Himachal Pradesh High Court
Rajinder Kumar Alias Raja vs State Of Himachal Pradesh on 1 March, 2016
Author: Rajiv Sharma
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 441 of 2015.
Reserved on: February 26, 2016.
Decided on: March 01, 2016.
.
Rajinder Kumar alias Raja ......Appellant.
Versus
State of Himachal Pradesh .......Respondent.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? 1 Yes.
of
For the appellant: Mr. R.S.Chandel, Advocate.
For the respondent: Mr. Ramesh Thakur, Asstt. AG.
----------------------------------------------------------------------------------------------
Justice Rajiv Sharma, J.
This rt appeal is instituted against the judgment dated 1.10.2015, rendered by the learned Special Judge (III), Solan, H.P., in Sessions trial No. 1-ASJ-II/7 of 2014, whereby the appellant-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 convicted and sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs. 1,00,000/- and in default of payment of fine to further undergo simple imprisonment for one year.
2. The case of the prosecution, in a nut shell, is that on 25.2.2014, HC Ambi Lal (PW-10), HHC Ajay Kumar, HHC Ram Krishan and Const. Amit Kumar (PW-9) proceeded towards Chambaghat, Salogra and Kandaghat, in connection with patrolling duty. At about 1:00 PM, HC Ambi Lal alongwith other police officials were present at Chambaghat near traffic check post. HRTC bus enroute Shimla to Delhi bearing No. HP-14- 1 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 19:51:06 :::HCHP 2B-0282 came from Shimla side. It was intercepted. HC Ambi Lal started checking the luggage of the passengers from the front side. When he .
reached near seat No. 35, a person was holding a micron bag on his lap.
On opening the bag, inside it there was a blanket white in colour and inside it a transparent packet containing a micron bag inscribed therein "Lal & Sons" was found. On opening this micron bag, black coloured substance round and cylindrical in shape was recovered. In the presence of of Rajat Dhaulta who was sitting on seat No. 37 and Conductor Rajinder Kumar, the black coloured substance was found to be charas. The person rt sitting on seat No. 35 disclosed his name as Rajinder Kumar alias Raja son of Jodha Ram. Cannabis was weighed. It was found to be 1.754 Kgs. It was again put in the micron bag and sealed in pulinda with three seal impressions of seal "M". Sample of the seal was taken on separate piece of cloth. NCB form in triplicate were filled in at the spot. Seal after use was handed over to conductor Rajinder Kumar. Rukka Ext. PW-10/C was prepared by HC Ambi Lal and sent to the PS Sadar Solan through HHC Ram Krishan. On the basis of rukka FIR Ext. PW-4/A was recorded.
Seizure memo was prepared on the spot. PW-10 HC Ambi Lal handed over the parcel containing charas alongwith the sample seal, NCB forms for re-
sealing. Inspector Anil Kumar PW--6 re-sealed the case property with three seal impressions of seal "U" and separate sample of the seal Ext. PW-
6/A was taken. He filled in the columns No. 9 to 11 of the NCB forms.
PW-6 Insp. Anil Kumar after re-sealing the case property handed over the case property alongwith the sample seal, NCB form to MHC PW-5 HHC Kanshi Ram to deposit the same in malkhana. The case property was sent ::: Downloaded on - 15/04/2017 19:51:06 :::HCHP 3 for chemical analysis and receipt of the FSL report Ext. PX was procured.
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 10 witnesses. The accused was also examined under Section 313 Cr.P.C. The accused has denied the prosecution case. The learned trial Court convicted and sentenced the accused, as noticed hereinabove.
of Hence, this appeal.
4. Mr. R.S.Chandel, Advocate for the accused has vehemently rt argued that the prosecution has failed to prove its case against the accused. On the other hand, Mr. Ramesh Thakur, learned Asstt. Advocate General for the State has supported the judgment of the learned trial Court dated 1.10.2015.
5. We have heard the learned Advocates and gone through the judgment and records of the case carefully.
6. PW-3 Rajinder Kumar deposed that he was posted as Conductor in HRTC Depot, Solan. On 25.2.2014, he was deputed as a Conductor in bus bearing regn. No. HP14-B-0282. Bal Krishan was driver and the bus was enroute from Shimla to Delhi. The bus left Shimla at 11:18 AM. About 30-32 passengers were travelling in the bus. Accused was also travelling in the bus and was sitting on seat No. 35. At about 1:00 PM, when the bus arrived at Chambaghat, the bus was intercepted by the police and thereafter they started search of the bus. However, he was standing outside and when he came inside the bus, he saw a reddish white coloured bag held by the accused. The police opened the bag in his ::: Downloaded on - 15/04/2017 19:51:06 :::HCHP 4 presence and found a blanket therein in which polythene packet was found. On opening the polythene packet, stick and ball shaped substance .
was found which was told to be charas. It weighed 1.754 kgs. The sealing proceedings were completed on the spot. It was sealed with seal impression "M". The seizure memo was prepared. He signed the same.
The case property was produced during his examination in the Court. In his cross-examination, he deposed that some passengers had boarded the of bus at bye pass Shimla, Shoghi and Kandaghat. Usually, passengers are told not to keep their luggage in the aisle of the bus. Some of the rt passengers had kept their luggage in the carrier and some had kept it with them. The police party comprising of 4-5 persons out of which, one was in civil dress stopped the bus at Chambaghat. He denied the suggestion that bag Ext. P-2 had been lying on the luggage carrier of the bus. Volunteered that when he came inside the bus, he had seen bag Ext. P-2 with the accused. He admitted that there was Dhaba of Nepali near the place of recovery. He denied that Ext. P-7 ticket did not belong to the accused.
7. PW-5HHC Kanshi Ram deposed that he was posted as MHC Malkhana, PS Solan, Sadar from the year 2013. On 25.2.2014, Insp. SHO Anil Kumar handed over to him a parcel sealed with 3 seals each of seal impressions "M" and "U" alongwith specimen impressions thereof, NCB form in triplicate and a micron bag containing a blanket to him. He made entry in this behalf at Sr. No. 764 in the malkhana register. On 26.2.2014, he handed over all the articles to Const. Karun Tanwar against RC for depositing the same at FSL, Junga. He deposited the same at FSL Junga on the same day and handed over the receipt to him. In his cross-
::: Downloaded on - 15/04/2017 19:51:06 :::HCHP 5examination, he admitted that in the ordinary course of duty, signature of the person handing over the articles are usually taken. He also admitted .
that the signatures of the person handing over the articles and thereafter receiving from him were not there on the register.
8. PW-6 Insp. Anil Kumar deposed that HC Ambi Lal handed over to him a sealed parcel sealed with 3 seals of impression "M", specimen impression thereof, NCB form in triplicate and seizure memo. He re-sealed of the same with 3 seals of impression "U". He also filled in the relevant columns 8 to 11 thereof. He got prepared re-sealing certificate vide Ext.
PW-5/D. rt The FSL report is Ext. PX. On receipt of the FSL report, he prepared and filed the challan.
9. PW-7 Const. Karan Chand deposed that on 26.2.2014, MHC Malkhana PS Sadar Solan handed over to him a sealed parcel having 3 seals of each of impressions "M" and "U", NCB forms, copies of seizure memo and FIR against RC. He safely carried and deposited all the articles in FSL Junga against receipt on the RC itself and thereafter handed over the RC on the same day to MHC Malkhana.
10. PW-8 Rajat testified that he was travelling from Shimla to Chandigarh in HRTC Bus on 25.2.2014. He was sitting on seat behind seat No. 1. Accused was also travelling in the same bus. At about 1:00 PM, when the bus reached at Chambaghat, it was stopped by the driver to enable the passengers to get down therefrom. When the bus moved ahead and reached in front of the police cabin, it was signaled to stop by the police personnel. The police personnel entered inside the bus from front as well as rear door. After entering they lifted a bag which was placed in the ::: Downloaded on - 15/04/2017 19:51:06 :::HCHP 6 rack of the bus and asked the passengers as to whom did it belong. None claimed it. Thereafter, the police personnel asked the accused as to .
whether the bag belonged to him but the accused declined. Thereafter, the police brought a dog inside the bus and handed over the bag to the accused by saying that it belonged to him. Then they asked the passengers to get down from the bus. The police personnel asked the passengers to sign some papers but they declined to do so. He was declared hostile and of cross-examined by the learned Public Prosecutor. He testified that he appended his signatures on the papers voluntarily. In his cross-
rt examination, he denied the suggestion that on 25.2.2014, he was sitting on seat No. 37 and ahead of his seat accused was sitting on seat No. 35 holding a micron bag in his lap. He denied that the police checked the bag in his presence and it found containing a blanket in which a transparent plastic bag containing another micron bag was found and on opening it, stick and round shaped black substance identified as charas was recovered from it. He also denied that the accused on being asked disclosed has identity as Rajinder Kumar. He also denied that charas on weighing was found to be 1.754 kgs. and thereafter it was put back into the same micron bag and the transparent bag and thereafter it was put in a white cloth parcel whereof was prepared which was sealed with three impressions of "M". He admitted his signatures on seizure memo Ext. PW-3/B, sample seal Ext. PW-3/A and parcel Ext. P-1. In his cross-examination by the learned defence counsel, he deposed that except bag Ext. P-2, the police had not lifted any other bag.
::: Downloaded on - 15/04/2017 19:51:06 :::HCHP 711. PW-9 Const. Amit Kumar deposed the manner in which the bag was recovered from the accused who was sitting on seat No. 35, .
search, seizure and sealing proceedings were completed on the spot.
Rukka was prepared and handed over to HHC Ram Kishan for taking to Police Station. In his cross-examination, he deposed that there was no secret information with respect to the transportation of the contraband. He also admitted in his cross-examination that adjacent to the place of of interception, there was also a traffic booth. At that time, a traffic police personnel was also present therein, but he did not join them as a witness.
12. rt PW-10 HC Ambi Lal has also deposed the manner in which the bag was recovered from the accused who was sitting on seat No. 35, search, seizure and sealing proceedings were completed on the spot.
Seizure memo Ext. PW-3/B, specimen impression Ext. PW-3/A and Parcel Ext. P-1 were signed by the accused the PWs Rajinder, HHC Ram Kishan and Rajat. He produced the case property before the SHO Anil Dhaulta.
He resealed the parcel Ext. P-1 with three seals of seal impression "U" and thereafter he prepared re-sealing certificate Ext. PW-5/D. He also admitted in his cross-examination that traffic police personnel was present in the traffic booth, however, he was not associated in the proceedings. He also admitted that adjacent to the traffic both, there was one Dhaba run by a Nepali. He did not associate any person from the Dhaba. He did not associate any other person from Chambaghat.
13. What emerges from the evidence discussed hereinabove, is that on 25.2.2014, accused was travelling from Shimla to Chandigarh in HRTC bus bearing No. HP-14-B-0282. The bus was enroute from Shimla to ::: Downloaded on - 15/04/2017 19:51:06 :::HCHP 8 Delhi. The bus was intercepted at Chambaghat, Distt. Solan. The bag Ext.
P-2 was recovered from the accused who was sitting on seat No. 35 as per .
the prosecution version.
14. PW-8 Rajat, who was sitting on seat No. 37, according to the prosecution case, has not at all supported the case of the prosecution. He was declared hostile and cross-examined by the learned Public Prosecutor.
In his cross-examination, he deposed that he was sitting on seat behind of seat No. 1. He specifically denied that the accused was sitting on seat No. 35 and holding a micron bag in his lap, though he has admitted his rt signatures on memos prepared by the police.
15. The case property was produced while recording the statement of PW-3 Rajinder 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 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."
The register is to be maintained in Form 22.70. It reads as under.
"FORM NO. 22.70.
POLICE STATION_________ ____DISTRICT ::: Downloaded on - 15/04/2017 19:51:06 :::HCHP 9 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 of whom dispatched).
8. Remarks.
(To be prepared on a quarter sheet of native paper)."
16. rt 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 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.
17. 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 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.
::: Downloaded on - 15/04/2017 19:51:06 :::HCHP 10Each 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."
of
18. Rule 27.18 of Punjab Police Rules, reads as under:
"27.18. Safe custody of property.- rt (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 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 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 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 ::: Downloaded on - 15/04/2017 19:51:06 :::HCHP 11 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 of 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 rt 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."
19. 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 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 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 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 ::: Downloaded on - 15/04/2017 19:51:06 :::HCHP 12 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 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 rt 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. 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.
20. 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 ::: Downloaded on - 15/04/2017 19:51:06 :::HCHP 13 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.
21. The prosecution has failed to prove case against the accused of under Section 20 of the Act.
22. In view of the discussion and analysis made herein above, the rt appeal is allowed. The judgment dated 1.10.2015 rendered by learned Special Judge-III, Solan, District Solan (HP) in Session trial No. 1-ASJ-II/7 of 2014 is set aside. Accused is acquitted of the offence under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985. He is ordered to be released forthwith, if not required by the police in any other case. Fine amount, if any, paid by the accused, be also refunded to him. Registry is directed to prepare and send the release warrant of the accused to the Superintendent of Jail concerted, forthwith.
( Rajiv Sharma ), Judge.
March 01, 2016, ( Sureshwar Thakur ),
(karan) Judge.
::: Downloaded on - 15/04/2017 19:51:06 :::HCHP