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2015 (4) TMI 1338 - HC - Indian LawsSmuggling - Charas - Opium - Contraband Item - false implication, pleading innocence - offences punishable under Section 29 read with Sections 20(b)(ii)(C) and 18 of the NDPS Act - HELD THAT:- Even though the prosecution witnesses have deposed in tandem and in harmony qua each of the links in the chain of circumstances commencing from the proceedings relating to search, seizure and recovery of the contraband till the consummate link comprised in the rendition of an opinion by the FSL on the specimen parcels sent to it for analysis, hence, portraying proof of unbroken and unsevered links, in the entire chain of the circumstances, therefore, it is argued that when the prosecution case stands established, it would be legally unwise for this Court to acquit the accused. Besides, it is canvassed that when the testimonies of the official witnesses, unravel the fact of theirs being bereft of any inter-se or intra-se contradictions hence, consequently they too enjoy credibility. The factum of parcel, Ex. P-1 containing charas, Ex.P6 and parcel, Ex.P-2 containing opium, Ex.P-9, weighing respectively 4 Kg, 800 grams and 300 grams having been recovered from the exclusive and conscious possession of the accused at the site of occurrence under recovery memo Ex.PW1/D has been clinchingly proved by the testimonies of the official witnesses. The testimonies of the official witnesses, when they have deposed in tandem, harmony and in unison qua the apposite proceedings relating to search, recovery and seizure of items of contraband having commenced and concluded at the site of occurrence besides when their testimonies are bereft of any intra se or inter se contradictions, as such inspire the confidence of this Court, to hence, prod it to record findings of conviction against the accused - The non association of independent witnesses in the apposite proceedings by the Investigating Officer would not have either rendered flawed not would it have imbued the genesis of the prosecution case with fatality, yet when despite availability, the Investigating Officer omitted to or did not concert to make arduous efforts to mobilize or elicit their participation in the apposite proceedings at the site of occurrence, marshals an inference that his lack of concert to solicit the participation of the independent witnesses in the apposite proceedings at the site of occurrence, was prodded by an oblique motive on the part of the Investigation Officer to conceal the truth or also gives leeway to an inference that the proceedings as conducted at the site of occurrence are imbued with intransparency, hence, vitiated. Lack of sincere efforts on the part of the Investigating Officer to solicit the participation of independent witnesses in the apposite proceedings at the site of occurrence, sequels an apt deduction that the Investigating officer was goaded by an oblique motive to do so or he intended to smother or hide the truth qua the genesis of the prosecution version which hence stands flawed as well as vitiated. Thus, the concomitant deduction is that the prosecution has been unable to prove the guilt of both the accused - the findings of conviction, recorded by the learned trial Court below, are not based on a mature and balanced appreciation of evidence on record. Both the accused/appellants are acquitted of the offences charged. Fine amount, if any, deposited by the accused/appellants be refunded to them - appeal allowed - decided in favor of appellant.
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