Himachal Pradesh High Court
State Of Himachal Pradesh vs Ramesh Alias Bhutta on 16 May, 2016
Author: Rajiv Sharma
Bench: Rajiv Sharma, Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 338 of 2010.
Reserved on: May 12, 2016.
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Decided on: May 16, 2016.
State of Himachal Pradesh ......Appellant.
Versus
Ramesh alias Bhutta .......Respondent.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
of
Whether approved for reporting? 1 Yes.
For the appellant: Mr. P.M.Negi, Dy. AG.
For the respondent: Mr. N.K.Thakur, Sr. Advocate, with Mr. Manoj Bagga,
Advocate.
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Justice Rajiv Sharma, J.
This appeal is instituted at the instance of the State against the judgment dated 30.10.2009, rendered by the learned Special Judge (FTC), Chamba, H.P., in Sessions trial No. 24/09, whereby the respondent-
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 acquitted.
2. The case of the prosecution, in a nut shell, is that the police party headed by HC Kartar Singh was present at Lahru Forest Check Post in connection with patrolling duty on 16.4.2009. Independent witnesses Moji Ram and Jaram Singh were also with the police party. At about 9:20 AM, the accused was noticed coming from Nala side. He was carrying a bag on his right shoulder. On seeing the police party, he tried to run away.
11 Whether reporters of the local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 20:21:55 :::HCHP 2He was apprehended. He was told that the police party wanted to take his personal search as well as the search of the bag carried by him. He was .
informed of his right to be searched before a Magistrate or a Gazetted Officer. The accused consented to be searched by the police party. Memo to this effect was prepared. The bag was searched. It contained a polythene bag of yellow colour having charas in it in the shape of sticks and balls. Accused could not produce the licence or permit for carrying it.
of The charas weighed 3 kg. 500 grams. Out of the recovered charas 2 samples of 25 gram each were drawn which were separately parceled and rt sealed with seal "K". The balance charas was also parceled and sealed with seal impression "K". Rukka was scribed and sent to the Police Station, on the basis of which, FIR No. 38/09 was registered. The case property was produced before the SHO, PS Chuwari who resealed the same with seal impression "T". He deposited the case property with the MHC. One part of the sample was sent to the Laboratory for chemical examination. It was found to be charas. The investigation was completed and the challan was put up before the Court after completing all the codal formalities.
3. The prosecution, in order to prove its case, has examined as many as sixteen witnesses. The accused was also examined under Section 313 Cr.P.C. His case is of denial simplicitor. The learned trial Court acquitted the accused, as noticed hereinabove. Hence, this appeal.
4. Mr. P.M.Negi, learned Dy. Advocate General for the State has vehemently argued that the prosecution has proved its case against the ::: Downloaded on - 15/04/2017 20:21:55 :::HCHP 3 accused. On the other hand, Mr. N.K.Thakur, Sr. Advocate, has supported the judgment of the trial Court dated 30.10.2009.
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5. We have heard the learned counsel for both the sides and have also gone through the judgment and records of the case carefully.
6. ASI Yudhbir Sharma, PW-1 deposed that on 16.4.2009, at about 8:20 PM, HC Kartar Singh handed over to him one big parcel stated to be containing 3 kg. 450 grams Bhang sealed with three seals of seal "K".
of Two small parcels stated to be containing 25 grams Bhang sealed with three seals of seal "K" each, NCB form in triplicate, sample seal "K" were rt handed over to him by HC Kartar Singh for resealing purpose. He resealed all the parcels by affixing two seals of "T" on each parcel. He prepared re-
seal memo Ext. PW-1/D. He deposited the case property with MHC.
7. HHC Trilok, PW-2 deposed that on 16.4.2009, at about 8:20 PM, HC Kartar Singh handed over one big parcel sealed with three seals of seal "K", two small parcels sealed with three seals of seal "K" each stated to be containing 25 grams of Bhang each, along with the sample seal to ASI/SHO Yudhbir Singh for resealing purpose, who resealed all the three parcels with two seals of seal "T" on each parcel. Thereafter, ASI Yudhbir Singh deposited the case property with the MHC.
8. Const. Balwant Singh, PW-3 deposed that on 19.4.2009, MHC Neeraj Kumar handed over to him one parcel stated to be containing small parcels having 25 grams charas each in it, copy of FIR, RC, NCB form for being taken to the laboratory. He was declared hostile and cross-examined by the learned Public Prosecutor. In his cross-examination, he admitted ::: Downloaded on - 15/04/2017 20:21:55 :::HCHP 4 that only one parcel along with NCB form sealed with seal "K" and "T" was handed over to him for being taken to the laboratory. He also admitted .
that so long as the sample remained in his custody, no tampering was done by him nor he allowed anybody to do any tampering. In his cross-
examination by the learned defence counsel, he admitted that sample was sealed with two seals of seal "K" and two seals of seal "T".
9. MHC Neeraj Kumar PW-4 deposed that on 16.4.2009 of ASI/SHO Yudhbir handed over to him one big parcel stated to be containing 3 kg. 450 grams Bhang, sealed with seal "K" and resealed with rt seal "T", two small parcels stated to be containing 25 grams of Bhang each, sealed with seal "K" and resealed with seal "T". Each parcel was sealed with three seals of seal "K" and two seals of seal "T". Along with the parcel, NCB form in triplicate was also handed over to him for being deposited in the malkhana. He made entries in the malkhana register vide Ext. PW-4/A. On 19.4.2009, he handed over the case property to Const. Balwant Singh vide RC No. 7/09 for being taken to the laboratory. He further delivered the same and returned RC to him. In his cross-examination, he admitted that he did not make entry of NCB form and documents in the malkhana register.
10. Moji Ram, PW-8 deposed that on 16.4.2009, he was on duty at Lahru barrier. At about 9:00 AM, police brought accused and told that Bhang was recovered from him. The Bhang was in a bag of black colour.
The bag was with the police officials. Police obtained his signatures. Police did not carry out any proceedings in his presence. Jaram Singh and he ::: Downloaded on - 15/04/2017 20:21:55 :::HCHP 5 appended the signatures on the papers. Cloth was brought by the police and bag containing Bhang was sealed. It was not weighed. He was .
declared hostile and cross-examined by the learned Public Prosecutor. In his cross-examination, he deposed that two police officials had arrived there during the night. The distance of nallah from the check post was about 100 meters. Police officials were in car and they proceeded towards nallah. The police had gone towards nallah at about 9:00 AM. Again of stated that they had left the spot at about 8:00 AM. He did not know as to how the accused was brought by the police at check post. He denied the rt suggestion that accused was holding a bag on his right shoulder and he had started running towards the nallah. The police told him that they had recovered Bhang. He did not see Bhang. Again stated that he had seen the Bhang in the bag from a distance but he did not touch it. He denied the suggestion that the police had informed the accused of his right to be searched before a Magistrate or a Gazetted Officer and the accused had consented to be searched by the police and memo was prepared to this effect. He denied that charas weighed 3 kg. 500 grams. In his cross-
examination by the learned defence counsel, he admitted that 10-12 shops existed near check post of police. Papers were prepared by the police officials at the police check-post.
11. Jaram Singh, PW-9 is another independent witness. He deposed that he was working as forest worker in Lahru Forest Check Post.
He was taking rest in the check post. Nothing happened till 8:00 AM.
Police came there at about 10:00 AM. He was also called by the police at ::: Downloaded on - 15/04/2017 20:21:55 :::HCHP 6 Police Check-post but he went there at 2-2:30 PM. The police told him that they had recovered Bhang which was in a bag of black colour. Police asked .
him to become a witness but he refused. Thereafter, the police forced him to become a witness. Police made parcels and obtained his signatures. He was declared hostile and cross-examined by the learned Public Prosecutor.
In his cross-examination, he denied that the accused came from nallah side and he was holding a bag on his right shoulder and on seeing the of police he turned back and started running. Thereafter he was apprehended by the police in his presence and Moji Ram. He denied that rt the police informed the accused of his right to be searched before a Magistrate or a Gazetted Officer and he consented to be searched by the police party. He denied that the bag carried by the accused was searched in his presence and it was found to be containing charas. It weighed 3 kg.
500 grams. He denied that two samples of 25 grams were drawn in his presence. He also denied that parcels were sealed with seal "K" and seal after use was handed over to Moji Ram in his presence.
12. Const. Rajesh Kumar, PW-10 deposed the manner in which the accused was apprehended, search, seizure and sealing proceedings were completed on the spot. According to him, the accused was given option by the police party to be searched before a Magistrate or a Gazetted Officer and he consented to be searched by the police party. Memo Ext.
PW-10/A was prepared. The recovered charas was taken into possession vide memo Ext. PW-10/C. In his cross-examination, he admitted that the police party left S.P. Office at about 6:00 PM on 15.4.2009. They did ::: Downloaded on - 15/04/2017 20:21:55 :::HCHP 7 patrolling at Jot for about 4 hours and then straightway went to Lahru check post.
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13. Const. Chaman Singh, PW-11 also deposed the manner in which the accused was apprehended, search, seizure and sealing proceedings were completed on the spot. Rukka was handed over to him.
He took the same to the Police Station.
14. Rajesh Kumar, PW-12 testified that he was running a Dhaba of at Lahru. He did not know anything about the case. He was declared hostile and cross-examined by the learned Public Prosecutor for the State.
rt He denied the suggestion that on 16.4.2009, Mohd. Aslam visited his shop and collected weights and scale from him. Volunteered that he did not keep weights and scale at his shop.
15. Const. Mohd. Aslam, PW-13 also deposed the manner in which the accused was nabbed by the police. In his cross-examination, he deposed that the police party left Chamba at about 4-5:00 PM on 16.4.2009 and reached Lahru at about 7:00 AM. According to him, 2-3 hours were spent in carrying out the entire proceedings.
16. Mr. N.K.Thakur, Sr. Advocate, has drawn the attention of the Court to consent memo Ext. PW-10/A. The accused was not apprised of his legal right to be searched either before a Magistrate or a Gazetted Officer. What has been mentioned in the consent memo Ext. PW-10/A is that the consent of the accused was obtained whether he wanted to be searched before a Gazetted Officer or a Magistrate. Section 50 of the ND & PS Act is mandatory. The accused is required to be apprised that he has a ::: Downloaded on - 15/04/2017 20:21:55 :::HCHP 8 legal right to be searched either before a Magistrate or a Gazetted Officer.
Thus, there is violation of Section 50 of the ND & PS Act.
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17. Const. Balwant Singh PW-3 has admitted in his cross-
examination that the sample which he carried to FSL was sealed with two seals of "K" and two seals of "T". The case of the prosecution specifically is that the samples were sealed with three seals of seal "K" and two seals of seal "T". MHC Neeraj Kumar PW-4 testified that each parcel was sealed of with three seals of seal "K" and two seals of seal "T".
18. Const. Mohd. Aslam, PW-13 deposed that the police party left rt Chamba at about 4-5:00 PM on 16.4.2009. HC Kartar Singh PW-16 deposed that they left Police Lines, Chamba at 9:20 PM on 15.4.2009.
Const. Rajesh Kumar PW-10 deposed in his cross-examination by the learned defence counsel that the police party left S.P. Office at about 6:00 PM on 15.4.2009. They did patrolling at Jot for about four hours and then straightway went to Lahru Check-Post. However, as per Const. Mohd.
Aslam, PW-13, the police party after leaving Chamba did not stay on the way and they straightway had gone to Forest Check Post Lahru. There is variance in few hours as to when the police party left Chamba.
19. According to Const. Rajesh Kumar, PW-10, it took about six hours to carry out the entire proceedings, though Const. Mohd. Aslam, PW-13 stated that the proceedings were completed only within 2-3 hours.
The case of the prosecution has also not been supported by the independent witnesses Moji Ram, PW-8 and Jaram Singh, PW-9. Thus, the prosecution has failed to prove the case against the accused under ::: Downloaded on - 15/04/2017 20:21:55 :::HCHP 9 Sections 20 of the ND & PS Act. This Court has no occasion to interfere with the well reasoned judgment of the learned trial Court dated .
30.10.2009.
20. Accordingly, there is no merit in this appeal and the same is dismissed. Bail bonds are discharged.
( Rajiv Sharma ), Judge.
of
May 16, 2016, ( Vivek Singh Thakur ),
(karan) Judge.
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