Himachal Pradesh High Court
State Of Himachal Pradesh vs Chaman Lal on 13 April, 2016
Author: Rajiv Sharma
Bench: Rajiv Sharma, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 429 of 2010.
Reserved on: April 12, 2016.
Decided on: April 13, 2016.
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State of Himachal Pradesh ......Appellant.
Versus
Chaman Lal .......Respondent.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
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Whether approved for reporting? 1 Yes.
For the appellant: Mr. M.A.Khan, Addl. AG.
For the respondent: Mr. Naveen K. Bhardwaj, Advocate.
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Justice Rajiv Sharma, J.
rt This appeal is instituted at the instance of the State against the judgment dated 6.5.2010, rendered by the learned Special Judge (FTC), Kullu, H.P., in Sessions trial No. 60/2009, whereby the respondent-
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 acquitted.
2. The case of the prosecution, in a nut shell, is that PW-7 SI Onkar Singh, HC Balbir Sharma, PW- 1 HC Mukesh Kumar, PW-2 Sanjay Kumar and driver Aad Nath of the vehicle bearing registration No. HP-34- 0049 were going towards Jari (Bradha) for investigation into the case FIR No. 107 of 2009 dated 12.3.2009. When the police party reached near Bagyanda Mour, the accused was found carrying a backpack Ext. P-5 on his left shoulder. He tried to run on seeing the police party. The vehicle 1 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 20:07:40 :::HCHP 2was stopped and accused was apprehended. He disclosed his identity.
The bag was checked and it was found to be containing jean pants Ext. P-
.
6. The charas Ext. P-3 was found concealed inside both the legs of the pant. It was wrapped in cello tape. It weighed 1 kg and 45 grams. The charas was sealed in a parcel of cloth with six impressions of seal "O".
Seal impression Ext. PW-1/A was taken separately on a piece of cloth.
NCB-I form Ext. PW-3/B was filled in triplicate at the spot and seal of impression was taken on the form. Charas was seized vide seizure memo Ext. PW-1/B. Backpack Ext. P-5 and jean pants Ext. P-6 were sealed in a rt separate parcel with six impressions of seal "H". Rukka Ext. PW-7/A was prepared and it was sent to the Police Station for registration of FIR. FIR Ext. PW-6/A was registered in the Police Station. The case property was produced before PW-6 Insp. Sanjeev Chauhan who resealed the parcels with six impressions of seal "W". He also filled in column Nos. 9 to 11 of NCB-I form. He obtained the seal impressions on separate pieces of cloth.
The case property alongwith seal impressions "O", "W" and NCB-I form was handed over to PW-3 HC Manoj Kumari who made an entry in the register of malkhana Ext. PW-3/A and deposited the case property in the malkhana. She made entry in the register of malkhana at Sr. No. 218 Ext.
PW-3/C. HHC Tek Singh deposited the parcel and other documents at FSL Junga and handed over receipt to MHC. 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 8 witnesses. The accused was also examined under Section 313 ::: Downloaded on - 15/04/2017 20:07:40 :::HCHP 3 Cr.P.C. According to him, he was falsely implicated. The learned trial Court acquitted the accused, as noticed hereinabove. Hence, this appeal.
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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. Naveen K. Bhardwaj, Advocate for the accused has supported the judgment of the learned trial Court dated 6.5.2010.
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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. rt PW- 1 HC Mukesh Kumar testified that he was posted in SIU for the last 8-10 months. He along with SI Onkar Singh, HC Balbir Sharma and Const. Sanjay Kumar were going in a government vehicle bearing registration No. HP-34-0049 for investigation into the FIR No. 107 of 2009 dated 12.3.2009. When the investigation was completed, they were returning towards Kullu. One person was present at Bagyanda Mour at about 3:30 PM. He was having a backpack on his shoulder which was black coloured. He started running on seeing the police. He was apprehended. He disclosed his identity. SI Onkar Chand checked the backpack and it was found to be containing pancake like charas. The charas was kept inside the pants which was in the pack. It weighed 1 kg 45 grams. It was wrapped in a piece of cloth along with cello tape. The cloth parcel was sealed with six impressions of seal "O". Seal impression Ext. PW-1/A was taken separately on a piece of cloth. It was signed by him and HC Balbir. NCB-I form was filled in triplicate. Charas was seized vide seizure memo Ext. PW-1/B. Site plan was prepared. Rukka was prepared.
::: Downloaded on - 15/04/2017 20:07:40 :::HCHP 4It was handed over to Const. Sanjay Kumar. The case property was produced while recording the statement of this witness in the Court. In his .
cross-examination, he testified that they saw the accused when they were travelling in the vehicle from a distance of about 70-80 meters. They stopped the vehicle near the accused and accused started running away.
They got suspicious. The accused ran towards Jari. They were coming from Jari towards Kullu at that time. All the police officials ran after the of accused. They ran towards Jari. The accused had covered 40-50 paces before he was apprehended. SI Onkar caught the accused and thereafter rt all of them caught the accused. He was carrying bag. The bag was checked by SI Onkar Singh. The charas was weighed by the I.O. It was weighed in one lot. He also admitted that the parcel was stitched with the help of sewing machine on two sides. He admitted that portion of Ext. P-1 was torn and thereafter re-stitched and sealed with seal of FSL. The contents of NCB-I form were filled at the spot by the I.O. The accused was arrested at about 5:00 PM.
7. PW-2 Sanjay Kumar deposed the manner in which the accused was apprehended and the contraband was recovered. The rukka Mark-B was handed over to him. He carried it to the Police Station Kullu and handed over to SHO Sanjeev Chauhan. In his cross-examination, he testified that the accused ran towards Bhunter for about 5-7 paces. He also admitted that many vehicles crossed Bagyanda Mour in the presence of the police party. He did not remember whether any vehicle was stopped or any occupant was asked to become a witness. He did not remember whether driver, conductor or passengers of the bus in which he came to ::: Downloaded on - 15/04/2017 20:07:40 :::HCHP 5 Kullu were associated as witnesses or not. He did not remember as to whether I.O. had sent any person to associate any person of the village.
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8. PW-3 HC Manoj Kumari deposed that Sanjeev Chauhan handed over to her one sealed parcel which was sealed with six impressions of seal impressions "O" and was resealed with four impressions of seal "W" alongwith sample seals, NCB0I form in triplicate, photo copy of seizure memo on 21.10.2009 at 9:20 PM. She made entry in of the malkhana register at Sr. No. 219. She deposited the case property in the malkhana. She handed over the case property to HHC Tek Singh on rt 22.10.2009 with direction to deposit the same at FSL, Junga vide RC No. 172/2009.
9. PW-4 HHC Tek Singh deposed that MHC Manoj Kumari handed over one parcel sealed with six impressions of seal "O" and four impressions of seal "W", sample seals and other documents on 22.10.2009.
He deposited the same at FSL, Junga on 23.10.2009.
10. PW-6 SHO Sanjeev Chauhan deposed that SI Onkar Singh returned to the Police Station at about 9:00 PM on the same day. He handed over the case property to him. He resealed the same with four impressions of seal "W". He filled in column nos. 9 to 11 of NCB-I form.
He handed over the case property alongwith the sample seals, NCB-I form and other documents to MHC Manoj Kumari.
11. PW-7 SI Onkar Singh testified the manner in which the accused was apprehended. The charas was recovered. He filled in NCB-I form Ext. PW-3/B. It was handed over to witness Mukesh Kumar. Memo Ext. PW-1/B was made regarding recovery of charas. Rukka Ext. PW-7/A ::: Downloaded on - 15/04/2017 20:07:40 :::HCHP 6 was prepared which was sent to Police Station through Const. Sanjay Kumar. Statements of the witnesses were recorded. The case property was .
produced before PW-6 SHO Sanjeev Chauhan who resealed the same. In his cross-examination, he deposed that he had made efforts to associate independent witnesses but it was lonely and deserted place, therefore, no witness could be associated. There was no building at the spot. No vehicle crossed the road at the spot. The driver and conductor of the bus in which of Sanjay Kumar left the spot were not associated as witnesses because investigation was already complete and rukka had been prepared.
12. rt PW- 1 HC Mukesh Kumar deposed that accused ran towards Jari side, however, PW-2 Const. Sanjay Kumar deposed that accused ran towards Bhuntar. PW-2 Const. Sanjay Kumar has categorically admitted in his cross-examination that many vehicles crossed Bagyanda Mour in the presence of the police party. He did not remember whether any vehicle was stopped or any occupant was asked to become a witness. He did not remember whether driver, conductor or passengers of the bus in which he came to Kullu were associated as witnesses or not. He did not remember as to whether I.O. had sent any person to associate any person of the village. PW-7 SI Onkar Singh has admitted in his cross-examination that he had made efforts to associate independent witnesses but it was lonely and deserted place, therefore, no witness could be associated. No vehicle crossed the road at the spot. The driver and conductor of the bus in which Sanjay Kumar left the spot were not associated as witnesses because investigation was already complete and rukka had been prepared. It has come in the statement of PW-2 Sanjay Kumar that many vehicles crossed ::: Downloaded on - 15/04/2017 20:07:40 :::HCHP 7 Bagyanda Mour in the presence of the police party. PW-2 Constable Sanjay Kumar has admitted that there is a building of Malana Project at a .
distance of 5 meters from Bagyanda Mour. The police could easily associate the occupants of the building of Malana Project as well as vehicle as independent witnesses.
13. The case of the prosecution, precisely, is that the police party was coming back from Jari after carrying out investigation in FIR No. 107 of of 2009 dated 12.3.2009. The accused was found at Bagyanda Mour.
However, PW-7 SI Onkar Singh, in his examination-in-chief, has deposed rt that they had gone to Bagyanda for investigation in case FIR No. 107 of 2009 dated 12.3.2009. This witness has given altogether a different version regarding the place of visit and the place where the accused was apprehended.
14. PW- 1 HC Mukesh Kumar testified that vehicle was stopped near the accused. The accused started running away. However, PW-2 Sanjay Kumar has given a different version. According to him, the vehicle was stopped at some distance towards Jari. PW- 1 HC Mukesh Kumar testified that accused ran and covered 40-50 paces when he was apprehended, however, PW-2 Const. Sanjay Kumar deposed that the accused had covered only 5-7 paces when he was apprehended.
15. According to the evidence adduced by the prosecution, there is mention of six seals of Seal "O" and four seals of seal "W" in the report Ext.
PW-7/E. However, when the case property was produced before the Court, it was having six impressions of seal "O", six impressions of seals of FSL and three seal impressions of seal "W".
::: Downloaded on - 15/04/2017 20:07:40 :::HCHP 816. The case property was produced while recording the statement of PW-1 HC Mukesh Kumar. 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. 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 of 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 rtarticle 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.
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)."
17. It is necessary that as and when case property is taken out 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 ::: Downloaded on - 15/04/2017 20:07:40 :::HCHP 9 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.
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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 rt 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.
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 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 than prosecuting sub-inspector and an entry made in the register of ::: Downloaded on - 15/04/2017 20:07:40 :::HCHP 10 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 of 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 rt 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 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."
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 ::: Downloaded on - 15/04/2017 20:07:40 :::HCHP 11 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 of 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 rt 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 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 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 ::: Downloaded on - 15/04/2017 20:07:40 :::HCHP 12 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.
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21. In Punjab Police Rules, also applicable to the State of Himachal Pradesh, Malkhana register is assigned serial number-19.
rt It is in a tabular form. There are different columns like who has deposited the case property and when it was taken out and deposited back. These details are very material and every deposit made in the Malkhana /Store Room is to be recorded and also at the time when it is re-deposited.
22. 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 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.
::: Downloaded on - 15/04/2017 20:07:40 :::HCHP 1323. Thus, the prosecution has failed to prove the case against the accused under Sections 20 of the ND & PS Act that the charas was .
recovered from the conscious and exclusive possession of the accused.
This Court has no occasion to interfere with the well reasoned judgment of the learned trial Court dated 6.5.2010.
24. Accordingly, there is no merit in this appeal and the same is dismissed.
of ( Rajiv Sharma ), Judge.
April 13, 2016,
(karan)
rt ( Ajay Mohan Goel ),
Judge.
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