Himachal Pradesh High Court
State Of Himachal Pradesh vs Sanjay Sharma on 2 May, 2016
Bench: Rajiv Sharma, Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 327 of 2011.
Reserved on: April 29, 2016.
.
Decided on: May 02, 2016.
State of Himachal Pradesh ......Appellant.
Versus
Sanjay Sharma .......Respondent.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
of
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting? 1 Yes.
For the appellant: Mr. M.A.Khan, Addl. AG
For the respondent: Mr. B.B.Vaid, Advocate.
----------------------------------------------------------------------------------------------
rt
Justice Rajiv Sharma, J.
This appeal is instituted at the instance of the State against the judgment dated 10.1.2011, rendered by the learned Presiding Officer (FTC), Mandi, H.P., in Sessions trial No. 12/2010, 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 on 7.12.2009, police party headed by SI/SHO PS Aut Smt. Sureshta Thakur, had set up a Nakka at traffic tunnel. At about 6:30 AM, the police party left the place of Nakka and started proceeding towards Silli Larji in the police vehicle. At about 7:00 AM, when the police party reached about 500 meters ahead of Dam, the accused was seen coming from Silli Larji side.
He was carrying a bag in his right hand. He was stopped. On search of 1 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 20:14:54 :::HCHP 2the bag, it was found to be containing a container. The container was opened and it was found to be containing honey, but the container was .
giving smell of narcotic substance. It was checked and ultimately on opening of the lid, 12 packets wrapped with cello tape having charas was recovered from the packets. It weighed 6 kg. 250 grams. The recovered charas along with the packets were put in that very container and the of container was put in that very bag and it was parceled and sealed with 8 seals of impression "T". The place was secluded one and hence no independent witness was associated. NCB form was filled in on the spot.
rt Sample seal was also taken on a piece of cloth. The case property was taken into possession vide separate memo. Rukka was scribed and sent to the Police Station through Constable Ramesh Kumar, on the basis of which, FIR No. 155/2009 was recorded against the accused at Police Station Aut. The case property was deposited with the MHC along with the relevant documents. It was sent to laboratory vide RC No. 116/09. The report of the Chemical Analyst is Ext. PX. The investigation was completed and the challan was put up before the Court after completing all the codal formalities.
3. The prosecution, in order to prove its case, has examined as many as eleven witnesses. The accused was also examined under Section 313 Cr.P.C. According to him, he was falsely implicated. The accused has examined two defence witnesses. The learned trial Court acquitted the accused, as noticed hereinabove. Hence, this appeal.
::: Downloaded on - 15/04/2017 20:14:54 :::HCHP 34. 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. B.B.Vaid, Advocate for the accused has supported the judgment of the learned trial Court dated 10.1.2011.
5. We have heard the learned counsel for both the sides and have also gone through the judgment and records of the case carefully.
of
6. PW-1 ASI Ramesh Prashar testified that on 7.12.2009, he along with SHO Sureshta Thakur, ASI Amar Singh, Const. Ramesh Kumar, Const. Jeet Kumar, Const. Vipin Kumar and Home Guard Dola Ram were rt present at Traffic Tunnel Aut in connection with nakabandi and patrolling.
AT about 6:30 AM, they left the spot of nakabandi and proceeded towards Silli Larji for patrolling. When they reached about 500 meters ahead of Larji Dam, one person was seen coming on foot from the opposite side. He was holding a bag in his hand. He was apprehended. The bag was found to be containing a container. On search of the container it was found to be containing charas. It weighed 6 kg. 250 grams. The sealing proceedings were completed on the spot. In his cross-examination, he denied that the point where the accused was apprehended was very busy and traffic kept on passing through that point. He had no knowledge about the employees serving at Dam site. He denied that stone crusher existed near the place of alleged recovery. Volunteered that it existed about 100-200 yards from that place. The stone crusher was closed at that time. He was not asked by the I.O. to bring independent witnesses and no other member of the ::: Downloaded on - 15/04/2017 20:14:54 :::HCHP 4 raiding party was asked by the I.O. in his presence to call for independent witnesses.
.
7. PW-2 ASI Amar Nath also deposed the manner in which the accused was apprehended and charas was recovered. NCB form was filled in on the spot by the I.O. The case property was taken into possession vide memo Ext. PW-1/A. He denied the suggestion in his cross-examination of that bus stop existed near the place of alleged nakka. The nakka was set up at about 3:00 AM. He also denied the suggestion that stone crusher was existing near the place of alleged recovery. Volunteered that it was rt 800 meters away from that place. He denied the suggestion that police had prior information about trafficking of narcotics. He denied the suggestion that accused along with Nirath Ram had come from Chandigarh in a vehicle being driven by Rahul Dhiman and reached at Traffic Tunnel at 5:00 AM.
8. PW-3 HC Satya Parkash deposed that on 7.12.2009, SHO Sureshta Thakur deposited with him case property i.e. one parcel sealed with 8 seals of seal "T" along with NCB form in triplicate and sample seal.
He made entry in the malkhana register No. 19 at Sr. No. 527 vide Ext.
PW-3/A. The case property was sent to FSL, Junga through Const. Sudeep Kumar.
9. PW-4 HC Kashmir Singh deposed that he remained posted as MHC in Police Station, Aut during December, 2009 to June, 2010. HHC Jagdish Chand deposited with him the case property sealed with seal "T"
::: Downloaded on - 15/04/2017 20:14:54 :::HCHP 5and seal of FSL. He made entry in the malkhana register at Sr. No. 527 vide Ext. PW-3/A. .
10. PW-5 Const. Sudeep Kumar deposed that on 8.12.2009, MHC Satya Parkash, Police Station Aut, handed over to him one parcel sealed with seal impression "T" at 8 places for being taken to FSL, Junga vide RC No. 116/09. He took the same to FSL, Junga.
of
11. PW-8 Kapil Sharma deposed that the actual weight of the exhibit was found to be 6.192 kg. The exhibit was found to be sample of charas and quantity of resin was found to be 32.96%. He proved report rt Ext. PX. In his cross-examination, he deposed that the sample was received in a sealed cloth parcel and on opening the sealed cloth parcel, one iron container was found and on opening the lid of the container at the top, the honey was found in the container but when the container box tilted downwards, a lid was opened and exhibit packed in poly wrapper/brown cello tape wrappers was found. He took one hour to make the sample homogeneous.
12. PW-10 SHO Sureshta Thakur also deposed the manner in which the accused was apprehended and the charas was recovered from the accused 500 meters ahead of the Dam at place known as Silli Larji.
Rukka was scribed vide Ext. PW-10/B. It was sent to Police Station through Const. Ramesh Chand. In her cross-examination, she deposed that they reached at traffic tunnel at about 2:55 A.M. Nakka was set up at about 3:00 AM. She also admitted that nakka was set up on the National Highway. The mixture plant was there near the place of nakka.
::: Downloaded on - 15/04/2017 20:14:54 :::HCHP 6Volunteered that the mixture plant was at a little distance from the place of nakka and the said plant was closed for the last few months. It was not in .
operation on that date. The offices were closed because nakka was set up at night. The distance of offices from the place of nakka was about 200- 250 meters. She denied the suggestion that vehicles belonging to NHPC Sainj Project keep on passing through that road day and night. She denied of that Thalaut bazaar was situated at a distance of 1 km. from the alleged shed. The distance of Thalaut bazaar was about 2 km. from the alleged place of nakka. She admitted that there were several shops at Thalaut rt bazaar. She tried to associate independent witnesses, since the place was secluded one, no independent witnesses were available at that time. She asked the other police officials who were accompanying her to notice some independent person.
13. PW-11 HHC Jagdish Kumar deposed that on 29.1.2010, he has brought the case property of this case along with the FSL report and NCB form from FSL, Junga and handed over the same to MHC Police Station, Aut.
14. DW-1 Rahul Dhiman deposed that he was working as driver on his own vehicle. He purchased the vehicle on 13.10.2009. On 6.12.2009, he had gone to Chandigarh along with Chief Engineer R.K. Jaiswal in Scorpio vehicle being driven by him. Nirath Ram was also accompanying him in the vehicle as his son was ill. They reached at Chandigarh on 6.12.2009 at about 4:00 PM at Sector 43. Nirath Ram alighted from the vehicle at Sector 43. He took the vehicle to Sector 15 to drop the Chief ::: Downloaded on - 15/04/2017 20:14:54 :::HCHP 7 Engineer there. He dropped him at Railway Station at 10:00 PM. The Chief Engineer was to go to Delhi. He waited for Nirath Ram at Sector 43, .
who arrived there at about 10:45 PM. Four passengers from Bilaspur also boarded his vehicle and one person who had to go to Sainj also boarded the vehicle. He reached at Thalaut at about 5:00 AM. Police officials had set up nakka at traffic tunnel. Police got his vehicle stopped and demanded of papers of the vehicle and driving licence from him. He and Nirath Ram were allowed to go. Accused Sanjay Kumar was asked to show his identity card but he could not produce his identity card. In his cross-examination, rt he deposed that accused was not known to him. He did not make inquiries from the passengers who allegedly travelled with him in the vehicle. They stayed at Thalaut for about 15 minutes.
15. DW-2 Nirath Ram deposed that on 6.12.2009, he had gone to Chandigarh in Scorpio vehicle and official from NHPC had also gone to Chandigarh in the said vehicle. He had gone to Chandigarh to bring medicine for his son who remained under treatment at PGI. They reached Chandigarh at about 7-8 PM and left Chandigarh at about 8-9:00 PM.
They were 4 persons in the vehicle, including the driver. Two persons got down from the vehicle at Bilaspur. The accused also boarded the vehicle from Chandigarh. They reached Thalaut in between 5-6:00 AM. The police officials got their vehicle stopped at traffic tunnel at Thalaut. They demanded papers of the vehicle. They also made inquiries from him. He told that he had brought medicines from Chandigarh for his son.
::: Downloaded on - 15/04/2017 20:14:54 :::HCHP 816. The police party had laid down nakka at 7:00 AM. Accused was travelling in Scorpio. He was carrying container. The container was .
searched. It contained charas. The codal formalities were completed on the spot. The case property was sent to FSL, Junga.
17. PW-10 SHO Sureshta Thakur has categorically deposed that the place where the accused was apprehended was secluded one and no of independent witnesses were available. The proceedings were carried out in the presence of ASI Amar Nath and ASI Ramesh Lal. The charas weighed 6 kg. 250 grams. In her cross-examination also, she deposed that she tried rt to associate independent witnesses, since the place was secluded one, no independent witness was available.
18. Mr. B.B. Vaid, Advocate, for the accused has vehemently argued that near the place where the accused was apprehended, there was stone crusher. However, it has come on record that the stone crusher was closed. The bazaar from the place where the accused was apprehended was around 2 kms. The police had no prior information. It was a chance recovery. It is true that no independent witness was joined when the accused was apprehended, search, seizure and sealing proceedings were completed on the spot, however, the fact of the matter is that statements of PW-1 ASI Ramesh Prashar, PW-2 ASI Amar Nath and PW-10 SHO Sureshta Thakur inspire confidence. They have no enmity with the accused. They have supported the prosecution case in totality. There are no contradictions in the statements made by PW-1 ASI Ramesh Prashar, PW-2 ASI Amar Nath and PW-10 SHO Sureshta Thakur.
::: Downloaded on - 15/04/2017 20:14:54 :::HCHP 919. The case property was deposited with the MHC of the Police Station, Aut. He has sent the same to FSL, Junga. The case property was .
brought back from FSL, Junga. The sample was found to be charas. The report of the FSL, Junga is Ext. PX. The report of the FSL was duly proved by PW-8 Kapil Sharma. He has made the sample homogeneous before testing it. The learned trial Court has acquitted the accused by taking into of consideration minor contradictions in the statements of the witnesses.
Merely that there was contradiction in the statement of PW-2 ASI Amar Nath vis-à-vis statement recorded under Section 161 Cr.P.C. with regard to rt colour and metal of the recovered container would not make the case of the prosecution doubtful. Merely that the witness could not explain whether the parcel was in the shape of bag or cloth would also not dent the case of the prosecution.
20. The statements of DW-1 Rahul Dhiman and DW-2 Nirath Ram do not inspire confidence as to how the accused could know that the vehicle in question driven by DW-1 Rahul Dhiman would be going to Kullu.
The accused belongs to Haryana. DW-1 Rahul Dhiman is resident of Village Panvi, Tehsil Sainj and DW-2 Nirath Ram is resident of Village Faryana, Sub-Tehsil Sainj, Distt. Kullu, H.P. DW-1 Rahul Dhiman deposed that they reached Chandigarh at 4:00 PM on 6.12.2009. DW-2 Nirath Ram deposed that they reached Chandigarh at about 7-8:00 PM. If they had gone to Chandigarh and came back to Kullu, they should have produced toll plaza receipts to prove that in fact they had gone to Chandigarh. The manner in which the parcel was stitched was also not of ::: Downloaded on - 15/04/2017 20:14:54 :::HCHP 10 great significance. The fact of the matter is that the parcel was sealed and it has reached the FSL, Junga intact. It has come on record that the .
sample was sealed with seal "T" and its non-production would not, in any manner, cause doubt upon the prosecution case. The rukka was received by PW-3 HC Satya Parkash and thereafter FIR Ext. PW-3/C was recorded.
The non-production of Constable Ramesh Kumar, who has taken the rukka of from the place where the accused was apprehended to the Police Station, would not, in any manner, affect the case of the prosecution.
21. Accordingly, the prosecution has proved the case against the rt accused beyond reasonable doubt under Section 20 of the ND & PS Act.
The appeal preferred by the State is allowed. Judgment of acquittal rendered by the learned trial Court dated 10.1.2011 in Sessions Trial No. 12/10 is set aside. The accused is convicted under Section 20 of the ND & PS Act for being in possession of 6 kg 250 grams of charas. The accused be produced for hearing on quantum of sentence on 18.5.2016. List on 18.5.2016.
( Rajiv Sharma ), Judge.
May 02, 2016, ( Vivek Singh Thakur ),
(karan) Judge.
::: Downloaded on - 15/04/2017 20:14:54 :::HCHP