Himachal Pradesh High Court
Deu Bhan Buda vs State Of H.P on 23 April, 2015
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 231 of 2012
Reserved on: April 22, 2015.
Decided on: April 23, 2015.
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Deu Bhan Buda ......Appellant.
Versus
State of H.P. .......Respondent.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? 1 Yes.
For the appellant: Mr. Malay Kaushal, Advocate.
For the respondent: Mr. M.A.Khan, Addl. Advocate General.
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Justice Rajiv Sharma, J.
This appeal is instituted against the judgment dated 26.3.2012/28.3.2012, rendered by the learned Special Judge, Kullu, Distt.
Kullu, H.P, in Sessions Trial No. 22 of 2011, whereby the appellant-
accused (hereinafter referred to as the accused), who was charged with and tried for offence punishable under Sections 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ND & PS Act), has been convicted and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs. 1,00,000/- and in default of payment of fine, he was further ordered to undergo simple imprisonment for one year.
2. The case of the prosecution, in a nut shell, is that on 24.2.2011, the police party was present at village Suma Chalon in connection with patrolling and Nakabandi vide rapat No. PW-1/A at about 6:30 AM. The police party saw the accused coming from Manikaran side who was going towards Jari side. The accused on seeing the police party, 1 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 18:02:51 :::HCHP 2turned back and tried to escape. He was apprehended. PW-8 ASI Dhiraj Kumar asked about the antecedents of the accused. The police officials .
asked him as to what was he carrying on his back. The accused put the bag on the road. PW-7 Const. Kuldeep Singh was sent to nearby place to search for independent witnesses, but he returned to the spot without independent witnesses. PW-5 Const. Pritam Singh and Const. Munish were associated as witnesses. The bag was searched. It contained charas weighing 4.00 Kgs. The charas was again put in the same polythene bag and thereafter in red colour carry bag and again put in the backpack. The parcel containing backpack was sealed with seal "T" at ten places.
Specimen of seal "T" Ext. PW-5/B was also taken. The sealed parcel was taken into possession vide memo Ext. PW-5/C. The I.O. prepared rukka Ext. PW-8/A and sent the same to the Police Station Kullu through PW-7 Const. Kuldeep Kumar. On receipt of the rukka Ext. PW-8/A, PW-2 SHO Sher Singh registered FIR Ext. PW-2/A. The I.O. produced the case property before PW-2 SHO Sher Singh, PS Sadar, who resealed the same.
SHO Sher Singh deposited the case property alongwith the relevant documents with PW-3 MHC Ram Krishan of PS Kullu. PW-3 Ram Krishan entered the case property in malkhana register at Sr. No. 13. The abstract of the register is Ext. PW-4/A. The special report was also sent. The case property was sent for chemical analysis, vide RC Ext. PW-4/B. The report of the FSL is Ext. PW-2/D. 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 18:02:51 :::HCHP 3 Cr.P.C. The accused has denied the prosecution case. He produced three defence witnesses. The learned trial Court convicted the accused, as .
noticed hereinabove. Hence, this appeal.
4. Mr. Malay Kaushal, Advocate, appearing on behalf of the accused, has vehemently argued that the prosecution has failed to prove its case against the accused. On the other hand, Mr. M.A.Khan, Addl.
Advocate General for the State has supported the judgment of the learned trial Court dated 26.3.2012.
5. We have heard learned counsel for both the sides and gone through the records of the case carefully.
6. PW-1 Const. Inder Singh has proved rapat Ext. PW-1/A.
7. PW-2 SHO Sher Singh, deposed that he received rukka from ASI Dhiraj Singh through Const. Kuldeep Singh. He registered FIR Ext.
PW-2/A. He also prepared the case file. On the same day, i.e. on 24.2.2011 at 1:30 PM, ASI Dhiraj Kumar produced the case property before him including a parcel containing seals of impression "T". He resealed the parcel by affixing four seal impressions of seal "S". He filled in the relevant columns of NCB I form Ext. PW-2/B. He also prepared samples of seal "S"
and one such sample is Ext. PW-2/C. He handed over the case property to MHC with the direction to deposit the same in the malkhana. After the receipt of the report of the Chemical Examiner Ext. PW-2/D, he prepared the challan and presented the same in the Court. In his cross-
examination, he admitted that Ext. PW-2/C was not having any FIR number.
::: Downloaded on - 15/04/2017 18:02:51 :::HCHP 48. PW-4 MHC Ram Krishan, deposed that Inspector SHO Sher Singh handed over a parcel to him. It was containing charas sealed with .
ten impressions of seal "T" and four impressions of seal "S" alongwith sample seal, NCB I form, photo copy of seizure memo etc. He deposited the case property and relevant documents after making entry in the relevant register at Sr. No. 13. He proved extract of the register Ext. PW-4/A. He handed over the case property to Const. Vishwanath vide RC No. 60 of 2011 Ext. PW-4/B on 25.2.2011 for depositing the same at FSL, Junga.
The Constable after depositing the same at FSL, Junga returned the receipt to him. In his cross-examination, he admitted that on the front page of the register, it is written as Zila Malkhana Register. Volunteered that all the entries in this register pertain to PS Kullu and not District Malkhana. He also admitted that nine pages were left blank in this register after closing the entries in respect of 2010 in the month of October. He also admitted that the register was not paginated and there was no certificate regarding page numbers in the register. He also admitted that in column No. 3, the name of the person who deposited the case property, his name was to be incorporated. The name of the I.O. has been mentioned in column No. 3 against entry No. 13.
9. PW-5 Const. Pritam Singh deposed the manner in which the accused was apprehended, contraband was seized and sealing process was completed. According to him, the accused was apprehended at an isolated place. There was no vehicular traffic on the road and Const. Kuldeep Singh was sent to nearby place in search of independent witnesses. The Constable returned to the spot after 15-20 minutes without independent ::: Downloaded on - 15/04/2017 18:02:51 :::HCHP 5 witness. Thus, I.O. associated him and Const. Munish Kumar as witnesses. In his cross-examination, he deposed that there was no house .
at Suma Chalon. Volunteered that Suma Chalon is forest area and actual village name is Suma Ropa. Village Suma Ropa is about 300 meters away from Suma Chalon. He also admitted that at Suma Ropa, there is one open shed of NHPC Project and there are 5-6 houses behind that shed. He also admitted that those houses are inhabited. Volunteered that the place was far away from Suma Chalon. Const. Kuldeep Kumar was sent towards village Suma Ropa by the I.O. He was not given any written directions to bring the Panch witnesses to the spot. One big hotel called Sanjha Chula is about ½ km. from Jari. There are early hour bus services from Manikaran to various places of different transport services. Volunteered that at that time, no vehicular traffic was there. He also admitted that Manikaran is a big pilgrimage spot and many pilgrims uses to visit that place. He also admitted that there is big construction work of hydel project at Barshaini going on day and night. He also admitted that trucks and tipper carrying the construction material used to go to Barshaini day and night.
10. PW-6 Const. Vishwanath deposed that MHC Ram Krishan handed over the case property i.e. pulinda sealed with ten impressions of seal "T" and five impressions of seal "S" containing 4 Kg of charas including docket No. 1126 to him with direction to deposit the same at FSL, Junga.
He deposited the case property and other documents at FSL, Junga on 26.2.2011 and obtained the receipt from the concerned official. On his ::: Downloaded on - 15/04/2017 18:02:51 :::HCHP 6 return from FSL, Junga, he handed over the receipt to MHC of the Police Station.
.
11. PW-7 Const. Kuldeep Singh, also deposed the manner in which the accused was apprehended, searched and contraband was seized on 24.2.2011. In his examination-in-chief, he deposed that there was no vehicular traffic at that time, nor any villagers or other person were passing through that road so, ASI Dhiraj directed him to search for independent witnesses towards village Suma Ropa. He remained at village for 15 minutes, but could not find any person there. He then returned back. He told ASI that he could not find any person at the village. The I.O.
associated Const. Pritam Singh and Const. Munish Kumar as witnesses.
In his cross-examination, he admitted that Sanjha Chulha Resort is about 300 meters away from PP Jari. Suma Challon is about 700 meters from Sanjha Chulha. Suma Ropa is about 1 km away from the place Suma Challon. He did not go towards village Suma Ropa of his own but he went to that village as per the directions of the ASI. There were about 4-5 houses at village Suma Ropa.
12. PW-8 ASI Dhiraj Singh, is the I.O. He also deposed the manner in which the accused was apprehended, searched and contraband weighing 4 kg. was seized and sealing process was completed on the spot on 24.2.2011. The backpack was taken into possession vide recovery memo Ext. PW-5/C. He prepared rukka Ext. PW-8/A. it was handed over to Const. Kuldeep Kumar with direction to go to the Police Station. The accused was arrested. He submitted the case property before the SHO Sher Singh. He resealed the pulinda and handed over the same and other ::: Downloaded on - 15/04/2017 18:02:51 :::HCHP 7 relevant documents to MHC. He prepared special report Ext. PW-3/B. In his cross-examination, he admitted that Suma Chalon starts 200 meters .
away from Sanjha Chulha complex and ends at the start of the village Suma Ropa. He sent Const. Kuldeep to search for independent witnesses, but did not give any specific instruction to go to particular village for the search of the witnesses. He only instructed Constable Kuldeep to search for independent witnesses.
13. Mr. Malay Kaushal, Advocate, for the accused has drawn the attention of the Court to malkhana register Ext. PW-4/A. It has no pagination and there is also no certificate regarding page numbers in the register. PW-4 MHC Ram Krishan has categorically admitted in his cross-
examination that nine pages were left blank in the register after closing the entries in respect of 2010 in the month of October. He also admitted that the register was not paginated and there was no certificate regarding page numbers in the register.
14. PW-2 Sher Singh, has resealed the case property. He has admitted in his cross-examination that Ext. PW-2/C was not having any FIR number. It was necessary to mention the FIR number on Ext. PW-2/C since seal impression "S" was taken upon it. The malkhana register should always be paginated to ensure the safe deposit of the case property. The case property is required to be deposited in the malkhana by the SHO concerned and thereafter it is taken out and sent to FSL. It is again required to be put back in the malkhana by making appropriate entries after receiving the case property from FSL. The case property at the time of production before the Court is also required to be taken out from the ::: Downloaded on - 15/04/2017 18:02:51 :::HCHP 8 malkhana and corresponding entry is required to be made and when the case property is returned back after producing the same before the Court, .
it is to be deposited again in the malkhana. The malkhana register is very important document and there is no evidentiary value of the extract of the malkhana register Ext. PW-4/A, since it has not been paginated and no certificate regarding page numbers is there in the register.
15. 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."
16. 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. In the instant case, there is no register No. XIX on Ext. PW-
4/A nor it is in the prescribed form. Ext. PW-4/A could easily be ::: Downloaded on - 15/04/2017 18:02:51 :::HCHP 9 fabricated and manipulated. It casts doubt whether the case property was ever deposited in the malkhana register and taken out for its chemical .
analysis. The accused has definitely been prejudiced. Since the malkhana register is not in accordance with law, it cannot be said definitely that the case property which was seized from the accused was deposited in the malkhana and sent to the FSL and received back as such.
18. The accused was apprehended on 24.2.2011 at 6:30 AM. The case of the prosecution, in a nut shell, is that the place where the accused was apprehended was a secluded and isolated place and no independent witness was available at the time of search and sealing operation. PW-5 Const. Pritam Singh, in his examination-in-chief, has deposed that there was no vehicular traffic on the road and the accused was apprehended at an isolated place. Const. Kuldeep Singh was sent to nearby place in search of independent witnesses. The Constable returned to the spot after 15-20 minutes. In his cross-examination, he has admitted that at place Suma Ropa, there is one open shed of NHPC Project and there are 5-6 houses behind it. Those houses were inhabited. PW-7 Const. Kuldeep Singh, was sent to bring independent witnesses by PW-8 ASI Dhiraj Singh. According to PW-7 Const. Kuldeep Singh, ASI Dhiraj Singh directed him to search for independent witnesses towards village Suma Ropa. He remained at village for 15 minutes but could not find any person there. It is not believable that there was no person available in village Soma Ropa. The police party had gone to check the vehicles. The very purpose for which the police had laid Naka presupposes that there was heavy vehicular traffic on the road.
Surprisingly, the police has not associated any independent witnesses.
::: Downloaded on - 15/04/2017 18:02:51 :::HCHP 10PW-5 Const. Pritam Singh, in his cross-examination has admitted that there were early hour bus services from Manikaran to various places of .
different transport services. He also admitted that Manikaran is a big pilgrimage spot and many pilgrims visit that place. He also admitted that there is big construction work of hydel project at Barshaini going on, day and night. It is not one of those cases where the independent witnesses were not available but in the instant case, independent witnesses could be associated from the nearby village Suma Ropa. In Suma Ropa, there were 5-6 inhabited houses situated, as per the statement of PW-7 Const.
Kuldeep Singh. PW-7 Const. Kuldeep Singh has categorically admitted in his cross-examination that he remained in village for 15 minutes but could not find any person. This version of PW-7 Const. Kuldeep Singh cannot be believed.
19. Thus, the prosecution has failed to prove the case against the accused beyond reasonable doubt for the commission of offence under Section 20 of the N.D & P.S., Act.
20. Accordingly, in view of the analysis and discussion made hereinabove, the appeal is allowed. Judgment of conviction and sentence dated 26.3.2012/28.3.2012, rendered by the learned Special Judge, Kullu, H.P., in Sessions trial No. 22 of 2011, is set aside. Accused is acquitted of the charges framed against him by giving him benefit of doubt. Fine amount, if any, already deposited by the accused is ordered to be refunded to him. Since the accused is in jail, he be released forthwith, if not required in any other case.
::: Downloaded on - 15/04/2017 18:02:51 :::HCHP 1118. The Registry is directed to prepare the release warrant of the accused and send the same to the Superintendent of Jail concerned, in .
conformity with this judgment forthwith.
( Rajiv Sharma ), Judge.
April 23, 2015, ( Sureshwar Thakur ),
(karan) Judge.
r to
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