Himachal Pradesh High Court
State Of Himachal Pradesh vs Dharam Pal Singh & Ors on 19 April, 2016
Author: Rajiv Sharma
Bench: Rajiv Sharma, Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 371 of 2010.
Reserved on: April 13, 2016.
Decided on: April 19, 2016.
.
State of Himachal Pradesh ......Appellant.
Versus
Dharam Pal Singh & ors. .......Respondents.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
of
Whether approved for reporting? 1 Yes.
For the appellant: Mr. P.M.Negi Dy. AG.
For the respondents: Mr. Naveen K. Bhardwaj, Advocate, for respondent No. 2.
Mr. Dinesh Bhanot, Advocate, for respondent No. 7.
rt Mr. G.K.Nadda, Advocate, for respondent No. 8.
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Justice Rajiv Sharma, J.
This appeal is instituted at the instance of the State against the judgment dated 19.4.2010, rendered by the learned Special Judge (FTC), Kullu, H.P., in Sessions Trial No. 41 of 2007, 15 of 2008, whereby the respondents-accused (hereinafter referred to as the accused), who were charged with and tried for offences punishable under Section 20 read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ND & PS Act), have been acquitted.
2. The case of the prosecution, in a nut shell, is that police party comprising of PW-20 Insp. Manohar Lal, PW-19 Pune Ram and others went in police vehicle bearing registration No. HP-34A-0049 to set up a nakka near Sai Ropa, Bathar-Banjar road on 3.2.2007 at about 10:00 PM. A vehicle bearing registration No. HP-58A-4000 came from the Larji at about 4:30 AM, which was going towards Bathar. It was signaled to stop.
11 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 20:08:20 :::HCHP 2Jaswinder, Pradhan of Gram Panchayat Larji was driving it. PW-20 Insp.
Manohar Lal was talking to him when he noticed the headlights of a vehicle .
coming from Bathar. The vehicle was signaled to stop. It was stopped at some distance from the nakka. PW-20 Insp. Manohar Lal inquired the name of the driver. The driver got perplexed. He was asked to open the dicky. The dicky was having one envelope containing pants and shirt, polythene bag containing small towels, CD case, one TV screen and three of bags, out of which two were coloured red and black and one was coloured yellow and black. The bags were checked. Black coloured substance rt appearing to be charas was found in the bags. The charas was also wrapped in the polythene and some was kept open. When inquiries were made from the occupants about the ownership of the bags, none of them claimed its ownership. It was dark and rain was about to start. No independent person was available. It was difficult to carry out investigation at the spot, therefore, the police party decided to move towards Police Station Banjar. The accused were taken to the room of SHO, Police Station Banjar alongwith the bags. It was noticed that accused Raj Kumar, Lakhwinder and Surjit were wearing trousers which were inflated below the knees. PW-20 Insp. Manohar Lal got suspicious and he obtained the written consent of the accused in the presence of PW-
19 Pune Ram and Jaswinder after informing them that they had right to be searched in the presence of Executive Magistrate or Gazetted Officer or by the police. Memos Ext. PA/F to Ext. PA/H were prepared which were signed by the witnesses. Accused Raj Kumar, Lakhwinder and Surjit also put their signatures on the same. PW-1 Mukesh and PW-13 G.R.Verma ::: Downloaded on - 15/04/2017 20:08:20 :::HCHP 3 also arrived at the spot and search of the accused was conducted in their presence. Accused Raj Kumar was wearing inner inside the pants. Charas .
was recovered inside the inner which was tied with the help of cello tape. It weighed 3 kgs. Charas was also found to be wrapped with the help of cello tape below the knees of accused Surjit. It was removed. It weighed 2 kg.
490 grams. Accused Lakhwinder was also wearing inner in which he had concealed charas by sticking it with the help of cello tape. It was also of removed. It weighed 2 kg. 670 grams. Two samples each weighing 25 grams were taken out from the charas recovered from accused Raj Kumar, rt Lakhwinder and Surjit. The remaining charas was put in the polythene bag and it was wrapped in a piece of cloth. The samples were wrapped in separate pieces of cloths and were sealed with seal "T". Memos Ext. PG, Ext. PH and Ext. PJ were prepared. One bag having words "just look"
written over it was found to be containing stick like charas. It weighed 1 kg. 985 grams. The other bag coloured black and red having the words "PICCACHOSE" written over it was found to be containing 2 kg of charas.
The third bag coloured black and yellow having words, "PICCACHOOSE"
written over it was found to be containing 4 kg 855 grams stick like charas.
Two samples, each weighing 25 grams were taken out of the recovered charas. The remaining charas was put in the same envelope and same bag from which it was recovered. Each sample and each bag containing charas were wrapped in separate pieces of cloths and sealed with seal "T". The charas was seized vide seizure memo Ext. PK. The sample seals Ext. PA to Ext. PF were taken on separate pieces of cloth and seal was handed over to witness Jaswinder after the use. Rukka Ext. PA/J was prepared and sent ::: Downloaded on - 15/04/2017 20:08:20 :::HCHP 4 to Police Station Banjar through Const. Amar Singh for registration of FIR.
Const. Amar Singh carried the same to Police Station Banjar where FIR .
Ext. PU was registered. Accused Lakhwinder made statement Ext. PA/S under Section 67 of the Act stating that he had purchased the charas from Lal Chand. I.O. Dorje (PW-11) was sent to the spot for assisting PW-20 Insp. Manohar Lal. S.I. Dorje took over the custody of accused Lakhwinder alias Junga. Accused Lakhwinder took SI Dorje to village Tinder where he of identified the house. Lal Singh came out and the search of his house was conducted. No incriminating material was recovered from the house of Lal rt Singh. Spot map Ext. PY was prepared. Column Nos. 1 to 8 of NCB-I form Ext. PX/1 to Ext. PX/6 were filled in by PW-20 Insp. Manohar Lal. The case property was handed over to PW-10 SHO Mathru Ram, PS Banjar, who resealed it with seal "M". The case property along with the documents was handed over to MHC Chaman Lal (PW-9), who deposited the same in the malkhana vide entry Ext. PQ. He filled in column No. 12 of the NCB-1 form. The contraband was sent to FSL, Junga through Const. Guddu Ram vide RC No. 11 of 2007. The investigation was completed and the challan was put up after completing all the codal formalities.
3. The prosecution, in order to prove its case, has examined as many as 20 witnesses. The accused were also examined under Section 313 Cr.P.C. The learned trial Court acquitted the accused, as noticed hereinabove. Hence, this appeal.
4. Mr. P.M.Negi, learned Dy. Advocate General for the State has vehemently argued that the prosecution has proved its case against the accused persons. On the other hand, M/S Naveen K. Bhardwaj, Dinesh ::: Downloaded on - 15/04/2017 20:08:20 :::HCHP 5 Bhanot and G.K. Nadda, Advocates for the respective accused have supported the judgment of the learned trial Court dated 19.4.2010.
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5. We have heard the learned counsel for both the sides and have also gone through the judgment and records of the case carefully.
6. PW-1 Mukesh Sharma testified that he took photographs of 3- 4 persons at Police Station Banjar. The persons were asked to lift their pants towards the knee portion. Something was found wrapped. At that of time, Pradhan of Gram Panchayat Larji and Naib Tehsildar were also present. The articles wrapped on their legs were removed and perhaps, rt according to him, it was "Bhang". He did not know how much of the "Bhang" was recovered from each accused. The recovered "Bhang" was weighed. He was declared hostile and cross-examined by the learned Public Prosecutor. He admitted that three pithus (rucksacks) were lying in the vehicle. He also admitted that charas was recovered from these pithus.
The case property was produced before the Court while examined him as PW-1. In his cross-examination by the learned counsel appearing on behalf of accused, he admitted that only three persons were present at Police Station Banjar when he took photographs. He remained in Police Station Banjar for about two hours. The entire proceedings were conducted by ASI Mathru Ram. Voluntarily stated that one another police officer was also present at the relevant time. He did not remember who had weighed the charas in the Police Station. The rucksacks (Pithus) were not recovered from the dicky of the vehicle in his presence.
7. PW-2 Kuram Dutt deposed that he was salesman in a sweets shop at Banjar. The police had taken electronic scale from their shop last ::: Downloaded on - 15/04/2017 20:08:20 :::HCHP 6 year. In his cross-examination, he deposed that he had not gone to the Police Station. He was called to the Police Station at 11:00 AM by ASI .
Mathru Ram. Nothing had happened at Police Station Banjar in his presence.
8. PW-5 Const. Guddu Ram testified that on 5.2.2007, MHC Chaman Lal handed over six sealed parcels containing charas 25 grams each, samples of seal impressions "T" and "M", NCB-I form in triplicate, of copy of FIR and seizure memo to him vide RC No. 11/07 with direction to take the same to FSL, Junga. He deposited the articles at FSL, Junga in intact position.
rt
9. PW-7 Dharmesh Gupta, testified that a request was received from the police for supply of call details of No. 201062 of Bahu Exchange, Banjar pertaining to Lal Singh w.e.f. 1.2.2007 to 7.2.2007. The details were prepared by him and handed over to the police vide memo Ext. PL. In his cross-examination, he admitted that he did not know the date of installation of the telephone connection. He did not know to whom telephone No. 09876783602 belongs to in Punjab.
10. PW-9 MHC Chaman Lal deposed that on 4.2.2007, ASI Mathru Ram deposited 18 sealed parcels containing charas with him. He filled in column No. 12 of NCB-I form on 5.2.2007. Thereafter, he sent the case property through Const. Guddu Ram to FSL, Junga.
11. PW-10 ASI Mathru Ram testified that on 4.2.2007, he was performing the duties of SHO at Police Station Banjar. At 10:35 AM, one rukka was received at Police Station Banjar through Const. Amar Singh, upon which FIR Ext. PU was registered. On the same day, at 3:00 PM, PW-
::: Downloaded on - 15/04/2017 20:08:20 :::HCHP 720 Insp. Manohar Lal of CIA staff, Kullu had produced 18 sealed parcels before him for the purpose of resealing. He completed the resealing .
proceedings. All the articles were deposited the MHC Chaman Lal at Police Station Banjar at 3:45 PM. In his cross-examination, he deposed that the proceedings were conducted by the CIA staff in the room of SHO at Police Station Banjar. When he came to SHO room, CIA staff was busy in conducting proceedings and he merely showed his presence there and of came back.
12. PW-11 SI Dorje Ram deposed that when he reached Police rt Station Banjar, PW-20 Insp. Manohar Lal handed over the custody of accused Lakhwinder alias Jugga to him. Accused Lakhwinder took them to village Tinder. Co-accused Lal Singh came out of his house. The house of accused Lal Singh was searched but no incriminating material was recovered from the house.
13. PW-13 G.R.Verma, Tehsildar, testified that Head Constable came to his residence from the Police Station Banjar. He was called to the Police station. Jaswinder Singh, President Gram Panchayat Larji was present there. Mukesh Sharma, photographer and servant of Hema Sweets Shop were also in the Police Station Banjar. Accused Raj Kumar, Lakhwinder and Surjit were present in the Police Station. They had wrapped charas with the aid of cello tapes on their legs below knee portion.
Firstly, charas was recovered from accused Raj Kumar. It weighed 3 kgs.
Secondly, charas was recovered from accused Surjit. It weighed 2 kg. 490 grams. Thirdly, charas was recovered from accused Lakhwinder. It weighed 2 kg. 670 grams. Three bags were also lying in the Police Station ::: Downloaded on - 15/04/2017 20:08:20 :::HCHP 8 Banjar. The search of the bags was carried out in his presence. It contained charas weighing 1 kg 985 grams, 2 kg. and 4 kg 855 grams, .
respectively.
14. PW-14 Raj Kumar testified that he was owner of taxi No. HP-01 K-0996. He sold this taxi.
15. PW-16 Arun Kumar, Sub Divisional Engineer testified that a letter was received in their office from Superintendent of Police, Kullu for of supply of call details of mobile No. 94181-83347 along with the address of the sim holder. The call details were supplied vide Ext. PA/C. The name of rt sim holder was Naranjan Singh r/o village Langha, PO Nadha Ropa, Tehsil Banjar. Mobile No. 98767 83602 did not belong to Himachal Pradesh.
16. PW-18 Const. Amar Singh testified the manner in which vehicle bearing registration No. PB-11Z-7290 was intercepted. Pradhan Gram Panchayat Larji Jaswinder Singh was also accompanying them. The dicky of the vehicle was searched. It contained two polythene bags. One of these bags contained three pants and the other bag contained two shirts. Then corrected to state that the second bag contained two small towels, one small TV screen and one VIDEO CD player. Besides this, three bags which were having zips were also recovered. All these were containing polythene packs. Inquiries were made from the accused. The accused persons were taken to the room of the SHO. The pants of Raj Kumar, Surjit and Lakhwinder were found to be inflated below knees. The pants were checked and were found to be containing hard substance. The charas was recovered from the persons of accused Raj Kumar, Surjit and Lakhwinder. It weighed 3 kg, 2 kg 490 grams and 2 kg 670 grams, ::: Downloaded on - 15/04/2017 20:08:20 :::HCHP 9 respectively. The charas was also recovered from the bags. It weighed 1 kg 985 grams, 2 kg and 4 kg 855 grams. The sampling proceedings were .
completed on the spot. In his cross-examination, he categorically admitted that after the occupants got down from the vehicle, their personal search was conducted and thereafter the dicky was searched.
17. PW-19 HC Pune Ram deposed the manner in which the accused were apprehended and charas was recovered from the accused, of namely, Raj Kumar, Surjit and Lakhwinder.
18. PW-20 Manohar Lal, Dy. S.P., Ani testified that the vehicle was rt apprehended and the accused were directed to open the dicky. It was opened by the driver. The bags were recovered from the dicky. The accused were taken to the Police Station Banjar. He had also issued notice under Section 50 of the Act in the presence of Jaswinder, Mukesh and Executive Magistrate. He inquired from the accused whether they intend to be searched in the presence of Executive Magistrate or the Gazetted Officer. They intended to be searched by him. He prepared memos Ext.
PA/F to Ext. PA/H in this regard. The search of the accused was carried out. The charas was recovered. The bags were searched and charas was recovered from them. Sealing proceedings were completed on the spot.
19. DW-1 HHC Amar Lal (driver) testified that he was posted as Driver to Addl. S.P., Kullu, since June, 2008. He has produced the Log Book of the vehicle bearing registration No. HP-37-0020. This vehicle was attached to Addl. SP, Hardesh Bisht on 4.2.2007. Nihal Singh was its driver earlier. The copy of the Log Book is Ext. DW-1/A. He has not driven ::: Downloaded on - 15/04/2017 20:08:20 :::HCHP 10 the vehicle bearing registration No. HP-34A-0049 on 3rd and 4th February, 2007. He was not cross-examined.
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20. The case of the prosecution, in a nut shell, is that the police party went to the spot on 3.2.2007 at 8:00 PM in vehicle driven by HHC Amar Lal bearing registration No. HP-34A-0049. They had laid nakka near Bathar. One vehicle bearing registration No. HP-58A-4000 came from the Larji at about 4:30 AM, which was going towards Bathar. It was signaled of to stop. Jaswinder, Pradhan of Gram Panchayat Larji was driving the vehicle. PW-20 Insp. Manohar Lal was talking to him when he noticed the rt headlights of a vehicle coming from Bathar. The vehicle was signaled to stop. It was stopped at some distance from the nakka. The police made inquiries. Bags were recovered. The accused were taken to Police Station Banjar. They were given option by PW-20 Insp. Manohar Lal to be searched before the Executive Magistrate or the Gazetted Officer. The charas was recovered from their person. PW-20 Insp. Manohar Lal prepared consent memos Ext. PA/F to Ext. PA/H. Sealing proceedings were completed on the spot. The charas was produced before PW-10 ASI Mathru Ram. He resealed the same. It was sent to FSL, Junga.
21. The case of the prosecution has been demolished by DW-1 HHC Amar Lal (driver). According to him, he was posted as Driver of vehicle bearing registration No. HP-37-0020. This vehicle was attached to Addl. S.P., Hardesh Bisht on 4.2.2007. Earlier, its driver was Nihal Singh.
The copy of the Log Book is Ext. DW-1/A. He has not taken the vehicle bearing registration No. HP-34A-0049 on 3rd and 4th February, 2007. He was not cross-examined by the learned Public Prosecutor. The prosecution ::: Downloaded on - 15/04/2017 20:08:20 :::HCHP 11 case that the police officials travelled in vehicle bearing registration No. HP-
34A-0049 to Sai Ropa where they had laid nakka becomes highly doubtful.
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Thus, the case of the prosecution that police party went to Sai Ropa in official vehicle bearing registration No. HP-34A-0049 is doubtful and thus the version of the prosecution that vehicle No. PB-11Z- 7290 was intercepted cannot be accepted.
22. According to Log Book Ext. DW-1/A, the vehicle started at 2:30 of AM and came back at 6:30 PM on 4.2.2007. The purpose of the visit was recovery of 17 kg charas by CIA staff at Banjar. It is intriguing to note as rt to how Hardesh Bisht started journey at 2:30 AM and could have known about the recovery of 17 kg of charas when police itself was unaware of the exact quantity of charas at least prior to 6:00 AM. The recovery of charas, as per Ext. DW-1/A has been shown at Banjar. The case of the prosecution is that the recovery of contraband was at Sai Ropa. Addl. S.P. Hardesh Bisht was the best person to explain these facts. The prosecution has withheld this witness, more particularly, when there is no cross-
examination of DW-1 HHC Amar Lal, driver.
23. According to the prosecution, when the police party was present at Sai Ropa and vehicle bearing registration No. HP-58-4000 came from Larji side. It was driven by Jaswinder. He was taken to Police Station along with the accused. His signatures are also found in seizure memos Ext. PG to PK. He was also not examined by the prosecution. He was an independent witness and ought to have been examined by the prosecution.
Further, the case of the prosecution is also that accused Raj Kumar, Surjit and Lakhwinder were taken to Police Station Banjar. They were asked to ::: Downloaded on - 15/04/2017 20:08:20 :::HCHP 12 roll up their pants and charas was recovered. PW-18 HC Amar Singh, in his cross-examination has categorically admitted that when these accused .
were asked to get down from the vehicle, their personal search was carried out by PW-20 Insp. Manohar Lal. It suggests that nothing was recovered from them on the spot. Thus, the version of the prosecution that the accused persons were found to be carrying charas on their legs cannot be believed. If they were searched by PW-20 Insp. Manohar Lal, on the spot, of he could easily detect the charas, if any, wrapped on the legs of the accused.
24. rt PW-1 Mukesh Sharma testified that the entire investigation was carried out by ASI Mathru Ram. However, ASI Mathru Ram, while appearing as PW-10, has categorically testified in his cross-examination that when he came to SHO room, CIA staff was busy in conducting proceedings and he merely showed his presence there and returned back.
25. PW-13 G.R.Verma, has deposed that scale was not electronic.
It was traditional scale. Though, the case of the prosecution is that the charas was weighed with the help of electronic scale brought from the sweets shop at Banjar.
26. The case of the prosecution is also that samples were taken at the spot. These were sealed with impression "T". The samples were thereafter re-sealed with seal impression "M". The report of the FSL, Junga is Ext. PZ which depicts that six sealed parcels each bearing four seals of "T" and resealed with four seals of "M" were mentioned. According to this report, inner and outer seals were found intact and tallied with the seal impression sent by the SHO on NCB-I form. It is not explained by the ::: Downloaded on - 15/04/2017 20:08:20 :::HCHP 13 prosecution as to what was meant by "inner and outer seals were found intact". It was not the case of the prosecution that these were six parcels .
on which inner and outer seals were put in.
27. The call details have also not been proved in accordance with Section 65 B of the Indian Evidence Act. PW-16 Arun Kumar supplied the call details of mobile No. 94181-83347. It belonged to Naranjan Singh.
According to him, mobile No. 98767 83602 did not belong to Himachal of Pradesh. The identity of the person to whom this phone belonged was not established.
28. rt PW-3 Const. Chand Mishra is stated to be the member of the police party. His name was mentioned in rukka Ext. PA/J. He appeared as PW-3 and testified that he was directed by PW-20 Insp. Manohar Lal to bring independent witnesses to Police Station Banjar. He went to the residence of Sh. G.R.Verma, Naib Tehsildar, Banjar and requested him to come to Police Station Banjar. Thereafter, he went to the shop of photographer Mukesh Sharma. He also went to Hema Sweets Shop to bring electronic scale. He brought the electronic scale and handed over the same to PW-20 Insp. Manohar Lal. In his cross-examination, he has categorically admitted that no proceedings took place in his presence on that date. Thus, the version of the prosecution that he was present with the police party is falsified by his testimony.
29. The prosecution case is also that PW-19 HC Pune Ram was member of the police party. He was present on the spot at Sai Ropa. The vehicle was intercepted in his presence. The contraband was also recovered in his presence and the other codal formalities were completed in ::: Downloaded on - 15/04/2017 20:08:20 :::HCHP 14 his presence, including the preparation of consent memos. His statement was recorded by the police under Section 161 Cr.P.C. vide Mark -A. It is .
not stated by him that he was present with the police party at Sai Ropa on 4.2.2007 in the vehicle bearing registration No. HP-34A-0049. There is no mention that the driver was asked to open the dicky and three bags were recovered from the dicky. It is also not stated that the bags were opened and charas was recovered. Thus, the statement made by him, while of appearing as PW-19, is improvement. In case he was present on the spot, he should have mentioned what happened on that date in his statement rt recorded under Section 161 Cr.P.C.
30. Thus, the prosecution has failed to prove the case against the accused persons under Sections 20 read with Section 29 of the ND & PS Act. This Court has no occasion to interfere with the well reasoned judgment of the learned trial Court dated 19.4.2010.
31. Accordingly, there is no merit in this appeal and the same is dismissed.
( Rajiv Sharma ), Judge.
April 19, 2016, ( Sandeep Sharma ),
(karan) Judge.
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