Himachal Pradesh High Court
State Of Himachal Pradesh vs Rajinder Singh on 13 April, 2016
Author: Rajiv Sharma
Bench: Rajiv Sharma, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 374 of 2010.
Reserved on: April 12, 2016.
Decided on: April 13, 2016.
.
State of Himachal Pradesh ......Appellant.
Versus
Rajinder Singh .......Respondent.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
of
Whether approved for reporting? 1 Yes.
For the appellant: Mr. M.A.Khan, Addl. AG.
For the respondent: Mr. G.S.Rathore, Advocate.
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Justice Rajiv Sharma, J.
rt This appeal is instituted at the instance of the State against the judgment dated 6.3.2010, rendered by the learned Special Judge, Solan, H.P., in Sessions case No. 6-S/7 of 2008, 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 on 18.3.2008, ASI Des Raj, Police Station, Dharampur alongwith HC Hakam Singh, HHG Bhupinder Singh and HHG Sunder Lal had laid Naka in front of the gate of Police Station for routine traffic checking. At about 5:30 PM, a bus bearing No. CH 01-G-8817 of CTU Chandigarh bound for Chandigarh from Shimla arrived. It was stopped for checking. During the course of checking a blue coloured bag having a sticker of 'FITNESS' was 1 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 20:07:41 :::HCHP 2found on the rack of seat No. 44. On enquiry, person sitting on seat No. 46 disclosed his identity as Rajinder Singh. He was going to Kalka. The police .
on suspicion got down from the bus the conductor, driver and accused alongwith the bag. On checking the bag, a polythene envelope having imprint Graviera Suiting Chawla Traders in which a black pants, a grey colored T-shirt and copy of Jamabandi was recovered. In another polythene envelope having an imprint of Ambassador Suiting, charas in the of shape of wicks kept in a white polythene envelope was found. It weighed 500 grams. Two samples of 25 grams each were taken out of the bulk rt charas which were sealed with seal bearing impression "N" in a cloth parcel and marked as S-1 and S-2. The remaining charas was sealed in a separate cloth parcel with the same seal. It was marked as R-1. The I.O.
filled in the NCB form in triplicate. The samples S-1, S-2 and parcel R-1 were taken into possession and seal after use was handed over to Conductor Ashwani Kumar. The I.O. sent Rukka to the Police station, upon which, FIR was registered at PS Dharampur. The case property was produced before the SHO. He resealed the same and deposited with MHC.
One of the sample was sent to FSL Junga. 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. According to him, he was falsely implicated. The learned trial Court acquitted the accused, as noticed hereinabove. Hence, this appeal.
::: Downloaded on - 15/04/2017 20:07:41 :::HCHP 34. Mr. M.A.Khan, learned Addl. Advocate General for the State has vehemently argued that the prosecution has proved its case against .
the accused. On the other hand, Mr. G.S.Rathore, Advocate for the accused has supported the judgment of the learned trial Court dated 6.3.2010.
5. We have heard the learned counsel for both the sides and have also gone through the judgment and records of the case carefully.
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6. PW-1 HC Hakam Singh testified that he alongwith ASI Des Raj, Police Station, Dharampur, HHG Bhupinder Singh and HHG Sunder Lal rt had laid Naka in front of the gate of Police Station for routine traffic checking. At about 5:30 PM, a bus bearing No. CH 01-G-8817 of CTU Chandigarh came from Shimla towards Chandigarh. It was stopped for checking. During the course of checking, a blue coloured bag was found on the rack of seat No. 44. It was having sticker. On enquiry, the person sitting on seat No. 46 disclosed his identity as Rajinder Singh. He was going to Kalka. The police on suspicion got down from the bus the conductor, driver and accused alongwith the bag. One polythene bag was found containing pants, T-shirt and jamabandi. In another polythene bag, charas in the form of sticks was found. He was sent to bring the scale and weights. It weighed 500 grams. Two samples of 25 grams each were taken out of the bulk charas which were sealed with seal bearing impression "N"
in a cloth parcel and marked as S-1 and S-2. Two seals were affixed on each sample. The sample seal was also taken on cloth vide Ext. PW-1/A. The remaining charas alongwith T-shirt, pants and jamabandi was sealed in a separate cloth parcel with the same seal. It was marked as R-1. These ::: Downloaded on - 15/04/2017 20:07:41 :::HCHP 4 were taken into possession vide recovery memo Ext. PW-1/B. The case property was produced while examining this witness by the learned Public .
Prosecutor. In his cross-examination, he admitted that there are many residential houses and shops situated near the Police Station. No person from the locality was joined in the Nakka. He also admitted that Chand Kishore was witness in many cases. The proceedings were drawn qua weighing, sampling etc. on the kutcha portion of the road. No person from of the locality was called during the proceedings. The jamabandi which was packed in the sealed parcel R-1 was not found in the "pulinda" while rt recording his statement.
7. PW-2 Const. Padam Dev deposed that on 19.3.2008, MHC Parveen Kumar handed over to him a parcel having four seals of "N" and three seals of "A" alongwith NCB form in triplicate, docket, sample of seals "N" and "A" vide RC No. 169/07-08 for taking it to FSL, Junga for analysis.
He deposited the same on the same day at FSL Junga under receipt.
8. PW-5 SI/SHO Baldev Thakur deposed that at about 10:00 PM, ASI Des Raj produced before him the parcel of bulk charas sealed with five seals of impression "N" along with two parcels of sample sealed with four seals of impression "N" each. He re-sealed the parcel of charas with four seals of "A". He also re-sealed the parcels of sample with three seals of "A"
on each parcel. Sample of seal Ext. PW-5/C was separately drawn on a piece of cloth. He filled in column Nos. 9 to 11 of NCB-I form. After re-
sealing, he deposited the parcels of sample and parcel of charas along with NCB form with MHC Parveen Kumar. In his cross-examination, he admitted that within the radius of 75 meters from the Police Station, there ::: Downloaded on - 15/04/2017 20:07:41 :::HCHP 5 are many shops and residential houses. He did not use any cloth for resealing the parcels. He also admitted that columns Nos. 9 to 11 of the .
NCB form Ext. PW-5/E are not in his hand. Volunteered that these were under his dictation. He also admitted that signatures on Ext. PW-5/D and PW-5/E are different in shape. Volunteered that these were his signatures.
He also admitted that Ext. PW-5/D does not mention that two parcels of sample charas was produced. Volunteered that he had mentioned 25/25 of grms. charas.
9. PW-6 Narinder Patwari has issued jamabandi to the accused rt on 18.3.2008 vide Ext. PW-6/A.
10. PW-7 HC Parveen Kumar deposed that on 18.3.2008 at about 10:30 PM, SHO Baldev Thakur deposited the case property with him. He entered it in the malkhana register at Sr. No. 338. He proved extract of the same as Ext. PW-7/A. He handed over the case property to Const. Padam Chand for taking it to FSL Junga vide RC No. 169/07-08. In his cross-
examination, he admitted that there the register brought by him is register No. 9 in which the record of convicted persons is maintained. Volunteered that the present register was maintained as malkhana register. He also admitted that there was no endorsement of authority that the register was used as malkhana register. He also admitted that entry No. 338 has no signatures of the depositor. In the entry No. 339 there is no mention of bus tickets.
11. PW-8 Ashwani Kumar deposed that he was the Conductor of bus No. CH 01-G-8817. On 18.3.2008, they were coming from Shimla to Chandigarh. When they reached at Dharampur at about 5:15-20 PM, the ::: Downloaded on - 15/04/2017 20:07:41 :::HCHP 6 police signaled to stop the bus. The driver stopped the bus near the Police Station. The police entered the bus and closed the door and started .
checking. The police caught one person along with the small bag on the bus rack. The bag was taken to the Police Station. He along with driver and that person were taken to the Police Station. He was declared hostile and cross-examined by the learned Public Prosecutor. In his cross-
examination by the learned Public Prosecutor, he deposed that he did not of know whether the charas was recovered from the bag. The police recovered some substance. He could not say that the substance recovered was rt charas. He did not know that police took two samples of 25 grams each, however, his signatures were taken on cloth parcels. He also admitted that bulk quantity was put into separate polythene bag and then in a cloth parcel and his signatures were taken on that. He identified his signatures on Ext. PW-8/C and Ext. PW-8/D. The police filled in NCB forms in his presence and put seal impression "N" over it. The sample seal was signed by him vide Ext. PW-8/E. The police took into possession the recovered material vide Ext. PW-1/B. He signed the same. Sample seal Ext. PW-1/A also bears his signatures.
12. PW-9 Nirmal Singh was also declared hostile and cross-
examined by the learned Public Prosecutor. In his cross-examination by the learned Public Prosecutor, he admitted that the police recorded his statement but that was not as per his version. His statement mark "Y"
was not correctly recorded. Ext. P-6 charas was similar to that which he had seen on the spot. In his cross-examination by the learned defence ::: Downloaded on - 15/04/2017 20:07:41 :::HCHP 7 counsel, he admitted that they were not told the contents of the paper on which police took his signatures.
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13. PW-10 ASI Des Raj deposed that enquiries were made from the passenger sitting on seat No. 46. He requested the driver and conductor to come down alongwith the accused and bag. The bag was searched and contraband was recovered. Jamabandi Ext. PW-6/A alongwith the average one year Ext. PW-6/B and Khasra Girdawari Ext. Pw-6/C was found in the of bag. The bag was checked. It contained charas. The sealing proceedings were completed on the spot. In his cross-examination, he admitted that rt recovery proceedings were effected inside the gate of the Police Station in the courtyard after checking the bag on the road and seizure of the charas.
He also admitted that he has not mentioned in Ext. PW-1/B, recovery memo that the samples were marked as S-1, S-2 and bulk charas as R-1.
He admitted that in Ext. PW-9/A, it has not been mentioned that jamabandi/revenue papers were found in the bag. He also admitted that there is malkhana register in the Police Station which is called Register No.
19. Register No. 9 is different.
14. PW-1 HC Hakam Singh in his cross-examination has categorically admitted that there are many residential houses and shops situated near the Police Station. No person from the locality was joined in the Nakka as a witness. The proceedings were drawn qua weighing, sampling etc. on the kutcha portion of the road. No person from locality was called during the proceedings. According to him, jamabandi was also put in the parcel containing charas alongwith T-Shirt and pants. However, in his cross-examination, he admitted that the jamabandi which was ::: Downloaded on - 15/04/2017 20:07:41 :::HCHP 8 packed in sealed parcel R-1 was not found by him while deposing in the Court. In case jamabandi was put in the same parcel in which the .
remaining bulk of charas was put, the same ought to have been found in the bag. Thus, the possibility of the bag/parcel being tampered with cannot be ruled out.
15. The place where the charas was recovered was neither isolated nor secluded. There were shops and residential houses near the Police of Station. The police ought to have joined independent witnesses to inspire confidence in search, seizure and sealing proceedings on the spot.
16. rt PW-5 SHO Baldev Thakur in his examination-in-chief has deposed that he filled in column Nos. 9 to 11 of the NCB form. However, in his cross-examination, he admitted that column Nos. 9 to 11 of Ext. PW-
5/E NCB form, were not in his hand writing and volunteered that it was on his dictation. He also admitted that signatures on Ext. PW-5/D and PW-
5/E were different in shape. Volunteered that those were his signatures.
We have seen the signatures on Ext. PW-5/D and PW-5/E. His signatures are different and contours are also not matching. Thus, it casts doubt on Ext. PW-5/D and PW-5/E. The filling up of column Nos. 9 to 11 is material. These columns are to be filled up by the SHO concerned. It is not an empty formality.
17. The case property was deposited with MHC Parveen Kumar by PW-5 SI/SHO Baldev Thakur. He made entry in the malkhana register at Sr. No. 338. The copy of extract of malkhana register is Ext. PW-7/A. The malkhana register is register No. 19. It is prescribed in the Punjab Police Rules, as applicable to the State of Himachal Pradesh. However, the fact of ::: Downloaded on - 15/04/2017 20:07:41 :::HCHP 9 the matter is that in the instant case, the register brought by MHC Parveen Kumar to the Court was register No. 9, in which record of convicted .
persons is maintained. PW-10 ASI Des Raj, in his cross-examination, has admitted that register No. 9 is difference and there is malkhana register in the Police Station which is called Register No. 19. Moreover, PW-7 MHC Parveen Kumar has himself admitted in his cross-examination that there was no endorsement of authority that the register brought by him was of used as malkhana register.
18. According to PW-7 MHC Parveen Kumar, sample seals "N" and rt "A" alongwith the docket were handed over to Constable Padam Chand for taking the same to FSL, Junga for chemical analysis, however, there is no reference of sample impressions in Ext. PW-5/F, the report of the FSL, Junga. The police has also not made the sample homogeneous while taking out the sample. They have taken sample from one stick alone.
19. The official witnesses have made statements to the effect that after search, seizure and sealing proceedings were completed, samples S-1, and S-2 were prepared and bulk parcel was marked as R-1. However, in Ext. PW-1/B, property search and seizure form, there is no mention about S-1, S-2 and R-1. PW-8 Ashwani Kumar and PW-9 Nirmal Singh have also not supported the case of the prosecution in entirety.
20. The case property was produced while recording the statement of PW-1 HC Hakam Singh. 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 ::: Downloaded on - 15/04/2017 20:07:41 :::HCHP 10 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:
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"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."
of The register is to be maintained in Form 22.70. It reads as under.
"FORM NO. 22.70.
rtPOLICE STATION_________ ____DISTRICT 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)."
21. 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 ::: Downloaded on - 15/04/2017 20:07:41 :::HCHP 11 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.
22. 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 of 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 entry in the store-room register and a description of the article itself and, in rt 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."
23. 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.
::: Downloaded on - 15/04/2017 20:07:41 :::HCHP 12(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 of 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 rt 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 shall be repounded under the supervision of a head constable."
24. 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 ::: Downloaded on - 15/04/2017 20:07:41 :::HCHP 13 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 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 rt 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 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 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 ::: Downloaded on - 15/04/2017 20:07:41 :::HCHP 14 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.
25. In Punjab Police Rules, also applicable to the State of Himachal Pradesh, Malkhana register is assigned serial number-19.
It is in a tabular form. There are different columns like who has deposited the case property and when it was taken out and deposited of back. These details are very material and every deposit made in the Malkhana /Store Room is to be recorded and also at the time when rt it is re-deposited.
26. 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 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.
27. Thus, the prosecution has failed to prove the case against the accused under Sections 20 of the ND & PS Act that the charas was recovered from the conscious and exclusive possession of the accused.
::: Downloaded on - 15/04/2017 20:07:41 :::HCHP 15This Court has no occasion to interfere with the well reasoned judgment of the learned trial Court dated 6.3.2010.
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28. Accordingly, there is no merit in this appeal and the same is dismissed.
( Rajiv Sharma ), Judge.
April 13, 2016, ( Ajay Mohan Goel ),
of
(karan) Judge.
rt
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