as under:-\r\n\r\n14. The Impugned Judgment has found the answers of the Accused under Section 313 CrPC evasive and untrustworthy, and held this to be another factor indicating his guilt. Section 313 CrPC is of seminal importance in our criminal law jurisdiction and, therefore, justifies reiteration and elucidation by this Court. We shall start, with profit, by reproducing extracts from 41st Report of the Law Commission made in the context of Section 342 of the old Criminal Procedure Code which corresponds to this Section where the Commission observed, inter alia, thus:\r\n\r\n\"24.40. Section 342 is one of the most important sections in the Code. It requires that the Court must, at the close of prosecution evidence, examine the accused \"for the purposes of enabling him to explain any circumstances appearing in the evidence against him.\" The section for a moment, brushes aside all counsel, all prosecutors, all witnesses, and all third persons. It seeks to establish a direct dialogue between the Court and the accused for the purpose of enabling the accused to give his explanation. For a while the section was misunderstood and regarded as authorizing an inquisitorial interrogation of the accused, which is not its object at all. The key to the section is contained in the first sixteen words of the section. Giving an opportunity to the accused to explain the circumstances appearing in the evidence is the only object of the examination. He may, if he chooses, keep his mouth shut or he may give a full explanation, or, he is so advised, he may explain only a part of the case against him. \\*\\*\\*\\*\\*\r\n\r\n24.45 We have, after considering the various aspects of the matter as summarized above, come to the conclusion that S.342 should not be deleted. In our opinion the stage has not yet come for its being removed from the statute book. With further increase in literacy and with better facilities for legal aid, it may be possible to take that step in the future.\" (ii) 'Clause 320 - The existing provision in S.342 (2) enabling a Court to draw an inference, whether adverse or not from an answer or a refusal to answer a question put to the accused during the examination, is being omitted as it may offend Art. 20(3) of the Constitution\" - S.O.R.\"\r\n\r\n15. In the context of this aspect of the law it is been held by this Court in Parsuram Pandey vs. State of Bihar (2004) 13 SCC 189 that Section 313 CrPC is imperative to enable an accused to explain away any incriminating circumstances proved by the prosecution. It is intended to benefit the accused, its corollary being to benefit the Court in reaching its final conclusion; its intention is not to nail the accused, but to comply with the most salutary and fundamental principle of natural justice i.e. audi alteram partem, as explained in Arsaf Ali vs. State of Assam (2008) 16 SCC 328.In Sher Singh vs. State of Haryana (2015) 1 SCR 29 this Court has recently clarified that because of the language employed in Section 304B of the IPC, which deals with dowry death, the burden of proving innocence shifts to the accused which is in stark contrast and dissonance to\r\n\r\na person's right not to incriminate himself. It is only in the backdrop of Section 304B that an accused must furnish credible evidence which is indicative of his innocence, either under Section 313 CrPC or by examining himself in the witness box or through defence witnesses, as he may be best advised. Having made this clarification, refusal to answer any question put to the accused by the Court in relation to any evidence that may have been presented against him by the prosecution or the accused giving an evasive or unsatisfactory answer, would not justify the Court to return a finding of guilt on this score. Even if it is assumed that his statements do not inspire acceptance, it must not be lost sight of that the burden is cast on the prosecution to prove its case beyond reasonable doubt. Once this burden is met, the Statements under Section 313 assume significance to the extent that the accused may cast some incredulity on the prosecution version. It is not the other way around; in our legal system the accused is not required to establish his innocence. We say this because we are unable to subscribe to the conclusion of the High Court that the substance of his examination under Section 313 was indicative of his guilt. If no explanation is forthcoming, or is unsatisfactory in quality, the effect will be that the conclusion that may reasonably be arrived at would not be dislodged, and would, therefore, subject to the quality of the defence evidence, seal his guilt. Article 20(3) of the Constitution declares that no person accused of any offence shall be compelled to be a witness against himself. In the case in hand, the High Court was not correct in drawing an adverse inference against the Accused because of what he has stated or what he has failed to state in his examination under Section 313 CrPC.\r\n\r\n53. Commission of offence under NDPS Act is not only a serious, but a heinous crime for the reason that it not only affects individual and his family, but also society at large and for that reason, stringent provisions have been enacted to curb the menace of drugs and psychotropic substances and therefore in case of possession of contraband for which a person fails to account satisfactorily, reverse presumption of culpable mental state and commission of offence has been provided under Sections 35 and 54 of NDPS Act which read as under:-\r\n\r\n#### \"35. Presumption of culpable mental state.\r\n\r\n(1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.\r\n\r\nExplanation: In this section \"culpable mental state\" includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact.\r\n\r\n(2) For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability.\r\n\r\n54. Presumption from possession of illicit articles.\r\n\r\nIn trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of(a) any narcotic drug or psychotropic substance or controlled substance;\r\n\r\n(b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated;\r\n\r\n(c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance; or\r\n\r\n(d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily.]\r\n\r\n54. Section 54 of NDPS Act shifts the onus of proving his innocence upon the accused and states that in trials under NDPS Act unless or until contrary is proved, it may be presumed that an accused has committed an offence under it with respect of article recovered from him, for possession of which he fails to account satisfactorily.\r\n\r\n55. Section 35 of NDPS Act also provides presumption of existence of culpable mental state of accused and onus to prove that no such mental state with respect to act charged as an offence in prosecution was there, is upon accused. Explanation of Section 35 of the Act clarifies that culapable mental state includes intention, motive, knowledge of fact and belief in or reason to believe a fact.\r\n\r\n56. Possession in a given case need not be a physcial possession but can be constructive with animus and control over the articles in question and the word conscious means awareness about a particular fact. Article, possession of which is in question, may be kept in physical possession of another person with animus or dominion and control over the said article and such a situation is sufficient to hold the possession of such article with first person.\r\n\r\n57. It is held by Hon'ble Apex Court in case reported in Madan Lal and another vs. State of H.P. (2003)7 SCC 465 that:-\r\n\r\n> \"22. The expression \"possession\" is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Superintendent & Remembrancer of Legal Affairs, W.B. vs. Anil Kumar Bhunja (1979)4 SCC 274 to work out a completely logical and precise definition of \"possession\" uniformally applicable to all situations in the context of all statutes.\r\n\r\n> 23. The word \"conscious\" means awareness about a particular fact. It is a state of mind which is delierate or intended.\r\n\r\n> 24. As noted in Gunwantal vs. State of M.P. (1972)2 SCC 194 possession in a given case need not be physical possession but can be constructive, having power and control over the article in the case in question, while the person to whom physical possession is given holds it subject to that power or control.\r\n\r\n25. The word \"possession\" means the legal right to possession (see Heath vs. Drown (1972)2 All ER 561). In an interesting case it was observed that where as person keeps his firearm in his mother's flat which is safer than his own home, he must be considered to be in possession of the same. (See Sullivan vs. Earl of Caithness (1976)1 All ER 844).\r\n\r\n26. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles.\"\r\n\r\n(at p. 472)\r\n\r\n58. It is also held by Hon'ble Apex Court in Dharampal\r\n\r\n#### Singh vs. State of Punjab (2010)9 SCC 608 that\r\n\r\n12. ….. It is trite that to bring the offence within the mischief of Section 18 of the Act possession has to be conscious possession. The initial burden of proof of possession lies on prosecution and once it is discharged legal burden would shift on accused. Standard of proof expected from the prosecution is to prove possession beyond all reasonable doubt but what is required to prove innocence by the accused would be preponderance of probability. Once the accused plea is found probable, discharge of initial burden by the prosecution will not nail him with offence. Offences under the Act being more serious in nature higher degree of proof is required to convict an accused.\r\n\r\n13. It needs no emphasis that the expression possession is not capable of precise and completely logical definition of universal application in context of all the statutes. Possession is a polymorphous word and cannot be uniformly applied, it assumes different colour in different context. In the context of Section 18 of the Act once possession is established the accused, who claims that it was not a conscious possession has to establish it because it is within his special knowledge.\r\n\r\n14. Section 54 of the Act raises presumption from possession of illicit articles. It reads as follows :\r\n\r\n- \"54. Presumption from possession of illicit articles. In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of –\r\n- (a) any narcotic drug or psychotropic substance or controlled substance;\r\n- (b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated;\r\n- (c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance; or\r\n- (d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured,\r\n\r\nfor the possession of which he fails to account satisfactorily.\"\r\n\r\n15. From a plain reading of the aforesaid it is evident that it creates a legal fiction and presumes the person in possession of illicit articles to have committed the offence\r\n\r\nin case he fails to account for the possession satisfactorily. Possession is a mental state and Section 35 of the Act gives statutory recognition to culpable mental state. It includes knowledge of fact. The possession, therefore, has to be understood in the context thereof and when tested on this anvil, we find that the appellants have not been able to account for satisfactorily the possession of opium.\r\n\r\n16. Once possession is established the Court can presume that the accused had culpable mental state and have committed the offence. In somewhat similar facts this Court had the occasion to consider this question in the case of Madan Lal and another vs. State of H.P.,2003 (7) SCC 465, wherein it has been held as follows*:* \r\n\r\n*\"*26. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles.\r\n\r\n27. In the factual scenario of the present case, not only possession but conscious possession has been established. It has not been shown by the accusedappellants that the possession was not conscious in the logical background of Sections 35 and 54 of the Act.\" (at pp. 614-615)\r\n\r\n59. The Apex Court in Ram Singh vs. Central Bureau of\r\n\r\nNarcotics (2011)11 SCC 347 has also held as under:-\r\n\r\n\"24. It is trite that to hold a person guilty, possession has to be conscious. Control over the goods is one of the tests to ascertain conscious possession so also the title. Once an article is found in possession of an accused it could be presumed that he was in conscious possession. Possession is a polymorphous term which carried different meaning in different context and circumstances and, therefore, it is difficult to lay down a completely logical and precise definition uniformly applicable to all situations with reference to all the statutes……\" (at p.354)\r\n\r\n60. It has been held by the Apex Court in Kulwinder Singh and another vs. State of Punjab (2015)6 SCC 674 that\r\n\r\n> \"17.In this context reference to the decision in Madan Lal v. State of H.P.would be fruitful wherein it has been held thus-(SCC p.472, paras 22-25)\r\n\r\n\"22.The expression \"possession\" is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Supdt. & Remembrancer of Legal Affairs, W.B.v.Anil Kumar Bhunja (1979)4 SCC 274 to work out a completelylogical and precise definition of \"possession\"uniformally applicable to all situations in thecontext of all statutes.\r\n\r\n23.The word \"conscious\" means awareness about a particular fact. It is a state of mind which is deliberate or intended.\r\n\r\n24.As noted in Gunwantlal v. State of M.P.(1972)2 SCC 194 possession in a given case need not be physical possession but can be constructive, having power and control over the article in the case in question, while the person to whom physical possession is given holds it subject to that power or control.\r\n\r\n25.The word \"possession\" means the legal right to possession (see Heath v.Drown 1973 AC 498). In an interesting case it was observed that where a person keeps his firearm in his mother's flat which is safer than his own home, he must be considered to be in possession of the same. (See Sullivan v. Earl of Caithness (1976)2 WLR 361.)\"\r\n\r\n18. In Dharampal Singh v. State of Punjab (2010)9 SCC 608, it has been ruled that the expression \"possession\" is not capable of precise and complete logical definition of universal application in the context of all the statutes. Recently, in Mohan Lal v. State of Rajasthan (2015)6 SCC 222 , after referring to certain authorities, this Court has held as follows:- (Mohar Lal case, SCC pp.238-39, paras 21- 22)\r\n\r\n\"21. From the aforesaid exposition of law it is quite vivid that the term \"possession\" for the purpose of Section 18 of the NDPS Act could mean physical possession with animus, custody or dominion over the prohibited substance with animus or even exercise of dominion and control as a result of concealment. The animus and themental intent which is the primary and significant element to show and establish possession. Further, personal knowledge as to the existence of the \"chattel\" i.e. the illegal substance at a particular location or site, at a relevant time and the intention based upon the knowledge, would constitute the unique relationship and manifest possession. In such a situation, presence and existence of possession could be justified, for the intention is to exercise right over the substance or the chattel and to act as the owner to the exclusion of others.\r\n\r\n22. In the case at hand, the appellant, we hold, had the requisite degree of control when, even if the said narcotic substance was not within his physical control at that\r\n\r\nmoment. To give an example, a person can conceal prohibited narcotic substance in a property and move out thereafter. The said person because of necessary animus would be in possession of the said substance even if he is not, at the moment, in physical control. The situation cannot be viewed differently when a person conceals and hides the prohibited narcotic substance in a public space. In the second category of cases, the person would be in possession because he has the necessary animus and the intention to retain control and dominion.\"\r\n\r\n19.In view of the aforesaid enunciation of law, once possession is found, the accused is presumed to be in conscious possession as has been held in Ram Singh v.\r\n\r\nCentral Bureau of Narcotics (2011)11 SCC 347. If the accused takes a stand that he was not in conscious possession, he has to establish the same, as has been held in Dharampal Singh (supra). As the materials brought on record would show, the accused-appellants were sitting in the truck; their presence in the truck has been clearly established; and they had run away from the spot and absconded for some days from the village. It is proven that there were 110 bags of poppy husk in the truck and the accused-appellants were in control of the articles in the truck. Therefore, there can be no iota of doubt that they were in conscious possession of the same. In view of the aforesaid analysis, we do not find any force in the submission of the learned counsel for the appellants.\"\r\n\r\n61. Now we have to proceed in the light of above discussed settled position of law and material on record. According to accused Mohit, he was informed by police about his abandoned vehicle whereupon he tried to contact his driver\r\n\r\nVishal but on getting no response, he along with co-accused Ajmer and Pawan reached Ani after boarding Haryana Roadways bus enroute from Chandigarh to Rampur and alighted at Sainj and then reached in Police Station Ani at 2.30 PM. It is undisputed that accused persons belong to Rohtak. The journey from Rohtak to Chandigarh, at least is of 3-4 hours and in bus more than 4 hours may also be taken for the said journey. From Chandigarh to Sainj it is at least 8 hours journey. For reaching Ani from Sainj it takes 1½-2 hours and in case of non-stop journey, at least the journey from Rohtak to Ani, would take minimum 14 hours.\r\n\r\n62. It is undisputed that respondent No.1 Mohit is owner in possession of the vehicle in question. It is also admitted that documents of vehicle were also produced by respondent No.1 Mohit to the police. Contraband was recovered from vehicle owned and possessed by him. Respondents belong to Rohtak. Vehicle purchased at Rohtak, was yet to be registered but was temporarily registered in Haryana and it was in the exclusive knowledge of respondent Mohit (owner of vehicle) that for what purpose the vehicle was at Ani at a so distant place from its original place where respondent Mohit claimed to have never visited ever before.\r\n\r\n63. It is the case of accused persons that they had never visited Ani. Ani is a remote area of Himachal Pradesh, not situated on any highway or route well known to all. Even many educated Himachalis might not be knowing route to reach Ani. There are a few buses plying to Ani from Shimla and person well versed with route can catch a direct bus from Chandigarh upto Sainj situated in upper Shimla wherefrom Ani is connected directly with local road.\r\n\r\n64. According to respondents, they boarded the direct bus from Chandigarh to Sainj but how and when they travelled from Rohtak to Chandigarh is not disclosed. From whom they enquired, who guarded them to reach Ani in shortest time by catching direct bus from Chandigarh is a mystry. They claimed that they reached in Police Station at Ani at 2.30 PM meaning thereby they must have alighted from bus at Sainj at about 12 O'clock in noon for which they had to start from Chandigarh at 3- 4 AM. No time of starting journey from Rohtak to Chandigarh and from Chandigarh to Sainj has been disclosed nor any material has been placed on record to corroborate the plea of accused persons with respect to their journey on 22.6.2010 as claimed.\r\n\r\n65. It is claimed that it is on telephonic call received from Police Station Ani on mobile number of Mohit, taken by police from body of vehicle in question, the accused persons had started to Ani but at what time he was contacted by police is also not stated. No call details indicating the time of call and location of mobile phone of Mohit accused has been produced or sought to be produced in support of plea of accused.\r\n\r\n66. The vehicle, belonging to Rohtak, was found in a remote area of Himachal Pradesh. There was no possibility of presence of this vehicle in that area in normal course of business, but for specific purpose which was to be disclosed and explained by its owner. The plea of respondents that when they failed to produce driver, they were implicated is infact admission of recovery of contraband from vehicle for which driver was required to be produced before the police as no other reason, for which driver was to be produced, has been brought on record. Therefore, provision of Section 54 of NDPS Act becomes applicable. It was for owner to explain the presence of vehicle at Ani and also to disclose the name and address of driver and also purpose of plying the vehicle in Ani area but owner-respondent Mohit is conspicuously silent on this count.\r\n\r\n67. No doubt, the accused has right to remain silent as he cannot be forced to become a witness against himself. However, as discussed supra, it is also settled that an adverse inference can be drawn against the accused if incriminating material stood fully established and accused is not able to furnish any explanation for the same. In present case, the movement of vehicle, exclusively in knowledge of driver and owner, was necessarily to be disclosed to prove his innocence by respondent Mohit. Being owner in possession of vehicle, he was responsible for legal or illegal activity being carried out through his vehicle unless explained otherwise. The trial Court has not considered this aspect.\r\n\r\n68. As discussed hereinabove recovery of contraband stands connected to the vehicle owned by accused Mohit and he was also having possession over the vehicle through his driver and otherwise also. Therefore, he is to be considered in possession of article recovered from the said vehicle unless he has some plausible explanation in his defence. Under Section 54 of NDPS Act, for possession of contraband recovered from vehicle owned by accused Mohit, he has to account satisfactorily to rebut the presumption that he has not committed an offence under NDPS Act in respect of contraband recovered from his vehicle. As soon as presumption under Section 54 comes into play presumption of culpable mental state under Section 35 becomes operative and unless contrary is brought on record Court shall presume the acceptance of culpable mental state of accused for commission of offence under NDPS Act.\r\n\r\n69. Impact of provisions of Sections 35 and 54 of the NDPS Act have also been ignored by the trial Court and also the fact that respondent No.1, being owner of vehicle, having control and possession thereof, failed to satisfactorily explain the presence of vehicle at Ani with recovered contraband. Once the prosecution has successfully established that contraband was recovered from vehicle owned by respondent No.1 Mohit, it was upon him to rebut the presumption of his conscious possession by bringing explanation on record, definitely not beyond reasonable doubt, but at least having preponderance of probability. But respondent Mohit has failed to discharge reverse onus to explain as required under Section 54 of NDPS Act, inviting presumption under Section 35 of NDPS Act.\r\n\r\n70. It is defence of respondents that they were not travelling in vehicle in question, when it was intercepted by police. According to them, when driver was not traceable then they were implicated in this case. There is suggestion put to\r\n\r\nPW11 Prem Lal on behalf of respondents that respondents were asked to produce driver and when driver was not traceable they were implicated. Though this suggestion has been denied by investigating officer, however, it is only reason which has been assigned by respondents for their false implication in present case. It is stated on behalf of respondents that vehicle in question was found in abandoned condition and for the said reason respondent Mohit was called by police for inquiry after having his mobile number which was published on body of vehicle and on production of documents of vehicle in question, he and his companions were robed by police alleging them occupants of the vehicle during previous night travelling with recovered contraband. Recovery of contaband is 6.755 Kg charas with 320 grams opium. Such a huge quantity of charas cannot be believed to be planted against respondents for no reason or for not producing driver before police particularly when no enmity with police officials has ever been alleged much less any proof thereof placed on record. There is nothing on record to suggest that respondents were having any social, political, economical or any other conflict of interest with police or anybody else in Ani or at any other place, so as to implicate them in such a henious crime falsely under conspiracy.\r\n\r\n71. Explanation rendered by respondents for their presence in Ani is highly improbable and there is no plausible reason disclosed for presence of vehicle in question in Ani which provide missing links to complete the chain of evidence in prosecution case. It is claimed by respondents that some Vishal was driver of vehicle in question but neither his address was ever disclosed nor he was produced in Court to rebut the presumption under NDPS Act. The purpose of presence of vehicle in Ani area is also not disclosed or explained. Plea of accused persons in statement under Section 313 Cr.P.C. that they reached in police station at 2.30 PM and produced documents of vehicle to police is also an important clue to complete missing link as it is self contradictory, fortifying the prosecution story for the reason that in case accused persons or either of them was not present in vehicle during previous night, then there was no question of possession of documents of vehicle with accused Mohit or his companions who claimed themselves to have travelled from Rohtak to Ani on telephonic call of police when number of driver Vishal did not respond to their call, as documents of vehicle in normal circumstances, that too at a distant place from a place where vehicle is ordinarily supposed to be plied, are bound to be in vehicle or in possession of incharge/driver of vehicle. Accused Mohit could have produced documents of vehicle only if he was also travelling in the said vehicle during preceding night. Therefore, plea of respondents that they reach Ani together at 2.30 PM on 22.6.2008 after receiving call from Police Station Ani is also not reliable.\r\n\r\n72. No doubt, accused has a right to remain silent and not to disclose any incriminatory material against him, however, Section 106 of the Indian Evidence Act is an exception to this principle and in certain circumstances it devolves burden of disclosing certain facts by the accused, exclusively in his knowledge, necessary to establish his non-complicity in the commission of crime. In present case, it is suggested to PW11 Prem Lal, Investigation Officer, though denied by him, that respondent Mohit opened the dash board of jeet with duplicate key and handed over the documents to him. In answer to question No. 21, in statement recorded under Section 313 Cr.P.C., respondent Mohit has admitted it to be correct that he presented the documents of the vehicle which were taken in possession by PW11 with clarification that those were taken in possession when he was called and reached in police station. Except disclosing the name of driver Vishal, he did not disclose the particulars of residence of his driver, purpose of presence of the vehicle and his driver at Ani, which was in his exclusive knowledge and was necessary to be disclosed to rebut the evidence of prosecution proving the recovery of contraband from the vehicle owned and possessed by him. It is not the case of respondent Mohit that his jeep was stolen or his driver was plying the vehicle without his consent or beyond his control. Further production of documents either by opening the dash board of jeep with duplicate key or otherwise substantiates the fact that he was having the full control and possession of vehicle in question.\r\n\r\n73. Therefore, even if evidence of prosecution with respect to manner of apprehending respondents is discarded for discrepancies in reports, log book and statements of prosecution witnesses, then also from careful scrutiny of evidence on record; in the facts and circumstances of case, as discussed above, even ignoring false plea taken in statement under Section 313 Cr.P.C., only one view establishing complicity of respondent No.1 in commission of offence is possible.\r\n\r\n74. The trial Court has failed to consider the evidence on record in right perspective. There is cogent, reliable and convincing evidence on record to hold that accused Mohit, being owner of vehicle, was in conscious possession of recovered\r\n\r\ncontraband and is liable to be punished under Sections 18 and 20 of NDPS Act and is liable to be punished accordingly.\r\n\r\n75. The trial Court has also failed to consider the provisions of Section 60 of NDPS Act, which provides confiscation of vehicle found transporting narcotic drugs, irrespective of acquittal or conviction of accused, unless owner proves that it was so used without knowledge or connivance of owner, his agent or person incharge of vehicle and each of them had taken all reasonable precautions against such use. Section 60 reads as under:-\r\n\r\n## \"60. Liability of illicit drugs, substances, plants, articles and conveyances to confiscation.\r\n\r\n[(1) Whenever any offence punishable under this Act has been committed, the narcotic drug, psychotropic substance, controlled substance, opium poppy, coca plant, cannabis plant, materials, apparatus and utensils in respect of which or by means of which such offence has been committed, shall be liable to confiscation.]\r\n\r\n(2) Any narcotic drug or psychotropic substance 2[or controlled substances] lawfully produced, imported inter-State, exported inter-State, imported into India, transported, manufactured, possessed, used, purchased or sold along with, or in addition to, any narcotic drug or psychotropic substance 2[or controlled substances] which is liable to confiscation under sub-section (1) and there receptacles, packages and coverings in which any narcotic drug or psychotropic substance 2[or controlled substances], materials, apparatus or utensils liable to confiscation under sub-section (1) is found, and the other contents, if any, of such receptacles or packages shall likewise be liable to confiscation.\r\n\r\n(3) Any animal or conveyance used in carrying any narcotic drug or psychotropic substance 2[or controlled substance], or any article liable to confiscation under sub-section (1) or sub-section (2) shall be liable to confiscation, unless the owner of the animal or conveyance proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person-in-charge of the animal or conveyance and that each of them had taken all reasonable precautions against such use.\"\r\n\r\n76. Therefore, the trial Court is directed to take appropriate steps for confiscation of vehicle involved in transporting contraband in present case.\r\n\r\n77. We feel that for glaring discrepancies and shortcomings in reports, log book entries, investigation and deposition in Court, there is need for explanation of PW5 Nathu Ram, PW7 Luder Singh and PW11 Prem Lal by the department and if found unsatisfactory, to take action against erring official(s). Director General of Police is directed to ensure compliance and to file compliance affidavit within four months.\r\n\r\n78. In view of above discussion hereinabove judgment passed by learned Special Judge (II), Kinnaur at Rampur, in sessions trial No. 15-AR/3 of 2008/2010, title State vs. Mohit and others, is modified. Respondent No.1 Mohit is convicted under Sections 18 and 20 of NDPS Act and acquittal of respondents No. 2 and 3 Ajmer Singh and Pawan is maintained. Bail bonds furnished by and on behalf of convict Mohit also stand cancelled and those of Ajmer Singh and Pawan are discharged. Production warrant be issued against convict-Mohit for his presence in this Court on 9.10.2017 for hearing him on quantum of sentence.\r\n\r\n (Dharam Chand Chaudhary) Judge\r\n\r\nms Judge\r\n\r\nSeptember 12, 2017. (Vivek Singh Thakur),",{"_312":336,"_314":337,"_316":338,"_318":-5},"HPHC010075142011-order-14.pdf","HPHC010075142011-order-14.md","### **IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA**\r\n\r\n **Cr. Appeal No. 343 of 2011 Judgment reserved on 21.08.2017 Date of Decision 12th September, 2017**\r\n\r\n**State of Himachal Pradesh ….Appellant**\r\n\r\n**Versus**\r\n\r\n**Mohit and others ….Respondents**\r\n\r\nCoram\r\n\r\n# **The Hon'ble Mr. Justice Dharam Chand Chaudhary, J.**\r\n\r\n**\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_**\r\n\r\n**\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_**\r\n\r\n**\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_**\r\n\r\n**The Hon'ble Mr. Justice Vivek Singh Thakur, J.**\r\n\r\nWhether approved for reporting?[1](#page-0-0) Yes.\r\n\r\n| For the Appellant: | Mr.D.S.Nainta
and
Mr.Virender
Verma,
Additional
Advocates
General. |\r\n|----------------------------|--------------------------------------------------------------------------------------------------|\r\n| For Respondent No.1: | Mr.N.S.Chandel,
Advocate
with
Mr.Dinesh Thakur, Advocate. |\r\n| For Respondents Nos. 2 and | For Respondents Nos. 2 and 3: Mr. Manoj Pathak, Advocate with
Mr.Vikas Chandel, Advocate.
|\r\n\r\n### **Vivek Singh Thakur, J.**\r\n\r\nState has preferred present appeal against acquittal\r\n\r\nof respondents by learned Special Judge (II), Kinnaur at Rampur,\r\n\r\n*Whether Reporters of Local Papers may be allowed to see the judgment? Yes*\r\n\r\nvide judgment dated 30.3.2011, passed in sessions trial No. 15- AR/3 of 2008/2010, title State vs. Mohit and others, in case FIR No. 70 of 2008, dated 22.6.2008 registered at Police Station Ani, under Sections 18, 20 and 29 of Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to the Act).\r\n\r\n2. Case of the prosecution is that during intervening night between 21st and 22nd June, 2008, after 1 AM, PW11 ASI Prem Lal along with PW4 HHC Roshan Lal, C. Sunder and HHG Daya Ram, during Nakabandi duty, was returning to police station Ani and on reaching behind Kiran Bazar at 1.30 AM a vehicle, coming from Ani side towards Luhari, was noticed, which was stopped by giving signal by police party. In the said vehicle four persons were sitting. On asking by PW11, driver of vehicle handed over his driving licence as well as documents of vehicle. Vehicle was not having registration certificate but driver produced documents indicating temporary registration No. HR-99-BY.Temp-3059. Papers of vehicle were returned but licence of driver was with PW11. Occupants of vehicle could not satisfactorily explain for travelling during midnight, whereupon on suspicion PW11 along with other police officials, started checking the vehicles and found a packet concealed in stepney of vehicle. The moment PW11 started opening the packet, all\r\n\r\nfour persons fled away from spot by taking benefit of darkness but leaving the vehicle there. Police party unsuccessfully attempted to apprehend these persons by chasing them. In recovered packet, other packets containing charas and opium were found. As there was no arrangement of light on the spot, place was secluded one and there was no possibility of crossing another vehicle on the spot at that time and also because of night there was non-availability of independent witnesses, it was not plausible to carry on proceedings on the spot. Therefore, PW4 HHC Roshan Lal and C.Sunder Singh were associated as witnesses in proceedings and vehicle in question was brought to old bus stand near police station along with accompanying police officials with the help of driver Dalip Singh and HHG Daya Ram was retained with intercepted vehicle.\r\n\r\n3. Police party headed by PW11 Prem Lal, reached at police station at about 2.30 AM and arrival report No.3 dated 22.6.2008 was recorded. PW11 informed PW5 SHO Nathu Ram about the incident, who in turn, deputed police officials/parties to search accused vide report No. 5 dated 22.6.2008 Ext.PW6/D recorded at 3.05 AM. Licence of driver of vehicle, left with PW11, revealed name and address of driver of vehicle as Pawan Kumar son of Sube Singh resident of VPO Chiri Rohtak (Haryana). On weighing charas and opium of four packets, found in recovered packet of cloth, in presence of witnesses associated in proceedings, charas weighing 1.430 Kg., 1.740 Kg. and 3.285 Kg was found in three different packets, whereas in fourth packet 320 grams opium was found. Two samples each from all packets were taken and samples as well as remaining contraband in respective packets were sealed with seal 'T' and packets of remaining contraband were marked as P-1 to P-4 and samples were marked as S-1 to S-8 and NCB form was filled in triplicate and seal was handed over to PW4 HHG Roshan Lal after taking the specimen of seal Ext.PW4/B on cloth and on NCB forms Ext.PW5/C. Thereafter ruka Ext.PW11/A was prepared and handed over to PW5, in pursuance to which FIR Ext.PW5/A was registered at 4.20 AM and endorsement thereabout Ext.PW5/B was made by PW5 on the ruka at 5.50 AM as PW11 also produced case property including samples, specimen impression of seal and NCB form before PW5 regarding which Ext.PW6/F report No. 8 dated 22.6.2008 was recorded. PW11 resealed the parcels of samples as well as remaining contraband with seal 'H' and after taking specimen impression of seal Ext.PW4/C and filling columns of NCB form Ext.PW5/C deposited case property in malkhana with PW6 MHC Rajinder Singh at 6.15 AM vide Ext.PW6/G report No. 9\r\n\r\ndated 22.6.2008. PW6 entered the same at Sr. No. 170 (Ext.PW6/A) in the Malkhana register. Special report Ext.PW1/A prepared by PW11 ASI Prem Lal was also submitted to Reader to Dy.S.P. Ani at 6.15 PM on 22.6.2008 through PW1 HHC Kashmi Ram. Copy of FIR was also delivered to Sub Divisional Judicial Magistrate, Ani at 5.10 PM on 22.6.2008.\r\n\r\n4. PW7 ASI Ludar Singh was also instructed by PW5 to search culprits towards Dalash, who at about 2.30 PM had a clue from driver and conductor of a bus coming from Dalash side about persence of strangers, who alighted from bus on the last curve whereupon PW7 along with police officials reached at the place, informed by bus driver and conductor and found respondents there. Police party apprehended two of respondents whereas respondent Ajmer Singh jumped down the hill from road. However, he was also impressed upon by PW7 to come back and surrender. All of them were brought to police station Ani and produced before investigating officer on reaching there at 7 PM. Respondent Mohit Kumar produced documents i.e. delivery challan Ext.P-17, pollution under control certificate Ext.P-18 and application for inspection of vehicles Ext.P-19 and photocopy of voter ID card to investigating officer which were taken in possession vide memo Ext.PW4/G and respondents were arrested\r\n\r\nvide memos Ext.PW4/D, Ext.PW4/E and Ext.PW4/F. Three sample parcels of charas and one sample parcel of opium were sent to State Forensic Science Laboratory by PW6 HC Rajinder through PW2 C.Hans Raj vide road certificate Ext.PW2/A who delivered the same in State Forensic Science Laboratory against proper receipt on road certificate and deposited the road certificate with PW6 Rajinder Kumar on his return. On 9.3.2010 all remaining eight sealed pracels (four of samples + four of remaining contraband) were also sent to State Forensic Science Laboratory by PW8 HC Anup Kumar through PW9 C.Puran Chand vide road certificate Ext.PW8/A, which were delivered in State Forensic Laboratory against proper receipt which was deposited in police station by PW9 on his return. PW9 Puran Chand also brought sealed parcels back along with reports from State Forensic Science Laboratory on 8.5.2010 and deposited the same in malkhana.\r\n\r\n5 On completion of investigation challan was presented in Court. During trial parcels of remaining bulk of recovered contraband were produced in the Court on 27.2.2010 by PW10 C.Chande Ram after receiving the same from Malkhana on that day and on the very same day it was deposited in the Malkhana. On that day application of the State filed under Section 311 Cr.P.C. was allowed and State was permitted to send entire bulk of remained contraband to State FSL for chemical analysis. Thereafter on 9.3.2010 entire bulk was sent to State FSL for chemical examination by MHC PW8 Anoop Kumar through PW9 Puran Chand on 8.5.2010, parcels of contraband and chemical analysis reports from State FSL were also brought back and deposited in the Malkhana by PW9. As per chemical examination report Ext.PW8/C recovered contraband Ext.P1, Ext.P2 and Ext.P4 and samples thereof were found to be charas and in Ext.P3 and its sample was found to be opium. Chemical Analyst report of State FSL along with supplementary challan under Section 173 Cr.P.C. was filed in Court on 5.6.2010 and thereafter trial was completed.\r\n\r\n6. According to defence taken by respondents, none of them were travelling in pick-up vehicle at the time of recovery of contraband from it and respondent No.1 Mohit, owner of vehicle, was contacted on his mobile phone from P.S. Ani, after having his mobile number scribed on body of vehicle, informing that his vehicle had been found abandoned in Ani bazar and after receiving the call, he tried to contact his driver Vishal on his mobile but his number was not responding. Whereafter he requested respondent No. 2 Ajmer and respondent No. 3 Pawan\r\n\r\nto accompany him to Ani as he had never visited the said place. They boarded Haryana Roadways bus from Chandigarh going to Rampur and after alighting at Sainj, they reached Police Station Ani at about 2.30 PM where police started harassing them and after taking documents and their bus tickets in possession, they were implicated in present case.\r\n\r\n7. Prosecution has examined eleven witnesses to prove its case. Respondents, after recording of statements under Section 313 of Code of Criminal Procedure, has chosen not to lead any evidence in their defence. On conclusion of trial, respondents stand acquitted.\r\n\r\n8. We have heard learned Additional Advocate General appearing on behalf of State and also learned counsel appearing on behalf of respondents and have also perused the record.\r\n\r\n9. PW1 has proved delivery of special report to SDPO/Dy.S.P., Ani in present case on 22.6.2008 at about 6.15 PM by producing copy of same Ext.PW1/A having endorsement of receipt thereon. PW6 Rajinder Kumar has proved deposit of four big parcels and eight sample parcels duly sealed with seals 'H' and 'T' along with specimen impression of seal and NCB form in triplicate in Malkhana, which were handed over to him by PW5 SHO Nathu Ram on 22.6.2008 and entered by him in malkhana\r\n\r\nregister at Sr. No. 170 (Ext.PW6/A). He also corroborated handing over three sample parcels of charas and one sample of opium to PW2 C.Hans Raj along with documents, NCB form and specimen impression of seal in State Forensic Science Laboratory vide RC Ext.PW2/A. He further certified that during his custody sealed exhibits remained intact. PW2 has proved delivery of four sealed parcels in State Forensic Science Laboratory vide road certificate No. 36 of 2008 Ext.PW2/A on 24.6.2008. In cross examination he has denied that no exhibits were handed over to him to be delivered at State Forensic Science Laboratory vide RC Ext.PW2/A.\r\n\r\n10. PW10 C. Chande Ram has proved production of sealed exhibits in Court on 27.2.2010 after receiving the same from PW8 MHC Anup Kumar and also returning these exhibits in malkhana on same day after producing in the Court. He further certified that during his possession these parcels were not tampered.\r\n\r\n11. PW8 HC Anup Kumar has proved handing over eight sealed parcels duly sealed with seals 'T' and 'H' along with Court seal to PW9 C.Puran Chand on 9.3.2010 for delivering the same in State Forensic Science Laboratory vide RC No. 126/09-10 Ext.PW8/A and NCB form Ext.PW8/B along with specimen\r\n\r\nimpression of seals. He also proved bringing back sealed exhibits along with report Ext.PW8/C from State Forensic Science Laboratory by PW9 C.Puran Chand on 8.5.2010. He proved entries made in malkhana register in this regard.\r\n\r\n12. PW9 Puran Chand has corroborated the fact of receiving eight sealed parcels along with other documents for handing over in State Forensic Science Laboratory and also depositing RC with PW8 H.C. Anoop Kumar having receipt thereon with regard to deposit of these articles in laboratory. He also certified that there was no tampering with sealed exhibits during his possession. He further proved bringing back sealed exhibits along with report Ext.PW8/C from State Forensic Science Laboratory on 8.5.2010.\r\n\r\n13. Report Ext.PW6/D was recorded at instance of PW5 Nathu Ram who was SHO at that time. As per PW11 Prem Lal, after recovering contraband at about 1.30 AM near Kiran Bazar, he reached in police station at about 2.30 AM regarding which DD report No. 3 (Ext.PW6/C) was entered in police station. As per his deposition in Court, he informed PW5 Nathu Ram about fleeing of accused from spot. As per prosecution case, after receiving this information PW5 Nathu Ram deputed police parties in search of accused regarding which DD entry Ext.PW6/D was made at 3.05 AM. In the meanwhile, PW11 Prem Lal prepared ruka and handed over the same to PW5 Nathu Ram at 4.20 AM who in turn registered FIR Ext.PW5/A at 4.20 AM. Thereafter, PW11 Prem Lal produced case property sealed with seal 'T' along with sample seal and NCB-I form in triplicate before PW5 Nathu Ram SHO and vehicle along with key and stepeny was handed over to MHC at 5.50 AM regarding which report No. 8 dated 22.6.2008 Ext.PW6/F was recorded whereafter PW5 Nathu Ram resealed parcels with seal 'H' and affixed seal on NCB-I forms also and after taking sample seal, deposited case property along with sample seals and NCB-I form with MHC at 6.15 AM regarding which DD report No. 9 dated 22.6.2008 Ext.PW6/G was recorded.\r\n\r\n14. As per deposition of PW5 Nathu Ram in Court, he came to know about recovery of contraband when I.O. came to the police station from spot but he also stated that I.O. had told him about fleeing of accused at the time of handing over of ruka and not at the time when I.O. reached in police station from spot. Ruka was handed over at 4.15 AM whereas I.O. reached in police station at 2.30 AM and PW5, at 3.05 AM, deputed police parties to search accused.\r\n\r\n15. According to Ext.PW6/D, HHG Jeevan Singh was deputed with PW7 ASI Luder Singh and HC Punne Ram along with C.Beli Ram were deputed towards Luhari side and C.Hans Raj along with HHG Jai Singh was sent towards Samash. After closing line in the end of this report, that report is recorded, it was further added that official vehicle No. HP-34-398 along with driver Dalip Singh and HHG Duni Chand was also deputed with police officials. With whom out of three police parties, official jeep with driver and HHG Duni Chand was sent, is not clear in this report.\r\n\r\n16. As per report No. 5 dated 22.6.2008 Ext.PW6/D police parties were departed in search of absconding accused at the time of recording the said report i.e. at 3.05 AM. PW7, in Court, deposed that he could not say time of his departure from Police Station in the morning. According to log book of official vehicle, extract of which has been placed on record in defence as Ext.DB and Ext.DC, vehicle was with PW7 ASI Ludar Singh from 8 AM to 6 PM on that day i.e. 22.6.2008 and before that since 21.6.2008 from 10 PM to 6 AM on 22.6.2008, it was with PW11 ASI Prem Lal.\r\n\r\n17. PW3 Joban Dass has deposed that on 22.6.2008 he was sent by SHO P.S. Ani at 10 AM towards Runa, Thanog and Thashog to have information about absconding persons and on inquiry about them he came to know that three persons had gone towards Dalash after inquiring about path leading to Dalash\r\n\r\nand thereafter he returned back to police station and informed PW5 SHO Nathu Ram accordingly. In his cross examination he expressed his inability to disclose identity of persons from whom he made inquiry. He also stated that distance of Thanog to Ani is about 10 K.m. and that he went on foot to the area to which he was deputed and he returned to police station in the evening at about 7 PM.\r\n\r\n18. As per Ext.PW6/D, PW7 ASI Ludar Singh along with HHG Jeewan Singh was sent towards Dalash at 3.05 AM. PW3 Joban Dass deposed that he was sent by PW5 Nathu Ram at about 10 AM towards Runa, Thanog and Thashog and he went on foot. From his statement it is evident that he went alone.As per Ext.DB, Ext.PW6/E and also deposition of PW7 ASI Luder Singh, official vehicle was with him and he was at Luhri at about 10/11 AM. According to Ext.PW6/D, HHG Jeewan Singh also should have been with him. PW3 Joban Dass stated that he was sent from police station by PW5 Nathu Ram at 10 AM towards Runa, Thanog and Thashog. There is nothing on record to suggest that PW2 Joban Dass and HHG Jeewan Singh are one and the same person. According to Ext.PW6/E, report No. 26 dated 22.6.2008 at 7 PM, PW7 ASI Ludar Singh accompanied by C.Bhup Singh, HHG Duni Chand returned to police station in official vehicle No.\r\n\r\nHP-34-0298 being driven by Dalip Singh along with absconding accused. PW7 Luder Singh never said that PW3 Joban Dass or HHG Jeevan Singh was with him but stated that he had left police station in the morning in the official vehicle with C.Bhup Singh, HHG Duni Chand and driver C.Dalip Singh. In Ext.PW6/D there is no reference of C.Bhup Singh being sent with ASI Ludar Singh or even any other police party as his name does not figure in the said report. As per Ext.PW6/D, HHG Jeevan Singh was deputed with PW7 but on return he was not with PW7. Where, when and how HHG Jeewan Singh parted with PW7 ASI Ludar Singh and C.Bhup Singh joined him, is not clear from record.\r\n\r\n19. As per prosectuion case, contraband was recovered by PW11 Prem Lal and accused were apprehended by PW7 Ludar Singh whereas as per admission of PW7 Ludar Singh in his cross examination, entry has been made in his service book for 'C' certificate for seizure of contraband in case FIR of present case.\r\n\r\n20. Prosecution has examined PW4 HHC Roshan Lal and PW11 ASI Prem Lal to prove recovery of contraband from vehicle and fleeing of respondents from the spot and also for the purpose of identification of respondents as the same persons who fled from spot. Both of them corroborated the prosecution story with regard to intercepting the vehicle, recovery of contraband from its stepney, fleeing of occupants thereof from the spot, unsuccessful chasing attempt to apprehend them, associating PW4 Roshan Lal and C.Sunder Singh (not examined) as witnesses in proceedings, bringing the vehicle from spot with help of driver Dalip Singh and carrying on remaining proceedings in police station. They also deposed that respondents were apprehended by PW7 Ludar Singh near Soedhar and brought to police station at about 7 PM on 22.6.2010 where respondent Mohit produced documents of vehicle which were taken in possession vide seizure memo Ext.PW5/G and respondents were arrested after disclosing grounds of their arrest and informing about their arrest vide memos Ext.PW4/D, Ext.PW4/E and Ext.PW4/F.\r\n\r\n21. PW5 SHO Nathu Ram stated that on 22.6.2008 after receiving ruka from ASI Prem Lal, he registered FIR Ext.PW5/A and made endorsement Ext.PW5/B on ruka and on the same day resealed parcels of case property submitted by PW11 to him along with specimen impression of seal and NCB forms and also took specimen impression of seal Ext.PW4/C and filled NCB form Ext.PW5/C and deposited the case property along with documents in malkhana. He further deposed that he had sent police party in search of accused and on same day, at about 7 PM, PW7 ASI Ludar Singh had produced the accused in police station who were handed over to investigating officer.\r\n\r\n22. PW7 ASI Ludar Singh in his deposition in Court stated that on 22.6.2008 when he was at Luhri, he received instructions from PW5 SHO Nathu Ram to lay nakabandi at place Jajjar as accused had fled away from Ani. He also stated about receiving of instructions at 2 PM with respect to description of accused, their dress, name of one accused as Pawan Kumar driver and to move towards Dalash whereafter on reaching Soedhar, driver of a transport bus coming from Dalash side, on inquiry, disclosed three persons had alighted from bus at Dalash, whereupon, he cordoned off the area and in forest two accused whose names were Mohit and Pawan Kumar were overpowered whereas third accused Ajmer was overpowered at a some distance. He identified all accused present in Court, who were apprehended by him and produced before SHO in police station.\r\n\r\n23. As per Nakal rapat No. 28 Ext.PW6/B, PW11 Prem Lal had departed for nakabandi towards Nagan etc. on 21.6.2010 at 10 PM which fact is corroborated by extract of log book Ext.DC wherein the vehicle No. HP-34-0298 used by him has been shown to be departed at 10 PM from police station. As per rapat No. 3 Ext.PW6/C, he reached back in police station at 2.30 AM after intercepting vehicle in question.\r\n\r\n24. PW11 ASI Prem Lal stated that he had informed PW5 immediately after reaching in police station about fleeing of occupants of vehicle whereas PW5 denied this fact in his statement in Court but Rapat Ext.PW6/D recorded at the instance of PW5, at 3.05 AM corroborates statement of PW11. But PW5 Inspector Nathu Ram, in his deposition in Court specifically stated that he was not informed about this fact by PW11 before handing over the ruka and it was only at the time of handing over of ruka he was informed about this. As per evidence on record, ruka was handed over to PW5 by PW11 at 4.20 AM. If it was so then it was not possible for PW5 to send police parties in search of respondents at 3.05 AM.\r\n\r\n25. In report Ext.PW6/D, it is not mentioned that with whom and in what direction the official vehicle No. HP-34A-298 with driver and HHG Duni Chand was sent. However, as per extract of log book Ext.DB, admitted to be correct by PW7 ASI Ludar Singh, he had departed in this official vehicle at 8 AM from police station towards Luhri, Jajjar, Soedhar, Dalash etc. As per Ext.PW6/D, PW7 was deputed for search of accused at 3.05 AM. There is nothing on record to show that PW7 had left police station at 3.05 AM, but in his statement he stated that he left police station in the morning but time was not remembered by him. As per extracts of log book Ext.DB and Ext.DC the vehicle was with PW11 ASI Prem Lal till 6 AM and with PW7 ASI Ludar Singh from 8 AM.\r\n\r\n26. Entries of daily diary and log book with respect to timings are in conflict with each other and there is discrepancy in these entries, which has not been explained by prosecution witnesses rather they have further complicated the facts by deposing either casually or in the hob-nobbing with accused despite the fact that one of them i.e. PW7 had been rewarded for excellent work in present case. Record reflects that despite deputing police officers/officials at 3.05 AM to search accused, they left Police Station leisurely according to their convenience, in deviation and definace to direction of PW5 Nathu Ram as recorded in Ext.PW6/D.\r\n\r\n27. In Ruka Ext.PW11/A, consequently in FIR Ext.PW5/A, it is stated that at the time of interception of vehicle, papers of vehicle, after checking, were returned but before returning driving licence of driver Pawan Kumar, which was in the hand of PW11, on starting checking of vehicle by police, all occupants of vehicle skipped from the spot. This fact is also mentioned in special report Ext.PW1/A submitted to SDPO Ani at 6.15 PM on 22.6.2010. As per endorsement of SDPO, report was seen by him at 10 AM on 23.6.2010. The said driving licence was taken in possession vide seizure memo Ext.PW4/A by I.O. along with other case property in presence of witnesses PW4 HHC Roshan Lal and C.Sunder Singh. In ruka, FIR, special report and seizure memo contain details of driving licence of Pawan Kumar bearing No. 113945 dated 19.3.2008 valid upto 18.3.2008 for driving LMV (NT), left by driver with I.O. PW11 before fleeing.\r\n\r\n28. The seizure memo Ext.PW4/A was prepared after 2.30 AM after arrival of PW11 in Police Station but before 4.20 AM before submitting Ruka to PW5 SHO Nathu Ram. Entire case property except driving licence was deposited in Malkhana. In his cross examination PW11 has stated that driving licence was not an article to be deposited in Malkhana. There is no reference of driving licence of Pawan Kumar in rapat No. 3 Ext.PW6/C, but this report is only with respect to arrival of police party in Police Station. For not mentioning of the said fact in rapat No. 6 relating to submition of ruka to PW5 SHO Nathu Ram, PW11 explained that in this report only gist of ruka was recorded. There is no reference of driving licence of Pawan Kumar or description of accused in report No. 5 dated 22.6.2008 Ext.PW6/D vide which police officials were deputed by PW5 SHO to search accused. It was recorded at 3.05 AM and at that time Ruka was yet to be prepared and submitted. Ruka was submitted at about 4.20 AM whereafter in Ruka, FIR and special report, name of Pawan Kumar and reference of his driving licence is there.\r\n\r\n29. PW7 ASI Ludar Singh deposed that he had left Police Station in official vehicle along with constable Bhup Singh, HHG Duni Chand and driver Dalip Singh and when he was present at Luhari at 10/11 AM, PW5 ASI Nathu Ram instructed him to lay naka at Jajjar for tracing occupants of vehicle and description of accused was conveyed to him at 2 PM whereas as per Ext.PW6/D at 3.05 AM, when he was deputed to search accused, PW11 with driving licence of Pawan Kumar and also other police officials of his Naka party having knowledge of description of absconding accused were present in police station. Driving licence having details of accused with his photograph, was a vital information and clue with police. But non-supply of the said information and departure of police parties in search of accused without any description of accused, which was available with I.O. and other police officers, reflects incompetence of concerned police officers.\r\n\r\n30. Neither memo of personal search (Jama Talashi) at the time of arrest has been exhibited nor entry of deposit of articles taken in possession at that time has been placed and exhibited on record. Copy of malkhana entry No. 170 is exhibited as Ext.PW6/A which also contains some portion of Entry No. 171 with respect to deposit of articles taken in possession during personal search (Jama Talashi) of respondents at the time of their arrest, perusal of which reveals that mobile phone Nokia 1110 was also taken in possession from respondent Mohit. But for reasons best known to police, no efforts appear to have taken for ascertaining location of respondents with the help of call details and location of mobile.\r\n\r\n31. As evident from copy of FIR Ext.PW5/A, it's copy was delivered to Sub Divisional Judicial Magistrate Ani on 22.6.2008 at 5.10 PM and special report was delivered to Dy.S.P. at 6.15 PM. As per claim of respondents accused, they reached in police station at their own at 2.30 PM on 22.6.2008 on calling of police and thereafter police robed them. In such eventuality, it would not have possible for police to submit copy of FIR to concerned Magistrate at 5.10 PM and special report to Dy.S.P. at 6.15 PM after completing all formalities.\r\n\r\n32. Incident is of 22.6.2008. PW5 SHO Nathu Ram was examined on 10.12.2009 whereas PW7 Ludar Singh and PW11 Prem Singh were examined on 27.02.2010 and 9.12.2010. PW5, PW7 and PW11 were examined after 1½, 1¾ and 2½ years after this incident. Therefore, discrepancies in their statements with respect to time etc. were bound to occur as power to observe, retain and narrate always differs from person to person. For other evidence on record such discrepancies are not fatal for prosecution case.\r\n\r\n33. It is settled that though the investigating agency is expected to be fair and effiecient, but any lapse on its part cannot per se be a ground to throw out the prosecution case when there is overwhelming evidence on record to prove the offence. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities and must be conducted under such rules as well protect the innocent, and punish the guilty. In the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect as to do so would tantamount to playing into the hands of the investigating officer if the investigation is\r\n\r\ndesignedly defective. The prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not and contaminated conduct of officials should not stand in the way of evaluating the evidence by the Courts. **(See Zahira Bahibullah Sheikh (5) vs. State of Gujarat (2006)3 SCC 374, Dhanaj Singh vs. State of Punjab (2004)3 SCC 654, Karnel Singh vs. State of M.P. (1995)5 SCC 518, Paras Yadav vs. State of Bihar (1999)2 SCC 126, Ram Bihari Yadav vs. State of Bihar (1998)4 SCC 517, Amar Singh vs. Balwinder Singh (2003)2 SCC 518 and State of Karnataka vs. Suvarnamma and another (2015)1 SCC 323).** \r\n\r\n34. It is also held by the Apex Court that investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the court in the case cannot be allowed to depend solely on the probity of investigation and even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinized independent of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and pre-eminence in criminal trials over the action taken by investigating officers. Criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case and the investigating officer is not obliged to anticipate all possible defences and investigate in that angle. In any event, any omission on the part of the investigating officer cannot go against the prosecution. Interest of justice demands that such acts or omission of the investigating officer should not be taken in favour of the accused or otherwise it would amount to placing a premium upon such omissions. **(SeeState of Karnataka vs. K. Yarappa Reddy (1999)8 SCC 715 & V.K. Misra and another vs. State of Uttarakhand and another (2015)9 SCC 588)**\r\n\r\n35. In present case, though for laxity on part of police officials including the driver of official vehicle in making entries either in log book or in DDR in casual manner, there are discrepancies with respect to direction and time of departure of police officials/official vehicle to apprehend absconding accused. But so far as recovery of contraband is concerned from vehicle owned and possessed by respondent No. 1 Mohit, that has been duly proved on record.\r\n\r\n36. Now the question for consideration, which arises, is that whether respondent No.1 Mohit being owner of vehicle is\r\n\r\nliable to be punished for recovery of contraband from vehicle owned by him.\r\n\r\n37. Defective or illegal investigation and also lapse and irregularities in investigation, maintaining log book and recording proper DDRs and also failure in depicting exact times in police record and stating it in the Court is not sufficient to reject the prosecution case in present case against respondent No.1 Mohit for the reason that prosecution case is substantiated by other reliable evidence on record. Incompetent prosecution agencies, driven by extraneous consideration, should not be allowed to take the Court for ride particularly in offences having effect not only on individual but society at large. Committing mistake in awarding medal/certificate of appreciation to a police officer can also not be ground to reject the prosecution case. Mistakes committed by police officials resulting into discrepancies are not fatal to the prosecution case as the same does not affect the recovery of contraband from vehicle owned by accused Mohit for which accused Mohit has failed to give satisfactory explanation.\r\n\r\n38. In criminal cases the onus to bring the facts on record is upon the prosecution. However, Section 106 of Indian Evidence Act is exception to the same and facts within exclusive knowledge of accused are to be brought on record by accused only, in case they are required to be explained for proving his innocence.\r\n\r\n39. In **Gian Chand and others vs. State of Haryana (2013)14 SCC 420,** the Apex Court has held as under:-\r\n\r\n> **\"22. [In State of West Bengal v. Mir Mohammad](https://indiankanoon.org/doc/575647/) [Omar & Ors.](https://indiankanoon.org/doc/575647/) (2000)8 SCC 382, this Court held that if the fact is specifically in the knowledge of any person, then the burden of proving that fact is upon him. It is impossible for the prosecution to prove certain facts particularly within the knowledge of accused. [Section 106](https://indiankanoon.org/doc/697566/) is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the Section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the Court to draw a different inference.**\r\n\r\n> **\"38…[…Section 106](https://indiankanoon.org/doc/697566/) of the Evidence Act is designed to meet certain exceptional cases, in which, it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused.\" (SCC p. 393, para 38) (emphasis supplied)**\r\n\r\n**(See also: [Shambhu Nath Mehra v. The State of Ajmer](https://indiankanoon.org/doc/1032822/) AIR 1956 SC 404; [Gunwantlal v. The State of Madhya Pradesh](https://indiankanoon.org/doc/1332361/) AIR 1972 SC 1756; [Sucha Singh v. State of Punjab](https://indiankanoon.org/doc/1283572/) AIR 2001 SC 1436; [Sahadevan v. State](https://indiankanoon.org/doc/1622549/) (2003)1 SCC 534; [Durga Prasad Gupta v.](https://indiankanoon.org/doc/1066628/) [The State of Rajasthan,](https://indiankanoon.org/doc/1066628/) (2003) 12 SCC 257; Santosh Kumar Singh v. State, (2010) 9 SCC 747; [Manu Sao v. State of Bihar](https://indiankanoon.org/doc/48667757/) (2010) 12 SCC 310; Neel Kumar [v. State of Haryana](https://indiankanoon.org/doc/78732952/) (2012) 5 SCC 766).\"** \r\n\r\n40. It is held by the Apex Court in **Sunil Mahadeo Jadhav vs. State of Maharashra (2013) 15 SCC 177** as under:-\r\n\r\n> **\"36. Section 106 of the Evidence Act states that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Since it was Accused 1 who had arrested the deceased at 00.45 a.m. on 17.12.1985 and kept the deceased in police lock-up after his arrest was compelte, it was for Accused 1 to explain the injuries on the body of the deceased other than those which were noticed in Ext.76. Accused 1 has not stated anything in this regard in his statement under section3 13 of the Code of Criminal Procedure, 1973 (for short \"CrPC\") nor adduced any evidence in defence to explain these injuries. In the absence of any explanation by Accused 1 or any evidence adduced on behalf of Accused 1 to explain these injuries on the body of the deceased, there can be no escape from the conclusion that**\r\n\r\n**these injuries have been caused on the body of the deceased by Accused 1 and no one else.\"**\r\n\r\n41. Statement under Section 313 Cr.P.C. is not a substantive piece of evidence but it can be considered to corroborate the facts on record. False plea taken in reply to question under Section 313 Cr.P.C. in given facts and circumstances can be considered as completion of missing link in chain of circumstances against the accused. But it does not absolve prosecution from discharging its onus to prove its case as it cannot be substituted to evidence to be led by prosecution for proving basic facts of the case. Entire case of prosecution cannot be based on plea taken by accused in his statement under Section 313 Cr.P.C.\r\n\r\n42. It is also settled that to discharge reverse onus by accused, statement under Section 313 Cr.P.C. being a statement without oath with no opportunity of cross examination, is not a substantive piece of evidence and accused is required to lead evidence under Section 315 Cr.P.C.\r\n\r\n43 In **Selvi and others vs. State of Karnataka (2010)7 SCC 263** the Apex Court has held that not only does an accused person have the right to refuse to answer any question that may lead to incrimination, there is also a rule against adverse inferences being drawn from the fact of his/her silence and Section 313 (3) Cr.P.C. lays down that the accused shall not render himself/herself liable to punishment by refusing to answer such questions, or by giving false answers to them. Further, proviso (b) to Section 315 (1) Cr.P.C. mandates that even though an accused person can be a competent witness for the defence, his/her failure to give evidence shall not be made the subject of any comment by any of the parties or the court or give rise to any presumption against himself or any person charged together with him at the same trial. However, as held by the Apex Court in **State of Himachal Pradesh vs. Wazir Chand and others (1978)1 SCC 130,** where the commencement or genesis of the occurrence is not available because there was no witness to the occurrence available, the only direct version of the commencement of the occurrence would be found in the statement of the accused, if he chooses to give out his version of the occurrence and further held that his statement has to be considered in the light of the evidence adduced by the prosecution and weighing his statement with the probabilities of the case either in his favour or against him.\r\n\r\n44. In **Raj Kumar Singh alias Raju alias Batya versus State of Rajasthan (2013)5 SCC 722** after considering pronouncements in **State of Maharashtra vs. Sukhdev Singh**\r\n\r\n**(1992)3 SCC 700, Mohan Singh vs. Prem Singh (2002)10 SCC 236, Dharnidhar vs. State of U.P. (2010)7 SCC 759, Dehal Singh vs. State of H.P. (2010)9 SCC 85, State of M.P. vs. Ramesh (2011)4 SCC 786, Rafiq Ahmad vs. State of U.P. (2011)8 SCC 300, Ramnaresh vs. State of Chhattisgarh (2012)4 SCC 257, Brajendrasingh vs. State of M.P. (2012)4 SCC 289,** and **Munish Mubar vs. State of Haryana (2012)10 SCC 464,** the Apex Court held as under:-\r\n\r\n> **\"41. In view of the above, the law on the issue can be summarised to the effect that statement under [Section 313](https://indiankanoon.org/doc/767287/) Cr.P.C. is recorded to meet the requirement of the principles of natural justice as it requires that an accused may be given an opportunity to furnish explanation of the incriminating material which had come against him in the trial. However, his statement cannot be made a basis for his conviction. His answers to the questions put to him under [Section 313](https://indiankanoon.org/doc/767287/) Cr.P.C. cannot be used to fill up the gaps left by the prosecution witnesses in their depositions. Thus, the statement of the accused is not a substantive piece of evidence and therefore, it can be used only for appreciating the evidence led by the prosecution, though it cannot be a substitute for the evidence of the prosecution. In case the prosecution's evidence is not found sufficient to sustain conviction of the accused, the inculpatory part of his statement cannot be made the sole**\r\n\r\n**basis of his conviction. The statement under [Section 313](https://indiankanoon.org/doc/767287/) Cr.P.C. is not recorded after administering oath to the accused. Therefore, it cannot be treated as an evidence within the meaning of [Section 3](https://indiankanoon.org/doc/1031309/) of the Evidence Act, though the accused has a right if he chooses to be a witness, and once he makes that option, he can be administered oath and examined as a witness in defence as required under [Section 315](https://indiankanoon.org/doc/615908/) Cr.P.C. An adverse inference can be taken against the accused only and only if the incriminating material stood fully established and the accused is not able to furnish any explanation for the same. However, the accused has a right to remain silent as he cannot be forced to become witness against himself.\"** \r\n\r\n45. By refering **Munish Mubar vs. State of Haryana (2012)10 SCC 464 and Rohtash Kumar vs. State of Haryana (2013)14 SCC 434** wherein **State of Maharashtra vs. Suresh (2000)1 SCC 471, Musheer Khan vs. State of M.P. (2010)2 SCC 748, Sunil Clifford Daniel vs. State of Punjab (2012)11 SCC 205**, it is reiterated by the Apex Court in **S. Govindraju vs. State of Karnataka (2013)15 SCC 315** that\r\n\r\n> **\"29. It is obligatory on the part of the accused while being examined under [Section 313](https://indiankanoon.org/doc/767287/) Cr.P.C., to furnish some explanation with respect to the incriminating circumstances associated with him, and the Court must take note of such explanation**\r\n\r\n**even in a case of circumstantial evidence in order to decide whether or not the chain of circumstances is complete. When the attention of the accused is drawn to circumstances that inculpate him in relation to the commission of the crime, and he fails to offer an appropriate explanation, or gives a false answer with respect to the same, the said act may be counted as providing a missing link for completing the chain of circumstances. (Vide: Munish Mabar v State of Haryana, (2012)10 SCC 464).** \r\n\r\n**30. This Court in Rohtash Kumar v. State of Haryana, (2013)14 SCC 434) held as under: (SCC p.448, para 31)**\r\n\r\n**\"31. Undoubtedly, the prosecution has to prove its case beyond reasonable doubt. However, in certain circumstances, the accused has to furnish some explanation to the incriminating circumstances, which have come in evidence, put to him. A false explanation may be counted as providing a missing link for completing a chain of circumstances\". (Emphasis supplied)** \r\n\r\n46. In **Kuldeep Singh and others vs. State of Rajasthan, (2000)5 SCC 7,** the Apex Court has held as under:-\r\n\r\n> **\"18. In the case of Swapan Patra vs. State of W.B. (1999)1 SCC 242 it has been held that it is a wellsettled principle that in a case of circumstantial evidence when the accused offers an explanation**\r\n\r\n**and that explanation is found to be untrue then the same offers an additional link in the chain of circumstances to compelte the chain. The same principle is reiterated in the case of State of Maharashtra vs. Sures (2000)1 SCC 471. In this case it has been held that a false answer offered by the accused when his attention was drawn to a cricumstance renders that circumstance capable of inculpating him. It is held that in a situation like this a false answer can also be counted as providing \"a missing link\" for completing the chain.\"**\r\n\r\n47. In **Manu sao vs. State of Bihar 2010)12 SCC 310,** the\r\n\r\nApex Court has held as under:-\r\n\r\n**\"12. Let us examine the essential features of this Section 313 Cr.P.C. and the principles of law as enunciated by judgments, which are the guiding factors for proper application and consequences which shall flow from the provisions of Section 313 of the Code.** \r\n\r\n**13. As already noticed, the object of recording the statement of the accused under Section 313 of the Code is to put all incriminating evidence against the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. At the same time, also to permit him to put forward his own version or reasons, if he so chooses, in relation to his involvement or otherwise in the crime. The Court has been empowered to examine the accused but** **only after the prosecution evidence has been concluded. It is a mandatory obligation upon the Court and besides ensuring the compliance thereof the Court has to keep in mind that the accused gets a fair chance to explain his conduct. The option lies with the accused to maintain silence coupled with simplicitor denial or in the alternative to explain his version and reasons, for his alleged involvement in the commission of crime. This is the statement which the accused makes without fear or right of the other party to cross- examine him. However, if the statements made are false, the Court is entitled to draw adverse inferences and pass consequential orders, as may be called for, in accordance with law. The primary purpose is to establish a direct dialogue between the Court and the accused and to put to the accused every important incriminating piece of evidence and grant him an opportunity to answer and explain. Once such a statement is recorded, the next question that has to be considered by the Court is to what extent and consequences such statement can be used during the enquiry and the trial. Over the period of time, the Courts have explained this concept and now it has attained, more or less, certainty in the field of criminal jurisprudence.** \r\n\r\n**14. The statement of the accused can be used to test the veracity of the exculpatory of the admission, if any, made by the accused. It can be taken into consideration in any enquiry or trial but still it is not strictly evidence in the case. The provisions of Section 313 (4) explicitly provides** **that the answers given by the accused may be taken into consideration in such enquiry or trial and put in evidence against the accused in any other enquiry or trial for any other offence for which such answers may tempt to show he has committed. In other words, the use is permissible as per the provisions of the Code but has its own limitations. The Courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this Section should not be considered in isolation but in conjunction with evidence adduced by the prosecution.\"** \r\n\r\n48. In **Sidhartha Vashisht vs. State (NCT of Delhi) (2010)6 SCC 1** the Apex Court has held that while answer given by the accused to question put under section 313 of the Code are not per se evidence because, firstly, it is not on oath and, secondly, the other party i.e. the prosecution does not get an opportunity to cross-examine the accused, it is nevertheless subject to consideration by the Court to the limited extent of drawing an adverse inference against such accused for any false answers voluntarily offered by him and to provide an additional/missing link in the chain of circumstances.\r\n\r\n49. After considering **Asraf Ali vs. State of Assam (2008)6 SCC 328 and Manu Sao vs. State of Bihar (2010)12 SCC** **310,** the Apex Court, in **Munna Kumar Upadhyay vs. State of Andhra Pradesh (2012)6 SCC 174,** has held as under:-\r\n\r\n> **\"76. If the accused gave incorrect or false answers during the course of his statement under Section 313 Cr.P.C., the court can draw an adverse inference against him…..\"**\r\n\r\n50. In **Nagesh vs. State of Karnataka (2012)6 SCC 477**\r\n\r\nthe\r\n\r\nApex Court has held as under:-\r\n\r\n**\"32. It is also possible and permissible that an accused may remain silent but in that circumstance and with reference to the facts and circumstances of a given case, the court may be justified in drawing an adverse inference against the accused…….The trend of cross-examination on behalf of the accused implies admission of the death of the deceased having taken place in the premises in question by taking poison, however, the accused have failed to offer any explanation therefor which was least expected of him.\"** \r\n\r\n## 51. In **Dharam Deo Yadav vs. State of Uttar Pradesh**\r\n\r\n**(2014)5 SCC 509** the Apex Court has held as under:-\r\n\r\n**\"37. The accused, in his examination under Section 313 Cr.P.C., had denied the prosecution case completely, but the proseuction has succeeded in proving the guilt beyond reasonable doubt. Often, false answers given by the accused in** **Section 313 Cr.P.C. statement may offer an additional link in the chain of circumstances to complete the chain. See Anthony D'Souza vs. State of Karnataka (2003)1 SCC 259. We are, therefore, of the considered view that both the trial Court as well as the High Court have correctly appreciated the oral and documentary evidence in this case and correctly recorded the conviction and we are now on sentence.\"**\r\n\r\n52. In **Nagaraj vs. State (2015)4 SCC 739** the Apex Court\r\n\r\nhas held as under:-\r\n\r\n**14. The Impugned Judgment has found the answers of the Accused under Section 313 CrPC evasive and untrustworthy, and held this to be another factor indicating his guilt. Section 313 CrPC is of seminal importance in our criminal law jurisdiction and, therefore, justifies reiteration and elucidation by this Court. We shall start, with profit, by reproducing extracts from 41st Report of the Law Commission made in the context of Section 342 of the old Criminal Procedure Code which corresponds to this Section where the Commission observed, inter alia, thus:**\r\n\r\n**\"24.40. Section 342 is one of the most important sections in the Code. It requires that the Court must, at the close of prosecution evidence, examine the accused \"for the purposes of enabling him to explain any circumstances appearing in the evidence against him.\" The section for** **a moment, brushes aside all counsel, all prosecutors, all witnesses, and all third persons. It seeks to establish a direct dialogue between the Court and the accused for the purpose of enabling the accused to give his explanation. For a while the section was misunderstood and regarded as authorizing an inquisitorial interrogation of the accused, which is not its object at all. The key to the section is contained in the first sixteen words of the section. Giving an opportunity to the accused to explain the circumstances appearing in the evidence is the only object of the examination. He may, if he chooses, keep his mouth shut or he may give a full explanation, or, he is so advised, he may explain only a part of the case against him. \\*\\*\\*\\*\\***\r\n\r\n**24.45 We have, after considering the various aspects of the matter as summarized above, come to the conclusion that S.342 should not be deleted. In our opinion the stage has not yet come for its being removed from the statute book. With further increase in literacy and with better facilities for legal aid, it may be possible to take that step in the future.\" (ii) 'Clause 320 - The existing provision in S.342 (2) enabling a Court to draw an inference, whether adverse or** **not from an answer or a refusal to answer a question put to the accused during the examination, is being omitted as it may offend Art. 20(3) of the Constitution\" - S.O.R.\"**\r\n\r\n**15. In the context of this aspect of the law it is been held by this Court in Parsuram Pandey vs. State of Bihar (2004) 13 SCC 189 that Section 313 CrPC is imperative to enable an accused to explain away any incriminating circumstances proved by the prosecution. It is intended to benefit the accused, its corollary being to benefit the Court in reaching its final conclusion; its intention is not to nail the accused, but to comply with the most salutary and fundamental principle of natural justice i.e. audi alteram partem, as explained in Arsaf Ali vs. State of Assam (2008) 16 SCC 328.In Sher Singh vs. State of Haryana (2015) 1 SCR 29 this Court has recently clarified that because of the language employed in Section 304B of the IPC, which deals with dowry death, the burden of proving innocence shifts to the accused which is in stark contrast and dissonance to a person's right not to incriminate himself. It is only in the backdrop of Section 304B that an accused must furnish credible evidence which is indicative of his innocence, either under Section 313 CrPC or by examining himself in the witness box or through defence witnesses, as he may be best advised. Having made this clarification, refusal to answer any question put to the accused by the Court in** **relation to any evidence that may have been presented against him by the prosecution or the accused giving an evasive or unsatisfactory answer, would not justify the Court to return a finding of guilt on this score. Even if it is assumed that his statements do not inspire acceptance, it must not be lost sight of that the burden is cast on the prosecution to prove its case beyond reasonable doubt. Once this burden is met, the Statements under Section 313 assume significance to the extent that the accused may cast some incredulity on the prosecution version. It is not the other way around; in our legal system the accused is not required to establish his innocence. We say this because we are unable to subscribe to the conclusion of the High Court that the substance of his examination under Section 313 was indicative of his guilt. If no explanation is forthcoming, or is unsatisfactory in quality, the effect will be that the conclusion that may reasonably be arrived at would not be dislodged, and would, therefore, subject to the quality of the defence evidence, seal his guilt. Article 20(3) of the Constitution declares that no person accused of any offence shall be compelled to be a witness against himself. In the case in hand, the High Court was not correct in drawing an adverse inference against the Accused because of what he has stated or what he has failed to state in his examination under Section 313 CrPC.**\r\n\r\n53. Commission of offence under NDPS Act is not only a serious, but a heinous crime for the reason that it not only affects individual and his family, but also society at large and for that reason, stringent provisions have been enacted to curb the menace of drugs and psychotropic substances and therefore in case of possession of contraband for which a person fails to account satisfactorily, reverse presumption of culpable mental state and commission of offence has been provided under Sections 35 and 54 of NDPS Act which read as under:-\r\n\r\n#### **[\"35.](https://indiankanoon.org/doc/852142/) Presumption of culpable mental state.**\r\n\r\n**[\\(1\\)](https://indiankanoon.org/doc/626794/) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.** \r\n\r\n**Explanation: In this section \"culpable mental state\" includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact.**\r\n\r\n**[\\(2\\)](https://indiankanoon.org/doc/1986762/) For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability.**\r\n\r\n**54. Presumption from possession of illicit articles. In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused** **has committed an offence under this Act in respect of-**\r\n\r\n**[\\(a\\)](https://indiankanoon.org/doc/1682803/) any narcotic drug or psychotropic substance or controlled substance;**\r\n\r\n**[\\(b\\)](https://indiankanoon.org/doc/1120935/) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated;**\r\n\r\n**[\\(c\\)](https://indiankanoon.org/doc/447072/) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance; or**\r\n\r\n**[\\(d\\)](https://indiankanoon.org/doc/1546982/) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily.]**\r\n\r\n54. Section 54 of NDPS Act shifts the onus of proving his innocence upon the accused and states that in trials under NDPS Act unless or until contrary is proved, it may be presumed that an accused has committed an offence under it with respect of article recovered from him, for possession of which he fails to account satisfactorily.\r\n\r\n55. Section 35 of NDPS Act also provides presumption of existence of culpable mental state of accused and onus to prove that no such mental state with respect to act charged as an offence in prosecution was there, is upon accused. Explanation of Section 35 of the Act clarifies that culapable mental state includes intention, motive, knowledge of fact and belief in or reason to believe a fact.\r\n\r\n56. Possession in a given case need not be a physcial possession but can be constructive with animus and control over the articles in question and the word conscious means awareness about a particular fact. Article, possession of which is in question, may be kept in physical possession of another person with animus or dominion and control over the said article and such a situation is sufficient to hold the possession of such article with first person.\r\n\r\n57. It is held by Hon'ble Apex Court in case reported in **Madan Lal and another vs. State of H.P. (2003)7 SCC 465** that:-\r\n\r\n> **\"22. The expression \"possession\" is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Superintendent & Remembrancer of Legal Affairs, W.B. vs. Anil Kumar Bhunja (1979)4 SCC 274 to work out a completely logical and precise definition of \"possession\" uniformally applicable to all situations in the context of all statutes.**\r\n\r\n> **23. The word \"conscious\" means awareness about a particular fact. It is a state of mind which is delierate or intended.**\r\n\r\n**24. As noted in Gunwantal vs. State of M.P. (1972)2 SCC 194 possession in a given case need not be physical possession but can be constructive, having power and control over the article in the case in question, while the person to whom physical possession is given holds it subject to that power or control.**\r\n\r\n**25. The word \"possession\" means the legal right to possession (see Heath vs. Drown (1972)2 All ER 561). In an interesting case it was observed that where as person keeps his firearm in his mother's flat which is safer than his own home, he must be considered to be in possession of the same. (See Sullivan vs. Earl of Caithness (1976)1 All ER 844).**\r\n\r\n**26. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles.\"**\r\n\r\n**(at p. 472)** \r\n\r\n58. It is also held by Hon'ble Apex Court in **Dharampal**\r\n\r\n### **Singh vs. State of Punjab (2010)9 SCC 608** that\r\n\r\n**12. ….. It is trite that to bring the offence within the mischief of [Section 18](https://indiankanoon.org/doc/325366/) of the Act possession has to be conscious possession. The initial burden of proof of possession lies on prosecution and once it is discharged legal burden would shift on** **accused. Standard of proof expected from the prosecution is to prove possession beyond all reasonable doubt but what is required to prove innocence by the accused would be preponderance of probability. Once the accused plea is found probable, discharge of initial burden by the prosecution will not nail him with offence. Offences under the Act being more serious in nature higher degree of proof is required to convict an accused.**\r\n\r\n**13. It needs no emphasis that the expression possession is not capable of precise and completely logical definition of universal application in context of all the statutes. Possession is a polymorphous word and cannot be uniformly applied, it assumes different colour in different context. In the context of [Section 18](https://indiankanoon.org/doc/325366/) of the Act once possession is established the accused, who claims that it was not a conscious possession has to establish it because it is within his special knowledge.**\r\n\r\n**14. [Section 54](https://indiankanoon.org/doc/1297682/) of the Act raises presumption from possession of illicit articles. It reads as follows :** \r\n\r\n**\"54. Presumption from possession of illicit articles. - In** \r\n\r\n**trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of –** \r\n\r\n**(a)any narcotic drug or psychotropic substance or controlled substance;** \r\n\r\n**(b)any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated;** \r\n\r\n- **(c)any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance; or**\r\n- **(d)any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured,**\r\n\r\n**for the possession of which he fails to account satisfactorily.\"**\r\n\r\n**15. From a plain reading of the aforesaid it is evident that it creates a legal fiction and presumes the person in possession of illicit articles to have committed the offence in case he fails to account for the possession satisfactorily. Possession is a mental state and [Section 35](https://indiankanoon.org/doc/852142/) of the Act gives statutory recognition to culpable mental state. It includes knowledge of fact. The possession, therefore, has to be understood in the context thereof and when tested on this anvil, we find that the appellants have not been able to account for satisfactorily the possession of opium.**\r\n\r\n**16. Once possession is established the Court can presume that the accused had culpable mental state and have committed the offence. In somewhat similar facts this Court had the occasion to consider this question in the case of [Madan Lal](https://indiankanoon.org/doc/489126/) [and another vs. State of H.P.](https://indiankanoon.org/doc/489126/),2003 (7) SCC 465, wherein it has been held as follows***:* \r\n\r\n*\"***26. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. [Section](https://indiankanoon.org/doc/852142/) [35](https://indiankanoon.org/doc/852142/) of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of [Section 54](https://indiankanoon.org/doc/1297682/) where also presumption is available to be drawn from possession of illicit articles.** \r\n\r\n**27. In the factual scenario of the present case, not only possession but conscious possession has been established. It has not been shown by the accused- appellants that the possession was not conscious in the logical background of [Sections 35](https://indiankanoon.org/doc/852142/) and [54](https://indiankanoon.org/doc/1297682/) of the Act.\"** \r\n\r\n**(at pp. 614-615)**\r\n\r\n59. The Apex Court in **Ram Singh vs. Central Bureau**\r\n\r\n**of Narcotics (2011)11 SCC 347** has also held as under:-\r\n\r\n**\"24. It is trite that to hold a person guilty, possession has to be conscious. Control over the goods is one of the tests to ascertain conscious possession so also the title. Once an article is found in possession of an accused it could be presumed that he was in conscious possession. Possession is a polymorphous term which carried different meaning in different context and circumstances and, therefore, it is difficult to lay down a completely logical and precise definition uniformly applicable to all situations with reference to all the statutes……\" (at p.354)**\r\n\r\n60. It has been held by the Apex Court in **Kulwinder Singh and another vs. State of Punjab (2015)6 SCC 674** that\r\n\r\n**\"17.In this context reference to the decision in Madan Lal v. State of H.P.would be fruitful wherein it has been held thus-(SCC p.472, paras 22-25) \"22.The expression \"possession\" is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Supdt. & Remembrancer of Legal Affairs, W.B.v.Anil Kumar Bhunja (1979)4 SCC 274 to work out a completelylogical and precise definition of \"possession\"uniformally applicable to all situations in thecontext of all statutes.**\r\n\r\n**23.The word \"conscious\" means awareness about a particular fact. It is a state of mind which is deliberate or intended.**\r\n\r\n**24.As noted in Gunwantlal v. State of M.P.(1972)2 SCC 194 possession in a given case need not be physical possession but can be constructive, having power and control over the article in the case in question, while the person to whom physical possession is given holds it subject to that power or control.**\r\n\r\n**25.The word \"possession\" means the legal right to possession (see Heath v.Drown 1973 AC 498). In an interesting case it was observed that where a person keeps his firearm in his mother's flat which is safer than his own home, he must be considered to be in possession of the same. (See Sullivan v. Earl of Caithness (1976)2 WLR 361.)\"**\r\n\r\n**18. In Dharampal Singh v. State of Punjab (2010)9 SCC 608, it has been ruled that the expression** **\"possession\" is not capable of precise and complete logical definition of universal application in the context of all the statutes. Recently, in Mohan Lal v. State of Rajasthan (2015)6 SCC 222 , after referring to certain authorities, this Court has held as follows:- (Mohar Lal case, SCC pp.238-39, paras 21-22)**\r\n\r\n**\"21. From the aforesaid exposition of law it is quite vivid that the term \"possession\" for the purpose of Section 18 of the NDPS Act could mean physical possession with animus, custody or dominion over the prohibited substance with animus or even exercise of dominion and control as a result of concealment. The animus and themental intent which is the primary and significant element to show and establish possession. Further, personal knowledge as to**\r\n\r\n**the existence of the \"chattel\" i.e. the illegal substance at a particular location or site, at a relevant time and the intention based upon the knowledge, would constitute the unique relationship and manifest possession. In such a situation, presence and existence of possession could be justified, for the intention is to exercise right over the substance or the chattel and to act**\r\n\r\n**as the owner to the exclusion of others.** \r\n\r\n**22. In the case at hand, the appellant, we hold, had the requisite degree of control when, even if the said narcotic substance was not within his physical control at that moment. To give an example, a person can conceal prohibited narcotic substance in a property and move out thereafter.** **The said person because of necessary animus would be in possession of the said substance even if he is not, at the moment, in physical control. The situation cannot be viewed differently when a person conceals and hides the prohibited narcotic substance in a public space. In the second category of cases, the person would be in**\r\n\r\n**possession because he has the necessary animus and the intention to retain control and dominion.\" 19.In view of the aforesaid enunciation of law, once possession is found, the accused is presumed to be in conscious possession as has been held in Ram Singh v.**\r\n\r\n**Central Bureau of Narcotics (2011)11 SCC 347. If the accused takes a stand that he was not in conscious possession, he has to establish the same, as has been held in Dharampal Singh (supra). As the materials brought on record would show, the accused-appellants were sitting in the truck; their presence in the truck has been clearly established; and they had run away from the spot and absconded for some days from the village. It is proven that there were 110 bags of poppy husk in the truck and the accused-appellants were in control of the articles in the truck. Therefore, there can be no iota of doubt that they were in conscious possession of the same. In view of the aforesaid analysis, we do not find any force in the submission of the learned counsel for the appellants.\"**\r\n\r\n61. Now we have to proceed in the light of above discussed settled position of law and material on record. According to accused Mohit, he was informed by police about his abandoned vehicle whereupon he tried to contact his driver Vishal but on getting no response, he along with co-accused Ajmer and Pawan reached Ani after boarding Haryana Roadways bus enroute from Chandigarh to Rampur and alighted at Sainj and then reached in Police Station Ani at 2.30 PM. It is undisputed that accused persons belong to Rohtak. The journey from Rohtak to Chandigarh, at least is of 3-4 hours and in bus more than 4 hours may also be taken for the said journey. From Chandigarh to Sainj it is at least 8 hours journey. For reaching Ani from Sainj it takes 1½-2 hours and in case of non-stop journey, at least the journey from Rohtak to Ani, would take minimum 14 hours.\r\n\r\n62. It is undisputed that respondent No.1 Mohit is owner in possession of the vehicle in question. It is also admitted that documents of vehicle were also produced by respondent No.1 Mohit to the police. Contraband was recovered from vehicle owned and possessed by him. Respondents belong to Rohtak. Vehicle purchased at Rohtak, was yet to be registered but was temporarily registered in Haryana and it was in the exclusive knowledge of respondent Mohit (owner of vehicle) that for what purpose the vehicle was at Ani at a so distant place from its original place where respondent Mohit claimed to have never visited ever before.\r\n\r\n63. It is the case of accused persons that they had never visited Ani. Ani is a remote area of Himachal Pradesh, not situated on any highway or route well known to all. Even many educated Himachalis might not be knowing route to reach Ani. There are a few buses plying to Ani from Shimla and person well versed with route can catch a direct bus from Chandigarh upto Sainj situated in upper Shimla wherefrom Ani is connected directly with local road.\r\n\r\n64. According to respondents, they boarded the direct bus from Chandigarh to Sainj but how and when they travelled from Rohtak to Chandigarh is not disclosed. From whom they enquired, who guarded them to reach Ani in shortest time by catching direct bus from Chandigarh is a mystry. They claimed that they reached in Police Station at Ani at 2.30 PM meaning thereby they must have alighted from bus at Sainj at about 12 O'clock in noon for which they had to start from Chandigarh at 3- 4 AM. No time of starting journey from Rohtak to Chandigarh and from Chandigarh to Sainj has been disclosed nor any material has been placed on record to corroborate the plea of accused persons with respect to their journey on 22.6.2010 as claimed.\r\n\r\n65. It is claimed that it is on telephonic call received from Police Station Ani on mobile number of Mohit, taken by police from body of vehicle in question, the accused persons had started to Ani but at what time he was contacted by police is also not stated. No call details indicating the time of call and location of mobile phone of Mohit accused has been produced or sought to be produced in support of plea of accused.\r\n\r\n66. The vehicle, belonging to Rohtak, was found in a remote area of Himachal Pradesh. There was no possibility of presence of this vehicle in that area in normal course of business, but for specific purpose which was to be disclosed and explained by its owner. The plea of respondents that when they failed to produce driver, they were implicated is infact admission of recovery of contraband from vehicle for which driver was required to be produced before the police as no other reason, for which driver was to be produced, has been brought on record. Therefore, provision of Section 54 of NDPS Act becomes applicable. It was for owner to explain the presence of vehicle at Ani and also to disclose the name and address of driver and also purpose of plying the vehicle in Ani area but owner-respondent Mohit is conspicuously silent on this count.\r\n\r\n67. No doubt, the accused has right to remain silent as he cannot be forced to become a witness against himself. However, as discussed supra, it is also settled that an adverse inference can be drawn against the accused if incriminating material stood fully established and accused is not able to furnish any explanation for the same. In present case, the movement of vehicle, exclusively in knowledge of driver and owner, was necessarily to be disclosed to prove his innocence by respondent Mohit. Being owner in possession of vehicle, he was responsible for legal or illegal activity being carried out through his vehicle unless explained otherwise. The trial Court has not considered this aspect.\r\n\r\n68. As discussed hereinabove recovery of contraband stands connected to the vehicle owned by accused Mohit and he was also having possession over the vehicle through his driver and otherwise also. Therefore, he is to be considered in possession of article recovered from the said vehicle unless he has some plausible explanation in his defence. Under Section 54 of NDPS Act, for possession of contraband recovered from vehicle owned by accused Mohit, he has to account satisfactorily to rebut the presumption that he has not committed an offence under NDPS Act in respect of contraband recovered from his vehicle. As soon as presumption under Section 54 comes into play presumption of culpable mental state under Section 35 becomes operative and unless contrary is brought on record Court shall presume the acceptance of culpable mental state of accused for commission of offence under NDPS Act.\r\n\r\n69. Impact of provisions of Sections 35 and 54 of the NDPS Act have also been ignored by the trial Court and also the fact that respondent No.1, being owner of vehicle, having control and possession thereof, failed to satisfactorily explain the presence of vehicle at Ani with recovered contraband. Once the prosecution has successfully established that contraband was recovered from vehicle owned by respondent No.1 Mohit, it was upon him to rebut the presumption of his conscious possession by bringing explanation on record, definitely not beyond reasonable doubt, but at least having preponderance of probability. But respondent Mohit has failed to discharge reverse onus to explain as required under Section 54 of NDPS Act, inviting presumption under Section 35 of NDPS Act.\r\n\r\n70. It is defence of respondents that they were not travelling in vehicle in question, when it was intercepted by\r\n\r\npolice. According to them, when driver was not traceable then they were implicated in this case. There is suggestion put to PW11 Prem Lal on behalf of respondents that respondents were asked to produce driver and when driver was not traceable they were implicated. Though this suggestion has been denied by investigating officer, however, it is only reason which has been assigned by respondents for their false implication in present case. It is stated on behalf of respondents that vehicle in question was found in abandoned condition and for the said reason respondent Mohit was called by police for inquiry after having his mobile number which was published on body of vehicle and on production of documents of vehicle in question, he and his companions were robed by police alleging them occupants of the vehicle during previous night travelling with recovered contraband. Recovery of contaband is 6.755 Kg charas with 320 grams opium. Such a huge quantity of charas cannot be believed to be planted against respondents for no reason or for not producing driver before police particularly when no enmity with police officials has ever been alleged much less any proof thereof placed on record. There is nothing on record to suggest that respondents were having any social, political, economical or any other conflict of interest with police or anybody else in Ani or\r\n\r\nat any other place, so as to implicate them in such a henious crime falsely under conspiracy.\r\n\r\n71. Explanation rendered by respondents for their presence in Ani is highly improbable and there is no plausible reason disclosed for presence of vehicle in question in Ani which provide missing links to complete the chain of evidence in prosecution case. It is claimed by respondents that some Vishal was driver of vehicle in question but neither his address was ever disclosed nor he was produced in Court to rebut the presumption under NDPS Act. The purpose of presence of vehicle in Ani area is also not disclosed or explained. Plea of accused persons in statement under Section 313 Cr.P.C. that they reached in police station at 2.30 PM and produced documents of vehicle to police is also an important clue to complete missing link as it is self contradictory, fortifying the prosecution story for the reason that in case accused persons or either of them was not present in vehicle during previous night, then there was no question of possession of documents of vehicle with accused Mohit or his companions who claimed themselves to have travelled from Rohtak to Ani on telephonic call of police when number of driver Vishal did not respond to their call, as documents of vehicle in normal circumstances, that too at a distant place from a place where vehicle is ordinarily supposed to be plied, are bound to be in vehicle or in possession of incharge/driver of vehicle. Accused Mohit could have produced documents of vehicle only if he was also travelling in the said vehicle during preceding night. Therefore, plea of respondents that they reach Ani together at 2.30 PM on 22.6.2008 after receiving call from Police Station Ani is also not reliable.\r\n\r\n72. No doubt, accused has a right to remain silent and not to disclose any incriminatory material against him, however, Section 106 of the Indian Evidence Act is an exception to this principle and in certain circumstances it devolves burden of disclosing certain facts by the accused, exclusively in his knowledge, necessary to establish his non-complicity in the commission of crime. In present case, it is suggested to PW11 Prem Lal, Investigation Officer, though denied by him, that respondent Mohit opened the dash board of jeet with duplicate key and handed over the documents to him. In answer to question No. 21, in statement recorded under Section 313 Cr.P.C., respondent Mohit has admitted it to be correct that he presented the documents of the vehicle which were taken in possession by PW11 with clarification that those were taken in possession when he was called and reached in police station. Except disclosing the name of driver Vishal, he did not disclose the particulars of residence of his driver, purpose of presence of the vehicle and his driver at Ani, which was in his exclusive knowledge and was necessary to be disclosed to rebut the evidence of prosecution proving the recovery of contraband from the vehicle owned and possessed by him. It is not the case of respondent Mohit that his jeep was stolen or his driver was plying the vehicle without his consent or beyond his control. Further production of documents either by opening the dash board of jeep with duplicate key or otherwise substantiates the fact that he was having the full control and possession of vehicle in question.\r\n\r\n73. Therefore, even if evidence of prosecution with respect to manner of apprehending respondents is discarded for discrepancies in reports, log book and statements of prosecution witnesses, then also from careful scrutiny of evidence on record; in the facts and circumstances of case, as discussed above, even ignoring false plea taken in statement under Section 313 Cr.P.C., only one view establishing complicity of respondent No.1 in commission of offence is possible.\r\n\r\n74. The trial Court has failed to consider the evidence on record in right perspective. There is cogent, reliable and convincing evidence on record to hold that accused Mohit, being owner of vehicle, was in conscious possession of recovered contraband and is liable to be punished under Sections 18 and 20 of NDPS Act and is liable to be punished accordingly.\r\n\r\n75. The trial Court has also failed to consider the provisions of Section 60 of NDPS Act, which provides confiscation of vehicle found transporting narcotic drugs, irrespective of acquittal or conviction of accused, unless owner proves that it was so used without knowledge or connivance of owner, his agent or person incharge of vehicle and each of them had taken all reasonable precautions against such use. Section 60 reads as under:-\r\n\r\n### \"**[60.](https://indiankanoon.org/doc/932245/) Liability of illicit drugs, substances, plants, articles and conveyances to confiscation.**\r\n\r\n**[\\[\\(1\\)](https://indiankanoon.org/doc/1629314/) Whenever any offence punishable under this Act has been committed, the narcotic drug, psychotropic substance, controlled substance, opium poppy, coca plant, cannabis plant, materials, apparatus and utensils in respect of which or by means of which such offence has been committed, shall be liable to confiscation.]**\r\n\r\n**[\\(2\\)](https://indiankanoon.org/doc/620456/) Any narcotic drug or psychotropic substance 2[or controlled substances] lawfully produced, imported inter-State, exported inter-State, imported into India, transported, manufactured, possessed, used, purchased or sold along with, or in addition to, any narcotic drug or psychotropic** **substance 2[or controlled substances] which is liable to confiscation under sub-section (1) and there receptacles, packages and coverings in which any narcotic drug or psychotropic substance 2[or controlled substances], materials, apparatus or utensils liable to confiscation under sub-section (1) is found, and the other contents, if any, of such receptacles or packages shall likewise be liable to confiscation.**\r\n\r\n**[\\(3\\)](https://indiankanoon.org/doc/1701170/) Any animal or conveyance used in carrying any narcotic drug or psychotropic substance 2[or controlled substance], or any article liable to confiscation under sub-section (1) or sub-section (2) shall be liable to confiscation, unless the owner of the animal or conveyance proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person-incharge of the animal or conveyance and that each of them had taken all reasonable precautions against such use.\"**\r\n\r\n76. Therefore, the trial Court is directed to take appropriate steps for confiscation of vehicle involved in transporting contraband in present case.\r\n\r\n77. We feel that for glaring discrepancies and shortcomings in reports, log book entries, investigation and deposition in Court, there is need for explanation of PW5 Nathu Ram, PW7 Luder Singh and PW11 Prem Lal by the department and if found unsatisfactory, to take action against erring official(s). Director General of Police is directed to ensure compliance and to file compliance affidavit within four months.\r\n\r\n78. In view of above discussion hereinabove judgment passed by learned Special Judge (II), Kinnaur at Rampur, in sessions trial No. 15-AR/3 of 2008/2010, title State vs. Mohit and others, is modified. Respondent No.1 Mohit is convicted under Sections 18 and 20 of NDPS Act and acquittal of respondents No. 2 and 3 Ajmer Singh and Pawan is maintained. Bail bonds furnished by and on behalf of convict Mohit also stand cancelled and those of Ajmer Singh and Pawan are discharged. Production warrant be issued against convict-Mohit for his presence in this Court on 9.10.2017 for hearing him on quantum of sentence.\r\n\r\n> **(Dharam Chand Chaudhary) Judge**\r\n\r\n **ms Judge** \r\n\r\n**September 12, 2017. (Vivek Singh Thakur),**",{"_312":340,"_314":341,"_316":342,"_318":-5},"HPHC010075142011-order-15.pdf","HPHC010075142011-order-15.md","## **Cr. Appeal No. 343 of 2011**\r\n\r\n09.10.2017 Present: Mr. Virender Verma, Addl. A.G for the appellant.\r\n\r\n> Learned Additional Advocate General has placed on record production warrant, which has been received back unexecuted with the report that convict Mohit, who is driver by profession could not be traced out at his place Village and Post Office Chiri, Tehsil and District Rohtak (Haryana) having not visited the place since long. Being so, personal and surety bonds furnished by convict Mohit are ordered to be forfeited. Issue show cause notice to his surety Subhash son of Mohinder resident of Village and Post Office Chiri, Tehsil and District Rohtak (Haryana) either to produce the convict in this Court or deposit bond money in Government Treasury. Production warrant against convict be also issued afresh for 4th December, 2017 with a direction to the Superintendent of Police, Kullu District Kullu to ensure the execution thereof for the date fixed.\r\n\r\n## **(Dharam Chand Chaudhary) Judge**\r\n\r\n(naveen) **Judge** \r\n\r\nOctober 9, 2017 **(Vivek Singh Thakur)**",{"_312":344,"_314":345,"_316":346,"_318":-5},"HPHC010075142011-order-16.pdf","HPHC010075142011-order-16.md","## Cr. Appeal No. 343 of 2011\r\n\r\n04.12.2017. Present: Mr. D.S. Nainta, Mr. Virender Verma and Mr. Varun Chandel, Addl. AGs, for appellant.\r\n\r\n> Production warrants issued against convict Mohit is again received unexecuted with the report that he was not present in his house. Issue fresh production warrants against him for 9th January, 2018. The Superintendent of Police, Kullu shall ensure the execution of the warrants for the date fixed.\r\n\r\n> The surety of convict Mohit, Subhash is duly served, however, absent. Issue bailable warrants in the sum of `25,000/- with one surety in the like amount to said Shri Subhash also for the date fixed. The Superintendent of Police, Kullu shall also ensure the execution thereof.\r\n\r\n> > (Dharam Chand Chaudhary), Judge.\r\n\r\n> > > (Chander Bhusan Barowalia), Judge.\r\n\r\nDecember 04, 2017, *(vs)*",{"_312":348,"_314":349,"_316":350,"_318":-5},"HPHC010075142011-order-17.pdf","HPHC010075142011-order-17.md","## Cr. Appeal No. 343 of 2011\r\n\r\n12.3.2018. Present: Mr. S.C. Sharma, Mr. Narinder Guleria, Addl. AGs with Mr. Kunal Thakur, Dy. AG, for the appellant. Mr. Vinod Gupta, Advocate, for the respondentsurety.\r\n\r\n> Mr. Dinesh Thakur, Advocate who was representing Subhash, surety of respondent-convict Mohit has since been appointed as Additional Advocate General. Mr. Vinod Gupta, Advocate, who has put in appearance on behalf of the surety, seeks time to have instructions in the matter. Allowed. List on 26.3.2018. Mr. Gupta to ensure that the surety Shri Subhash to attend this Court in person on the date fixed.\r\n\r\n> > (Dharam Chand Chaudhary), Judge.\r\n\r\n> > > (Vivek Singh Thakur), Judge.\r\n\r\nMarch 12, 2018, *(vs)*",{"_312":352,"_314":353,"_316":354,"_318":-5},"HPHC010075142011-order-18.pdf","HPHC010075142011-order-18.md","**26.03.2018 Present**: Mr.S.C. Sharma, Addl. Advocate General with Mr.Kunal Thakur, Deputy Advocate General for the appellant. None for the respondent-surety.\r\n\r\n The surety Shri Subhash is not present. Mr.Vinod Gupta, learned Advocate, who had appeared on his behalf on the last date, is also not present. Being so, issue bailable warrants in the sum of Rs.50,000/- with one surety in the like amount against Mr.Subhash aforesaid for *7.5.2018.* \r\n\r\n**(Dharam Chand Chaudhary) Judge** \r\n\r\n **(ms) Judge**\r\n\r\n**March 26, 2018 (Vivek Singh Thakur)**",{"_312":356,"_314":357,"_316":358,"_318":-5},"HPHC010075142011-order-19.pdf","HPHC010075142011-order-19.md","## Cr. Appeal No. 343 of 2011\r\n\r\n07.05.2018. Present: Mr. Vikas Rathore and Mr. Narinder Guleria, Addl. AGs, for the appellant.\r\n\r\nSurety Subhash in person with Mr. Manoj Pathak, Advocate.\r\n\r\nSurety Subhash prays for and is granted three weeks' time for production of convict Mohit in this Court, failing which, to show cause as to why the bond money i.e. `1,00,000/- is not forfeited and deposited by him in the government treasury. Open dated warrant of arrest be also issued again against convict Mohit and the surety Subhash shall assist the police to get the same executed. The Superintendent of Police, Kullu is directed to ensure the execution of the warrant. List on 12.6.2018. Surety Subhash shall also attend this Court in person on the date fixed.\r\n\r\n> (Dharam Chand Chaudhary), Judge.\r\n\r\n> > (Vivek Singh Thakur), Judge.\r\n\r\nMay 07, 2018, *(vs)*",{"_312":360,"_314":361,"_316":362,"_318":-5},"HPHC010075142011-order-2.pdf","HPHC010075142011-order-2.md","## **Cr. Appeal No.343/2011**\r\n\r\n 02.05.2016 Present: Mr. D.S. Nainta, Additional Advocate General for the appellant. Mr. N.S. Chandel, Advocate for respondent No.1. Mr. Manoj Pathak, Advocate for respondents No.2 and 3.\r\n\r\nOn the request of learned counsel,\r\n\r\nrepresenting the respondents-accused, list on 27.5.2016.\r\n\r\n **(Dharam Chand Chaudhary), J.**\r\n\r\n **May 2, 2016** (ss) **(Chander Bhusan Barowalia), J.**",{"_312":364,"_314":365,"_316":366,"_318":-5},"HPHC010075142011-order-20.pdf","HPHC010075142011-order-20.md","## *Cr. Appeal No. 343 of 2011*\r\n\r\n**19.6.2018 Present**: Mr.Ajay Vaidya, Senior Additional Advocate General with Mr.Vikas Rathour & Mr.Narinder Guleria, Additional Advocate Generals, for the appellant.\r\n\r\n> Mr.Manoj Pathak, Advocate, for the respondent/Surety.\r\n\r\nAs per e-challan dated 18.6.2018, produced by Mr.Manoj Pathak, Advocate, learned counsel for respondent/surety, which after perusal has been returned, surety Subash has deposited the bond money i.e. `1,00,000/- in State Bank of India, Shimla Branch.\r\n\r\nThe Superintendent of Police Kullu District has filed status report on her own affidavit, which reveals that despite efforts made, the convict Mohit could not be traced out. The documents, particularly the statement of Kavita, wife of convict recorded on 25.5.2018, annexed to the status report amply demonstrate that factum of said convict missing from his native place for last two years, is not correct for the reasons that when as per her own version their younger son is 9 months old, remaining part of her statement that her husband has not visited the house for the last two years, is not correct. The Kullu police to make all sincere efforts to trace out the convict.\r\n\r\nAssistance of local police be also taken. List on **17th July, 2018**, on which date fresh status report be filed.\r\n\r\n*(Dharam Chand Chaudhary), Judge.*\r\n\r\n> *(Vivek Singh Thakur), Judge.*\r\n\r\n*19th June, 2018 (KRS)*",{"_312":368,"_314":369,"_316":370,"_318":-5},"HPHC010075142011-order-21.pdf","HPHC010075142011-order-21.md","## Cr. Appeal No.343 of 2011.\r\n\r\n17.07.2018 Present: Mr. Vikas Rathore & Mr. Narinder Guleria, Addl. A.Gs. with Mr. Kunal Thakur, Dy. A.G. for the appellant.\r\n\r\n> We have perused the status report placed on record by learned Additional Advocate General. The perusal thereof reveals that convict Mohit Could not be traced out nor the warrant of arrest issued against him executed. Being so, open dated warrant of arrest be issued afresh against him. The prosecution also to take steps within four weeks, in accordance with law, to secure the presence of the convict by coercive methods. List on 21st August, 2018.\r\n\r\n## (Dharam Chand Chaudhary), Judge\r\n\r\nJuly 17, 2018 (ps) Judge\r\n\r\n(Vivek Singh Thakur),",{"_312":372,"_314":373,"_316":374,"_318":-5},"HPHC010075142011-order-22.pdf","HPHC010075142011-order-22.md","## *Cr. Appeal No. 343 of 2011*\r\n\r\n**21.8.2018 Present**: Mr.Narinder Guleria and Mr.Vikas Rathore, Additional Advocate Generals, for the appellant.\r\n\r\n> Learned Additional Advocate General prays for and is granted two weeks' time to take steps in terms of order passed on the previous date. List thereafter.\r\n\r\n## *(Dharam Chand Chaudhary), Judge.*\r\n\r\n## *(Vivek Singh Thakur), Judge.*\r\n\r\n*21st August, 2018 (KRS)*",{"_312":376,"_314":377,"_316":378,"_318":-5},"HPHC010075142011-order-23.pdf","HPHC010075142011-order-23.md","## **Cr. Appeal No. 343 of 2011.**\r\n\r\n17.9.2018 Present: Mr. Narinder Guleria and Mr. Vikas Rathore, Additional Advocate Generals, for the appellant.\r\n\r\n> Learned Addl. Advocate General submits that a special team constituted by the Superintendent of Police, Kullu, is still away in search of respondent-convict. He prays for and is granted two weeks' more time to produce him in custody and for taking consequential steps in terms of the order dated 21.8.2018.\r\n\r\n## **(Dharam Chand Chaudhary), J.**\r\n\r\n(ss)\r\n\r\nSeptember 17, 2018 **(Vivek Singh Thakur), J.**",{"_312":380,"_314":381,"_316":382,"_318":-5},"HPHC010075142011-order-24.pdf","HPHC010075142011-order-24.md","## **Cr. Appeal No. 343 of 2011**\r\n\r\n01.11.2018 Present: Ms. Ritta Goswami and Mr. Vikas Rathore, Additional Advocates General with Mr. J.S. Guleria and Ms. Svaneel Jaswal, Deputy Advocates General, for the appellant.\r\n\r\nFor compliance of earlier order, we adjourn the\r\n\r\nmatter by four weeks.\r\n\r\nLet Superintendent of Police, Kullu, remain present before the Court on the next date of hearing.\r\n\r\n> List on **5 th December, 2018.**\r\n\r\n> > **(Sanjay Karol) Judge**\r\n\r\n **(Chander Bhusan Barowalia) Judge**\r\n\r\n November 1, 2018 (virender/raman)",{"_312":384,"_314":385,"_316":386,"_318":-5},"HPHC010075142011-order-25.pdf","HPHC010075142011-order-25.md","## Cr. Appeal No.343 of 2011.\r\n\r\n5.12.2018 Present: Mr. Narinder Guleria & Mr. Vikas Rathore, Addl. A.Gs. with Mr. J.S. Guleria & Mr. Kunal Thakur, Dy. A.Gs. for the appellant. Mr. Amardeep Singh, Advocate for the\r\n\r\nrespondent.\r\n\r\nMs. Shalini Agnihotri, Superintendent of Police, Kullu is present in person. She has filed her own affidavit and explained therein the reasons for not arresting convict Mohit and his production in this Court. She has further informed that the efforts to trace him out are still in progress. Let all possible efforts be made to nab the convict and his production in this Court for the purpose of hearing on the quantum of sentence. Other coercive methods as directed on 17.7.2018 be also taken in accordance with law to compel the said convict either to surrender in the Court or before the Police. List on 2nd January, 2019, before the Bench, which has passed the judgment of conviction.\r\n\r\n## (Dharam Chand Chaudhary), Judge\r\n\r\n (Chander Bhusan Barowalia), December 5, 2018 (ps) Judge",{"_312":388,"_314":389,"_316":390,"_318":-5},"HPHC010075142011-order-26.pdf","HPHC010075142011-order-26.md","## *Cr. Appeal No. 343 of 2011*\r\n\r\n**29.3.2019 Present**: Mr.Vikas Rathore and Mr.Narinder Guleria, Additional Advocate Generals, with Mr.Kunal Thakur, Deputy Advocate General, for the appellant.\r\n\r\n> Learned Additional Advocate General seeks time to obtain instructions. As prayed, list on **5th April, 2019**, before appropriate Bench.\r\n\r\n *(Tarlok Singh Chauhan), Judge.*\r\n\r\n> *(Vivek Singh Thakur), Judge.*\r\n\r\n*29th March, 2019 (KRS)*",{"_312":392,"_314":393,"_316":394,"_318":-5},"HPHC010075142011-order-27.pdf","HPHC010075142011-order-27.md","## Cr. Appeal No.343 of 2011.\r\n\r\n05.04.2019 Present: Mr. Narinder Guleria & Mr. Vikas Rathore, Addl.A.Gs.with Mr. J.S. Guleria, Dy. A.G. & Mr. Sunny Dhatwalia, Asstt. A.G., for the appellant.\r\n\r\n> Again there is no progress in the matter except for filing an application with a prayer to declare the accused-convict Mohit as Proclaimed Offender that too without there being any detail of movable and immovable property, if any, in his name. We are not satisfied with the efforts made by the Police because the convict having his wife, children and also parents could have been nabbed as he must be coming to meet his wife and children. It is also difficult to believe that he is missing for the last two years as has come in the reports filed by the Kullu Police from time to time. We, therefore, direct the Kullu Police again to resort to all coercive methods seeking assistance of the Local police at Rohtak to arrest the accused and produce him in custody at the earliest. List on 22nd May, 2019.\r\n\r\n## (Dharam Chand Chaudhary), Judge\r\n\r\n (Vivek Singh Thakur), April 05, 2019 (ps) Judge",{"_312":396,"_314":397,"_316":398,"_318":-5},"HPHC010075142011-order-28.pdf","HPHC010075142011-order-28.md","## **Cr. Appeal No.343/2011**\r\n\r\n**22.5.2019** Present: Mr. Ajay Vaidya, Sr. Addl. A.G. with Mr. Kunal Thakur, Dy.A.G. and Mr. Sunny Dhatwalia, Asstt. A.G. for the appellant.\r\n\r\nLearned Assistant Advocate General states that status report\r\n\r\nis being filed during the course of the day.\r\n\r\nAs prayed for, list on 12.6.2019.\r\n\r\n **(Tarlok Singh Chauhan)** **Judge**\r\n\r\n> **(Vivek Singh Thakur)** **Judge**\r\n\r\n **22.5.2019** *(pankaj)*",{"_312":400,"_314":401,"_316":402,"_318":-5},"HPHC010075142011-order-29.pdf","HPHC010075142011-order-29.md","## **Cr. Appeal No. 343 of 2011.**\r\n\r\n **12.06.2019.** Present: Mr. Ashok Sharma, Advocate General with Mr. Vinod Thakur, Mr. Sudhir Bhatnagar, Additional Advocate Generals and Mr. Bhupinder Thakur, Deputy Advocate General, for the appellant.\r\n\r\n## **Cr.MP 421 of 2019.**\r\n\r\nHeard. Taking into consideration the averments made in the application coupled with the averments made in the latest status report, we are satisfied that respondent No.1 in the given circumstances is required to be declared as proclaimed offender. Ordered accordingly. Let follow up steps be taken within four weeks. Application stands disposed of.\r\n\r\n## **(Tarlok Singh Chauhan) Judge**\r\n\r\n **(Chander Bhusan Barowalia) 12th June, 2019. Judge**\r\n\r\n **(krt)**",{"_312":404,"_314":405,"_316":406,"_318":-5},"HPHC010075142011-order-3.pdf","HPHC010075142011-order-3.md","## **Cr. Appeal No. 343 of 2011**\r\n\r\n27.05.2016 Present: Mr. D.S. Nainta and Mr. Virender Verma, Addl. A.Gs for the appellant-State.\r\n\r\n> Mr. N.S. Chandel, Advocate for accusedrespondent No. 1.\r\n\r\nNone for accused-respondents No. 2 and 3.\r\n\r\nOn the request of learned counsel for accused-\r\n\r\nrespondent No. 1, list on 17th June, 2016.\r\n\r\n**(Dharam Chand Chaudhary) Judge** \r\n\r\n **(Chander Bhusan Barowalia) Judge** \r\n\r\nMay 27, 2016(naveen)",{"_312":408,"_314":409,"_316":410,"_318":-5},"HPHC010075142011-order-30.pdf","HPHC010075142011-order-30.md","## **State of Himachal Pradesh vs. Mohit and others.**\r\n\r\n## **Cr. Appeal No.343 of 2011.**\r\n\r\n**15.12.2023.** Present: Mr. I.N. Mehta, Senior Additional Advocate General with Mr. Navlesh Verma and Ms. Sharmila Patial, Additional Advocate Generals, for the appellant.\r\n\r\n> Mr. Harsh, Advocate vice Mr. Manoj Pathak, Advocate, for respondent Nos. 2 and 3.\r\n\r\nDespite respondent No.1 having been declared as proclaimed offender as far as back on 12.06.2019, the State has not taken any consequential steps whatsoever. This Court had already directed the State to enquire whether respondent No.1 has a residential house in village Chiri, Tehsil and District, Rohtak, but the appellant-State has made no efforts to find out whether the house infact belongs to him or is in the name of someone-else. That apart, if respondent No.1 has wife and children living in the said house, we find it extremely difficult to believe that respondent No.1 would not be meeting his family members or for that matter even residing in the residential house. The Superintendent of Police, Kullu, is directed to make all sincere efforts to apprehend respondent No.1 and thereafter file status report before this Court within three weeks.\r\n\r\n## List on **05.01.2024.**\r\n\r\n **(Tarlok Singh Chauhan) Judge**\r\n\r\n **(Satyen Vaidya) Judge**\r\n\r\n**15th December, 2023. (krt)**",{"_312":412,"_314":413,"_316":414,"_318":-5},"HPHC010075142011-order-31.pdf","HPHC010075142011-order-31.md","## **State of H.P. vs. Mohit & Ors.**\r\n\r\n## **Cr. Appeal No. 343 of 2011.**\r\n\r\n05.01.2024 Present: Mr. I. N. Mehta , Senior Additional Advocate General with Mr. Navlesh Verma, Addl. A. G., and Ms. Sharmila Patial, Addl. A.G., for the appellant.\r\n\r\n> Mr. Harsh, Advocate, vice Mr. Manoj Pathak, Advocate, for respondents No. 2 and 3.\r\n\r\nEven though, status report stands filed, however, we are not at all satisfied with it, the reason being that it is not disputed that respondent No.1 is having its permanent abode at Village Chiri, Tehsil and District Rohtak, wherein, his younger brother, wife of respondent No.1 and her children ( one son and one daughter) were residing. No doubt, wife of respondent No.1 along with her children has shifted to the house of her brother namely Mohit, but he is also the resident of Village and Post Office Chiri, Tehsil and District Rohtak, Haryana, which is the same place where respondent No.1 is having his permanent abode, then why can't the police nab him is not forthcoming.\r\n\r\nConfronted with this, learned Additional advocate General prays for a week's time to file fresh status report.\r\n\r\nList on 12th January, 2024.\r\n\r\n**(Tarlok Singh Chauhan) Judge**\r\n\r\n **(Satyen Vaidya) Judge.**\r\n\r\n**5 th January, 2024.** (jai)",{"_312":416,"_314":417,"_316":418,"_318":-5},"HPHC010075142011-order-32.pdf","HPHC010075142011-order-32.md","## **State of H.P. vs. Mohit and others.**\r\n\r\n## **Cr. Appeal No. 343 of 2011.**\r\n\r\n**12.01.2024.** Present: Mr. I.N. Mehta and Mr. Yashwardhan Chauhan, Senior Additional Advocate Generals with Mr. Navlesh Verma, Ms. Sharmila Patial, Additional Advocate Generals and Mr. J.S.Guleria, Deputy Advocate General, for the appellant.\r\n\r\nNone for the respondents.\r\n\r\nASI Purender Kumar, I.O., P.P. Luhari, P.S. Anni, District Kullu, (H.P.).\r\n\r\nLearned Additional Advocate General has placed on record a communication dated 11.01.2024 which goes to indicate that the police officials, who are stated to be at Rohtak, have obtained the bank details of respondent No.1 from Induslnd Bank at Lakhan Majra, Punjab National Bank, Chiri at Rohtak and HDFC Bank, Lakhan Majra at Rohtak and as regards CDRs, the same are awaited. The concerned serviceprovider is directed to supply the copies of the CDRs latest by 5.00 p.m. today.\r\n\r\nList before the learned Vacation Judge on **02.02.2024**. In case, respondent No.1 is apprehended earlier to that, the State shall be at liberty to make a mention before the learned Vacation Judge.\r\n\r\n **(Tarlok Singh Chauhan) Judge**\r\n\r\n **(Satyen Vaidya) Judge**\r\n\r\n**January 12, 2024. (krt)**",{"_312":420,"_314":421,"_316":422,"_318":-5},"HPHC010075142011-order-33.pdf","HPHC010075142011-order-33.md","## **State of H.P. vs. Mohit & Ors.**\r\n\r\n## **Cr. Appeal No. 343 of 2011**\r\n\r\n**26.02.2024** Present: Mr. I. N. Mehta, Mr. Y. W. Chauhan, Sr. Addl. A.Gs. with Ms. Sharmila Patial, Addl. A.G. and Mr. J. S. Guleria, Dy. A.G., for the appellant.\r\n\r\n> Mr. Harsh, Advocate, vice Mr. Manoj Pathak, Advocate, for respondents No. 2 and 3.\r\n\r\nLearned Additional Advocate General has filed the\r\n\r\nstatus report. Looking to the contents whereof, we deem\r\n\r\nit appropriate to grant four weeks further time to the\r\n\r\nState to apprehend respondent No. 1.\r\n\r\nList on **01.04.2024**.\r\n\r\n **(Tarlok Singh Chauhan) Judge**\r\n\r\n> **(Satyen Vaidya) Judge**\r\n\r\n**26th February, 2024** (sanjeev)",{"_312":424,"_314":425,"_316":426,"_318":-5},"HPHC010075142011-order-34.pdf","HPHC010075142011-order-34.md","*State of HP Vs. Mohit & Ors.*\r\n\r\n## **Cr. Appeal No.343 of 2011**\r\n\r\n01.04.2024 Present: Mr. Varun Chandel & Mr. Baldev Negi, Additional Advocates General with Ms. Seema Sharma, Deputy Advocate General, for the appellant. ASI Hoshiar Singh, Police Station Anni, District Kullu, HP present in person alongwith police record. Mr. Harsh Sharol, Advocate vice Mr. Manoj Pathak, Advocate, for respondents No.2 & 3.\r\n\r\n> Learned Additional Advocate General has placed on record instructions dated 28.03.2024. We deem it appropriate to direct the Superintendent of Police, Rohtak (Haryana) to constitute a Special Investigation Team (SIT) for nabbing respondent No.1, who otherwise is permanent resident of village & Post Office Chiri, Tehsil & District Rohtak, Haryana.\r\n\r\n> List on **06.05.2024,** before the appropriate Bench, when the status report be filed on the personal affidavit of Superintendent of Police, Rohtak. Let a copy of this order be sent through e-mail and fax to the Superintendent of Police concerned for information and compliance.\r\n\r\n> > **(Tarlok Singh Chauhan) Judge**\r\n\r\n **(Sushil Kukreja)**\r\n\r\nApril 01, 2024**Judge** *(VH)*",{"_312":428,"_314":429,"_316":430,"_318":-5},"HPHC010075142011-order-35.pdf","HPHC010075142011-order-35.md","## *State of H.P. Vs. Mohit & others*\r\n\r\n## *Cr. Appeal No. 343 of 2011*\r\n\r\n**6.5.2024 Present**: Mr.Manoj Chauhan, Additional Advocate General, for the appellant. Mr.Harsh, Advocate, vice Mr.Manoj Pathak, Advocate, for respondents No. 2 and 3. SI Suresh Kumar, Police Station Lalkhanmajra (Rohtak) present in person.\r\n\r\n> SI Suresh Kumar, present in the Court, has filed status report on affidavit of Superintendent of Police Rohtak alongwith documents including daily diary reports, statements of relatives of Mohit, Sarpanch of concerned Gram Panchyat and other documents indicating efforts made by the Police to apprehend respondent-Mohit, who has been declared proclaimed offender vide order dated 12.6.2019 by Co-ordinate Bench of this Court.\r\n\r\n> SI Suresh Kumar, present in the Court, also submits that there is no property known to Rohtak Police, in the name of respondent and the ancestral house of his family is in the name of his father Jagdish Singh and the land underneath the said house is Abadi Deh and Shamlat having ownership and possessory rights of all villagers.\r\n\r\n> Documents filed with Cr.M.P. No. 421 of 2019 by Superintendent of Police, Kullu also indicate that there is no\r\n\r\nknown property or bank account in the name of respondent Mohit.\r\n\r\nIn aforesaid facts and circumstances, present appeal is closed and disposed of with liberty and right to the respondent-State for revival of the same after apprehending respondent Mohit.\r\n\r\n> (Vivek Singh Thakur), Judge.\r\n\r\n(Rakesh Kainthla), Judge.\r\n\r\n6^th May, 2024. (Keshav)",{"_312":432,"_314":433,"_316":434,"_318":-5},"HPHC010075142011-order-4.pdf","HPHC010075142011-order-4.md","Cr. Appeal No.343/2011\r\n\r\n17.06.2016 Present: Mr. D.S. Nainta, Mr. Virender Verma and Mr. Anup Rattan, Addl. A.Gs. for the appellant/State. Mr. N.S. Chandel, Advocate for respondent No.1.\r\n\r\n Mr. Manoj Pathak, Advocate for respondents No.2 and 3.\r\n\r\n> At the request of learned counsel for respondents No.2 and 3, matter is adjourned\r\n\r\nList on 24.6.2016.\r\n\r\n **(Sanjay Karol), J.** \r\n\r\n *June 17, 2016 (K S)* **(Chander Bhusan Barowalia), J.**",{"_312":436,"_314":437,"_316":438,"_318":-5},"HPHC010075142011-order-5.pdf","HPHC010075142011-order-5.md","## **Cr. Appeal No. 343 of 2011.**\r\n\r\n## 24.6.2016 Present: Mr. D.S. Nainta with Mr. Virender Verma, Additional Advocate Generals, for the appellant/State.\r\n\r\n Mr. Dinesh Thakur, Advocate vice Mr. N.S. Chandel, and Mr. Manoj Pathak, Advocates, for the accused/respondents.\r\n\r\nMr. N.S. Chandel and Mr. Manoj Pathak, Advocates,\r\n\r\narguing counsel on behalf of the respondent/accused are stated\r\n\r\nto have gone to attend the funeral of the mother of one of their\r\n\r\ncolleague died today. As prayed, list on **29th July, 2016.** \r\n\r\n## **(Dharam Chand Chaudhary) Judge**\r\n\r\n## **(Chander Bhusan Barowalia) Judge**\r\n\r\nJune 24, 2016 (Virender/CS)",{"_312":440,"_314":441,"_316":442,"_318":-5},"HPHC010075142011-order-6.pdf","HPHC010075142011-order-6.md","## Cr. Appeal No. 343 of 2011\r\n\r\n29.7.2016 Present: Mr. D.S. Nainta with Mr. Virender Verma, Additional Advocate Generals, for appellant/State.\r\n\r\nMr. Dinesh Thakur, Advocate vice Mr. N.S. Chandel, Advocate, for the accused/respondents.\r\n\r\nOn the request of learned vice counsel appearing on behalf of\r\n\r\naccused-respondents, list on *19^th August, 2016.* \r\n\r\n(Dharam Chand Chaudhary) Judge\r\n\r\n(Chander Bhusan Barowalia) Judge\r\n\r\nJuly 29, 2016 (*CS/Raman)*",{"_312":444,"_314":445,"_316":446,"_318":-5},"HPHC010075142011-order-7.pdf","HPHC010075142011-order-7.md","## *Cr. Appeals No. 343 of 2011.*\r\n\r\n 20.08.2016 Present: Mr. Virender Verma, Additional Advocate General, for the appellant/ State. Nemo for the accused/respondents. There is non-appearance on behalf of respondent/accused. Learned Additional Advocate General also seeks adjournment of this matter to some other date. List on *9th September, 2016*.\r\n\r\n> **(Dharam Chand Chaudhary) Judge**\r\n\r\n## **(Chander Bhusan Barowalia) Judge**\r\n\r\n **20th August, 2016** *(virender/raman)*",{"_312":448,"_314":449,"_316":450,"_318":-5},"HPHC010075142011-order-8.pdf","HPHC010075142011-order-8.md","## **Cr. Appeal No. 343 of 2011.**\r\n\r\n 09.09.2016 Present: Mr. D.S. Nainta with Mr. Virender Verma, Additional Advocate Generals, for the appellant/State.\r\n\r\n> Mr. N.S. Chandel, Advocate, for the accused/respondents.\r\n\r\n> On the request of learned Additional Advocate\r\n\r\nGeneral, list for continuation on **16th September, 2016**.\r\n\r\n**(Dharam Chand Chaudhary) Judge**\r\n\r\n**September 09, 2016 (Chander Bhusan Barowalia)** (M.gandhi/raman) **Judge**",{"_312":452,"_314":453,"_316":454,"_318":-5},"HPHC010075142011-order-9.pdf","HPHC010075142011-order-9.md","## Cr. Appeal No. 343 of 2011.\r\n\r\n16.9.2016 Present: Mr. D.S. Nainta with Mr. Virender Verma, Additional Advocate Generals, for appellant/State.\r\n\r\nMr. Dinesh Thakur, Advocate, for the respondents/accused.\r\n\r\nIt is stated that Mr. N.S. Chandel, learned counsel representing\r\n\r\nthe respondents-accused being out of station is not available to address\r\n\r\narguments. As prayed, list on *21^st October, 2016.* \r\n\r\n(Dharam Chand Chaudhary) Judge\r\n\r\n(Chander Bhusan Barowalia) Judge\r\n\r\n16^th September, 2016 (*CS/Raman*)","descriptions",{"_457":458,"_462":463},"enumFields",[248,250,459,23,460,461],"courtCode","caseCategory","benchType","enumLookup",{"_248":464,"_250":466,"_459":467,"_23":469,"_460":471,"_461":472},{"_249":465},"Criminal Appeal",{"_251":37},{"_242":468},"High Court of Himachal Pradesh",{"_24":470},"Unknown Section",{},{},"caseAiAnalysis","order","order-12","actionData","errors"]

State vs. Mohit

AI Summary

Order Issued After Hearing

Order Text

Cr. Appeal No. 343 of 2011

(Dharam Chand Chaudhary), Judge.

Original Order Copy

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