Himachal Pradesh High Court
State Of Himachal Pradesh vs Sultan Singh And Another on 22 April, 2016
Bench: Rajiv Sharma, Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 324/2008
Reserved on: April 21, 2016
Decided on: April 22, 2016
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State of Himachal Pradesh ...... Appellant
Versus
Sultan Singh and another ........Respondents
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Coram:
Hon'ble Mr. Justice Rajiv Sharma, Judge
of
Hon'ble Mr. Justice Vivek Singh Thakur, Judge
Whether approved for reporting? 1 yes.
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For the appellant : Mr. M.A. Khan, Additional
rt Advocate General.
For the respondents :
Mr. D.P. Chauhan, Advocate and
Mr. Anil Chauhan, Advocate, as
amicus curiae
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Per Rajiv Sharma, Judge:
The State has come in appeal against Judgment dated 29.12.2007 rendered by the learned Special Judge (Presiding Officer), Fast Track Court, Mandi, District Mandi, Himachal Pradesh in Sessions Trial No. 8/2007, whereby respondents-accused (hereinafter referred to as 'accused' for convenience sake), who were charged with and tried for offence under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'Act' for 1 Whether the reporters of the local papers may be allowed to see the judgment? .
::: Downloaded on - 15/04/2017 20:09:38 :::HCHP 2convenience sake), have been acquitted by the learned Special Judge.
2. Case of the prosecution, in a nutshell, is that on .
7.11.2006, ASI Ghanshayam Chand alongwith Constable Goverdhan, Constable Bhupinder Singh and Constable Subhash Chand was on Nakabandi and traffic checking at about 10 AM at Shilli-Larji. A Tata Indica car bearing registration No. HR-06-J-
of 6607 came from Larji side to the place where the police party had laid Naka. ASI Ghanshayam Chand signalled the car to stop.
Accused Sultan Singh was driving the car and accused Ravinder rt Singh was sitting in the front seat. Their identify was ascertained.
The place where car was intercepted was a lonely place and ASI Ghanshayam Chand had joined Constable Bhupinder Singh and Constable Goverdhan Singh as witnesses and in their presence the car was checked. On checking the car a polythene bag was found near the feet underneath the seat of accused Ravinder Singh and in between the gear of car. On checking the polythene bag, in the presence of Goverdhan Singh and Bhupinder Singh, three separate polythene bags were found which were sealed with Cello tape. On opening the said polythene bags, one was found containing Golinuma Charas and other two were found containing stick-shaped Charas. It weighed 3 kg. Ghanshayam Chand extracted two samples of 25 grams each from all the three polythene bags and thereafter same were put in a cloth parcel ::: Downloaded on - 15/04/2017 20:09:38 :::HCHP 3 separately and sealed with seal impression 'X', 4 in number.
Remaining 2.950 kg Charas was put into the same polythene bag and those bags were put in a cloth parcel and parcel was sealed .
with seal impression 'X', 6 in number. Sealed parcels were marked A-1 and A-2 and parcel of the remaining Charas was marked as Mark A. ASI Ghanshayam Chand prepared NCB form in triplicate. Specimen of seal impression 'X' was taken on a piece of of cloth. Seal was handed over to Constable Goverdhan Singh after use. ASI Ghanshayam Chand also prepared Rukka and sent the same to the Police Station through Constable Subhash rt Chand for registration of case. FIR No. 136/06 was registered by HC Parkash Chand. Site plan was prepared. On reaching the Police Station, ASI Ghanshayam Chand on 7.11.2006 handed over case property to Addl. SHO Mangat Ram. Addl. SHO Mangat Ram with whom case property was i.e. three parcels containing Charas sealed with seal impression 'X' alongwith NCB form in triplicate an sample seal 'X' were deposited by ASI Ghanshayam.
Addl. SHO Mangat Ram put three parcels in separate enclosure out of which the samples were sealed with reseal 'T', 4 in number and third parcel was sealed with reseal 'T' 6 in number. Sample of seal was taken on a separate piece of cloth. Contraband was sent for chemical analysis. Investigation was completed. Challan was put in the Court after completing all the codal formalities.
::: Downloaded on - 15/04/2017 20:09:38 :::HCHP 43. Prosecution has examined as many as 10 witnesses to prove its case against the accused. Accused were also examined under Section 313 CrPC. They pleaded innocence.
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Accused also examined two defence witnesses. Learned trial Court acquitted the accused. Hence, this appeal.
4. Mr. M.A. Khan, Additional Advocate General has vehemently argued that the prosecution has proved its case of against the accused.
5. Mr. D.P. Chauhan, Advocate and Mr. Anil Chauhan, Advocate, appearing as amicus curiae, have supported the rt judgment dated 29.12.2007.
6. We have heard the learned counsel for the parties and also gone through the record carefully.
7. PW-1 Constable Goverdhan Singh testified that on 7.11.2006, he alongwith ASI Ghanshayam Chand, Constable Bhupinder Singh and Constable Subhash Chand was on Nakabandi and traffic checking at Shilli-Larji. At 10 AM, one Indica Car bearing No. HR-06-J-6607 came from Larji side. ASI Ghanshayam Chand stopped the car. Two persons i.e. Sultan Singh, driver and Ravinder were sitting in the car. Car was searched. On search, one polythene bag was found beneath the seat of Ravinder Kumar. ASI Ghanshayam Chand opened the polythene bag and found three bags. All the three bags were sealed with Cello tape. On checking, two bags were found ::: Downloaded on - 15/04/2017 20:09:38 :::HCHP 5 containing Charas in the shape of 'Goli' and one polythene bag contained Charas in the shape of sticks. It weighed 3 kg. ASI Ghanshayam Chand extracted two samples of 25 grams each .
from all the three polythene bags and packed in separate parcels and sealed with four seal impressions of 'X'. Remaining 2.950 kg Charas was put into same polythene bag and sealed with six seal impressions of 'X'. Samples were marked as Mark-A-1 and Mark of A-2 and remaining Charas was marked as Mark A. Case property was produced in the Court during the course of examination of PW-1. In his cross-examination, he categorically admitted that rt they have left the Police Station at 7 AM in the morning. Firstly, he stated that they started from Police Station in a government vehicle. Later stated that in fact they boarded a private bus coming from Kullu to Manali. In the said bus, there were 30-40 passengers. He also admitted that it was a busy road and there remained heavy traffic. About 200 yards there was Larji Bazaar.
A few workers were also working on the project site. He did not remember whether the IO had sent any police official to call for any independent witnesses from Larji locality. He admitted that there are Panchayat Bhawan, Panchayat Office, Rest House and other shops in Larji area. The police recorded his statement.
8. PW-2 Constable Subhash Chand also deposed the manner in which vehicle was intercepted and Charas was recovered. He was handed over Rukka by the IO. He handed over ::: Downloaded on - 15/04/2017 20:09:38 :::HCHP 6 the Rukka to MHC Police Station Aut. In his cross-examination, he admitted that they started from the Police Station at about 7 AM. He also admitted that about 200 yards, there was labour of .
the Dam project. IO had sent police official for calling independent witness to join in the search of the vehicle. IO did not wait for the independent witnesses to join search and he continued with his deliberations about search.
of
9. PW-4 H.C. Parkash Chand deposed that on 7.11.2006, SI/SHO Mangat Ram handed over to him one sealed parcel containing 2.950 kg Charas which was sealed with seal 'X', rt 6 in number and resealed with seal 'T', also 6 in number, Mark A, two parcels of 25 grams each, sealed with 6 seals of 'X' and resealed with 6 seals of 'T', marked A-1 and A-2 and other case property. He made entries in the Register No. 19 at Sr. No. 416.
Case property was sent to CFSL Chandigarh through Constable Sanjay Kumar.
10. PW-7 Constable Sanjay Kumar deposed that he has taken contraband to CFSL Chandigarh on 10.11.2006.
11. PW-8 Constable Bhupinder Singh deposed the manner in which the accused was apprehended. Search operation was carried out and Charas was recovered. In his cross-examination, he has deposed that the entire party i.e. he himself, alongwith ASI Ghanshayam Chand, Constable Subhash and Constable Goverdhan Singh started from the Police Station ::: Downloaded on - 15/04/2017 20:09:38 :::HCHP 7 at 9.05 AM. They reached back in the Police Station at 2.40 PM.
They were very much in the Police Station prior to 9.05 AM. The traffic checking was started at about 9.45 AM at Larji. They had .
checked 2-3 vehicles prior to the raid. IO had sent Constable Goverdhan Singh to nearby locality for bringing independent witnesses to be associated in the search of the vehicles. When Constable Goverdhan Singh came back to the spot, IO was busy of in writing the documents of search. He also admitted that other vehicles after search by IO were also on the spot. IO did not mix the contents of the three polythene bags Ext. P2 to P4. He again rt reiterated in his cross-examination that the IO was busy in investigation after recovery when Constable Goverdhan Singh had gone to fetch independent witnesses.
12. PW-9 SI Mangat Ram deposed that the case property was deposited with him by the IO. He resealed the same.
13. PW-10 ASI Ghanshayam, also deposed the manner in which the vehicle was intercepted and Charas was recovered.
He prepared Rukka and also filled up NCB form. In his cross-
examination, he has admitted that the Constable Goverdhan, Constable Subhash and Constable Bhupinder Singh started from the Police Station at 9.05 AM. They boarded a private bus. He also admitted that the Panchayat Ghar and official buildings were at a distance of 250 metres from the place of Naka. He sent Constable Goverdhan Singh to call for independent witnesses ::: Downloaded on - 15/04/2017 20:09:38 :::HCHP 8 vide Ext. PW-10/A. He came back after 15 minutes. He also admitted that at a distance of 250 metres there was office of Larji Project. He also admitted that he has not mixed up the contents .
of three polythene bags.
14. According to PW-1 Constable Goverdhan Singh and PW-2 Subhash Chand, they left the Police Station at 7 AM for Nakabandi and traffic checking at Shilli-Larji road. However, PW-
of 8, Constable Bhupinder Singh and ASI Ghanshayam deposed that they have left the Police Station at 9.05 AM. According to PW-8 Constable Bhupinder rt Singh, party reached back in the Police Station at 2.40 PM. Police party was very much in the Police Station prior to 9.05 AM and traffic was searched by the party at about 9.45 AM. Thus, there is contradiction in the statements of PW-1 Constable Goverdhan Singh, PW-2 Constable Subhash Chand vis-à-vis the statements of PW-8 Constable Bhupinder Singh and PW-10 ASI Ghanshayam about the departure of the police party to the place where accused was apprehended. There is a difference of almost two hours, which has not been explained.
15. Case of the prosecution is that the car was intercepted, Charas was recovered. Constable Goverdhan Singh was sent to get independent witnesses. PW-2 Subhash Chand deposed that IO sent police official for calling the independent witnesses to join search of the vehicle. PW-8 Constable ::: Downloaded on - 15/04/2017 20:09:38 :::HCHP 9 Bhupinder Singh also deposed that the IO has sent Constable Goverdhan Singh to nearby locality for bringing independent witnesses. PW-10 ASI Ghanshayam also deposed that IO sent .
Goverdhan Singh to get independent witnesses. However, surprisingly, PW-1 Goverdhan Singh deposed that he did not remember whether the IO had sent any official to call for independent witnesses from Larji locality. PW-8 Constable of Bhupinder Singh has deposed that Constable Goverdhan Singh came back after some time. He could not narrate the exact time.
He did not bring any independent witness with him. He informed rt the IO that he could not get any independent witnesses. When Constable Goverdhan came back, IO was busy writing documents of search. Similarly, PW-2 Subhash Chand also admitted that IO did not wait for independent witnesses to join the search. He continued with his deliberations about the search. PW-1 Constable Goverdhan Singh has admitted in his cross-
examination that the road where Naka was laid, was a busy road.
There was heavy traffic on the road. The spot, where traffic checking was being carried out was adjoining to dam and workers were also present on the site. PW-2 Constable Subhash Chand has also admitted that at a distance of about 200 yards labour was available at the dam site. PW-8 Constable Bhupinder Singh admitted that there was a market nearby the spot and there were Panchayat Ghar, Rest House and other government ::: Downloaded on - 15/04/2017 20:09:38 :::HCHP 10 offices. PW-10 ASI Ghanshayam has also admitted that at a distance of 250 metres there is office of Larji Project. However, fact of the matter is that though the place where Naka was laid, .
was neither a secluded place nor an isolated place, police has not joined any independent witnesses during the course of search, seizure and sampling proceedings by associating witnesses from the nearby market and government offices. It has also come on of record that the vehicles were also on the spot. Police could also ask the occupants of the car to be joined as witnesses.
16. Charas was recovered from three different packets.
rt PW-8 Constable Bhupinder Singh has categorically admitted in his cross-examination that IO did not mix up contents of the packets Ext. P2 to P4. PW-10 ASI Ghanshayam himself has admitted in his cross-examination that he did not mix up the contents of three polythene packets. IO should not have continued with the preparing of documents till the police official, who was sent to get independent witnesses, came back. IO should have made entire contraband homogenous for the purpose of chemical examination.
17. There is also variance in the statements of the witnesses as to exactly from where the bag was recovered.
According to a few witnesses, bag was near the seat of the conductor and others have stated that it was underneath the seat. Thus, the prosecution has failed to prove case under ::: Downloaded on - 15/04/2017 20:09:38 :::HCHP 11 Section 20 of the Act, against the accused persons. There is no occasion for us to interfere with the well reasoned judgment of the learned trial Court.
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18. In view of the discussion and analysis made herein above, the appeal has no merit and the same is dismissed. Bail bonds of accused are discharged.
All pending applications are also disposed of.
of
(Rajiv Sharma)
rt Judge
(Vivek Singh Thakur)
Judge
April 22, 2016
(vikrant)
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