Himachal Pradesh High Court
Jeet Ram Son Of Devi Ram vs State Of Himachal Pradesh on 7 April, 2022
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 7th DAY OF APRIL, 2022
.
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
CRIMINAL APPEAL NO. 452 OF 2008
Between:-
JEET RAM SON OF DEVI RAM,
RESIDENT OF VILLAGE JAGAT
KHANA, TEHSIL NALAGARH,
DISTRICT SOLAN, H.P.
...APPELLANT
(BY MS. DEVYANI SHARMA,
ADVOCATE)
AND
STATE OF H.P.
...RESPONDENT
(SH. SH. ASHOK SHARMA,
A.G. WITH SHRI VINOD
THAKUR, SH. SHIV PAL
MANHANS, ADDL A.GS, SH.
BHUPINDER THAKUR, DY.
A.G. AND SH. RAJAT
CHAUHAN, LAW OFFICER)
RESERVED ON: 02.04.2022
This appeal coming on for Hearing this day, the Court
passed the following:-
JUDGMENT
This criminal appeal is directed against the judgment of conviction and sentence passed by the ::: Downloaded on - 07/04/2022 20:14:43 :::CIS 2 learned Sessions Judge, Solan, Camp at Nalagarh, in Sessions Trial No. 5-NL/7, dated 17.07.2008, whereby the .
appellant has been convicted and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.20,000/- (Rs. Twenty Thousand) and in default to further undergo rigorous imprisonment for six months for the commission of offence punishable under Section 15 (B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'Act').
2. The brief facts of the prosecution case are that the accused on 29.09.2006 at about 4:45 am, SHO/Inspector Som Dutt of Police Station Nalagarh alongwih SI Kamal Kishore, SI Raj Kumar, ASI Sher Singh, H.C. Ranjeet Singh, H. C. Hardev Singh, Constables Sat Pal, Chanchal Kumar and Narinder Kumar had proceeded from the police station on patrolling and excise checking and at about 5:30 am when they were present at Sirsa Khad near Jagat Khana a person carrying one bag on his shoulder seen coming from Ropar side. On seeing the police party, he tried to run away after throwing away the bag. On suspicion, he was overpowered by the police party. Suspecting some stolen articles in the bag, which was tied with the rope was opened ::: Downloaded on - 07/04/2022 20:14:43 :::CIS 3 and inside it another plastic bag having print of 'Non Branded Atta Hanuman' was found. On opening this, it was .
found containing some yellowish substance like poppy husk which on the basis of observatory test was identified as poppy straw and identification memo with regard to it was prepared. Thereafter, the name and address of that person was inquired who disclosed his name as Jeet Ram son of Sh.
Devi Ram, resident of Jagat Khana, Tehsil Nalagarh, District Solan, H.P. The poppy straw was weighed with the weighing scale which was carried by the police party in its kit. It was found 18 kg. Out of which, two samples of 250 grams each were separately taken and put in cloth parcel sealed with three seals of "T' and the remaining bulk poppy straw was also sealed in the same bag and was sealed with seal 'T'.
The samples were also marked as S1, S2 and bulk poppy straw as P1. After taking the case property into possession, sample impressions of the seal used, were taken on the pieces of cloth. Rukka was sent to the police station for registration of the FIR. The site map of the spot and other related documents were prepared. The accused was then arrested and information of his arrest was given to his brother-in-law. After medical examination, the accused was ::: Downloaded on - 07/04/2022 20:14:43 :::CIS 4 put up in the lock up and the case property was deposited with the MHC of the police station, Nalagarh. Special report .
was also prepared and sent to the S.P. Solan. One of the samples parcel was sent to Chemical Examination at Chandigarh and on receipt of the report about its nature being of poppy straw, the challan was prepared and presented against the accused in the court.
3. After completion of all the formalities, the accused was charged with the offence punishable under Section 15(B) of the Act, for which he pleaded not guilty and claimed to be tried.
4. The prosecution examined as many as 6 witnesses in all to prove its case against the accused.
Thereafter, statement of accused under Section 313 Cr.P.C.
was recorded, wherein, he denied the prosecution story in its entirety and claimed that a false case has been foisted upon him and he is innocent. However, he led no evidence.
After recording the evidence, the learned Trial Court convicted and sentenced the accused as noted here-in-
above above.
5. It is vehemently argued by Ms. Devyani Sharma, learned Advocate that even though the police party was ::: Downloaded on - 07/04/2022 20:14:43 :::CIS 5 comprising 9-10 persons, however, only two witnesses i.e. PW1 ASI Raj Kumar and PW6 Inspector Som Dutta have .
been examined whereas no independent witness has been examined. It is further argued that there is no consistency in the prosecution evidence regarding time of incident and taking of samples. Otherwise also there is delay in sending of the sample to CFSL, Chandigarh, especially, when the alleged recovery has been effected on 29.09.2006, while the samples have been sent only on 27.10.2006. There is inconsistency even with regard to weight of the sample, which as per the prosecution was 2.50 grams, whereas when it was sealed in the laboratory, it was 260-270 grams.
There is also inconsistency with regard to the colour of the sample. Lastly, it is argued that since there was no evidence whatsoever available on the record to suggest where the sample remained w.e.f. 26.10.2006 up to 01.11.2006, the possibility of the sample being tampered cannot be ruled out and even also the sample seal was not produced.
6. On the other hand, Shri Vinod Thakur, learned Additional Advocate General duly assisted by Mr. Rajat Chauhan, Law Officer, have argued that it is the quality and not the quantity of the evidence which is required to be ::: Downloaded on - 07/04/2022 20:14:43 :::CIS 6 seen by the Court, especially, when the presence of the accused at the spot at the given time is not seriously .
disputed. It is further argued that since this was a case of chance recovery, therefore, no independent witness was otherwise required to be associated as per the settled law.
7. It is more than settled that it is the quality and not the quantity that is required to be seen by the Court.
The presence of the accused/appellant at the given time and place is not disputed and has rather been admitted by the appellant. Since, it was a case of chance recovery, no advantage can be taken by the appellant on account of non-
association of independent witnesses. However, yet the Court cannot lose sight of the arguments of the learned counsel for the appellant regarding the safe custody of the alleged contraband.
8. The prosecution had examined Shri Vishesh Kumar, I.O. Police Station Barotiwala, initially on 17.06.2008 and thereafter again his statement was recorded on 20.06.2008. As per the statement recorded on 17.06.2008, this witness stated that on 29.09.2006, SHO Som Dutt deposited with him three sealed parcels with seal 'T', marked as S-1, S-2 and P-1 alongwith sample seals, NCB ::: Downloaded on - 07/04/2022 20:14:43 :::CIS 7 forms, which were entered by him in Register No. 19 of the Police Station at Serial No. 917. The parcels of sample .
alongwith NCB form, sample seal, copy of FIR and recovery memo were sent vide R. C. No. 106/2006, dated 01.11.2006 to CFSL Chandigarh for chemical analysis through constable Gurnaib Singh, who after depositing the aforesaid articles at CFSL Chandigarh, handed over the receipt to me which was kept in the record. He has brought the original Register and R. C. in the Court and exhibited the photocopies thereof as Ex.PW-2/A and Ex.PW2/B to be true copies of the same. He further stated that as long as the above articles remained with him, no tampering was done by him or anybody else and the parcels were Ex.PW2/C, Ex.PW2/D and Ex.PW-2/E. On his re-examination on 20.06.2008, this witness stated that the samples in this case alongwith the six other cases were sent to CFSL Chandigarh vide RC No. 99/2006-07 on 26.10.2006 through Constable Gurnaib Singh but the same were not received in the laboratory for want of removing objections. The case property was deposited in the Malkaha.
Thereafter, vide RC No. 106/2006-07, dated 01.11.2006, the sample of this case was sent to CFSL, Chandigarh. He produced the original RC No. 99, Ext. PW-2/F and further ::: Downloaded on - 07/04/2022 20:14:43 :::CIS 8 stated that he had forgotten to mention the RC No. 106/06- 07 dated 01.11.2006 in the NCB form.
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9. It would be noticed that this witness did not depose as to when the samples that were sent to CFSL, Chandigarh vide RC No. 99/06-07, dated 26.10.2006, were re-deposited in the Malkhana, which thereafter had been sent for examination to CFSL Chandigarh vide RC No. 106/2006-07, dated 01.11.2006. Not only this, Constable Gurnaib Singh, who alleged to have taken the sample to CFSL Chandigarh, did not even make a mention of any sample being handed over or taken by him to CFSL Chandigarh on 26.10.2006 and he simply stated that on 01.11.2006, MHC Vishesh Kumar handed over to him one parcel S-1 sealed with seal 'T' alongwith sample seal and other related documents vide RC No. 106/2006 for taking to CFSL Chandigarh. The parcels alongwith documents were taken and deposited by him in the office of CFSL Chandigarh on the same day and after depositing the same, the receipt was handed over by him to MHC Police Station Nalagarh. As long as the sample case property remained in his custody no tampering was done by him or anybody else.
::: Downloaded on - 07/04/2022 20:14:43 :::CIS 910. Thus, what stands established on record is that there is no proof whatsoever as to whom and in what .
condition the sample of the case property remained w.e.f.
26.10.2006 to 01.11.2006. Now, in case the entries in the Malkhana are perused, the detailed entries of the other case properties have been made but as regards the case properties of the instant case, the same are left blank and above all there is no reference to the samples having been taken out and handed over to Gurnaib Singh on 26.10.2006 rather there is only one entry that the same was taken out vide RC No. 106/06-07, dated 01.11.2006 and handed over to Constable Gurnaib Singh.
11. It is more than settled that as per the Punjab Police Rules, 134 and instructions on this behalf, it is necessary that as and when sample is taken out from Malkhana, necessary entry is required to be made in Malkhana Register and also at the time when sample is re-
deposited in Malkhana. It is also necessary that when sample is taken out from Malkhana, DDR is made and also at the time when sample is redeposited in Malkhana. In absence of any entry and other oral or documentary proof, the same casts doubt whether it is same sample which was ::: Downloaded on - 07/04/2022 20:14:43 :::CIS 10 alleged to have been recovered from the accused and sent to CFSL or it was other sample of some other case.
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12. In coming to such conclusion, I am duly supported by the judgment rendered by the learned Division Bench of this Court in Surender Kumar alias Teena and another vs. State of Himachal Pradesh 2016 (1) HLR 566, wherein it was observed as under:-
"15. Case Property was produced while recording the statement of PW-1 Chand Mishra. It was produced by the Public Prosecutor. Person, who has brought the case property from Malkhana to the Court has not been examined. Entry in the Malkhana register is required to be made to the effect that who has taken the property to the Court, 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 - 07/04/2022 20:14:43 :::CIS 11 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 whom dispatched).
8. Remarks. (To be prepared on a quarter sheet of native paper)."
16. 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 redeposited 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 redeposited 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. The prosecution has failed to prove case against the accused under Sections 20 and 29 of the Act.
13. In Rishi Pal Vs. State of H.P. and connected matter 2016 (3) HLR 1336, while dealing with the case property for which no evidence has been produced as to ::: Downloaded on - 07/04/2022 20:14:43 :::CIS 12 who brought case property from Malkhana to the Court, the learned Division Bench of this Court observed as under:-
.
24. Case property was produced in the Court. 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.
25. 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 redeposited 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 redeposited 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. The prosecution has failed to prove case against the accused.
26. 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. Each article shall be entered in the store-room register and labelled. The label shall contain a reference to the ::: Downloaded on - 07/04/2022 20:14:43 :::CIS 13 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.
27. Rule 27.18 of Punjab Police Rules, reads as under:
27.18. Safe custody of property.-
(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 ::: Downloaded on - 07/04/2022 20:14:43 :::CIS 14 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 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 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. Animals brought from the pound ::: Downloaded on - 07/04/2022 20:14:43 :::CIS 15 shall be repounded under the supervision of a head constable.
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28. 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 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 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 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 ::: Downloaded on - 07/04/2022 20:14:43 :::CIS 16 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.
14. To similar effects are the observations made by the learned Division Bench of this Court in Sanjeev Kumar vs. State of H.P. 2016 (3) HLR 1529, wherein it was observed as under:-
"19. The case property was produced while recording the statement of PW-13 HC Shakti Nandan in the trial Court. The extract of copy of the malkhana register is Ext. PW-
6/A & PW-6/B. There is entry of the deposit of the contraband on 18.2.2014 and when it was received back from the FSL Junga. There is no entry when the case property was taken out from the malkhana and produced in the Court. There is no DDR recorded when the case property was produced before the trial Court. Similarly, there is no entry when the case property after production in the trial Court was redeposited in the malkhana register. It is necessary for the prosecution to prove that the case property was taken out from the malkhana for the production in the Court and also preparing DDR to this effect and the same process is to be undergone when the ::: Downloaded on - 07/04/2022 20:14:43 :::CIS 17 case property after its production in the Court is taken back and deposited in the malkhana. There has to be .
entry in the malkhana register when it is re-deposited and DDR is also prepared. The production of the case property in the Court is mandatory. There is doubt whether the case property which was produced in the Court was the same which was recovered from the accused and sent to FSL, Junga in the absence of any corresponding entries made at the time of taking it and re-deposit in the malkhana register or it was case property of some other case. It has caused serious prejudice to the accused. The nabbing of the accused, recovery and sealing proceedings in the instant case are doubtful. When the case property was produced in the Court, there is no reference as to who brought the case property to the Court from malkhana and by whom it was taken back. It is necessary to keep the case property in safe custody from the date of seizure till its production in the Court in ND & PS cases.
15. As observed above, there is no explanation about the whereabouts of the samples of the case property in between 26.10.2006 to 01.11.2006. In such circumstances, this Court has no hesitation to conclude that the prosecution has failed to prove his case against the accused under Section 15(B) of the ND & PS Act.
16. No doubt, the absence of original seal in every case is not fatal to the case of the prosecution but in the peculiar facts and circumstances of the instant case, it is incumbent upon the prosecution to produce the original ::: Downloaded on - 07/04/2022 20:14:43 :::CIS 18 seal. It needs to be noticed that even though these grounds were taken before the learned Special Court, however, the .
same were simply brushed aside in the mechanical manner.
Since, there was no independent witness available, therefore, seal could not be given to anyone for safe custody, obviously such reasoning is totally fallacious as the custody, even if no independent witness is available, the same could have been retained by the Investigating Officer.
17. The absence of seal is significant because there is contradiction even with regard to the colour of the sample Ex.PX. According, to the witnesses examined by the prosecution including the statements of PW1 and PW6, the sample was brown in colour, whereas the examination report relating to the sample as issued by the CFSL Chandigarh, the sample is stated to be in a light brown colour. Thus, this itself creates a great suspicion and casts doubt on the prosecution case.
18. Moreover, it has been found and could not be disputed by the learned Additional Advocate General that the NCB Forms Ex. PW6/C have not been filled up as per the mandatory procedure and Column Nos. 9 to 11 of these Forms have been kept blank. These columns deal with re-
::: Downloaded on - 07/04/2022 20:14:43 :::CIS 19sealing process. No explanation for keeping these columns blank has come forth from the prosecution side.
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19. That apart, as already observed, even the seal in this case has not been produced in the Court for comparison, which casts a serious doubt on the veracity of the prosecution case.
20. In coming to such conclusion, I am duly supported by the judgment rendered by Division Bench of this Court in State of H. P. vs. Kamal Verma 2019LHLJ 185.
21. In view of the aforesaid discussion, the appeal is allowed and the judgment of conviction passed by the learned Sessions Judge, Solan, Camp at Nalagarh, in Sessions Trial No. 5-NL/7, dated 17.07.2008 against the appellant, is set aside and the appellant is acquitted of the charges framed against him punishable under Section 15 (B) of the ND & PS Act. The bail bonds furnished by the appellant are discharged.
22. The appeal, so also pending application(s), if any, stands disposed of.
(Tarlok Singh Chauhan) Judge 7th April, 2022 (sanjeev) ::: Downloaded on - 07/04/2022 20:14:43 :::CIS