Himachal Pradesh High Court
Laiq Ram vs State Of H.P on 10 July, 2015
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 4253 of 2013
Reserved on: July 09, 2015.
.
Decided on: July 10, 2015.
Laiq Ram ......Appellant.
Versus
State of H.P. .......Respondent.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? 1
For the appellant: Mr. Anoop chitkara, Advocate.
For the respondent: Mr. Ramesh Thakur, Asstt. Advocate General.
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Justice Rajiv Sharma, J.
This appeal is instituted against the judgment dated 28.10.2013, rendered by the learned Special Judge-I, Sirmaur at Nahan, H.P, in Sessions Trial No. 19-ST/7 of 2013, whereby the appellant-
accused (hereinafter referred to as the accused), who was charged with and tried for offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ND & PS Act), has been convicted and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs. 1,00,000/-
and in default of payment of fine, he was further ordered to undergo simple imprisonment for one year.
2. The case of the prosecution, in a nut shell, is that on 19.12.2012, police party headed by PW-9 HC Kalyan Singh left the Police Station, Paonta Sahib in official vehicle towards Taruwala-Gongpur and Nihalgarh in routine patrol duty. At about 10:20 PM, when the police 1 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 18:32:43 :::HCHP 2party was present at Gondpur near chemical factory, accused came from Tarunwala side towards Nihalgarh. On seeing the police party, he got .
perplexed. He was apprehended by the police. In the meanwhile, PW-1 Jamshed and PW-2 Mohd. Bilal also reached on the spot. They were joined by PW-9 HC Kalyan Singh and in their presence carry bag of accused was checked. On checking, charas weighing 1kg 150 gms was recovered. After weighing the charas, it was put back into the same bag which was then made into parcel and sealed with seal bearing impression "H". r NCB form, Ext. PW-5/A was updated and sample of seal Ext. PW-9/A was drawn by PW-9 HC Kalyan Singh. Thereafter, the seal was handed over to PW-1 Jamshed. The case property was taken into possession by PW-9 HC Kalyan Singh, vide recovery memo Ext. PW-
3/C. PW-9 HC Kalyan Singh scribed the rukka Ext. PW-4/A. It was sent to the Police Station, Paonta Sahib, through PW-4 Const. Rahul Kumar, on the basis of which FIR Ext. PW-4/B was registered. The case property was presented before PW-5 SI Ram Pal, Addl. SHO, PS Paonta Sahib. It was resealed with seal bearing impression "H". PW-5 SI Ram Pal updated the relevant columns of NCB form Ext. PW-5/A and deposited the case property after re-sealing with the MHC. The case property was then sent to FSL Junga for chemical examination. The investigation was completed and the challan was put up after completing all the codal formalities.
::: Downloaded on - 15/04/2017 18:32:43 :::HCHP 33. The prosecution, in order to prove its case, has examined as many as 9 witnesses. The accused was also examined under Section .
313 Cr.P.C. The accused has denied the prosecution case. The learned trial Court convicted the accused, as noticed hereinabove. Hence, this appeal.
4. Mr. Anoop Chitkara, Advocate, appearing on behalf of the accused, has vehemently argued that the prosecution has failed to prove its case against the accused. On the other hand, Mr. Ramesh Thakur, Asstt. Advocate General for the State has supported the judgment of the learned trial Court dated 28.10.2013.
5. We have heard learned counsel for both the sides and gone through the judgment and records of the case carefully.
6. PW-1 Jamshed deposed that on 19.12.2012 at about 8:30 PM, the police visited his shop at Durga Colony, Paonta Sahib and told him that they require his services. The police made him and his son Bilal to board the police vehicle and took them to the Police Station Paonta Sahib, where they were made to wait for one and a half hour.
Thereafter, they were taken to Gondpur. The police weighed the charas.
It was put into parcel. The police prepared some documents in which their signatures were obtained. No carry bag was recovered from the possession of the accused in his presence nor any charas was found therein. He was declared hostile and cross-examined by the learned P.P. He denied the suggestion that on 19.12.2012 at about 10:20 PM ::: Downloaded on - 15/04/2017 18:32:43 :::HCHP 4 when the police had apprehended accused Liaq Ram near chemical factory at Gondpur, at that time, he alongwith his son Bilal joined the .
police party. He also denied that the accused person was carrying a carry bag which was opened by the police in their presence and upon opening, charas in the shape of small sticks was found in the same. He also denied the suggestion that the police asked Const. Amit Kumar to bring electronic weighing machine from the Police Station. He also denied the suggestion that the carry bag was made into parcel which was sealed with seal impression "H" and after updating the NCB forms in triplicate, the seal was handed over to him vide memo mark "B". He has admitted his signatures on memo Mark A to C.
7. PW-2 Mohd. Bilal is the son of PW-1 Jamshed. He testified that on 19.12.2012 at 8:30 PM when he alongwith his father were going to home after closing their shop in Durga Colony, police vehicle stopped there and took them to the Police Station Paonta Sahib. They were taken to Gondpur near the chemical factory. Thereafter, the police put the charas on weighing scale. It weighed 1 kg. 150 gms. He categorically deposed that no carry bag was recovered by the police from the possession of the accused in their presence. He was also declared hostile and cross-examined by the learned P.P. He denied the suggestion in his cross-examination that on 19.12.2012 at 10:20 PM when the police had apprehended the accused Liaq Ram near chemical factory at Gondpur, at that time, he alongwith his father Jamshed had ::: Downloaded on - 15/04/2017 18:32:43 :::HCHP 5 reached there and they were joined by the police. It was denied that the accused was carrying a carry bag which was opened by the police in .
their presence and it contained charas. He also denied that Constable Amit Kumar was sent to bring the weighing machine from the Police Station. He has identified his signatures on memo Mark A to C.
8. PW-3 HC Rupender deposed that at 10:20 PM when they reached near lime chemical factory at Gondpur, accused Liaq Ram came from Tarunwala towards Nihalgarh side. He got perplexed. He was carrying a carry bag in his right hand. In the meanwhile, Jamshed (PW-
1) and Mohd. Bilal (PW-2), reached on the spot. They were also joined.
The bag was opened. It contained charas. Constable Amit Kumar was sent to bring electronic machine from the Police Station. The charas weighed 1kg 150 gms. The charas was put in a parcel and sealed with seal bearing impression "H". NCB forms in triplicate were updated and thereafter sample seal was drawn and seal was handed over to Jamshed (PW-1) vide memo Ext. PW-3/B. The case property was produced before the Court while recording the statement of PW-3. It is not stated as to who has produced the case property in the Court. In his cross-
examination, he stated that the witnesses were coming from Gondpur side towards Tarunwala side and they were joined before Amit had gone to bring the weighing scale.
9. PW-4 Const. Rahul Kumar, also deposed the manner in which the accused was apprehended at 10:20 PM, the search, seizure ::: Downloaded on - 15/04/2017 18:32:43 :::HCHP 6 and sealing proceedings were completed on the spot. He has carried rukka Ext. PW-4/A to the Police Station. He handed over the case file to .
HC Kalyan Singh on the spot. In his cross-examination, he admitted that the lime chemical factory was running at that time.
10. PW-5 SI Rampal Yadav, deposed that FIR Ext. PW-4/B was registered on the basis of rukka Ext. PW-4/A. On the same night at about 3:00 AM, HC Kalyan Singh presented the case property of this case before him, which was sealed with seal bearing impression "H". He resealed the same with seal bearing impression "T" and updated the relevant columns of NCB forms Ext. PW-5/A and thereafter deposited the case property in the malkhana.
11. PW-6 HHC Jitender Singh deposed that on 21.2.2012, I/C malkhana Police Station Paonta Sahib, HHC Narain Singh had handed over one sealed parcel sealed with seal impressions "H" and "T"
alongwith the sample seals and NCB forms, which he deposited in FSL, Junga on the same day.
12. PW-7 HHC Narayan Singh, Addl. SHO deposited the case property of this case containing one parcel sealed with seal bearing impressions "H" and "T" alongwith the NCB forms and samples of seal in the malkhana regarding which, he incorporated entries in the malkhana register at Sr. No. 1511. The abstract of the same is Ext. PW-7/A. On 21.12.2012, he sent the case property vide RC No. 425/12 to FSL, Junga through HHC Jitender Kumar.
::: Downloaded on - 15/04/2017 18:32:43 :::HCHP 713. PW-9 HC Kalyan Singh, also deposed the manner in which the accused was apprehended at 10:20 PM, the search, seizure and .
sealing proceedings were completed on the spot. According to him, when the accused was apprehended, Jamshed (PW-1) and Mohd. Bilal (PW-2) reached on the spot and were associated by him in the proceedings. In their presence, the carry bag of the accused was opened and charas was recovered. In his cross-examination, he admitted that there were houses and shops near the chemical factory. However, the shops were found closed at that time.
14. The case of the prosecution has not been supported by the independent witnesses, Jamshed (PW-1) and Mohd. Bilal (PW-2). The case of the prosecution is that both these persons were coming from Gondpur side towards Tarunwala and were joined as independent witnesses. However, Jamshed (PW-1) and Mohd. Bilal (PW-2) have categorically deposed that the police people visited their shop and made them to board the police vehicle and thereafter they were taken to the Police Station. According to them, no carry bag was recovered from the accused in their presence nor any charas was found therein.
15. The lime factory, according to PW-3 HC Rupender was running at that time when the accused was apprehended. There were houses and shops nearby. But, no independent witnesses were associated by the police either from the lime factory or nearby houses or shops.
::: Downloaded on - 15/04/2017 18:32:43 :::HCHP 816. The case property was produced in the Court while examining PW-3 HC Rupender. The prosecution has not proved as to .
when the case property was withdrawn from the malkhana. It is mandatory that as and when the case property is deposited or taken out from the malkhana, corresponding entry has to be made in the malkhana register. No DDR report was also prepared when the case property was taken out from the malkhana and produced before the Court and when it was re-deposited in the malkhana after its production before the Court. The DDR is required to be prepared as and when the case property is taken out from the malkhana and re-deposited. In ND & PS cases, it is necessary to ensure the safe custody of the case property from its seizure till its production in the Court. Who has produced the case property before the Court has also not been proved.
It casts doubt as to whether it was the same case property which was seized from the accused and produced before the Court in the absence of entry made in the malkhana register at the time of withdrawal and re-
deposit in the malkhana. We have gone through the malkhana register Ext. PW-7/A. There is entry of the case property being deposited in the malkhana at the initial stage and thereafter on being sent to FSL, Junga and when it was received, but no corresponding entry is there when it was again taken out from the malkhana to be produced before the Court.
::: Downloaded on - 15/04/2017 18:32:43 :::HCHP 917. Thus, the prosecution has failed to prove the case against the accused for the commission of offence punishable under Section 20 .
of the N.D & P.S., Act.
18. Accordingly, in view of the analysis and discussion made hereinabove, the appeal is allowed. Judgment of conviction and sentence dated 28.10.2013, rendered by the learned Special Judge-I, Sirmaur at Nahan, H.P., in Sessions trial No. 19-ST/7 of 2013, is set aside. Accused is acquitted of the charges framed against him by giving him benefit of doubt.
r Fine amount, if any, already deposited by the accused is ordered to be refunded to him. Since the accused is in jail, he be released forthwith, if not required in any other case.
19. The Registry is directed to prepare the release warrant of the accused and send the same to the Superintendent of Jail concerned, in conformity with this judgment forthwith.
( Rajiv Sharma ), Judge.
July 10, 2015, ( Sureshwar Thakur ),
Judge.
(karan)
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