Himachal Pradesh High Court
State Of Himachal Pradesh vs Sohan Lal & Ors on 19 March, 2016
Author: Rajiv Sharma
Bench: Rajiv Sharma, P.S. Rana
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 273 of 2012.
Reserved on: March 18, 2016.
Decided on: March 19, 2016.
.
State of Himachal Pradesh ......Appellant.
Versus
Sohan Lal & ors. .......Respondents.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
of
The Hon'ble Mr. Justice P.S.Rana, Judge.
Whether approved for reporting? 1 Yes.
For the appellant: Mr. M.A.Khan, Addl. AG with Mr. Ramesh Thakur, Dy. AG.
For the respondents: Mr. G.R.Palsra, Advocate.
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rt
Justice Rajiv Sharma, J.
This appeal is instituted at the instance of the State against the judgment dated 23.1.2012, rendered by the learned Special Judge, Kinnaur Sessions Division at Rampur Bushahr, H.P., in NDPS case No. 05/2011, whereby the respondents-accused (hereinafter referred to as the accused), who were charged with and tried for offence punishable under Sections 20 & 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 on 19.9.2010, the police party was on routine patrol duty in official vehicle No. HP-34A-016. It was driven by Const. Karam Chand. At about 9:00 AM, when the patrol party was present near the bifurcation of Jaon-
Sarahan road, two persons were seen coming from Jaon side towards Sarahan, carrying bags on their backs. On seeing the police party, they became nervous and turned back. On suspicion, they were apprehended.
11 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 19:57:02 :::HCHP 2Since it was a lonely place and nearby there was no house or population, HHC Diwan Chand was sent to arrange for independent/local witnesses.
.
However, no independent witness was available. In these circumstances, HC Lal Chand and Const. Ramesh Chand were associated as witnesses.
The accused persons were informed verbally as well as by writing that the police had suspicion that they might be in possession of some contraband and for this reason, their personal search as well as that of the bags being of carried by them was required to be taken. They were also apprised of their legal right to be searched before Magistrate or Gazetted Officer. The rt accused persons opted to be searched by the police party. Thereafter, the police officials gave their search to the accused persons and in this regard search memo was prepared. The personal search of the accused No. 1 Sohan Lal was undertaken but no contraband was recovered. However, when the bag carried by the accused No. 1 was searched, one plastic envelope in which substance in the form of wicks and round shape was recovered. Some substance was also found to be wrapped in plastic paper.
It weighed 5 kg. It was put in the same bag and sealed in a parcel with seal "H" (8 seals) and the parcel was marked as A-1. Similarly, when the personal search of accused No. 2 Anand Kumar was undertaken, no contraband was recovered except his personal belongings. The bag carried by him was checked and charas weighing 5 kg in round shape was found.
It was sealed in a parcel with 8 seals of seal "H". It was marked as A-2.
NCB form in triplicate were filled in and the recovered charas was taken into possession by preparing seizure memo. The rukka was sent to the Police Station through Constable Ramesh Chand and thereafter FIR was ::: Downloaded on - 15/04/2017 19:57:02 :::HCHP 3 registered. Site plan was prepared. In the investigation, it was also revealed that the real owner of the recovered charas was one Khub Ram, .
accused No. 3. It also came during the investigation that accused No. 3 had abetted the co-accused to indulge in the trade/business of charas.
Allegedly, he disclosed to have sent 6 kg. of charas from the house of some Nepali to the house of accused No. 1 so that the same could be taken by him to Delhi. He had telephonic conversion with the co-accused. The of contraband was sent for FSL, Junga for chemical examination and report of the FSL is Ext. PX. The investigation was completed and the challan rt was put up after completing all the codal formalities.
3. The prosecution, in order to prove its case, has examined as many as 10 witnesses. The accused were also examined under Section 313 Cr.P.C. According to them, they were falsely implicated. The learned trial Court acquitted the accused, as noticed hereinabove. Hence, this appeal.
4. Mr. M.A.Khan, learned Addl. Advocate General for the State has vehemently argued that the prosecution has proved its case against the accused. On the other hand, Mr. G.R.Palsra, Advocate for the accused has supported the judgment of the learned trial Court dated 23.1.2012.
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. According to PW-2 HC Pushp Dev, he was posted as MHC PS Nirmand since May, 2010. On 19.9.2010, HC Pyare Lal deposited with him two packets sealed with 8 seals bearing impression "H" having five-five kilograms of charas each alongwith sample seal and NCB form in triplicate.
He made entries of the same in register No. 19. He deposited the same in ::: Downloaded on - 15/04/2017 19:57:02 :::HCHP 4 Malkhana of the Police Station. The extract of Malkhana register is Ext.
PW-2/A. On 21.9.2010, he sent the packets alongwith NCB form in .
triplicate to FSL, Junga for chemical analysis through HHC Diwan Chand vide RC No. 111/2010 vide Ext. PW-2/B. On 12.10.2010, HHC Diwan Chand deposited with him the report of FSL alongwith the bulk charas which was sealed with seven seals each of FSL and eight seal impressions of "H". He made entry in register No. 19 vide Ext. PW-1/A and thereafter of he deposited the bulk charas in Malkhana of the Police Station.
7. PW-3 Karam Singh testified that the house of accused Sohan rt Lal was not searched by the police in his presence. The police showed him pass book Ext. PW-3/A at Panchayatghar which was taken into possession vide recovery memo Ext. PW-3/B. The Panch of their village Nup Ram was also present at the Panchayat Ghar who signed the seizure memo Ext. PW-
3/B in his presence. He was declared hostile and cross-examined by the learned Public Prosecutor. In his cross-examination, he deposed that accused Sohan Lal had not signed Ext. PW-3/B in his presence. The house of Sohan Lal is single storyed. The cowshed of accused Sohan Lal is separate. He denied the suggestion that the house of accused Sohan Lal was searched in his presence and during search, a pass book Ext. PW-3/A was found in room No. 3 from the trunk of accused Sohan Lal. In his cross-examination by the learned defence counsel he admitted that the road where Bagipull Sarahan bifurcates towards Jaon is a busy place where traffic/pedestrians keep on coming and going frequently.
8. PW-5 Beli Ram testified that accused Sohan Lal is related to him. He had not given any document to accused Sohan Lal to purchase ::: Downloaded on - 15/04/2017 19:57:02 :::HCHP 5 the SIM. He was declared hostile and cross-examined by the learned Public Prosecutor. In his cross-examination by the learned Public .
Prosecutor, he deposed that he has not stated to the police that on 4/5.7.2010, accused Sohan Lal visited his village and asked him to give him his photograph and ID card and at his request, he handed over to him the same. He denied that after some time accused Sohan Lal returned his ID card to him. He had not disclosed to the police that after some time, he of came to know that accused Sohan Lal had purchased SIM No. 98052- 93712 in his name and used the same. He had also not stated to the rt police that accused Sohan Lal had been using this SIM since July, 2010 and this SIM never remained with him. He has admitted that he is possessing SIM No. 98161-89547. He denied the suggestion that SIM No. 98052-93712 never remained with him and accused Sohan Lal used the same. He has denied portions A to A, B to B, C to C and D to D of his statement mark Y, wherein it is so recorded. In his cross-examination by the learned defence counsel, he admitted that SIM No. 98052-93712 was purchased by him for the use of his daughter Usha Kumari. She is about 16 years old and studying in 9th class. The aforesaid SIM was being used by his daughter Usha Kumari since the time it was purchased by him in his name till today. Affidavit Ext. PW-5/A was prepared by HC Pyare Lal at Nirmand and he himself presented the same before the Executive Magistrate, Nirmand for attestation. The Executive Magistrate and HC Pyare Lal had not read over and explained the contents of the same to him.
He is illiterate and could only sign.
::: Downloaded on - 15/04/2017 19:57:02 :::HCHP 69. PW-6 Const. Ramesh Chand testified that at about 9:00 AM on 19.9.2010, two persons were seen coming from Jaon side who were .
carrying bags on their back. They got perplexed and tried to run back.
They were apprehended. The place being an isolated one, no person was found on the spot. HHC Diwan Chand was sent to search for independent witnesses who returned after some time and told that no one was available.
The I.O. associated him and Lal Chand as witnesses and apprised the of accused that they have legal right to be searched by the Magistrate or the Gazetted Officer upon which accused persons gave their consent to be rt searched before the police present. To this effect, consent memo Ext. PW-
6/A was prepared which was signed by him and HC Lal Chand alongwith the accused persons. The bags carried by the accused were searched.
These contained charas 5 kg each. The sealing proceedings were completed on the spot. NCB forms in triplicate were filed in. FIR Ext. PW-
2/G was registered on the basis of rukka Ext. PW-2/F. The case property was produced while recording the statement of PW-6 Const. Ramesh Chand. In his cross-examination, he deposed that HHC Diwan Chand was sent on the Sarahan road to search for witnesses.
10. PW-7 HHC Diwan Chand also deposed the manner in which the accused were apprehended, search, seizure and sealing proceedings were completed on the spot. He deposed that he was sent to search for independent/local witnesses but no one was available. Rukka Ext. PW-
2/F was handed over to Const. Ramesh Chand. The accused were apprised of grounds of arrest vide memo Ext. PW-6/E. In his cross-
::: Downloaded on - 15/04/2017 19:57:02 :::HCHP 7examination, he admitted that personal search of both the accused was carried out before taking search of their bags.
.
11. PW-8 Devinder Verma has proved call details Ext. PW-8/B of mobile No. 98052-93712.
12. PW-9 HC Pyare Lal also deposed the manner in which the accused were apprehended, search, seizure and sealing proceedings were completed on the spot. He deposed that HHC Diwan Chand was sent in of search of independent witnesses who returned after some time and told that no one was available. He told both the accused persons that they rt have a legal right to be searched by the Magistrate or the Gazetted Officer.
Accused persons gave their consent through consent memo Ext. PW-6/A that they wanted to be searched by him. The accused were arrested by him. On interrogation on the spot, both the accused persons revealed that the recovered charas i.e. 10 kg belonged to accused Khub Ram which was handed over to them by him in the house of Sohan Lal on 17.9.2010 to be carried for sale to Delhi. They were to be paid Rs. 10,000/- by accused Khub Ram. Accused Khub Ram had conversation with accused Sohan Lal through mobile. The mobile No. of accused Sohan Lal is 98052-93712 and mobile No. of accused Khub Ram was 94182 68946. The house of accused Sohan Lal was searched and one PNB pass book Ext. PW-3/A was recovered. The SIM used by accused Sohan Lal was found to have been in the name of Beli Ram son of Thakur Dass, r/o Kaloti. He interrogated Beli Ram about SIM used by accused Sohan Lal who disclosed through affidavit Ext. PW-5/A that Sohan Lal was his relative and SIM No. 98052-93712 was given by him to Sohan Lal. In his cross-examination, he admitted that ::: Downloaded on - 15/04/2017 19:57:02 :::HCHP 8 no contact of accused Anand Kumar and Khub Ram was established nor any personal contact was also established between them during .
investigation. He also admitted that telephone No. 94182-68946 was not owned and possessed by accused Khub Ram. He did not know that the number belonged to one Rajni daughter of Bhagwan Dass.
13. PW-10 Const. Birbal Dass testified that accused Sohan Lal and Anand Kumar were interrogated by the police and they disclosed in his of presence that police had apprehended them with 5 kg charas each and they further disclosed that the charas recovered by the police from them rt did not belong to them but it was of accused Khub Ram. They further disclosed that on 17.9.2010, the charas was sent through somebody to the house of accused Sohan Lal. Accused Khub Ram had also telephonically instructed accused Sohan Lal and Anand Kumar that this contraband should be taken to Delhi by pass road where he would meet them and accused Khub Ram promised to give Rs. 20,000/- to accused Sohan Lal.
In his cross-examination, he admitted that the disclosure statement was made in the Police Station, Nirmand. The statement was made during day time. There were so many independent persons in the Police Station. The disclosure statement was not reduced into writing in his presence.
14. It was not necessary for the police to carry out the personal search of the accused when the charas was recovered from the bags carried by them. However, despite that, accused persons were searched and thus there is breach of mandatory provisions of Section 50 of the ND & PS Act.
The consent memo is Ext. PW-6/A. It was the duty of the I.O. to inform the accused persons that they have legal right to be searched either before the ::: Downloaded on - 15/04/2017 19:57:02 :::HCHP 9 Executive Magistrate or the Gazetted Officer. In memo Ext. PW-6/A, the accused were not apprised that they had a legal right to be searched either .
before Executive Magistrate or the Gazetted Officer. Ext. PW-6/A is plural.
It is settled law by now that it is necessary to obtain separate consent of each accused. It cannot be plural. However, the fact of the matter is that in Ext. PW-6/A, the consent of both the accused was obtained jointly. It has vitiated the trial.
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15. Their lordships of the Hon'ble Supreme Court in the case of State of Rajasthan vrs. Parmanand and another, reported in (2014) 5 rt SCC 345, have held as follows:
"17. In our opinion, a joint communication of the right available under Section 50(1) of the NDPS Act to the accused would frustrate the very purport of Section 50. Communication of the said right to the person who is about to be searched is not an empty formality. It has a purpose. Most of the offences under the NDPS Act carry stringent punishment and, therefore, the prescribed procedure has to be meticulously followed. These are minimum safeguards available to an accused against the possibility of false involvement. The communication of this right has to be clear, unambiguous and individual. The accused must be made aware of the existence of such a right. This right would be of little significance if the beneficiary thereof is not able to exercise it for want of knowledge about its existence. A joint communication of the right may not be clear or unequivocal. It may create confusion. It may result in diluting the right. We are, therefore, of the view that the accused must be individually informed that under Section 50(1) of the NDPS Act, he has a right to be searched before a nearest gazetted officer or before a nearest Magistrate. Similar view taken by the Punjab & Haryana High Court in Paramjit Singh and the Bombay High Court in Dharamveer Lekhram Sharma meets with our approval."
16. The accused were apprehended at 9:00 AM carrying two bags.
The charas was recovered from the bags. It was deposited with MHC Pushp Dev, Police Station Nirmand on 19.9.2010 alongwith NCB form in ::: Downloaded on - 15/04/2017 19:57:02 :::HCHP 10 triplicate. He sent the same to FSL, Junga for chemical analysis through HHC Diwan Chand. The NCB form is Ext. PW-9/A. Columns No. 9 to 11 .
of the same are required to be filled in by the SHO concerned. Columns No. 9 to 11 are blank. Though, Section 55 of the ND & PS Act is not mandatory but still the provision is required to be followed in letter and spirit. The purpose of re-sealing is to ensure that the contraband was infact seized and sealed in accordance with law. The only explanation of given by the prosecution is that the SHO was on leave. However, the Court can take judicial notice of the fact that in the absence of SHO, the second rt in command is authorized to discharge the duties of SHO.
17. Their Lordships of Hon'ble Supreme Court in the case of Gurbax Singh v. State of Haryana reported in (2001) 3 SCC 28, have held while appreciating the provisions of Section 52, 55 and 57 of the Act that though the provisions of Section 52 and 57 are directory and violation would not ipso facto violate the trial or conviction.
However, investigating officer can not totally ignore these provisions because such failure would have a bearing on appreciation of the evidence regarding arrest of the case. Their lordships have held as under:
"9. The learned counsel for the appellant next contended that from the evidence it is apparent that the I.O. has not followed the procedure prescribed under Sections 52, 55 and 57 of the N.D.P.S. Act. May be that the I.O. had no knowledge about the operation of the N.D.P.S. Act on the date of the incident as he recorded the FIR under Section 9 of the Opium Act. In our ::: Downloaded on - 15/04/2017 19:57:02 :::HCHP 11 view, there is much substance in this submission. It is true that provisions of Sections 52 and 57 are directory. Violation of these provisions would not ipso facto violate the trial or .
conviction. However, I.O. cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article. In the present case, I.O. has admitted that the seal which was affixed on the muddamal article was handed over to the witness PW-1 and was kept with him for 10 days. He has of also admitted that the muddamal parcels were not sealed by the Officer-in-charge of the police station as required under Section 55 of the N.D.P.S. Act. The prosecution has not led any rt evidence whether the Chemical Analyser received the sample with proper intact seals. It creates a doubt whether the same sample was sent to the Chemical Analyser. Further, it is apparent that the I.O. has not followed the procedure prescribed under Section 57 of the N.D.P.S. Act of making full report of all particulars of arrest and seizure to his immediate superior officer. The conduct of panch witness is unusual as he offered himself to be a witness for search and seizure despite being not asked by the I.O. particularly when he did not know that the substance was poppy husk, but came to know about it only after being informed by the police. Further, it is the say of the Panch witness that Muddamal seal used by the PSI was wooden seal. As against this, it is the say of PW-2 SI/IO that it was a brass seal. On the basis of the aforesaid evidence and faulty investigation by the prosecution, in our view, it would not be safe to convict the appellant for a serious offence of possessing poppy-husk."
18. The place where the accused were apprehended, as per the statement of PW-3 Karam Singh was busy place where traffic/pedestrians keep on moving frequently. However, the fact of the matter is that no ::: Downloaded on - 15/04/2017 19:57:02 :::HCHP 12 independent witnesses were joined during search, seizure and sealing proceedings. It was not an isolated or secluded place. No. serious efforts .
were made to join independent witnesses except that PW-6 Const. Ramesh Chand deposed that HHC Diwan Chand was sent to search independent witnesses who returned after some time and informed that no one was available. Similarly, HHC Diwan Chand while appearing as PW-7 deposed that the place was isolated and no person was available.
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19. The case property was produced while recording the statement of PW-6 Const. Ramesh Chand. Who has brought the case property from rt Malkhana to the Court has not been examined. Entry in the Malkhana register to the effect that who has taken the property to the Court, is necessary as per Punjab Police Rules, 1934. Para 22.70 of the Punjab Police Rules, 1934, as applicable to the State of H.P., reads as under:
"22.70. Register No. XIX- This register shall be maintained in Form 22.70.
With the exception of articles already included in register No. XVI every article placed in the store-
room shall be entered in this register and the removal of any such article shall be noted in the appropriate column.
The register may be destroyed three years after the date of the last entry."
The register is to be maintained in Form 22.70. It reads as under.
"FORM NO. 22.70.
POLICE STATION_________ ____DISTRICT
Register No. XIX.-Store-Room Register
(Part-I)
Column 1.- Serial No.
2. No. of first information report (if any), from whom taken (if taken from a person), and from what place.::: Downloaded on - 15/04/2017 19:57:02 :::HCHP 13
3. Date of deposit and name of depositor.
4. Description of property.
5. Reference to report asking for order regarding disposal of property.
.
6. How disposed of and date.
7. Signature of recipient (including person by whom dispatched).
8. Remarks.
(To be prepared on a quarter sheet of native paper)."
20. It is necessary that as and when case property is taken out of from Malkhana, necessary entry is required to be made in the Malkhana Register and also at the time when case property is re-deposited in the rt Malkhana. Case property in NDPS cases is required to be kept in safe custody from the date of seizure till its production in the Court. It is also necessary that when case property is taken out from Malkhana, DDR is made and also at the time when case property is re-deposited in the Malkhana. Thus, it casts doubt whether it is the same case property which was recovered from the accused and sent to FSL or it was case property of some other case.
21. Sub-rule (2) Rule 22.18 of Punjab Police Rules, reads as under:
"(2) All case property and unclaimed property, other than cattle, of which the police have taken possession shall, if capable of being so treated, be kept in the store-room.
Otherwise the officer in charge of the police station shall make other suitable arrangements for its safe custody until such time as it can be dealt with under sub-rule (1) above.
Each article shall be entered in the store-room register and labelled. The label shall contain a reference to the entry in the store-room register and a description of the article itself and, in the case of articles of case property, a reference to the case number. If several articles are contained in a parcel, a detail of the articles shall be given on the label and in the store-room register.
::: Downloaded on - 15/04/2017 19:57:02 :::HCHP 14The officer in charge of the police station shall examine Government and other property in the store-room at least twice a month and shall make an entry in the station diary on the Money following the examination to the effect that he has done .
so."
22. Rule 27.18 of Punjab Police Rules, reads as under:
"27.18. Safe custody of property.-
(1) Weapons, articles and property sent in connection with cases shall on receipt be entered in register No. 1 and shall (excluding livestock) be properly stored in the store-room of the of head of the prosecuting agency, or the police station. See Rule 22.18. When required for production in court such articles shall, at headquarters, be taken out in the presence and under the personal order of an officer of rank not less than prosecuting sub-inspector and an entry made in the register of rt issue from and return to the prosecuting agency's store-room, which register shall be maintained in Form 27.18(1).
Animals sent in connection with cases shall be kept in the pound attached to the police station at the place to which they have been sent, and the cost of their keep shall be recovered from the District Magistrate in accordance with Rule 25.48.
(2) In all cases in which the property consists of bullion, cash, negotiable securities, currency notes or jewellery, exceeding in value Rs. 500 the Superintendent shall obtain the permission of the District Magistrate, Additional District Magistrate or Sub-Divisional Officer to make it over to the Treasury Officer for safe custody in the treasury.
(3) All cash, jewellery and other valuable property of small bulk, which is not required under sub-rule (2) above to be sent to the treasury, shall be kept in a locked strong box in the store-room. Each court orderly shall be provided with a strong lock-up box in which he shall keep all case property while it is in his custody in the court to which he is attached. Case property shall invariably be kept locked-up in such box except when it is actually produced as an exhibit in the course of proceedings. After being so produced it shall be immediately replaced in the lock-up box. Boxes shall be provided from funds at the disposal of the District Magistrate.
(4) Property taken out of the main store-room for production in court shall be signed for by the court orderly concerned in register No. 2 and the prosecuting officer authorizing the ::: Downloaded on - 15/04/2017 19:57:02 :::HCHP 15 removal shall initial this entry. Such officer shall similarly, after personal check, initial the entry of return of the property to the main store-room on the closing of the courts.
.
(5) Every day, when the courts close, an officer of the prosecuting branch of rank not less that of sub-inspector shall personally see that the articles produced in court are returned to the store-room, restored to their proper places in the shelves, cup-boards or strong box and registered as required by sub-rule (4) above. The opening of the storeroom in the morning and its closing in the evening shall invariably be in the presence of the police officials named in this rule. Animals brought from the pound shall be repounded under the of supervision of a head constable."
23. Thus, it is evident from rule 22.18 that the case property is required to be kept in store room and each article is to be entered in store rt room, registered and labelled and label shall contain a reference to the entry in the store-room register and a description of the article itself and, in the case of articles of case property, a reference to the case number. If several articles are contained in a parcel, a detail of the articles is required to be given on the label and in the store-room register. Similarly, it is provided in Rule 27.18 that Weapons, articles and property sent in connection with cases shall on receipt be entered in register No. 1 and shall (excluding livestock) be properly stored in the store-room of the head of the prosecuting agency, or the police station. The case property when required for production in court such articles shall, at headquarters, be taken out in the presence and under the personal order of an officer of rank not less than prosecuting sub-inspector (now APP/PP) and an entry made in the register of issue from and return to the prosecuting agency's store-room, which register shall be maintained in Form 27.18(1). Property taken out of the main store-room for production in court is required to be ::: Downloaded on - 15/04/2017 19:57:02 :::HCHP 16 signed for by the court orderly concerned in register No. 2 and the prosecuting officer authorizing the removal shall initial this entry. Such .
officer similarly, after personal check, is required to initial the entry of return of the property to the main store-room on the closing of the courts.
It is further provided in this Rule that every day, when the courts close, an officer of the prosecuting branch of rank not less that of sub-inspector shall personally see that the articles produced in court are returned to the of store-room, restored to their proper places in the shelves, cup-boards or strong box and registered as required by sub-rule (4) above. The opening of rt the storeroom in the morning and its closing in the evening shall invariably be in the presence of the police officials named in this rule. In case property is required to be committed to the higher Court, then under Rule 27.19, the parcel shall be sealed with the seal of the court and made over to the head of the police prosecuting agency, who shall produce it with unbroken seals before the superior court, or, if so ordered by competent authority, shall make it over to some other officer authorized so to produce it.
24. In the instant case, there is nothing on record to suggest that these Rules were followed while producing case property in the Court and on returning the same. These Rules have been framed to ensure that case property from its initial stage of seizure till production in the Court remains safe/intact and is restored to store room in the presence of senior police officer. Property taken out of the main store-room for production in court is required to be signed by the court orderly concerned in register No. 2 and the prosecuting officer authorizing the removal is required to initial this ::: Downloaded on - 15/04/2017 19:57:02 :::HCHP 17 entry. Such officer shall similarly, after personal check, initial the entry of return of the property to the main store-room on the closing of the courts.
.
25. PW-9 HC Pyare Lal, in his cross-examination, has admitted that no contact of accused Anand Kumar and Khub Ram was established nor any personal contact was established between them during investigation. PW-8 Devinder Verma has proved the call details of Mobile No. 98052-93712 vide Ext. PW-8/A. PW-5 Beli Ram was declared hostile.
of He has categorically deposed that he has not given any document to accused Sohan Lal to purchase the SIM. In his cross-examination by the rt learned Public Prosecutor, he has denied the relevant portions of his statement recorded vide Mark "Y". In his cross-examination by the learned defence counsel, he admitted that SIM No. 98052-93712 was purchased by him for the use of his daughter Usha Kumari. She is about 16 years of age and studying in 9th standard. Affidavit Ext. PW-5/A was prepared by HC Pyare Lal at Nirmand and he himself presented the same before the Executive Magistrate, Nirmand for attestation. The Executive Magistrate and HC Pyare Lal had not read over and explained the contents of the same to him. He is illiterate and could only sign. He also denied the suggestion during cross-examination by the learned Public Prosecutor that SIM No. 98052-93712 never remained with him and accused Sohan Lal used the same.
26. Ext. PW-8/B call details, has also not been proved as per Section 65 of the Indian Evidence Act, 1872. No certificate has been issued by the competent authority to prove the authenticity of the call details made vide Ext. PW-8/B. In his cross-examination, PW-8 Devinder Verma ::: Downloaded on - 15/04/2017 19:57:02 :::HCHP 18 has admitted that it could not be ascertained as to who was talking on the telephones at the relevant time and as to what conversation took place .
between them.
27. Their lordships of the Hon'ble Supreme Court in the case of Anvar P.V. vrs. P.K. Basheer and others, reported in (2014) 10 SCC 473, have held that production of copy of statement pertaining to electronic record in evidence not being the original electronic record, such of statement has to be accompanied by a certificate as specified in S. 65-B(4) and such certificate must accompany electronic record like CD, VCD, pen rt drive etc. Their lordships have further held that under Section 65-B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the conditions are satisfied. It has been held as follows:
"15. Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
16. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. ::: Downloaded on - 15/04/2017 19:57:02 :::HCHP 19 without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
17. Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof .
and in that situation, resort can be made to Section 45A - opinion of examiner of electronic evidence.
18. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the Evidence Act are not complied with, as the law now stands in India."
28. The prosecution has failed to prove case against the accused of persons under Sections 20 & 29 of the ND & PS Act. This Court has no occasion to interfere with the well reasoned judgment of the learned trial Court dated 23.1.2012.
rt
29. Accordingly, there is no merit in this appeal and the same is dismissed.
( Rajiv Sharma ), Judge.
March 19, 2016, ( P.S.Rana ),
(karan) Judge.
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