Uttarakhand High Court
Karan Singh vs State on 1 December, 2015
Author: Alok Singh
Bench: Alok Singh
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Criminal Appeal No. 176 of 2003
Karan Singh S/o Kishan Singh .....Appellant
Versus
State of Uttarakhand .... Respondent
Mr. Nandan Arya, Advocate for the appellant.
Mr. H.S. Rawal, A.G.A. assisted by Mr. Kuldeep Rawal, Brief Holder for the
State.
Hon'ble Alok Singh, J.
Present appeal is directed against the judgment and order dated 06.06.2003, passed by Special Judge [N.D.P.S. Act], Pithoragarh, in Special Session Trial No. 2 of 2001, whereby appellant was held guilty for the offence punishable under Section 20/22 of the N.D.P.S. Act and was sentenced to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs.1 lac and in default of making payment of fine, to undergo additional R.I. for a period of one year.
Brief facts of the present case, inter alia, are that PW2 Rajendra Lal Arya, the then S.H.O. Police Station Dharchula, District Pithoragarh was present in the Thana on 04.07.2001; a secret information was passed on to PW2 Rajendra Lal Arya, S.H.O. that accused was having about ½ kg. charas in his shop; whereupon, police party under the command of PW2 Rajendra Lal Arya, left Thana for shop of the accused / appellant; after reaching the shop of the appellant, appellant was told by PW2 Rajendra Lal Arya that he had received secret solid information that appellant was having charas in a rice bag kept under his seat, therefore, if appellant wish, search could be made in the presence of 2 Gazzetted Officer or Magistrate; appellant had shown his willingness to be searched in the presence of Gazzetted Officer, therefore, Constable Ishwar Dutt was sent to the Office of PW3 Shri Anil Krishna Vaidhya, Deputy S.P. / Circle Officer, Dharchula to come on the spot for the purpose of search; PW3 Anil Kumar Vaidhya reached on the spot and in his presence search was made and on the search 500 gram charas was found concealed in the rice bag kept in the shop of the appellant; seizure memo was prepared on the spot and copy thereof was handed over to the appellant and, thereafter, appellant was brought to the Thana and, thereafter, chick F.I.R. was got registered in Thana on 04.07.2001 at about 4:30 p.m.; investigation was handed over by PW3 Anil Krishna Vaidhya, Deputy S.P. to PW4 Mahfooz Ali, S.H.O. Berinag on 05.07.2001; PW4 S.I. Mahfooz Ali as well as PW5 Constable Naresh Kumar carried the contraband recovered from the possession of the appellant to the Court of S.D.M., Dharchula on 30.07.2001; with the permission of S.D.M., 100 gram sample was taken out from the contraband and was kept in another small container under the seal and signature of S.D.M., Dharchula; PW5 Constable Naresh Kumar was sent on 03.08.2001 alongwith sample so collected in the presence of S.D.M. to submit the sample to F.S.L., Agra; sample was handed over to F.S.L. Agra 0n 07.08.2001; after chemical examination, F.S.L., Agra has submitted report Ex.A-5 to the effect that sample was 90 gram which was found to be of charas; thereafter, chargesheet was submitted.
3Learned Trial Court was pleased to frame charges against the appellant for the offence punishable under Section 20/22 of the N.D.P.S. Act. Appellant denied the charges and claimed trial.
To prove the prosecution story, PW1 Constable Prakash Chandra; PW2 S.H.O. Rajendra Lal Arya, PW3 Deputy S.P. Anil Krishna Vaidhya; PW4 S.I. Mahfoos Ali and PW5 Constable Naresh Kumar were examined and, thereafter, statement of appellant was also recorded under Section 313 of the Cr.P.C.
Having examined the entire material made available on record, learned Trial Judge was pleased to pass the judgment and order impugned in the present appeal. Feeling aggrieved, appellant has preferred the present appeal.
I have heard Mr. Nandan Arya, learned counsel for the appellant and Mr. H.S. Rawal, learned A.G.A. assisted by Mr. Kuldeep Rawal, learned Brief Holder for the State and have carefully perused the record.
As per the prosecution story, secret information was received by PW2 S.H.O. Rajendra Lal Arya when he was present in Police Station Dharchula to the effect that appellant, who was sitting in his shop, was having 500 gram charas in a rice bag kept in his shop, however, information so received by the S.H.O. was not reduced in writing by the S.H.O. nor was forwarded to the superior officers as required under Section 42 of the N.D.P.S. Act, although he had sufficient time to reduce it 4 in writing before leaving Thana for the shop of the appellant.
PW2 S.H.O. Rajendra Lal Arya, while appearing in the witness box, during his cross examination, at page 49 of the paper book, has stated that contraband was kept in a seal cover under his seal and signature and sample of the seal was preserved by him. However, sample seal, so prepared is not produced on the record.
Not only this, malkhana register has not been produced to prove that when contraband was deposited in the malkhana and as to when same was taken out from the malkhana to be produced before the S.D.M. and as to whether sample, so taken out from the contraband under the orders of S.D.M. dated 30.09.2001, was kept in the malkhana in the safe custody between 30.07.2001 to 03.08.2001.
As per statement of PW4 S.I. Mahfoos Ali and PW5 Constable Naresh Kumar, 100 gram of sample of the contraband was taken out under the orders of the S.D.M., Dharchula on 30.07.2001 after weighing the same on the weighing machine, while as per the F.S.L. report, Ex. A-5, sample was found to be of 90 gram only. It is not made clear if 100 gram sample was taken out on 30.07.2001 as to how same was reduced to 90 gram while submitting in F.S.L., Agra.
Accused, in his statement, recorded under Section 313 Cr.P.C. has stated that PW2 S.H.O. Rajendra Lal Arya wanted to take grocery from his shop free of cost 5 and when he refused to oblige, PW2 S.H.O. Rajendra Lal Arya has falsely implicated him in the present case. Suggestion to the above effect was also given to PW2 S.H.O. Rajendra Lal Arya.
Possibility of false implication cannot be ruled out completely in view of the fact that information received by the PW2 S.H.O. while sitting in Thana was not reduced in writing and was not forwarded to the superior officer as required under Section 42 of the N.D.P.S. Act. If sample was taken out from the contraband on 30.07.2001, as to why it was handed over to PW5 Constable Naresh Kumar to deliver to F.S.L., Agra on 03.08.2001, has not been clarified. It has not been clarified who was in possession and custody of sample of contraband between 30.07.2001 to 03.08.2001. If sample was weighed as 100 gram in the presence of S.D.M., as to why it was found to be 90 grams at F.S.L., Agra has not been clarified. There is another important aspect of the matter, i.e. PW3 Anil Krishna Vaidhya, Deputy S.P. / Circle Officer was allegedly called on the spot through Constable Ishwar Dutt. However, Constable Ishwar Dutt has not been examined. Not only this, if contraband was recovered in the presence of PW3 Anil Krishna Vaidhya, Deputy S.P. / Circle Officer, he should have not monitored the investigation as Circle Officer of the area. Case diary reveals that he has not only monitored the investigation but has also approved and forwarded the chargesheet against the appellant to the Court. In view of the above, investigation cannot be said to be totally fair and above board.
6This Court in the case of Chotu Bihari Vs. State reported in 2013 (2) U.D. page 109, having placed reliance on the judgment of the Apex Court in the case of State of Rajasthan Vs. Gurmail Singh reported in (2005) 3 SCC 59 has held that prosecution is duty bound to produce Malkhana Register as well as sample seal to prove that contraband so recovered was kept intact, untouched in the Malkhana alongwith sample seal. In the absence of important link evidence, prosecution story becomes doubtful.
In the result, appeal deserves to be allowed. Appeal is hereby allowed. Impugned judgment and order passed by the learned Special Judge N.D.P.S., Pithoragarh is hereby set aside.
Accused Appellant stands acquitted from the charges leveled against him. Appellant is on bail. He need not to surrender. His personal bonds are cancelled and sureties are discharged.
Let copy of the judgment alongwith L.C.R. be sent back to the lower court for information and compliance.
(Alok Singh, J.) Dated 1st December, 2015 Shiv