Punjab-Haryana High Court
Hans Raj vs State Of Haryana on 13 October, 2010
Author: Jora Singh
Bench: Jora Singh
CRA-S-1707-SB of 2002 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRA-S-1707-SB of 2002
Date of decision: 13.10.2010
Hans Raj
........ Appellant
Versus
State of Haryana
........ Respondent
CORAM: HON'BLE MR.JUSTICE JORA SINGH
PRESENT: Mr. Atul Lakhanpal, Senior Advocate with
Mr. R.S. Chahal, Advocate for the appellant.
Mr. Amit Goyal, AAG, Haryana with
Mr. Gaurav Arora, AAG, Haryana.
JORA SINGH, J.
Hans Raj, preferred this appeal to challenge the judgment of conviction dated 4.10.2002 and order of sentence dated 5.10.2002, passed by the learned Additional Sessions Judge, Hisar, in Sessions Case No. 48 of 2.8.2001, arising out of FIR No. 20 dated 21.1.2001, registered under Section 15 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred as 'the Act'), at Police Station Adampur.
By the said judgment, he was convicted under Section 15 of the Act and was sentenced to undergo Rigorous Imprisonment for a period of 10 years and to pay a fine of Rs.1,00,000/- and in default of CRA-S-1707-SB of 2002 -2- payment of fine to further undergo Rigorous Imprisonment for a period of one year.
Prosecution story, in brief, is that on 21.1.2001, police party headed by ASI Siri Bhagwan, on a private vehicle was going from the side of village Bhodia towards village Bhana then received a secret information to the effect that Hans Raj S/o Ramu @ Ram Naraian R/o village Bhana, was indulging in selling of poppy husk at his farm house. In case there is a raid then heavy quantity of poppy husk can be recovered. Taking the information to be credible ASI Siri Bhagwan alongwith the police party after joining Chabil Dass, Chowkidar, had gone to the Dhani of Hans Raj. When the police party was near the Dhani of Hans Raj then a young person was seen while sitting on the gunny bags who on seeing the police party ran away from the spot. An effort was made by the police party to apprehend that person but he managed to escape. Name of the person who had fled away from the spot was Hans Raj S/o Ramu @ Ram Narain. He was previously known to the police officials. Investigating Officer, suspected some contraband in the gunny bags. Gunny bags were 3 in numbers. Constable Vijay Singh, was sent to Police Station Adampur, to request the Deputy Superintendent of Police, City Hisar, to reach at the spot. DSP Jagdish Nagar, alongwith his staff and Constable Vijay Singh, came at the spot. In the presence of DSP Jagdish Nagar, ASI Siri Bhagwan, had searched the gunny bags lying on the spot. On search, the gunny bags were found containing poppy husk. 200 grams of poppy husk was separated from each bag to serve as sample and on weighment remaining poppy husk was found to be 39 Kg 800 grams in each bag. Samples and the remaining poppy husk in the same bags CRA-S-1707-SB of 2002 -3- were sealed separately with the seal bearing impression 'JN' of DSP Jagdish Nagar. Seal after its use was kept by the DSP. Case property was taken into police possession vide recovery memo Ex. P-9 attested by the witnesses. Rough site plan with correct marginal notes was prepared. Statements of the witnesses were also recorded. Ruqa Ex. P-20 was sent to the police station on the basis of which formal FIR was recorded.
On return to the police station case property was produced before SI/SHO Prem Singh. After verifying the investigation and checking the case property, SHO had affixed his own seal on the sealed parcels bearing impression 'PSK'. Case property was deposited by the Investigating Officer with the incharge of the Malkhana.
On 18.4.2001, accused had surrendered before the Magistrate at Hisar. Application was moved for joining the accused in the investigation of the case. As per order of the Court accused was joined in the investigation of the case. Sample parcels were sent to the office of the Chemical Examiner and as per report Ex. P-16 of the Chemical Examiner, contents of the sample parcels were found to be of poppy husk. After completion of investigation, challan was presented in the Court.
Accused was charge-sheeted under Section 15 of the Act, to which he pleaded not guilty and claimed trial.
In order to substantiate its case prosecution examined number of witnesses.
PW-1 HC Suresh Kumar and PW-2 Constable Ramesh Chander, tendered their affidavits Ex. P-1 and Ex. P-2, respectively.
PW-3 SI Prem Singh, was the SHO of Police Station CRA-S-1707-SB of 2002 -4- Adampur. Case property alongwith accused was produced before him. He had sealed the case property with his own seal bearing impression 'PSK'.
PW-4 Jagdish Nagar, DSP, stated that he had gone to the spot as per request of the Investigating Officer. Three gunny bags were found lying at the spot. Investigating Officer told that he suspected some contraband in the gunny bags and the same are to be searched. Investigating Officer, was allowed to search the gunny bags and on search of the gunny bags the same were found to be containing poppy husk. 200 grams was separated from each bag to serve as sample. On weighment remaining poppy husk in each gunny bag was found to be 39 Kg 800 grams. Three samples and the remaining poppy husk in the bags were separately sealed with the seal bearing impression 'JN'. Seal after its use was retained by him. Case property was taken into police possession vide recovery memo Ex. P-9, attested by the witnesses.
PW-5 ASI Siri Bhagwan, was the Investigating Officer. PW-6 Chabil Dass, was joined as independent witness but he did not support the prosecution story. He was declared hostile.
After close of the prosecution evidence, statement of accused under Section 313 Cr.P.C. was recorded wherein the appellant denied all the allegations of the prosecution and pleaded to be innocent.
Defence version of the accused was that he was falsely implicated in the present case. He had moved an application before the Magistrate for conducting Test Identification Parade but the same was dismissed.
Opportunity was given to lead defence evidence but no CRA-S-1707-SB of 2002 -5- defence evidence was led.
After hearing learned Public Prosecutor for the State, learned defence counsel and after going through the record/evidence, appellant was convicted and sentenced as stated aforesaid.
I have heard learned counsel for the appellant, learned State counsel and have carefully gone through the evidence available on the file.
Learned counsel for the appellant argued that police party had received secret information but the same was not reduced into writing. No information was given to the Higher Officers. There was violation of mandatory provisions of Section 42 of the Act. According to the prosecution story, after secret information Chabil Dass, Chowkidar, was joined as independent witness. Raid was conducted and one person was seen sitting on the gunny bags. On seeing the police party person sitting on the gunny bags had fled away from the spot. Appellant was not arrested at the spot. No evidence on the file that the person who had fled away from the spot was the appellant. Argued that one line in the ruqa that the person who had fled away from the spot was Hans Raj because he was earlier known to the police party but no evidence on the file as to how the appellant was known earlier to the police party. Earlier to the present recovery, no case was registered against the appellant. Appellant had not gone to the police station. Police officials had not apprehended the appellant in any other case. So the police officials cannot state that appellant was earlier known to them. Appellant had surrendered before the Court on 18.4.2001. Application was moved to arrange Test Identification Parade but that application was opposed by the Investigating officer. Police party was CRA-S-1707-SB of 2002 -6- on a private jeep but no evidence on the file as to who was the driver and owner of the vehicle and what was the number of the vehilce. If police party was on a private vehicle then the number of the vehicle and name of the driver should have been written in the ruqa. Driver was not requested to sign any document. After secret information police party had gone to the spot and from the spot Constable Vijay Singh, was sent to the police station to inform the DSP. DSP Jagdish Nagar, alongwith Constable Vijay Singh, came at the spot. Till the arrival of DSP, secret information was not reduced into writing and was not sent to the police station. After separating the samples, samples and the remaining poppy husk were sealed with the seal of the DSP but seal impression of the seal used was not prepared separately. Seal was not handed over to independent witness.
On return to the police station case property was produced before the SHO. SHO had sealed the case property with his own seal bearing impression 'PSK' but seal impression of the seal used was not prepared separately. There was delay of 14 days in sending the samples to the office of the Chemical Examiner. When seal impressions of the seal used were not prepared then there was no question to deposit seal impression with the incharge of the Malkhana or in the office of the Chemical Examiner. Report of the Chemical Examiner, to the effect that seals were intact and were found tallying with the seal impression is not correct one. Chabil Dass, was joined as independent witness but as PW-6 he did not support the prosecution story. Statement of Chabil Dass, was recorded under Section 161 Cr. P.C. but the statement is silent that in the police station case property was produced before the SHO and the same was sealed by the SHO CRA-S-1707-SB of 2002 -7- with his own seal bearing impression 'PSK' but report of the Chemical Examiner is to the effect that only two seals bearing impressions 'JN' and 'PS' the were noticed. One is of the DSP bearing impression 'JN' and the second is of the SHO bearing impression 'PS'. If the case property was sealed with the seal of the SHO bearing impression 'PSK' and no seal bearing impression 'PSK', was noticed on the sample parcels then possibility of tampering with the case property cannot be ruled out, when there was a delay of 14 days in sending the sample parcels to the laboratory.
Learned State counsel argued that earlier to the present occurrence, appellant was known to the police officials, so there was no idea to arrange Test Identification Parade. While going towards village Bhana of the appellant police party had received secret information on the way. There was no time with the Investigating Officer to reduce into writing the secret information and inform the Higher Officer, to avoid the escape of the appellant. Delay not fatal when seals on the sealed parcels were found to be intact and tallying with seal impressions. Independent witness was the Chowkidar and to avoid enmity with the appellant he did not support the prosecution story. Appellant had no enmity with the police officials so without enmity there was no idea to choose the appellant.
As per prosecution story, on 21.1.2001 at about 5.15 p.m. police party had received secret information. Chabil Dass-Chowkidar was joined as independent witness, then raid was conducted. One person was seen while sitting on the gunny bags and on seeing the police party, had fled away from the spot. Now, the question is whether recovery was effected after compliance of the mandatory provisions of CRA-S-1707-SB of 2002 -8- Section 42 of the Act. Secondly the appellant while sitting on the gunny bags had fled away from the spot on seeing the police party.
Police party headed by ASI Siri Bhagwan was going towards village Bhana. On the way Investigating Officer, received secret information but the same was no reduced into writing that Hans Raj was indulging in sale/purchase of poppy husk and if raid was conducted then large quantity of poppy husk can be recovered. But on receipt of secret information the same was not reduced into writing and was not sent to the Senior Officers. After the receipt of secret information police party had gone to the spot and from the spot Constable Vijay Singh was sent to the police station with request to send any Gazetted Officer at the spot. Till the appearance of Gazetted Officer, no document was prepared. If while going towards village Bhana police party had received secret information and there was no time to reduce it into writing and was not sent to the Senior Officers then after reaching the place of recovery secret information could easily be reduced into writing and sent to the Senior Officers. No explanation by the prosecution as to why on receipt of secret information the same was not reduced into writing and was not sent to any Senior Officer. When the secret information was received on the way then due to shortage of time prosecution cannot argue that to avoid escape of accused or removal of contraband secret information was not reduced into writing and was not sent to higher officer when after reaching the place of recovery, Investigating Officer had sufficient time to reduce the same into writing. On seeing the police party person sitting on the gunny bags had fled away from the spot. Till the arrival of the DSP no document was prepared by the Investigating Officer. After reaching the CRA-S-1707-SB of 2002 -9- spot secret information could easily be reduced into writing and sent to the higher officer. Section 42 of the Act is mandatory. When there is violation of the provisions of Section 42 of the Act, then prosecution story becomes doubtful. In the present case secret information was not reduced into writing then no prejudice was caused to the appellant as he was not arrested at the spot.
After receipt of secret information Chabil Dass, Chowkidar, was joined as independent witness. But Chabil Dass, Chowkidar, when appeared as PW-6, then failed to support the prosecution story. He was declared hostile and was cross-examined by the learned Public Prosecution for the State, but nothing came out of his cross- examination which was helpful to the prosecution.
On search of the gunny bags the same were found to be containing poppy husk. After separating the samples, sample parcels and the remaining poppy husk in the same gunny bags were sealed separately with the seal bearing impression 'JN'. But seal after its use was not handed over to independent witness. Seal was retained by the DSP without preparing seal impression. When independent witness was with the police party then seal should have been entrusted to the independent witness to rule out the possibility of tampering with the case property.
After secret information, raid was conducted but the person sitting on the gunny bags, on seeing the police party had fled away from the spot. Now the dispute is about the identity of the appellant. In the ruqa there is a line that Hans Raj -appellant was earlier known to the police officials but this fact is not correct one. Before the present occurrence no case was pending against the appellant. Appellant had CRA-S-1707-SB of 2002 -10- not gone to the police station in connection with any case. Appellant was not the witness to any document executed in the police station. When no case was pending against the appellant and appellant had not gone to the police station in connection with any case then prosecution story was not natural one that appellant was earlier known to the police officials. Police officials were to explain how the appellant was known to them. On 18.4.2001, appellant had surrendered before the Court and moved an application to arrange Test Identification Parade. Notice of the application was given to the State. But that application was opposed by the prosecution. When there was a request from the side of the accused to arrange Test Identification Parade, then there was no reason to oppose the application. By arranging the Test Identification Parade, police officials in the raiding party could easily identify the appellant, if the appellant was earlier know to them. Chabil Dass, Chowkidar, was with the police party. There was not a word in the statement that appellant was known to him and he had identified the appellant when on seeing the police party had fled away from the spot. Chowkidar rather stated that no recovery was effected in his presence. No cogent and convincing evidence on the file that appellant was the same person who was sitting on the gunny bags and on seeing the police party had fled away from the spot.
Police party was on a private vehicle but the registration number of the vehicle, name of the driver or name of the owner was not written in the ruqa. No allegation of the prosecution that some police official was driving the private vehicle. Investigating Officer, was to explain how the private vehicle was engaged whether any entry was made in the Rojnamcha while leaving the police station. Whether the CRA-S-1707-SB of 2002 -11- vehicle was arranged when the police party was in the field or if the vehicle was arranged when the party was in the field then why the registration number of the vehicle, name of the driver or name of the owner of the vehicle was not mentioned in the Ruqa and why there was no note in the case diary. When there was any note in the case diary and reference of the private vehicle in the ruqa then very easy to state by the police officials that the police party was on a private vehicle. Driver of the vehicle was with the party but he was not requested to attest any document. That means story regarding raid by the police party by arranging private vehicle was not natural one. Recovery was effected on 21.1.2001. Sample parcels and the remaining poppy husk in the gunny bags were sealed with the seal bearing impression 'JN'. Case property was not produced before the Magistrate alongwith the appellant. No explanation why the case property was not sealed by the Investigating Officer, with his own seal. On return to the police station case property was produced before SI/SHO Prem Singh. Contention of SI/SHO Prem Singh was that he had affixed his own seal on the sealed parcels bearing impression 'PSK' but no seal bearing impression 'PSK' was on the sample parcels as per report of the Chemical Examiner. Report was to the effect that sample parcels were sealed with two seals bearing impression 'JN' and 'PS'. Sample parcels were handed over to Constable Ramesh Chander by the incharge of the Malkhana on 5.2.2001. There was delay of 14 days in depositing the sample parcels in the office of the Chemical Examiner. When the case property was not produced in the Court and the dispute was whether the SHO had affixed his own seal bearing impression 'PSK' or only 'PS' then possibility of tampering with the case property cannot be ruled out, CRA-S-1707-SB of 2002 -12- particularly when SHO had stated that his statement under Section 161 Cr.P.C. was not recorded. Without statement under Section 161 Cr.P.C. SHO can state anything. Statement of SHO Prem Singh as PW-3 was without any evidentiary value.
Statement of Chabil Dass, Chowkidar was recorded under Section 161 Cr. P.C. but in the statement of Chowkidar there was not a word that the case property alongwith the accused was produced before the SHO. If on return to the police station the Investigating Officer, produced the accused alongwith the case property before the SHO and SHO after verifying the facts of the case had affixed his own seal on the sealed parcels bearing impression 'PSK' then this fact should be in the statement of Chabil Das, under Section 161 Cr.P.C.
Evidence on the file shows that after separating three samples each weighing 200 grams, samples and the remaining poppy husk in three bags were sealed with the seal bearing impression 'JN' but no evidence on the file that seal impression of the seal used was prepared separately. When seal impression of the seal used was not prepared separately after sealing the case property then there was no idea to deposit the seal impression with the incharge of the Malkhana or in the office of the Chemical Examiner. In the police station as per prosecution story, SHO had sealed the case property with his own seal bearing impression 'PSK' or 'PS' but SHO has not stated a word that seal impression of the seal used was prepared separately but the affidavits Ex. P-1 and Ex. P-2 and report of the Chemical Examiner, is to the effect that seals on the sealed parcels were found intact and were tallying with the seal impressions. When the seal impressions of the seal used were not prepared either at the spot or at police station then CRA-S-1707-SB of 2002 -13- there was no question of depositing the seal impression with the incharge of the Malkhana and handing over the same to Constable Ramesh Chander, for depositing the same in the office of the Chemical Examiner. Report of the laboratory to the effect that seals on the sealed parcels were found intact and were tallying with the seal impressions is not correct one.
In the light of above discussion, I am of the opinion that in fact there was no recovery, but as per prosecution story entire writing work seems to have been done while sitting in the police station. That is why secret information was not reduced into writing and was not sent to the higher authorities. Independent witness was not joined and if joined no explanation why seal was not handed over to him. If the case property was sealed with the seal of the Gazetted Officer and on return to the police station SHO had affixed his own seal on the sealed parcels then why the seal impression of the seal used were not prepared. When number of police officials in the party and the police officials were armed and the appellant was not apprehended then the prosecution story that on seeing the police party man sitting on the gunny bags had fled away from the spot seems to be not natural one.
For the reasons recorded above, I am of the opinion that evidence on file was not rightly scrutinized by the trial Court. Impugned judgment suffers from infirmity and illegality and the same is ordered to be set aside. The appellant is acquitted of the offence charged.
Appeal is allowed.
October 13, 2010 ( JORA SINGH ) rishu JUDGE