Himachal Pradesh High Court
Sadiq Mohd vs State Of Hp on 16 March, 2016
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 4014/2013 Reserved on: 8.3.2016 Decided on: March 16, 2016 .
___________________________________________________________________ Sadiq Mohd. ...Appellant Versus State of HP ...Respondent ___________________________________________________________________ Coram:
Hon'ble Mr. Justice Rajiv Sharma, Judge.
of Whether approved for reporting? 1 Yes.
------------------------------------------------------------------------------------ For the Appellant: Mr. Vijay Chaudhary, Advocate.
For the Respondent: rtMr. Parmod Thakur, Additional Advocate General with Mr. Neeraj K. Sharma, Deputy Advocate General.
___________________________________________________________________ Rajiv Sharma, Judge The instant appeal has been instituted against Judgment dated 28.5.2013 rendered by learned Special Judge, Chamba, District Chamba, Himachal Pradesh in Sessions Trial No. 39/12, whereby the appellant-accused (hereinafter referred to as 'accused' for convenience sake), who was charged with and tried for offence under Section 21 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'Act' for convenience sake), was convicted and sentenced to undergo rigorous imprisonment for three years, with a fine of `20,000/-, and, in default of payment of fine, to further undergo simple imprisonment for six months.1
Whether reporters of the local papers may be allowed to see the judgment? .::: Downloaded on - 15/04/2017 19:55:12 :::HCHP 2
2. Case of the prosecution, in a nutshell, is that on 1.3.2012 at around 4 PM, SI Narotam Chand IO(PW-9) alongwith C. Latif Mohd. (PW-1), C. Kuldeep Chand (PW-4) and C. Sham Lal, .
proceeded to Chowari Bazaar and other nearby areas in official vehicle in connection with patrolling and traffic checking. They reached at Trimath around 6.35 pm and stayed there. At around 6.40 PM, a motor cycle No. HP57-320 was seen coming from Lahdu side which was signalled to stop by C. Latif Mohd. Motor Cycle was of being driven by Devinder (PW-2) and accused was sitting on pillion.
ASI Narotam Chand IO (PW-9) asked Devinder to produce papers of rt motor cycle. He produced the same and these were checked.
Accused was asked to disclose his name. Devinder told the police that he was coming from Jasoor and was going to Chowari. He further disclosed that while on the way from Jasoor, accused at Sadwan, asked for lift. Accused was having a maroon coloured carry bag. He was asked to get the bag checked on which he showed little reluctance and told that he had sweet box in that bag but he prevailed upon him and bag, upon which he found two boxes with words "Parvon-Spas" inscribed on them, containing 390 capsules.
One box contained 200 capsules and another 190. These were taken into possession and sealed in a cloth parcel. He affixed six seal impressions of seal 'R', in the presence of Devinder. Sample impression of seal 'R' Ext. PW-1/A was taken. He filled up relevant columns of NCB form, Ext. PW-3/G. He also prepared seizure memo Ext. PW-1/B. IO prepared Rukka Ext. PW-9/A and handed over the same to C. Kuldeep Chand to hand over the same to MHC, Police ::: Downloaded on - 15/04/2017 19:55:12 :::HCHP 3 Station, Chowari for registration of FIR, Ext PW-3/A. He also prepared spot map Ext PW-9/B. ASI Narotam Chand handed over Ext P1 sealed with 6 impressions of 'R' containing 390 capsules of .
'Parvon-Spas', NCB form in triplicate, sample seal impression of 'R' and copy of seizure memo for resealing to ASI Bansi Lal (PW-8), who resealed the same with three impressions of 'T'. Sample impression of seal 'T' was separately taken on piece of cloth which is Ext. PW-
3/E. He also filled in relevant columns of NCB form in triplicate and of seal 'T' was affixed on NCB forms Ext. PW-3/G in the presence of HC Raj Pal. Reseal memo Ext. PW-3/F was prepared. Parcel after rt resealing alongwith seizure memo, sample seal impression and NCB forms was deposited with MHC. He made entry in the Malkhana Register vide Rapat Ext. PW-3/B. Extract of Malkhana Register is Ext. PW-3/H. Contraband was sent to FSL Junga through Sandeep Kumar (PW-7) for chemical analysis. The Assistant Chemical Examiner on analysis opined that the exhibit stated is PARVON-
SPAS and is a sample of 'dextropropoxyphene Hydrochloride capsules. Investigation was completed and Challan was put up in the Court after completing all the codal formalities.
3. Prosecution has examined as many as 9 witnesses to prove its case against the accused. Accused was also examined under Section 313 CrPC. According to him, he was falsely implicated in the case. Accused was convicted by the learned trial Court. Hence, this appeal.
4. Mr. Vijay Chaudhary, Advocate, has vehemently argued that the prosecution has failed to prove case against the accused.
::: Downloaded on - 15/04/2017 19:55:12 :::HCHP 45. Mr. Parmod Thakur, Additional Advocate General, has supported Judgment dated 28.5.2013.
6. I have heard the learned counsel for the parties and also .
gone through the record carefully.
7. PW-1 C. Latif Mohd. deposed that he alongwith ASI Narotam, C. Kuldeep and C. Sham Lal was checking the vheicles during traffic duty at Trimath near Chowari. In the meantime, a motor cycle No. HP 57-0320 came from the side of Lahdu being of driven by Devinder and accused was sitting on pillion. He signalled the motor cycle to stop. ASI Narotam Chand checked up documents rt of the vehicle. Accused was carrying a carry bag of maroon colour. It was checked. It contained two boxes, on which words 'Parvon-Spas' were inscribed. ASI Narotam opened the boxes and found 10 strips having 20 capsules each in one strip. In another box, 8 strips having 20 capsules each in one strip and three strips having 10 capsules each were found. Total 390 capsules alleged to be narcotic drug were recovered from the possession of the accused. Capsules were again packed in the boxes in the same manner and both the boxes in maroon coloured bag. Thereafter, maroon coloured bag containing two boxes having 390 capsules were put in cloth parcel which was stitched and sealed with six impression of seal 'R'. Sample impression of seal 'R' was taken on separate piece of cloth. NCB form in triplicate was filled by ASI Narotam on which seal impression 'R' was affixed. Sample seal impression is Ext. PW-1/A. Case property was produced while recording the examination-in-
chief of PW-1. In the cross-examination, he has admitted that ::: Downloaded on - 15/04/2017 19:55:12 :::HCHP 5 population of village was 250-300 people. He also admitted that seal 'R' after use was handed over to him. He has not produced the same before the Court.
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8. PW-2 Devinder Kumar deposed that on 1.3.2012 he had gone to Pathankot to purchase spare parts of motor cycle. He started back from Pathankot on the same day at around 3 PM. On his way back, accused met him at Sadwan and requested for lift on motor cycle to Chowari. On the way to Chowari, accused was sitting of on the pillion. He was intercepted by the police at Trimath. He was asked to produce documents of the vehicle. Accused told the police rt that he was having container having sweets. Two boxes were produced before the police which contained 390 capsules alleged to be narcotic drugs. Same were taken into possession. Search, seizure and sealing proceedings were completed. In the cross-examination, he has admitted that in his presence Ext. P1 was not stitched. He also admitted that the place where police intercepted him, there was residential house of Ramu, besides 40-50 residential houses and shops. He also admitted that the population of Trimath was around 200-300 people. He further admitted that all kinds of vehicles ply between Chowari and Lahdu through Trimath and if one has to go to Dadriyada, he has to go through Trimath.
9. PW-3 MHC Rajpal deposed that the constable Kuldeep brought one Rukka at 8.40 PM for registration of case. FIR Ext. PW-
3/A was registered. At 10.15 PM, on the same day, Narotam Chand handed over the case property duly sealed with six seals of 'R' alongwith NCB form in triplicate and specimen seal of 'R', to SHO, ::: Downloaded on - 15/04/2017 19:55:12 :::HCHP 6 Police Station, Chowari for resealing. SHO resealed the parcel in his presence by affixing three seals of 'T', specimen seal impression 'T' was drawn on piece of cloth Ext. PW-3/E. Reseal memo Ext. PW-
.
3/F was prepared. After resealing, SHO handed over case property alongwith specimen seal, NCB form, seizure memo etc. which he entered at Sr. No.; 86/12 of Malkhana Register. Extract of Malkhana Register is Ext. PW-3/H. He handed over case property to Constable Sandeep to be carried to FSL Junga for chemical of examination vide RC No. 25/2012 dated 3.3.2012. Sandeep Kumar handed over receipt on 7.3.2012. In the cross-examination, he has rt admitted that there was no reference of NCB form, seizure memo, sample seal impression and copy of FIR in the road certificate, Ext.
PW-3/J. Volunteered that there was no need to mention all these documents in Ext. PW-3/J. He admitted that there is no reference of column No. 4 in Ext. PW-3/H, extract of Malkhana Register with regard to NCB form, seizure memo and copy of FIR.
10. PW-4 C. Kuldeep Chand also deposed the manner in which accused was apprehended and search, sealing and seizure proceedings were completed at the spot. Rukka was prepared and was taken to Police Station by him. He handed over it in the Police Station at 8.45 PM to MHC. He also admitted in his cross-
examination that they had checked 5-10 vehicle but no challan was issued.
11. PW-7 C. Sandeep Kumar deposed that he had carried case property alongwith envelope to FSL Junga on 5.3.2012 vide RC ::: Downloaded on - 15/04/2017 19:55:12 :::HCHP 7 No. 25/12. He admitted in his cross-examination that copy of FIR was not handed over to him alongwith case property.
12. PW-8 ASI Bansi Lal has resealed the case property by .
affixing three impressions of 'T'. He also filled in relevant columns of NCB form in triplicate, Ext. PW-3/G in the presence of HC Rajpal.
Parcel after resealing alongwith seizure memo, sample seal impression and NCB form was deposited with the MHC.
13. PW-9 Narotam Chand deposed the manner in which of accused was apprehended and search, sealing and seizure proceedings were completed at the spot. He filled in relevant rt columns of NCB form. Rukka was prepared. He handed over the same to Constable Kuldeep. He took the same to the Police Station.
FIR was registered. He prepared spot map Ext. PW-9/B. He admitted in his cross-examination that there was no reference of NCB form, motor vehicle challan book and sample seal in daily diary Ext. PW-
3/C.
14. Accused was apprehended near village Trimath.
According to the statement of PW-1, Latif Mohd., population of village Trimath was around 250-300 people. Similarly, PW-2, Devinder has admitted in his cross-examination that the place where police intercepted him, there was residential house of Ramu, besides 40-50 residential houses and shops. He also admitted that population of Trimath was around 200-300 people. He further admitted that all kinds of vehicles ply between Chowari and Lahdu through Trimath and if one has to go to village Dadriyada, he has to go through village Trimath. PW-4 Kuldeep also admitted that they ::: Downloaded on - 15/04/2017 19:55:12 :::HCHP 8 had checked 5-6 vehicles but no challan was issued. PW-9 Narotam Chand deposed that they stayed at Trimath for about 3 ½ hours till 10.05 PM. He could not say whether population of Trimath was 200- .
300 people. Volunteered that residential houses in Trimath are scattered. He did not recall whether vehicles had crossed the Naka.
15. Thus, it has come on record that the place where accused was apprehended, there were houses and shops.
Population of the village Trimath was about 200-300 people and of many vehicles have crossed through the Naka. PW-4 Kuldeep has admitted that no challan was issued. Police has not joined any rt independent witness from the adjoining houses and shops at village Trimath. It was neither a secluded nor isolated place. Police could have joined independent witnesses to inspire confidence in search, seizure and sealing proceedings carried out at the spot. According to PW-2 Devinder, all kinds of vehicles ply from Chowari to Lahdu through Trimath and if one has to go to village Dadriyada, he has go through Trimath. Police could easily associate occupants of vehicles as independent witnesses. Accused was apprehended on 1.3.2012 at 6.40 pm. PW-3 Rajpal, in his cross-examination admitted that there was no reference of NCB form, seizure memo, seal impression and copy of FIR in the road certificate Ext. PW-3/J. Court has gone through Ext. PW-3'/J i.e. road certificate. There is no reference of NCB form, seizure memo, seal impression, copy of FIR in the Ext.
PW-3/J. However, fact of the matter is that these were received by FSL Junga as per Ext. PX.
::: Downloaded on - 15/04/2017 19:55:12 :::HCHP 916. Case property was produced while examining PW-1 Latif Mohd. Case property was produced by learned Public Prosecutor.
Who has brought the case property from 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.
17. It is necessary that as and when case property is of taken out from Malkhana, necessary entry is required to be made in the Malkhana Register and also at the time when case property is redeposited in the Malkhana. Case property in NDPS cases is rt 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 redeposited 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. The prosecution has failed to prove case against the accused.
18. 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 ::: Downloaded on - 15/04/2017 19:55:12 :::HCHP 10 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.
The 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.
19. 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 of 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. 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 rt than prosecuting sub-inspector 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).
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 19:55:12 :::HCHP 11 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 supervision of a head constable.
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20. 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 room, registered and labelled and label shall rt 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).
::: Downloaded on - 15/04/2017 19:55:12 :::HCHP 12Property taken out of the main store-room for production in court is required to be 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 of 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 rt 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. 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.
21. In this 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 ::: Downloaded on - 15/04/2017 19:55:12 :::HCHP 13 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 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.
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22. Accordingly, the present appeal is allowed. Judgment dated 28.5.2013 rendered by learned Special Judge, Chamba, District Chamba, Himachal Pradesh in Sessions Trial No. 39/12 is rt set aside. Accused is acquitted of the offence under Section 21 of the Act. He is ordered to be released, if not required by the police in any other case. Fine amount, if any, paid by the accused, be refunded to him. The Registry is directed to prepare and send the release warrant of the accused to the Superintendent of Jail concerned forthwith.
(Rajiv Sharma) Judge March 16, 2016 vikrant ::: Downloaded on - 15/04/2017 19:55:12 :::HCHP