Himachal Pradesh High Court
Gurmeet Singh vs State Of Himachal Pradesh on 11 March, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 4116/2013
Reserved on: 10.3.2015
Decided on: 11.3.2015
.
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Gurmeet Singh ...... Appellant
Versus
State of Himachal Pradesh ........Respondent
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Coram:
Hon'ble Mr. Justice Rajiv Sharma, Judge
Whether approved for reporting? 1Yes.
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For the appellant : Mr. R.S. Chandel, Advocate.
For the respondent :
Mr. Parmod Thakur, Additional
Advocate General.
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Rajiv Sharma, Judge:
This appeal is instituted against judgment dated 9.5.2013 rendered by learned Special Judge Solan, District Solan, HP in Session Trial No. 20-NL/7 of 2011, whereby appellant- accused (hereinafter referred to as 'accused' for convenience sake), who was charged with and tried for offence under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'Act' for convenience sake), was convicted and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of `20,000/- and in default of payment of fine, to further undergo imprisonment for a period of six months.
2. Case of the prosecution, in a nutshell, is that on 12.7.2011 ASI Surender Singh (PW12) alongwith HC Tejender 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes ::: Downloaded on - 15/04/2017 17:45:08 :::HCHP 2 Singh (PW7), HHC Rajesh Kumar (PW8), Constable Ranbir Singh (PW6) Constable Dharam Pal and Constable Ram Pyare (PW-9) were present near Truck Union, Baddi, in connection with investigation .
of case at about 1.00 pm and accused came on the spot carrying a bag in his right hand. On seeing the police party he got perplexed. Nirmal Singh, PW-11 was associated as independent witness. The bag was searched and it contained 14 small polythene carry bags having poppy straw. Identification memo Ext. PW7/A was prepared. Poppy straw was weighed and it weighed 2.8 kgs. Recovered contraband was put in the same bag in the same manner, in which it was seized and bag was put into separate parcel sealed with 'S' impression and seized vide Ext PW7/D. Seal impressions were taken on a separate piece of cloth vide Ext. PW7/B. NCB form Ext. PW10/C was filled in triplicate by ASI Surender Singh and seal impression was affixed upon the same. Seal was handed over to witness Nirmal Singh vide memo Ext. PW7/C. Rukka Ext. PW12/A was prepared which was sent to police station through HHC Rajesh Kumar. FIR was registered vide Ext. PW10/A. Site plan was prepared. Parcel containing contraband alongwith sample seal, NCB form etc. was produced before SI Keshav Singh, who resealed the same with 8 seals of impression 'I' and issued resealing certificate Ext. PW10/E. Seal impression was also affixed on NCB form and sample of seal Ext. PW10/D was separately drawn and parcel alongwith sample seals, NCB form etc. were handed over to HC Madan Pal, PW-3, for depositing in Malkhana. Entry was made in ::: Downloaded on - 15/04/2017 17:45:08 :::HCHP 3 the Malkhana Register vide Ext. PW3/A. Parcel containing contraband alongwith sample seals was produced before the Judicial Magistrate 1st Class Nalagarh on 13.7.2011. He issued .
certificate Ext. PW10/F. On 14.7.2011 the parcel alongwith sample seals, NCB form etc. was forwarded to FSL Junga through constable Ishwar Dass vide Ext. PW3/B. Copy of report of chemical examiner is Ext. PW12/E. Special report Ext. PW1/A was prepared. Investigation was completed and challan was put up in the Court after completing all codal formalities.
3. Prosecution examined as many as 12 witnesses to prove its case. Accused was also examined under Section 313 of the Criminal Procedure Code. According to him, he was implicated in the case falsely. Trial Court convicted and sentenced the accused as noticed herein above. Hence, this appeal.
4. Mr. R.S. Chandel, Advocate has vehemently argued that the prosecution has failed to prove its case against the accused.
5. Mr. Parmod Thakur, Additional Advocate General has supported the judgment of the learned trial Court.
6. I have heard the learned counsel for the parties and also gone through the record carefully.
7. PW-1 Randheer Singh is a formal witness.
8. PW-2 Ishwar Dass deposed that MHC has handed over him parcels alongwith NCB form to be taken to FSL Junga. He deposited the case property with FSL Junga.
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9. PW-3 HC Mohan Lal deposed that on 12.7.2011, SI SHO Keshav Negi handed over to him a cloth parcel sealed with 8 seals of impression 'I' alleged to be containing another sealed parcel .
having poppy husk to be deposited in Malkhana alongwith NCB form, sample seals of impression 'I' and 'S'. He made entry in the Malkhana Register vide Sr .No. 368. On 14.7.2011, he handed over the case property alongwith documents to Ishwar Dass Constable No. 425. The case property was handed over alongwith documents at FSL Junga. He proved copy of RC Ext. PW3/B. In his cross- examination, he has admitted that SHO deposited the case property with him at about 8 pm on 12.7.2011. He did not obtain signatures of SHO in column No. 7 of the Malkhana Register. He also admitted that time of depositing the case property was not mentioned at entry No. 368 pertaining to the case. He further admitted that entry pertaining to production of the same before Judicial Magistrate 1st Class Nalagarh under Section 52-A of the Act did not contain signatures of SHO and time was also not mentioned. Likewise, entry regarding depositing back of case property after being produced before Judicial Magistrate 1st Class Nalagarh, was also not containing signatures of SHO when said property was deposited in Malkhana. According to him, in column No. 7 of Malkhana Register, there is requirement of putting signatures of the official who deposits the case property after producing before the concerned Magistrate.
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10. PW-6 C. Ranbir Singh has deposed the manner in which accused was apprehended and codal formalities of seizure and sampling were completed at the spot. On 12.7.2011, one person .
Nirmal Singh alias Kala was also present. Bag was checked. Police recovered contraband from the accused. It weighed 2.8 kgs. Sealing process was completed and NCB form was prepared. In his cross- examination, he has admitted that so many persons were present at the place where accused was apprehended by the police. No person from that area was joined in the investigation by the police inspite of their availability.
11. PW-7 Tejender Singh has deposed the manner in which accused was apprehended and codal formalities of seizure and sampling were completed at the spot. He also deposed that Nirmal Singh was with them. In his cross-examination, he has admitted that near the place where police party was present, office of Truck Union Baddi was located. He also admitted that outside and inside the office of Truck Union, so many persons were present but no person was associated in the investigation by the I.O.
12. PW-8 Rajesh Kumar also deposed the manner in which accused was apprehended and codal formalities of seizure and sampling were completed at the spot. He has taken Rukka Mark X for registration of FIR. He also admitted in his cross-examination that at the spot, so many persons were available at the time of apprehending of accused.
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13. PW-9 Constable Ram Payara also deposed the manner in which accused was apprehended and codal formalities of seizure and sampling were completed at the spot. According to him also, .
Nirmal Singh was standing with them at the time of apprehending accused on 12.7.2011. He also deposed that the witness Nirmal Singh was not personally known to him. However, said witness was already standing with the police.
14. PW-10 SI Keshaw Negi has completed codal formalities of resealing and depositing with Malkhana. In his cross- examination, he has admitted that he did not put any signatures in column No. 7 of Malkhana Register at the time of taking out property from Malkhana for producing the same before Judicial Magistrate 1st Class. He also admitted that an application was moved before Judicial Magistrate 1st Class under Section 52 of the Act, which was not available in the case file. Case property was re- deposited with MHC Malkhana however, he did not sign Malkhana Register at the time of re-depositing case property in the Malkhana.
15. PW-11 Nirmal Singh, the independent witness, has not supported the case of the Prosecution at all. According to him, 5-6 months back, he was called by police in the police station Baddi. He was asked to put his signatures on some documents. He put his signatures on the said documents at the instance of the police without going through the contents of the same. However, he has admitted his signatures on Ext. PW7/A. ::: Downloaded on - 15/04/2017 17:45:08 :::HCHP 7
16. PW-12 ASI Surender was the IO of the case. He also deposed the manner in which accused was apprehended and codal formalities of seizure and sampling were completed at the spot. He .
completed codal formalities of sealing and filling up NCB form Ex. PW-10/C and has prepared Rukka mark X. He handed over case property alongwith sample seals, NCB form to SI SHO Keshav Negi. In his cross-examination, he has admitted that office of Truck Union Baddi is not far away from the place where police party was present. According to him, accused was chased by the members of the police party and he was caught. No other person except Nirmal Singh was associated in the investigation of the case from near the place where policy party was present. He also admitted that he had met the police party to search accused in a theft case. Theft was of stealing some articles from a truck. He did not know to whom the truck belonged to. He could not narrate who was the complainant. He admitted in his cross-examination that so many persons were coming and going from the place where accused was apprehended on suspicion that he might be carrying some narcotic substance.
17. What emerges from the statements narrated herein above is that the accused was apprehended on 12.7.2011. Contraband was recovered from him. It weighed 2.8 kgs. NCB form in triplicate was filled up. Rukka was sent to the police Station. FIR was registered. Investigating Officer has handed over the case property to SHO for resealing. He resealed the same and deposited with the Malkhana. PW-3, Mohan Lal handed over case property to ::: Downloaded on - 15/04/2017 17:45:08 :::HCHP 8 PW-2, Ishwar Dass, who deposited it with FSL Junga. Report of the FSL Junga is Ext. PW-12/E. Case of the prosecution has not been supported by PW-11 Nirmal Singh. Police has not joined any .
independent witness, though available on the spot at the time of nabbing of accused and recovery of contraband. PW-6 Ranbir Singh has categorically admitted in his cross-examination that no person of the area was joined in the investigation by the police inspite of availability of so many persons. Similarly, PW-7, has deposed that the office of Truck Union Baddi was located near the place and so many persons were present inside and outside the office but no person was associated in the investigation by the I.O.
18. PW-12 ASI Surender has also admitted that so many other persons were seen coming and going out of place where police party was present. According to him, police had gone for investigation of theft case, however, he could not narrate who was the owner of the truck. He did not know who was the complainant in that case. Police ought to have joined independent witnesses who were available at the spot. PW-3 Mohan Lal has admitted in his cross-examination that the alleged time of depositing case property has not been mentioned at Sr. No. 368. He also admitted that entry pertaining to production of the case property under Section 52 of the Act, before the Judicial Magistrate 1st Class Nalagarh did not contain signatures of SHO and time was also not mentioned. Similarly, signatures of SHO were not obtained at the time when case property was re-deposited in the Malkhana. Column No. 7 of ::: Downloaded on - 15/04/2017 17:45:08 :::HCHP 9 the Malkhana Register required putting of signatures of the official who deposit case property and took them for production before a Judicial Magistrate concerned. Prosecution has not explained why .
the SHO has not put his signatures at the time when contraband was taken out and re-deposited, in column No. 7. PW-10 has also admitted in his cross-examination that at the time of production of case property, before the Magistrate by the I.O., no inventory list was attached. He admitted that he did not put his signatures in column No. 7 of Malkhana Register at the time of taking out case property from Malkhana for production before the Judicial Magistrate Nalagarh. Application moved by him before the Judicial Magistrate was not available on the case file. Case property was re- deposited with the MHC in Malkhana but again he did not sign Malkhana register. It casts doubt on the case of the Prosecution.
19. Their Lordships of the Hon'ble Supreme Court in case Gurbax Singh v. State of Haryana, reported in (2001) 3 SCC 28 have held that it is true that Sections 52 and 57 are directory. Violation of these would not ipso facto violate the trial or conviction. However, IO can not totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the articles. Their Lordships have held as under:
"9. The learned counsel for the appellant next contended that from the evidence it is apparent that the I. O. has not followed the procedure prescribed under Sections 52, 55 and 57 of the N.D.P.S. Act. May be that the I.O. had no ::: Downloaded on - 15/04/2017 17:45:08 :::HCHP 10 knowledge about the operation of the N.D.P.S. Act on the date of the incident as he recorded the FIR under Section 9/1/78 of the Opium Act. In our view, there is much substance in this submission. It is true that provisions of .
Sections 52 and 57 are directory. Violation of these provisions would not ipso facto violate the trial or conviction. However, I.O. cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article. In the present case, I.O. has admitted that the seal which was affixed on the muddamal article was handed over to the witness P.W.1 and was kept with him for 10 days. He has also admitted that the muddamal parcels were not sealed by the officer in charge of the police station as required under Section 55 of the N.D.P.S. Act. The prosecution has not led any evidence whether the Chemical Analyser received the sample with proper intact seals. It creates a doubt whether the same sample was sent to the Chemical Analyser. Further, it is apparent that the I.O. has not followed the procedure prescribed under Section 57 of the N.D.P.S. Act of making full report of all particulars of arrest and seizure to his immediate superior officer. The conduct of panch witness is unusual as he offered himself to be a witness for search and seizure despite being not asked by the I.O., particularly when he did not know that the substance was poppy husk., but came to know about it only after being informed by the police. Further, it is the say of the Panch witness that Muddamal seal used by the PSI was a wooden seal. As against this, it is the say of PW2 SI/IO that it was a brass seal. On the basis of the aforesaid evidence and faulty investigation by the prosecution, in our view, it would not be safe to convict ::: Downloaded on - 15/04/2017 17:45:08 :::HCHP 11 the appellant for a serious offence of possessing poppy- husk."
20. In the instant case, prejudice has been caused to the .
accused for non-compliance of Section 52 of the Act by the I.O. in its letter and spirit.
21. It creates a doubt whether the same property was produced before the Court, which was seized from the accused and samples were also drawn from the same.
22. Accordingly, it is held that the Prosecution has not been able to prove its case beyond all reasonable doubt against the accused for the offence under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985. Thus the findings of the learned Special Judge convicting the accused for the said offence are liable to be set aside and accused is entitled to be acquitted. Accordingly, the appeal is allowed. Judgment dated 9.5.2013 passed by learned Special Judge Solan, District Solan, Himachal Pradesh rendered in Session Trial No. 20-NL/7 of 2011, is set aside. Accused is acquitted of the offence under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985, by giving him benefit of doubt. He be released forthwith, if not required in any other case by the Police. Registry is directed to prepare release warrant of the accused and send the same to the Superintendent Jail concerned.
(Rajiv Sharma) Judge 11.3.2015 (vikrant) ::: Downloaded on - 15/04/2017 17:45:08 :::HCHP