Himachal Pradesh High Court
Shambu Ram vs State Of Himachal Pradesh on 3 January, 2020
Author: Anoop Chitkara
Bench: Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr. Appeal No. 392 of 2007
Judgment reserved on : 8.11.2019
Date of Decision : January 3 , 2020
Shambu Ram ...Appellant.
Versus
State of Himachal Pradesh ...Respondent.
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 Yes.
For the appellant : Mr. B.N. Sharma, Advocate, for the appellant. For the respondent : Mr. Narender Guleria, Additional Advocate General for the respondent/State.
Anoop Chitkara, Judge.
Challenging the conviction under Section 20 of Narcotics Drugs and Psychotropic Substances Act, 1985, and sentence of rigorous imprisonment for one year with fine of Rs.5000/-, and in default further rigorous imprisonment for three months, awarded for possessing 42.795 grams of charas, the convict (appellant herein) has come up before this Court by filing the present criminal appeal.
2. The gist of the prosecution case, apposite to arrive at a just conclusion, traces its origin to a daily diary number 14, dated 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 03/01/2020 20:37:17 :::HCHP 2November 22, 2005, entered in Police Post-Sanjauli, Shimla City, District Shimla, Himachal Pradesh. As reflected in the entry made in .
this diary (Exhibit PW-4/A), the police party, headed by the Investigating Officer ASI Jai Gopal (PW-10), and accompanied by Head Constable Rajinder Singh (PW-8), Constable Gian Chand (PW-5), Constable Kalam Singh (not examined), proceeded towards Sanjauli to detect crime.
3. When the police party was present at Sanjauli Bazar, then at around 7 PM, ASI Jai Gopal (PW-10), received a secret information, from a reliable source, that a person named Shambu Ram, (Convict/Appellant), who has a dark complexion, is holding a purple color polythene packet in his hand, and is coming towards Sanjauli Chowk from the side of Dhalli tunnel. The information further revealed that this person trades in charas. The Investigating Officer (PW-10), believed this information to be reliable, and after that in compliance with the provisions of Section 42 (2) of the Narcotics Drugs and Psychotropic Substances Act, 1985, after now called as NDPS Act, wrote the prior information (Ex. PW 5/A), and sent the same to superior officer, through Constable Gyan Chand (PW-5).
4. The police associated two independent witnesses, from the locality, namely Madan Lal (PW-2) and Nirmal Kumar (not examined). They laid down a check post, opposite to the Police ::: Downloaded on - 03/01/2020 20:37:17 :::HCHP 3 Post, Sanjauli. In the meantime, a person matching the description arrived near the Police Post and the police party detained him. On .
inquiry, he disclosed his name as Shambu Ram. On this, the police party told him that they suspect him of carrying some contraband.
5. After that, the Investigating Officer ASI Jai Gopal, (PW-10), gave his search to the accused vide memo exhibit PC. He apprised the accused of his right under section 50 of the NDPS Act, vide exhibit PB. The accused opted for research by the police party itself.
The police party, in the presence of independent witnesses, took the polythene carry bag from the hands of the accused and opened it.
The police noticed charas, in the shapes of sticks and billets, inside this polythene bag. The Police party went to a nearby shop of a jewellery named Deogar Jewellers, Sanjauli, and through its proprietor, Rajesh Sood (PW-3), weighed the charas, which turned out 135 grams. Out of the recovered charas, the police took out two samples of 20 grams each, for chemical examination, and sealed the remaining charas as well as both the sample parcels, in cloth packets, by affixing three impressions of 'R', and also took impressions of 'R' on cloth (Ext. PW10/A). The police also filled up NCB from exhibit (PW-10/B) and also obtained the specimen impressions of seal 'R' on NCB forms. The Investigator handed over the seal to witness Madan Lal (PW-2). The police prepared a ::: Downloaded on - 03/01/2020 20:37:17 :::HCHP 4 seizure memo (Ext. PD) at the spot, and the accused, as well as witnesses, put their signatures on this seizure memo.
.
6. The Investigating Officer prepared a complaint (Ext. PW 10/C), and sent the same to SHO, police Station Dhalli, District Shimla, through Constable Kalam Singh, for registration of FIR. The investigating officer prepared spot map (Ext. PW 10/D), and worked on other procedures, at the spot.
7. On the receipt of information, the Police Station Dhalli registered in its file, an FIR No. 240 of 2005, dated 22.11.2005, under Section 20 of NDPS Act (Ext. PW-9/B), and handed over the copy of FIR to Constable Kalam Singh to intimate the Investigating Officer about the registration number of FIR. The Investigating Officer arrested the accused, and intimated his family members on the phone, vide memo (Ext. PW 10/E). After the arrest, the personal search of the accused was again carried out, and the police recovered Rs.20/- apart from other personal articles.
8. The Investigating Officer, in compliance with the provisions of Section 57 of the NDPS Act, prepared a special report, (Ext. P-A), and sent the same to his superior officer, i.e., the Superintendent of Police, Shimla, through Lady Constable Balmo Devi (not examined).
9. The Investigating Officer handed the case property to Inspector Sunil Negi (not examined), SHO of Police Station, Dhalli, ::: Downloaded on - 03/01/2020 20:37:17 :::HCHP 5 who re-sealed the same vide memo (Ext. PW-9/D). Inspector Sunil Negi, SHO, handed over the case property to HC Tek Ram (PW-6), .
with direction to deposit it in Police malkhana. HC Tek Ram (PW-6) entered the case property in the register of Malkhana, vide entry Exhibit PW6/B. On Nov 25, 2005, MHC (PW-6), sent one sample, along with requisite documents, to Forensic Science Laboratory, Kandaghat, after now called CTL, vide RC number 119 of 2005 (Ext.
PW-6/A), through HHC Subhash Chand (PW-11).
10. On November 24, 2005, HHC Subhash Chand (PW-11) took the sample to CTL, however, they did not accept and suggested him to deposit it in State Forensic Science Laboratory, Junga, after now call SFSL. As such HHC Subhash Chand (PW-11) re-deposited the sample with MHC (PW-6). On November 25, 2005, MHC (PW-6), again handed over the sample to HHC Subhash Chand (PW-11), who took the sample to SFSL, Junga, however, even they did not accept and suggested to him to deposit it in CTL, Kandaghat. As such PW-11 re-deposited the sample with MHC (PW-6). On November 26, 2005, HHC Subhash Chand (PW-11), took the sample to CTL, vide RC No. 119 of 2005, and this time they accepted it. PW-11 deposited the receipt with MHC (PW-6). Vide report (Ext. PW-9/A), the Chemical Examiner of CTL, Kandaghat, ::: Downloaded on - 03/01/2020 20:37:17 :::HCHP 6 declared the contraband to be charas with resin percentage of 31.70 w/w.
.
11. After completion of the investigation, Inspector Vijay Kumar (PW-9) prepared the report under section 173 (2) of CrPC and filed it in the Special Court, Shimla, seeking prosecution of the accused.
12. Vide order dated July 6, 2007, Special Judge Fast Track Court, Shimla, framed charges against the accused, for recovery of 135 grams of charas, in his conscious and exclusive possession, in contravention to the provisions of NDPS Act, punishable under section 20 of NDPS Act. The accused did not plead guilty and claimed trial.
13. After the examination of prosecution witnesses, in compliance with section 313 of CrPC, the Court put incriminating circumstances to the accused. The accused denied all the circumstances, and in answer to question number 27 stated that he is innocent, and the case is false. However, the accused did not lead any evidence in his defence.
14. After hearing the arguments, the learned Special Judge accepted the prosecution evidence and, vide judgment dated October 24, 2007, passed in Sessions Trial No. 12-S/7 of 2007/2006, the trial Court held the accused guilty for commission of ::: Downloaded on - 03/01/2020 20:37:17 :::HCHP 7 an offence punishable under section 20 of the NDPS Act and sentenced accordingly.
.
15. Challenging this judgment of conviction, the appellant has come up before this Court by filing the present appeal.
16. I have heard Mr. B.N. Sharma, Advocate learned Counsel for the Appellant/Convict and Mr. Narender Guleria, learned Additional Advocate General for the respondent/State. I have also waded through the entire record.
ANALYSIS AND REASONING:
17. To ensure that the prosecution proved all the steps leading from their departure from the Police Station up to the production of the case property in the Court during the trial, the following aspects of the evidence need discussions.
18. In this case, since the accused was allegedly carrying the bag containing charas in his hands, as such, the search was not from his person. The law to the said effect is well settled in the pronouncements of larger benches of the Supreme Court. A three Judge Bench of Supreme Court in State of Himachal Pradesh vs. Pawan Kumar, (2005) 4 SCC 350, has extensively dealt with this aspect, and the law is no more res integra.
::: Downloaded on - 03/01/2020 20:37:17 :::HCHP 819. Another three Judge Bench of Supreme Court, in S K Raju @ Abdul Haque @ Jagga vs. State of West Bengal, (2018) 9 SCC 708, .
holds:
"2. The facts of the case are as follows; On 15 November 2011, Sub-Inspector Prasanta Kr. Das, Narcotics Cell, DD (PW-
2) received information that a drug dealer would be in the vicinity of Tiljala Falguni Club, 138B/1, Picnic Garden Road, near Tiljala Police Station to supply narcotic drugs in the afternoon. PW-2 sought permission from the Assistant Commissioner of Police, Anti-Narcotics Department, DD to organize a raid (Exhibit-2).
Permission was granted by the superior officer on the same day and a raiding team consisting of PW-2 and others reached the spot at about 12.50 pm. At around 1.40 pm, the source of the information pointed out to the appellant who was coming along Picnic Garden Road. The appellant was intercepted and detained immediately by the raiding party in front of Falguni Club. The appellant was informed about the reasons for his detention and the identities of the raiding party were disclosed to him. Subsequently, the appellant also disclosed his identity to the raiding party. PW-5 was one of the two independent witnesses who agreed to be a witness to this search.
3. The appellant was informed about his legal right to be searched either in the presence of a magistrate or a gazetted officer (Exhibit-3). The appellant opted for being searched by a gazetted officer. A gazetted officer, Inspector Joysurja Mukherjee ("PW-4"), arrived on the scene at about 3.20 pm. He provided the appellant with a "second option". The appellant was asked by PW-4 whether he wished to be searched in the presence of a gazetted officer or a magistrate (Exhibit-4). Once again, the appellant consented to be searched in the presence of a gazetted officer. PW-4 then inquired of the appellant whether he wanted to search PW-2 before the latter would carry out his search. The appellant agreed to search PW-2 before his own search was carried out by PW-2. No narcotic substance was recovered from the person of PW-2. PW-2 recovered nineteen "deep brown/blackish broken rectangular sheets" from a black polythene packet which was inside a biscuit colour jute bag, which the appellant was carrying in his right hand. The sheets were tested by PW-2 on the spot with the help of a test kit. The substance was found to be charas. The substance was also weighed using a weighing scale. The appellant was found to be in possession of 1.5 kilograms of charas." ... ...
::: Downloaded on - 03/01/2020 20:37:17 :::HCHP 9... ...
"21. As evidenced by Exhibit-3, a first option was given to the appellant. PW-2 informed him that it was his legal right to be .
searched either in the presence of a magistrate or in the presence of a gazetted officer. The appellant was then asked to give his option by indicating whether he wanted to be searched by a magistrate or a gazetted officer. The appellant indicated that he wanted the search to be carried out in the presence of a gazetted officer. When PW-4 arrived, he was introduced to the detainee as a gazetted officer. As evidenced by Exhibit-4, PW-4 then gave the appellant a second option. He inquired of him again, whether he wanted to be searched in the presence of a gazetted officer or in the presence of a magistrate. The appellant reiterated his desire to be searched in the presence of a gazetted officer. Before the search of the appellant commenced, the gazetted officer asked the appellant whether he wanted to search PW-2 before his own search was carried out by PW-2.
The appellant agreed to search PW-2 before the latter carried out his search. On conducting the search, only personal belongings of PW-2 were found by the appellant. On the search of the appellant in the presence of the gazetted officer, a biscuit colour jute bag was recovered from the appellant, and L 2,400/- cash in the denomination of 24 notes of L 100/- each was found in the left pocket of the appellant's trouser. When the bag was opened, a black polythene cover containing nineteen rectangular broken sheets of a blackish/deep brown colour weighing 1.5 kilograms was recovered. The sheets were tested and were found to be charas.
22. PW-2 conducted a search of the bag of the appellant as well as of the appellant's trousers. Therefore, the search conducted by PW-2 was not only of the bag which the appellant was carrying, but also of the appellant's person. Since the search of the person of the appellant was also involved, Section 50 would be attracted in this case. Accordingly, PW-2 was required to comply with the requirements of Section 50(1). As soon as the search of a person takes place, the requirement of mandatory compliance with Section 50 is attracted, irrespective of whether contraband is recovered from the person of the detainee or not. It was, therefore, imperative for PW-2 to inform the appellant of his legal right to be searched in the presence of either a gazetted officer or a magistrate. From Exhibit-3, it can be discerned that the appellant was informed of his legal right to be searched in the presence of a magistrate or a gazetted officer. The appellant opted for the latter alternative. Exhibit-4 is a record of the events after the arrival of PW-4 on the scene.
::: Downloaded on - 03/01/2020 20:37:17 :::HCHP 10After the arrival of PW-4, the appellant was once again asked by him, whether he wished to be searched in the presence of a gazetted officer or a magistrate. This was the second option which was presented to him. When he reiterated his desire to be .
searched before a gazetted officer, PW-4 inquired of the appellant whether he wished to search PW-2 before his own search was conducted by PW-2. The appellant agreed to search PW-2. Only the personal belongings of PW-2 were found by the appellant. It was only after this that a search of the appellant was conducted and charas recovered. Before the appellant's search was conducted, both PW-2 and PW-4 on different occasions apprised the appellant of his legal right to be searched either in the presence of a gazetted officer or a magistrate. The options given by both PW-2 and PW-4 were unambiguous. Merely because the appellant was given an option of searching PW-2 before the latter conducted his search, would not vitiate the search. In Parmanand [(2014) 5 SCC 345], in addition to the option of being searched by the gazetted officer or the magistrate, the detainee was given a 'third' alternative by the empowered officer which was to be searched by an officer who was a part of the raiding team. This was found to be contrary to the intent of Section 50(1). The option given to the appellant of searching PW-2 in the case at hand, before the latter searched the appellant, did not vitiate the process in which a search of the appellant was conducted. The search of the appellant was as a matter of fact conducted in the presence of PW-4, a gazetted officer, in consonance with the voluntary communication made by the appellant to both PW-2 and PW-4. There was strict compliance with the requirements of Section 50(1) as stipulated by this Court in Vijaysinh [(2011) 1 SCC 609]."
20. Since Section 50 of the NDPS Act did not attract in the facts of the present case, there is no need to discuss the legality of the memo, Ext PB, which relates to its compliance.
21. Similarly, since the search was not from a building convenience or an enclosed place, but was from a public place, i.e., road. Resultantly the provisions of Section 42 of the NDPS Act do not attract. However, the Prosecution has complied with the ::: Downloaded on - 03/01/2020 20:37:17 :::HCHP 11 requirements of Section 42 of the NDPS Act, as is evident from memo Ext. PW-5/A duly proved in evidence.
.
22. The Prosecution also complied with the provision of Section 57 of NDPS Act, vide memo exhibit PA, duly proved by HC Diwan Chand (PW-1), the then Reader to SP, Shimla.
23. The Prosecution also proved the link evidence; however, the following doubts have cropped in the case of the Prosecution.
24. The case set up by the Prosecution is that after noticing the accused carrying charas in his hands in a polythene bag on the road, they took the accused, along with the independent witnesses, inside the shop of a jeweler, Rajesh Sood (PW-3). The explanation for carrying the charas inside the shop was that the investigating team did not bring any weighing machine with them, and to weigh the charas, they used the shop of a jeweler. Sh Rajesh Sood (PW-
3) duly corroborates this fact.
25. Now, as per the case of the Prosecution, they were not carrying weighing scale. However, there is no evidence to establish that at the time of its departure from the Police Station, the Police party was also taking the investigation kit. No witness stated so during the trial and the earliest report, the daily diary entry,(Ext. PW-
4/A) also does not indicate that the police party had carried an investigation kit with them. As per the case of the Prosecution, in the ::: Downloaded on - 03/01/2020 20:37:17 :::HCHP 12 shop of the jeweler, they had put the charas in cloth parcels, sealed those with lac, and filled in printed NCB forms. There is no evidence .
that the Police party was carrying these articles. It is not the case of the Prosecution that the Police had sent someone to take these articles from Police Post or Police Station. Thus the Prosecution did not reveal the real facts as far as availability of cloth, lac, and printed NCB forms.
26. Even after having been declared hostile, Madan Lal (PW-2) did not support the case of the Prosecution and denied that the police had conducted the search in his presence. The only thing he admitted was that the accused had disclosed his name as Shambu Ram. Therefore, even if the accused admitted his name, it does not lead to any inference that the police recovered charas from his possession. In cross-examination, this witness stated that the other independent witness Nirmal Kumar was also called by the police in the shop of Rajesh Sood (PW-3).
27. The Prosecution did not examine Nirmal Kumar and vide statement dated September 5, 2007, the prosecutor gave up Nirmal Kumar having been won over by the accused. However, the independent witness Madan Lal (PW-2), although did state that he and the other independent witness Nirmal Kumar, had reached the jeweler shop, then the accused along with the Police officials ::: Downloaded on - 03/01/2020 20:37:17 :::HCHP 13 accused, were already present. Still, he stated that the Police had taken his signatures on documents in the Police Post. Undoubtedly, .
the cross-examination is exceptionally scanty, but the initial burden to prove the case is always on the Prosecution, and it never shifts.
28. The credibility of the Prosecution gets a fatal dent from the documents Ex. PW-9/D, the re-seal memo. Inspector Sunil Negi, SHO of Police Station Dhalli, had re-sealed the case property. The history behind this document lies in the order dated 07-09-2007, which states that the Process server could not serve summons to SHO Sunil Negi, because of his posting in a Foreign mission.
Another order dated 06-10-2007 reads that because of the assignment of Inspector Sunil Negi in UN Mission in Kosovo, the Court closed his evidence. However, the Prosecution tendered in evidence a Re-seal Memo (Ex. PW-9/D) through SHO Vijay Kumar (PW-9). This memo, Ext. PW-9/D, mentions re-sealing done by SHO Sunil Negi on Nov 22, 2005. This memo is initialed and not signed by Sunil Negi. PW-9 Inspector Vijay Kumar testified as follows, "I identify the signatures of Sh. Sunil Negi, as I have worked with him."
Now, first of all, the document did not contain signatures of Sunil Negi, but he initialed it, and secondly, even PW-9 did not state that Sunil Negi scribed it, and was in his handwriting. In the absence of the primary evidence, secondary evidence required the statement of ::: Downloaded on - 03/01/2020 20:37:17 :::HCHP 14 the person who had scribed the memo. There is no doubt about the legal position that Section 57 of the NDPS Act is directory in nature.
.
Still, in the present case, the Prosecution tried to prove its compliance by relying upon a document, which is not verified and instead is surrounded with suspicion.
29. The law is no more res integra that the statements of Police officials alone is sufficient to establish the case of the Prosecution, provided these statements inspire confidence. In the present case, the explanation of the independent witness Madan Lal (PW-2), that the Police had taken his signatures in the Police Post, non-
examination of the other independent witness, by mere declaration that he was won over by the accused, and the suspicion of creation of re-seal memo, creates a severe doubt in the evidence, which entitles accused the benefit of the doubt.
30. There is another aspect of the matter, which is that there is no evidence to prove that the samples represented the remaining bulk substance. There is no evidence that the Police had mixed the alleged contraband and then had taken out a sample, representing the entire stuff. Thus, in that situation, the accused was liable only for 20 grams of sample, which the laboratory tested. Be that as it may, in the view of the discussions made in the preceding paragraphs, this issue is no more relevant.
::: Downloaded on - 03/01/2020 20:37:17 :::HCHP 1531. The result of the above analysis and discussion leads to an irrefutable conclusion that the Prosecution has failed to connect the .
bag from the conscious and exclusive possession of the appellant, and the benefit must go to the accused.
32. Hence, for all the reasons mentioned above, the appeal is allowed. The impugned judgment of conviction and sentence dated October 24, 2007, passed by Special Judge, Fast Track Court, Shimla, H.P., in Sessions Trial Number 12 -S/7 of 2007/2006, titled as State of Himachal Pradesh vs. Shambu Ram, is set aside, and the accused is acquitted of the charged offence. The appellant is entitled to claim refund of the fine amount, if deposited. Bail bonds stand discharged.
The appeal stands disposed of, so also pending application(s), if any.
(Anoop Chitkara), Judge.
January 3 , 2020 (PK) ::: Downloaded on - 03/01/2020 20:37:17 :::HCHP