Himachal Pradesh High Court
Pradeep Singh Alias Rocky vs State Of Himachal Pradesh on 20 September, 2019
Bench: Dharam Chand Chaudhary, Jyotsna Rewal Dua
1 HON'BLE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No.431 of 2016 Reserved on: 31.07.2019.
Decided on: September 20, 2019.
.
Pradeep Singh alias Rocky ..........Appellant.
Versus State of Himachal Pradesh ........Respondent. ________________________________________________________________ Coram:
Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge. Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1 Yes. For the appellant : Mr. Ajay Kochhar and Mr. Vivek Sharma, Advocates.
For the respondent :
Mr. Vikas Rathore and Mr. Narinder Guleria, Addl. Advocate Generals, with Mr. J.S. Guleria, Deputy Advocate General.
__________________________________________________________________ Jyotsna Rewal Dua, Judge.
Instant appeal has been preferred by appellant Pradeep Singh alias Rocky (hereinafter referred to as the "accused" in short), against the judgment dated 28.06.2016, passed by learned Special Judge, Kinnaur, Sessions Division at Rampur Bushehar, District Shimla, H.P., in Sessions Trial No.0000007/2014, titled State of Himachal Pradesh versus Pradeep Singh alias Rocky, whereby accused was convicted for the offence punishable under Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.::: Downloaded on - 26/09/2019 20:28:09 :::HCHP 2
referred to as the "Act" in short) and sentenced to undergo rigorous imprisonment for ten years, alongwith fine of Rs.1,00,000/- and in default of payment of fine, the convict has .
to further undergo simple imprisonment for two years.
2. Prosecution Case:
The case of the prosecution, in brief, is that:-
2(i). On 12.03.2014, a police party, headed by ASI Padam Singh, Incharge State CID Sub Unit, Rampur, consisting of other police officials, namely, HC Ishwar Dev (PW-1) and Constable Piyush Raj, was on patrolling duty in vehicle No.HP-06A-4844.
2(ii). At about 07.15 p.m., when police party was present on link road Katmaur near Pashada-Khad, it noticed the accused coming from Katmaur link road towards the main road.
On seeing the police party, he got scared, turned back and tried to flee from the place. He was overpowered by police personnels. Accused disclosed his name as Pradeep Singh, resident of District Kullu, H.P. Police party became suspicious of accused possessing some contraband, when he was observed holding something under his left armpit with the help of his right hand under the jacket. The place was isolated and secluded with no locality nearby. Therefore, independent witnesses were not associated with the search, seizure and ::: Downloaded on - 26/09/2019 20:28:09 :::HCHP 3 recovery proceedings. ASI Padam Singh (PW-7), Investigating Officer, associated HC Ishwar Dev (PW-1) and Constable Piyush Raj, as witnesses to proceedings.
.
2(iii). Accused was apprised about his legal rights relating to search in presence of Magistrate or Gazetted Officer.
He opted to give his search before the police party vide consent memo Ext.PW-1/A. Whereafter, PW-7 ASI Padam Singh, Investigating Officer, gave his personal search to the accused vide memo Ext.PW-1/B. Nothing incriminating was found with Investigating Officer.
r During personal search of accused, a white colour polythene packet (Ext.P-1), kept underneath his left armpit under the jacket, was found, which contained black coloured substance in the form of pancakes and small balls (Ext.P-2). Based on experience of police party, the substance was identified as charas. Site plan (Ext.PW-7/F) was prepard by Investigating Officer.
2(iv). The patrolling party did not possess a weighing scale, therefore, the accused, alongwith recovered contraband, was brought to CID Sub Unit Rampur, in vehicle No.HP-06A-
4844. Recovered contraband was weighed there on traditional weighing scale. It weighed 1 Kg. 400 grams. The recovered contraband was put in same Polybag and sealed in a cloth parcel (Ext.P-1) with nine impressions of seal 'X'. Specimen ::: Downloaded on - 26/09/2019 20:28:09 :::HCHP 4 impression of seal 'X' was obtained on a plain piece of cloth (Ext.PW-1/C). NCB-1 Form (Ext.PW-7/A), in triplicate, was filled and separate specimen of seal impression 'X' was also put on .
NCB-1 Form. Seal after its use was handed over to HC Ishwar Dev (PW-1).
2(v). The case property was taken into possession vide seizure memo Ext.PW-1/D, copy whereof was also supplied to the accused. Statements of the witnesses were recorded under Section 161 Cr.P.C. Rukka Ext.PW-7/B was prepared and sent to Police Station, CID Bharari, Shimla, alongwith case property & NCB-1 Form (in triplicate), through HHC Bhupinder Singh (PW-2), on the basis of which, F.I.R. Ext.PW-3/A was registered against the accused. The accused was arrested vide memo Ext.PW-7/C. The case property parcel (Ext.P-1), alongwith NCB-1 Form (in triplicate) and sample seal 'X', was handed over to PW-6 Inspector Virender Chauhan, for resealing the parcel. Inspector Virender Chauhan (PW-6), resealed the parcel in presence of PW-3 MHC Prakash Chand with six impressions of seal 'N'. Impression of seal 'N' was also put on NCB-1 Form. Specimen impression of seal 'N" was separately taken on a piece of cloth Ext.PW-6/A. Reseal certificate (Ext.PW-
6/B) was prepared. The case property, alongwith relevant documents, was handed over to MHC Prakash Chand (PW-3), ::: Downloaded on - 26/09/2019 20:28:09 :::HCHP 5 who made its entry in Malkhana Register and deposited the same in Malkhana. The abstract of Malkhana Register is Ext.PW-
3/B. .
2(vi). The special report (Ext.PW-5/B) was prepared and sent through PW-2 HHC Bhupender Singh, to Deputy S.P. (CID), Shimla, who handed over the same to PW-5 HC Anil Kumar, posted as Reader of Dy. S.P.(CID). The Deputy S.P. (CID), Shimla, Shri Vijay Kumar Sharma, made an endorsement on the special report and handed over it back to his Reader (PW-5).
PW-5 HC Anil Kumar, made an entry to this effect in the Register of special report vide Ext.PW-5/B and placed the same on record. Video recording of the proceedings was carried out through Constable Piyush Raj and VCD Ext.PW-7/D was prepared.
2(vii). On 14.03.2014, the case property, alongwith documents, was sent to State Forensic Science Laboratory, Junga, for chemical analysis through PW-4 HHC Bhagat Ram, who deposited the same at S.F.S.L., Junga, vide RC Ext.PW-3/C and handed over the receipt thereof to MHC Prakash Chand (PW-3). Result of chemical analysis was obtained from S.F.S.L., Junga, vide Ext.PW-7/E. ::: Downloaded on - 26/09/2019 20:28:09 :::HCHP 6 2(viii). On completion of all codal formalities, the Challan was prepared and presented before learned trial Court. Accused was charged for commission of offence punishable under .
Section 20(b)(ii)(c) the Act, to which, he pleaded not guilty and claimed trial.
For establishing its case, prosecution examined eight witnesses. Statement of accused was recorded under Section 313 Cr.P.C. The accused also examined three witnesses.
On conclusion of the trial, the accused was held guilty and convicted by learned trial Court for the offence punishable under Section 20(b)(ii)(c) of the Act. He was sentenced to undergo rigorous imprisonment for 10 years and fine of Rs.1,00,000/-.
3. Aggrieved against the judgment of conviction, instant appeal has been preferred.
3(i). We have heard learned counsel for the parties and carefully gone through the entire case record.
Learned counsel for the appellant has made submissions primarily on following aspects:-
(i). Non-association of independent
witnesses;
(ii). Non-compliance of Section 50 of NDPS
Act;
(iii). False implication of accused;
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7
(iv). Reasons for not conducting the
proceedings on the spot; and
(v). Identification of the case property;
3(ii). Independent witnesses:
.
3(ii)(a). Mr. Ajay Kochhar, learned counsel for the
appellant, vehemently contended that in the instant case, independent witnesses were available and could have been easily associated by the prosecution, yet, no effort was made by the patrolling party to join any independent witness in the proceedings. Therefore, the alleged search and recovery of contraband from the accused, cannot be accepted to be in accordance with the provisions of NDPS Act.
3(ii)(b). On this aspect, PW-7 ASI Padam Singh, Investigating Officer, in his examination in chief, stated that:-
"The spot was secluded with no locality nearby...."
In his cross-examination, he stated that:-
"None was sent for searching independent witnesses. Self stated that there is no locality nearby."
3(ii)(c). It is worth noticing here that the accused, in his defence, had inter alia produced spot photographs Ext.D-1 to Ext.D-6; the photograph Ext.D-1 was put to PW-7 ASI Padam Singh, who admitted the same to be that of the spot by stating thus:-
"The photographs Ext.D-1 is of the spot".::: Downloaded on - 26/09/2019 20:28:09 :::HCHP 8
Even to the naked eye, Ext.D-1 to Ext.D-6, are photographs of same area taken from different angles. The Investigating Officer (PW-7) having admitted Ext.D-1 as that of .
the spot, the other photographs D-2 to Ext.D-6, cannot be ignored. All these photographs have been proved by DW-2 Rakesh Kumar, who stated that:- he resides in his house located at zero point Bashad; wherein, his tenant Dev Raj also resides;
Milk Plant is also run in his building on rent basis; house of Puran Lal is also there and visible in photograph Ext.D-2; house of Budh Ram s/o of Anshu Ram, is also visible in photograph Ext.D-3; a primary School and house of Dev Raj s/o of Khayale Ram can be seen in photograph Ext.D-4;. photograph Ext.D-5 is also of the spot; old and new houses of DW-2 Rakesh Kumar are there in photograph Ext.D-6. Thus, this witness (DW-2) deposed that there were 4-5 houses in the immediate vicinity of spot, which were inhabited, people were living there besides there being a primary school nearby.
3(ii)(d). On the face of such deposition and evidence, the stand of PW-7 ASI Padam Singh of there being no locality nearby as the reason for not associating independent witnesses, cannot be believed. Residential locality was available nearby the spot, which fact has been proved by the accused in his defence.
::: Downloaded on - 26/09/2019 20:28:09 :::HCHP 93(ii)(e). It is not the case of the prosecution that any effort was made by them for joining independent witnesses but none came forward. The versions of the prosecution witnesses .
that there was no locality nearby the site, is falsified. It is also apt to refer to other material witness of the prosecution PW-1 HC Ishwar Dev, who contrary to the statement of PW-7 ASI Padam Singh, in his cross-examination, went over board and deposed that:-
"We made efforts to associate independent witnesses. Self stated that none was present on the spot."
On further cross-examination about existence of houses nearby the spot, this witness (PW-1), feigned his complete ignorance in following words:-
"I could not make out whether there were any houses near the spot. I cannot say that there is a house of Budh Ram about 20 meters uphill, there is house of Rakesh Kumar 50 meters before the spot and there is Milk Chilling Plant on the spot.
I cannot say that Rakesh Kumar is running a Dhaba and also resides in the same premises.
I cannot say that there is a house of Dev Raj near G.P.S. Pashada."
The witness (PW-1), in state of complete denial, has even denied the photographs as being that of the spot, ::: Downloaded on - 26/09/2019 20:28:09 :::HCHP 10 which were admitted by Investigating Officer PW-7 ASI Padam Singh.
3(ii)(f). Effect of not joining the independent witnesses, .
as also the effect of not making any effort to associate independent witnesses when existence of nearby residential locality is proved, has been considered in LHLJ 2019 (HP) 510, titled Sanjay Kumar and another versus State of Himachal Pradesh, by a Division Bench of this Court, wherein, it was observed:-
"17. From the aforesaid evidence, it is not clear that how far away the shops and inhabitants are there from the spot, but the spot map, Ex.PW6/A, makes the spot position crystal clear, as it is specifically mentioned therein that Luhri bazar is 300 meters from the spot. It has come in the statement of PW-1, HHC Dalip Kumar that electronic weighing scale was not official, but it belongs to a private person and when as per the statement of PW-1, in Luhri bazar, there were 50 residential houses and 100 shops and four vehicles also passed through at that time, which were also stopped for checking, it is not probable that no independent witness was available there. It has specifically come in the statement of PW-6, that at that time, four vehicles passed through the spot, which were stopped, but not checked. As per the prosecution case, PW-1, who was sent to bring the independent witness, has not stated anything as to whom he asked to become an independent witness, when there were 100 shops and more than 50 residential houses near the spot.
19. In the given facts and circumstances of the case, when the independent witnesses were available, but not associated and the statements of police witnesses are having material contradictions, it is difficult to hold that the prosecution has proved the guilt of the accused persons beyond the shadow of reasonable doubt and it cannot be ruled out that it is a concocted story. PW-2, Constable Rajesh Kumar while in cross- examination has admitted that they were present on ::: Downloaded on - 26/09/2019 20:28:09 :::HCHP 11 the spot till 2:30 p.m., which shows that the Investigating Officer has not made any sincere efforts to associate the persons traveling in the vehicles. Even, when as per the police, there were 100 shops and 50 residential houses in Luhri bazar, which as per the spot map is only 300 meters away from the spot, why no independent witness was associated in the .
proceedings, make the prosecution case doubtful.
21. Hon'ble Apex Court in Krishan Chand vs. State of H.P., AIR 2017 (SC) 3751, has held as under:
"15. From the evidence which has come on record, it is quite clear that the place, where the accused is alleged to have been apprehended, cannot be said to be an isolated one as the house of Govind Singh DW-2 is situated on the edge of Patarna bridge. Thus the version of the complainant PW-6 that independent witnesses could not be associated as it was an isolated place does not inspire confidence. Moreover, from the evidence of Govind Singh PW-2 the case of the prosecution regarding apprehension of the accused, at Patarna bridge, while being in possession of bag containing 7 kgs of charas, becomes highly doubtful because had he been so apprehended by the police, this fact was to come to his notice, for the reason, that his house is situated at the edge of the bridge in which he resides alongwith his family."
22. Applying the law, as settled by the Hon'ble Apex Court (supra) and taking the contradictions of the material facts into consideration, which have come on record, this Court is of the considered view that the prosecution has failed to prove the guilt of the accused persons beyond the shadow of reasonable doubt. Otherwise also, when the investigating agency has not associated any independent witnesses, when they were available, the appellants cannot be convicted on the sole testimony of police witnesses, especially, when their statements are not confidence inspiring." 3(ii)(g). We, therefore, are in agreement with learned counsel for the appellant that the prosecution had failed in its duty enshrined under the law in not associating independent ::: Downloaded on - 26/09/2019 20:28:09 :::HCHP 12 witnesses with the proceedings, when residential locality existed very near to the spot and people resided there. Under given facts, it is difficult to pronounce that prosecution has .
proved guilt of accused beyond shadow of doubt. Point is accordingly answered in favour of the appellant.
3(iii). Compliance of Section 50 to the NDPS Act Giving of 3rd option:
3(iii)(a). Learned counsel for the appellant strenuously contended that entire proceedings, right from the stage of taking of consent of accused vide memo Ext.PW-1/A onwards, are vitiated as provisions of Section 50 of the 'Act' were not complied.
3(iii)(b). It is the case of the prosecution that the accused was wearing a Jacket when he was apprehended by the police party and as appeared to naked eye, he was holding something under his left armpit with the help of his right hand.
To specifically quote from the statement of Investigating Officer PW-7 ASI Padam Singh, during his cross-examination:-
"The polybag was not visible from outside as the accused had worn jacket".
This is also the version given by the prosecution in seizure memo Ext.PW-1/D in following manner:-
"11. ......CID official caught him during search. One small Cloth Bag found under his wearing ::: Downloaded on - 26/09/2019 20:28:09 :::HCHP 13 jackets which was caughted by Right Hand. In which Ball Sticks & Chapati Shape of Charas Found."
To avoid repetition, same averments in the other .
documents, i.e. FIR Ext.PW-3/A, Rukka Ext.PW-7/B, Daily G.D. entry No.9(A) Ext.PW-3/E, Special Report Ext.PW-5/B etc., are not being referred to. During search, one small cloth bag was allegedly recovered from the possession of accused, kept by him under his left armpit with the help of his right hand under the jacket.
It is not in dispute that personal search of the accused was carried out. Hence, compliance of Section 50 of the Act, was mandatory. The question to be examined is whether mandatory provisions of this section were complied with by the prosecution or not.
3(iii)(c). Under the provisions of Section 50 of the Act, accused has to be informed about his legal rights regarding search before a Magistrate or Gazetted Officer.
3(iii)(d). In the instant case, the consent memo (Ext.PW-
1/A), obtained from the accused, shows that in addition to the two statutory options of search before the Magistrate or the Gazetted Officer", a 3rd option was also given to the accused for getting himself searched before any other police officer. It is in such circumstance that the accused gave his search to the ::: Downloaded on - 26/09/2019 20:28:09 :::HCHP 14 police party. Giving of 3rd option to the accused was clearly contrary to the mandatory provisions of Section 50 of the Act.
In (2014) 5 SCC 345, titled State of Rajasthan versus .
Parmanand and Another, it has been held by Hon'ble Apex Court that such a 3rd option could not be given when there was no provision under Section 50(1) of the Act. Relevant para of the said judgment is reproduced as under:-
"19. We also notice that PW-10 SI Qureshi informed the respondents that they could be searched before the nearest Magistrate or before a nearest gazetted officer or before PW-5 J.S. Negi, the Superintendent, who was a part of the raiding party. It is the prosecution case that the respondents informed the officers that they would like to be searched before PW-
5 J.S. Negi by PW-10 SI Qureshi. This, in our opinion, is again a breach of Section 50(1) of the NDPS Act. The idea behind taking an accused to a nearest Magistrate or a nearest gazetted officer, if he so requires, is to give him a chance of being searched in the presence of an independent officer. Therefore, it was improper for PW-10 SI Qureshi to tell the respondents that a third alternative was available and that they could be searched before PW-5 J.S. Negi, the Superintendent, who was part of the raiding party. PW-5 J.S. Negi cannot be called an independent officer. We are not expressing any opinion on the question whether if the respondents had voluntarily expressed that they wanted to be searched before PW-5 J.S. Negi, the search would have been vitiated or not. But PW-10 SI Qureshi could not have given a third option to the respondents when Section 50(1) of the NDPS Act does not provide for it and when such option would frustrate the provisions of Section 50(1) of the NDPS Act. On this ground also, in our opinion, the search conducted by PW-10 SI Qureshi is vitiated."
Relying upon above judgment, in (2018) 9 SCC 708, titled SK. Raju alias Abdul Haque alias Jagga versus ::: Downloaded on - 26/09/2019 20:28:09 :::HCHP 15 State of West Bengal, Hon'ble Apex Court further observed thus:-
"18. In Parmanand, on a search of the person of the respondent, no substance was found. However, .
subsequently, opium was recovered from the bag of the respondent. A two judge Bench of this Court considered whether compliance with Section 50(1) was required. This Court held that the empowered officer was required to comply with the requirements of Section 50(1) as the person of the respondent was also searched. [Reference may also be made to the decision of a two judge Bench of this Court in Dilip v State of M.P. ] It was held thus: (Parmanand, SCC p.351, para 15).
"15. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application.
19. Moreover, in the above case, the empowered officer at the time of conducting the search informed the respondent that he could be searched before the nearest Magistrate or before the nearest gazetted officer or before the Superintendent, who was also a part of the raiding party. The Court held that the search of the respondent was not in consonance with the requirements of Section 50(1) as the empowered officer erred in giving the respondent an option of being search before the Superintendent, who was not an independent officer."
Effect of giving the 3rd option:
3(iii)(e). The effect of illegality committed during the course of search of the accused, has been considered by Hon'ble Apex Court in (2005) 4 SCC 350, titled State of H.P. versus Pawan Kumar, wherein, after considering various judgements on the question, it was observed thus:-::: Downloaded on - 26/09/2019 20:28:09 :::HCHP 16
"26. The Constitution Bench decision in Pooran Mal v. The Director of Inspection 1974 (1) SCC 345 was considered in State of Punjab v. Baldev Singh and having regard to the scheme of the Act and especially the provisions of Section 50 thereof, it was held that it was not possible to hold that the judgment in the said case can be said to have laid down that the "recovered .
illicit article" can be used as "proof of unlawful possession" of the contraband seized from the suspect as a result of illegal search and seizure. Otherwise, there would be no distinction between recovery of illicit drugs, etc. seized during a search conducted after following the provisions of Section 50 of the Act and a seizure made during a search conducted in breach of the provisions of Section 50. Having regard to the scheme and the language used, a very strict view of Section 50 of the Act was taken and it was held that failure to inform the person concerned of his right as emanating from sub-Section (1) of Section 50 may render the recovery of the contraband suspect and sentence of an accused bad and unsustainable in law. As a corollary, there is no warrant or justification for giving an extended meaning to the word "person"
occurring in the same provision so as to include even some bag, article or container or some other baggage being carried by him."
(Emphasis supplied) In LHLJ 2018 (HP) 214, titled State of H.P. versus Rakesh, this Court observed as under:-
"18. .................................................................................
Now, in view of the above, this Court has to examine whether the provisions of Section 50 of the NDPS Act are applicable to the present case and if applicable, then whether those have been breached or not? Admittedly, as per the version of PW-3, HC Chaman Lal, he has conducted the personal search of both the accused persons and also prepared search memos, Ex. PW-3/P and Ex. PW-3/Q. If only the bag of the accused persons would have been searched, then Section 50 of the NDPS Act has no application, but as the personal search of the accused persons was also conducted, certainly Section 50 of the NDPS Act is applicable. In fact, Section 50 of the NDPS Act has a purpose and communication of the said right, which is ingrained in Section 50, to the person who is about to be searched is not an empty formality. Offences under the NDPS Act carry ::: Downloaded on - 26/09/2019 20:28:09 :::HCHP 17 severe punishment, so the mandatory procedure, as laid down under the Act, has to be followed meticulously. Section 50 of the Act is just a safeguard available to an accused against the possibility of false involvement. Thus, communication of this right to the accused has to be clear, unambiguous and to the individual concerned. The purpose .
of this Section is to make aware the accused of his right and the whole purpose behind creating this right is effaced if the accused is not able to exercise the same for want of knowledge about its existence. This right cannot be ignored, as the same is of utmost importance to the accused. In the present case, certainly the provisions of Section 50 of the NDPS Act have not been complied with, therefore, the judgment (supra) is fully applicable to the facts of the present case.
19. In State of Himachal Pradesh vs. Desh Raj & another, 2016 (Suppl.) Himachal Law Reporter (DB) 3088, this Court has relied upon the law laid down in Parmanand's case (supra). Relevant paras of the judgment of this Court is extracted hereunder:
"18. Their Lordships of the Hon'ble Supreme Court in State of Rajasthan v. Parmanand reported in (2014) 5 SCC 345, have held that there is a need for individual communication to each accused and individual consent by each accused under Section 50 of the Act. Their lordships have also held that Section 50 does not provide for third option. Their lordships have also held that if a bag carried by the accused is searched and his personal search is also started, Section 50 would be applicable. ......"
Again, in the present set of facts and circumstances, the judgment (supra) is fully applicable to the present case, as the right provided under Section 50 of the NDPS Act in no way can be diluted and its compliance is mandatory in nature."
Therefore, the combined effect of law laid down by Hon'ble Apex Court, as applied to the facts of case in hand, is that non compliance to the mandatory provisions of Section 50 of the Act has vitiated the proceedings related to search and recovery. Point is, therefore, answered in favour of appellant.
::: Downloaded on - 26/09/2019 20:28:09 :::HCHP 18False implication:
3(iv). Connected with above two aspects of not associating the independent witness and non-compliance of .
provisions of Section 50 of the Act, is the defence of false implication taken by the accused. In his statement recorded under Section 313 Cr.P.C., in answer to question No.8, accused had stated that alleged spot was not deserted and was inhabited by many people. Also the accused answered Questions No.27 & 28, in following manner:-
Question No.27:
"Ans. ASI Padam Singh was inimical to me as he has threatened me after I have also resisted him in a previous incident."
Question No.28:
"Ans. I am innocent. I am victim of police retaliation. ASI Padam Singh is local to my Ilaqua and has threatened me to rope in false case before he retires. He is retired now."
Though, no complaint of false implication was lodged by accused when he was produced before learned Judicial Magistrate, 1st Grade, Karsog, on 13.03.2014, however, in views of the statement of PW-7 ASI Padam Singh, during cross-examination, to the effect that:- "It is incorrect that I had entered a report against the accused for threatening me. Self ::: Downloaded on - 26/09/2019 20:28:09 :::HCHP 19 stated that the accused had given oral threats", false implication of the accused, cannot be completely ruled out. The statement has to be kept in mind while considering other .
aspects of the case.
3(v). Reasons for not conducting the proceedings on the spot:
It is the case of the prosecution that only three documents were prepared on the spot, i.e. consent memo (Ext.PW-1/A), personal search memo (Ext.PW-1/B) & site plan (Ext.PW-7/F). Remaining proceedings were completed in CID Sub Unit, Rampur, as:- it was already dark when they spotted the accused at around 07.15 p.m. on 12.03.2014; the weather was inclement; it had started to rain; police party was not carrying the weighing scale; even the documents Ext.PW-1/A and Ext.PW-1/B were prepared inside the vehicle. Therefore, for further proceedings, the police party alongwith the accused, went to CID Unit, Rampur, where the contraband was weighed on traditional scale and further proceedings were carried out.
No witnesses on the above aspect from CID Sub Unit Rampur, has been examined by the prosecution. The defence of accused is that he was arrested from Kanda Village, in presence of one Himat Ram, and further that alleged contraband was weighed in shop of Hari Dass, situate near Village Urtu. This Hari Dass, resident of Village Urtu, has ::: Downloaded on - 26/09/2019 20:28:09 :::HCHP 20 stepped in the witness box as DW-3 and deposed that photograph Ext.D-7 was of his shop at Village Dayar. He further stated that in March, 2014, at about 05.00 p.m., police .
personnels, alongwith accused, had come to his shop and had weighed a bag. He identified the Investigating Officer being resident of their area. This witness though did not give specific date of the visit of police officials and did not produce licence to run the shop, however, his deposition is sufficient to further doubt the shaky prosecution version.
The Investigating Officer/Incharge of the police party was expected to carry weighing scale, while proceeding on patrolling duty or Nakka alongwith accompanying police personnels. In the instant case, it is evident from the statements of prosecution witnesses that the police party was not carrying weighing scale, while proceeding on patrolling duty. Under these circumstances, the stand taken by the police party that because of not-possessing a weighing scale, the accused alongwith recovered contraband, was brought to CID Sub Unit Rampur in vehicle No.HP-06A-4844 and recovered contraband was weighed there on a traditional weighing scale and all other documents were also prepared there, makes the prosecution case doubtful.::: Downloaded on - 26/09/2019 20:28:09 :::HCHP 21
3(vi). Identification of the case property Packet containing contraband:
3(vi)(a). It has been argued by learned counsel for the .
appellant that case property has not been identified in accordance with law. PW-1 HC Ishwar Dev, in his examination-
in-chief, deposed about recovery of 'one white colour bag' kept by the accused under his left armpit with the help of his right hand'. During cross-examination, this witness stated that 'contraband was in a polybag which is prevalent these days. It was not a cloth bag'.
Whereas, PW-7 ASI Padam Singh, Investigating Officer, stated that during personal search, accused was found holding 'white polybag' under his left armpit with the help of his right hand. Learned counsel for the appellant compared the statements with the para-10 of S.F.S.L. report Ext.PW-7/E, wherein, contraband was found in white colour 'carry bag'.
According to learned counsel for the appellant, the difference in respect of packet, containing the alleged contraband, in the statements of PW-1 HC Ishwar Dev and PW-7 ADI Padam Singh, read with SFSL report Ext.PW-7/E, puts the identity of case property in doubt, therefore, it cannot be said that the examination in SFSL was of the material allegedly recovered from the accused.::: Downloaded on - 26/09/2019 20:28:09 :::HCHP 22
We are in agreement with contentions of learned counsel for the appellant. A careful perusal of the statements of PW-1 HC Ishwar Dev and PW-7 ASI Padam Singh, reveals that as .
per them contraband recovered from accused, was not in a cloth bag. PW-1 HC Ishwar Dev specifically says that it was polybag prevalent these days. FIR (Ext.PW-3/A), special report (Ext.PW-5/B), Rukka (Ext.PW-7/B), seizure memo (Ext.PWE-1/D) and various other documents, show the recovery of contraband, from a "Jali Nooma Kapre Ki Thaili". Thus, there was variance between r oral statements and documents regarding description of packet containing contraband.
As per the documents prepared, the packet containing the contraband, was neither a polybag nor a cloth bag nor a polythene.
Shape of contraband:
3(vi)(b). For disputing the identity of case property, learned counsel for the appellant has further argued that as per the statements of PW-1 HC Ishwar Dev and PW-7 ASI Padam Singh, the contraband recovered from the accused, was black colour substance in the form of small 'balls and chapaties', whereas, as per SFSL report (Ext.PW-7/E), contraband sealed in cloth parcel (Ext.P-1), was found in the shape of balls, spiral sticks and chapaties. The documents, seizure memo (Ext.PW-1/D), ::: Downloaded on - 26/09/2019 20:28:09 :::HCHP 23 FIR (Ext.PW-3/A), special report (Ext.PW-5/B) and Rukka (Ext.PW-7/B), also describe the case property in the shape of balls, sticks and chapaties.
.
In Cr. Appeal No.1143 of 2019, titled Vijay Pandey versus State of Uttar Pradesh, Hon'ble Apex Court held thus:-
"5. We have considered the respective submissions.
The seizure was at 06.40 AM at the door step of the appellant. We find it difficult to believe that in a rural residential locality, the police were unable to find a single independent witness. No name of any person has been mentioned who may have declined to be a witness. The High Court, despite noticing the absence of any recovery memo prepared at the time of search and seizure under Section 50 of the NDPS Act, opined that the deposition of the police witness to that effect was sufficient compliance. Though the Laboratory Report was obtained, but the identity of the sample stated to have been seized from the appellant was not conclusively established by the prosecution.
6. The accused had raised an objection regarding the sample produced in court not having been established as seized from him. The Trial Court opined that "the malkhanas in the State of Uttar Pradesh were in miserable condition and strange and objectionable thing come to the eyes". The plastic packet produced was of very low quality and the quality of ink used in writing the name of the accused on the same was not decipherable and may have got erased with passage of time. Nonetheless, since the allegations against the appellant had been proved by the witnesses, the failure to conclusively identify the sample produced as having been seized from the appellant was inconsequential. Unfortunately, the High Court did not deal with this aspect of the matter at all. The fact of an earlier conviction may be relevant for the purpose of sentence but cannot be a ground for conviction per se.
7. In Mohan Lal vs. State of Punjab, AIR 2018 SC 3853, it was observed:
::: Downloaded on - 26/09/2019 20:28:09 :::HCHP 24"10. Unlike the general principle of criminal jurisprudence that an accused is presumed innocent unless proved guilty, the NDPS Act carries a reverse burden of proof under Sections 35 and 54. But that cannot be understood to mean that the moment an allegation is made and the F.I.R. recites .
compliance with statutory procedures leading to recovery, the burden of proof from the very inception of the prosecution shifts to the accused, without the prosecution having to establish or prove anything more. The presumption is rebuttable. Section 35(2) provides that a fact can be said to have been proved if it is established beyond reasonable doubt and not on preponderance of probability. The stringent provisions of the NDPS Act, such as Section 37, the minimum sentence of ten years, absence of any provision for remission, do not dispense with the requirement of the prosecution to establish a prima facie case beyond reasonable doubt after investigation, only after which the burden of proof shall shift to the accused. The case of the prosecution cannot be allowed to rest on a preponderance of probabilities."
8. The failure of the prosecution in the present case to relate the seized sample with that seized from the appellant makes the case no different from failure to produce the seized sample itself. In the circumstances the mere production of a laboratory report that the sample tested was narcotics cannot be conclusive proof by itself. The sample seized and that tested have to be co-
related. The observations in Vijay Jain vs. State of Madhya Pradesh, (2013) 14 SCC 527, as follows are considered relevant :
"10. On the other hand, on a reading of this Court's judgment in Jitendra's case, we find that this Court has taken a view that in the trial for an offence under the NDPS Act, it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of the contraband goods were seized from the possession of the accused and the best evidence to prove this fact is to produce during the trial, the seized materials as ::: Downloaded on - 26/09/2019 20:28:09 :::HCHP 25 material objects and where the contraband materials alleged to have been seized are not produced and there is no explanation for the failure to produce the contraband materials by the prosecution, mere oral evidence that the materials were seized from the accused would not be sufficient to make out an offence under .
the NDPS Act particularly when the panch witnesses have turned hostile. Again, in the case of Ashok (supra), this Court found that the alleged narcotic powder seized from the possession of the accused was not produced before the trial court as material exhibit and there was no explanation for its nonproduction and this Court held that there was therefore no evidence to connect the forensic report with the substance that was seized from the possession of the appellant."
9. In Ashok alias Dangra Jaiswal vs. State of Madhya Pradesh, (2011) 5 SCC 123, it was observed:
"12. Last but not the least, the alleged narcotic powder seized from the possession of the accused, including the appellant was never produced before the trial court as a material exhibit and once again there is no explanation for its nonproduction. There is, thus, no evidence to connect the forensic report with the substance that was seized from the possession of the appellant or the other accused."
10. We are, therefore, unable to uphold the conviction of the appellant. The conviction by the Trial Court and upheld by the High Court are unsustainable and are accordingly set aside. The appellant is acquitted. He is directed to be released forthwith unless wanted in any other case."
Thus, there is confusion about identity of case property in the statements of prosecution witnesses as ::: Downloaded on - 26/09/2019 20:28:09 :::HCHP 26 compared to its description in the documents. Point is answered accordingly.
4. The upshot of above discussion is that:-
.
prosecution has not established mandatory compliance of provisions of Section 50(1) of the NDPS Act; has not given any explanation for not associating independent witnesses; major inconsistencies exist in the statements of the prosecution witnesses regarding identification of case property, vis-a-vis, its description in the documents; the statements of material prosecution witnesses are not trustworthy and do not inspire confidence, therefore, it cannot be concluded that the case of the prosecution against the accused is completely established on record. Consequently, prosecution having failed to establish its case against the accused beyond reasonable doubt, instant appeal filed by the appellant- convict, is allowed and he is acquitted of the charge for commission of offence punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985, by giving benefit of doubt.
Resultantly, appellant-convict, who is presently serving out the sentence, is ordered to be released forthwith, if not required in any other case, subject to his furnishing personal bond in the sum of Rs.50,000/-, with one surety in the like amount, to the satisfaction of learned Chief Judicial Magistrate/Addl. Chief ::: Downloaded on - 26/09/2019 20:28:09 :::HCHP 27 Judicial Magistrate, Rampur Bushahar, District Shimla, so that in the event of any appeal against this judgment being preferred, his presence in the Appellate Court be secured. The bond(s) so .
furnished shall, however, remain in force only for a period of six months. Release warrants be prepared accordingly. The appeal stands finally disposed of, so also the pending miscellaneous application(s), if any.
(Dharam Chand Chaudhary)
Judge
(Jyotsna Rewal Dua)
September 20, 2019
r Judge
(Yashwant)
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