Himachal Pradesh High Court
Kartik Singh vs State Of Himachal Pradesh on 1 March, 2016
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 365/2015
Reserved on: 29.2.2016
Decided on: March 1, 2016
.
_______________________________________________________________
Kartik Singh ...... Appellant
Versus
State of Himachal Pradesh ........Respondent
_______________________________________________________________
Coram:
of
Hon'ble Mr. Justice Rajiv Sharma, Judge
Whether approved for reporting? 1 Yes.
_______________________________________________________________
For the appellant : Mr. Balwant Singh Thakur,
rt Advocate.
For the respondent :
Mr. Parmod Thakur, Additional
Advocate General.
_______________________________________________________________
Rajiv Sharma, Judge:
This appeal has been instituted against Judgment dated 27.3.2015 rendered by learned Special Judge (I), Una (HP) in Sessions Trial No. 04/2014, whereby appellant-accused (hereinafter referred to as 'accused' for convenience sake), who was charged with and tried for offence under Section 20 of Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'Act' for convenience sake), has been convicted and sentenced to undergo four years rigorous imprisonment with a fine of `30,000/-, and, in default of payment of fine, to further undergo simple imprisonment for six months.
1Whether the reporters of the local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 19:48:33 :::HCHP 22. Case of the prosecution, in a nutshell, is that on 28.10.2013 late in the night around at 11.30 pm, a police party left the police station Sadar Una for new and old bus stands, .
Takka Road and Khad Par, Una for patrolling. At around 12.30 pm, while police party was proceeding towards bus stand from petrol pump near the bus stand, Una, accused was seen sitting in front of closed Kapila confectionery shop, who on seeing the of police got frightened and started running towards bus stand. He was nabbed by the police around 25-30 steps ahead in front of rt the shop of Radha Krishan (PW-8). PW-13 SI Durjesh Kumar called two independent witnesses Radha Krishan (PW-8) and Rohit Sharma (PW-9) and in their presence asked his name and whereabouts. Accused was holding a black coloured bag, on which words 'D-Diesel' were inscribed. On opening the black coloured bag, a polythene bag was found containing stick shaped hard black substance. It was found to be Charas. It weighed 350 grams. Contraband was put in the polythene bag in the same manner. Bag was wrapped in a cloth parcel and sealed with six impressions of seal 'A'. It was taken into possession vide seizure memo Ext. PW-8/B. IO filled in columns No. 1 to 8 of the NCB form, Ext. PW-1/C and embossed impression of seal 'A'. IO prepared Rukka Ext. PW-13/A and sent the same through HHC Satwinder Singh to Police Station Una, on the basis of which FIR Ext. PW-1/B was recorded by ::: Downloaded on - 15/04/2017 19:48:33 :::HCHP 3 PW-1 Sh. K.L. Beri. IO prepared site map Ext. PW-13/B. IO produced the case property, NCB form in triplicate and accused before Inspector/ SHO K.L. Beri for resealing process of sealed .
parcel containing Charas. PW-1 K.L. Beri checked the parcel and resealed it with four seal impressions of 'T' and filled in columns No. 9 to 11 of NCB form, Ext. PW-1/C and further embossed seal impression 'T' on it. PW-1 K.L. Beri deposited the of case property with MHC Ravi Kant (PW-11). On 30.3.2013, PW-
11 HHC Ravi Kant sent the case property alongwith copy of FIR vide RC No. rt and docket to FSL Junga through PW-10 HHC Satwinder Singh 175/13 (Ext. PW-8/B). Investigation was completed. Challan was put up in the Court after completing all the codal formalities.
3. Prosecution has examined as many as 13 witnesses in order to prove its case against the accused. Accused was also examined under Section 313 CrPC. Defence of accused was of denial simpliciter and that he was innocent and falsely implicated in the case. Accused was convicted and sentenced as noticed herein above. Hence, this appeal.
4. Mr. Balwant Singh Thakur, Advocate, has vehemently argued that the prosecution has failed to prove case against the accused.
5. Mr. Parmod Thakur, Additional Advocate General has supported the judgment of conviction.
::: Downloaded on - 15/04/2017 19:48:33 :::HCHP 46. PW-1 K.L. Beri testified that on 28.10.2013 at 2.10 am, HHC Satwinder Singh brought rukka Ext. PW-1/A to the Police Station on the basis of which he got recorded FIR Ext.
.
PW-1/B on the official computer. On the same day at about 4.30 am, ASI Durjesh Kumar has produced one sealed parcel sealed with six seals of impression 'A' allegedly containing 350 grams of charas alongwith NCB form in triplicate, sample seals of of impression 'A', case file and accused. He resealed the parcel with six seals of impression 'T' and filled up column No. 9 to 11 rt of NCB form Ext. PW-1/C. He embossed impression of seal 'T' on NCB form. He handed over sealed parcel alongwith other documents and sample of seals to MHC Ravi Kant. He issued certificate Ext. PW-1/E. In his cross-examination, he has admitted that in NDPS cases, every FIR is treated as a special report. It is mandatory to send a copy of it to the nearest Ilaka Magistrate. He has admitted that there was no such entry in Column No. 15 of FIR Ext. PW-1/B.
7. PW-4 Constable Rajesh Kumar testified that on 28.10.2013, he was present at Police Station Sadar, Una.
Around midnight at 2.30 am, MHC handed over to him two copies of FIR No. 331/13. One FIR was delivered by him to SP Una and second one was delivered to CJM, Una at their respective residences on the same night.
::: Downloaded on - 15/04/2017 19:48:33 :::HCHP 58. PW-5 LHC Mool Raj deposed that on 25.11.2013, SHO Police Station Sadar Una had deputed him to FSL Junga to collect FSL report pertaining to case FIR No. 331/13. He .
collected FSL report in sealed envelope alongwith case property and returned to Police Station Sadar Una on 27.11.2013 and handed over sealed cover containing FSL report and another sealed parcel to MHC Police Station Sadar, Una.
of
9. PW-8 Radha Krishan deposed that he was running a small confectionery shop on the entrance gate of bus stand, rt Una. During the year 2013, somewhere during summer the police party came to his shop and told him that Bhang in the shape of black coloured hard substance had been recovered from the accused. Accused was brought to his shop by the police later on. He was declared hostile and cross-examined by the learned Public Prosecutor. He admitted that it was last year in the month of October when police party came to his shop. He denied that during midnight at 12.30 am, he had seen the police chasing the accused. He denied that accused was nabbed by the police in his presence. He admitted that in his presence and that of Rohit, police questioned the accused to disclose the name as Kartik son of Joginder Singh resident of VPO Bhanala, Tehsil Shahpur, District Kangra. He denied that thereafter police opened the black coloured carry bag being carried by accused with words 'D-Diesel' inscribed, in his ::: Downloaded on - 15/04/2017 19:48:33 :::HCHP 6 presence and that of Rohit, upon which one polythene bag came out which contained black coloured hard substance in the shape of slides. He volunteered that polythene bag containing .
black coloured hard substance in the shape of slides/Bhang was brought to him prior to the time when accused was brought. He admitted that police in his presence on smelling found black coloured hard substance slides to be charas. He of admitted that Charas was weighed and found to be 350 grams.
He admitted that police in his presence and that of Rohit had rt put charas back in same manner in the polythene bag.
However, he denied that polythene bag was put in black coloured carry bag having words 'D-Diesel' inscribed thereupon and sealed with six seal impressions of 'A' and put in white cloth parcel. Volunteered that polyphone bag containing charas was sealed in white cloth parcel Ext. P-1, which was same on which he has signed in red circle. He also admitted that another witness Rohit had appended signatures thereupon. He had seen black coloured bag with words 'D-Diesel' inscribed thereupon but this bag was not there when charas contained in polythene bag was about to be sealed. Black coloured bag was not brought in his presence. He found parcel Ext. P-1 already stitched and sealed when his signatures were obtained. He was not aware as to when this bag was put in sealed parcel. He admitted that on seal impression Ext. PW-8/A he had ::: Downloaded on - 15/04/2017 19:48:33 :::HCHP 7 appended his signatures. He denied that seal 'A' after use was handed over to him. He admitted that seizure memo Ext PW-
8/B was prepared in his presence vide which parcel Ext. P-1 .
was taken into possession by the police. He admitted that he has put signatures on the seizure memo alongwith Rohit. He appended his signatures on the documents without going through them. He could not give any explanation why he signed of the documents without going through the same. In his cross-
examination by the learned defence counsel on behalf of the rt accused, he denied that all the shops around bus stand remained open. However, he admitted that buses kept plying throughout the night. He volunteered that only 3-4 shops generally remain open during night hours.
10. PW-9 Rohit Sharma deposed that he was having a confectionery shop at the entrance gate of the bus stand. Last year on 28th October, around 12.30 midnight police brought charas and told that the same had been recovered from one person and after 1 and ½ hours, accused was produced before him. Police told that charas shown to him had been recovered from him. He was declared hostile and cross-examined by the learned Public Prosecutor. He denied that he has seen the police chasing the accused at around 12.30 am. He denied that accused was nabbed by the police in his presence. He admitted that in his presence and that of Radha Krishan, police ::: Downloaded on - 15/04/2017 19:48:33 :::HCHP 8 questioned accused to disclose his name. He denied that thereafter police opened black coloured bag with 'D-Diesel' inscribed thereupon in his presence and that of Radha Krishan .
being carried by the accused upon which one polythene bag came out which contained black coloured hard substance in the shape of slides. Volunteered that police weighed the black coloured substance i.e. Charas in his presence in the shop of of Radha Krishan. He admitted that police in his presence on smelling found black coloured substance to be charas. He also rt admitted that charas weighed 350 grams and in his presence, had put that charas back in the same manner in the polythene bag and then into black coloured bag which was sealed thereafter in a white cloth parcel. Volunteered that bag was sealed in Police Station. He identified his signatures on Ext. P-
1. He admitted that on sample impression Ext. PW-8/A, he had appended his signatures alongwith that of Radha Krishan and accused. He denied that seal impression 'A' after use was handed over to Radha Krishan. He admitted that seizure memo Ext. PW-8/B was prepared in his presence, vide which Ext. P-1 and other documents were taken into possession. He appended his signatures on the seizure memo in red circle 'A' alongwith that of Radha Krishan. He appended his signatures on documents without going through their contents. In his cross-
examination by the learned defence counsel, he deposed that ::: Downloaded on - 15/04/2017 19:48:33 :::HCHP 9 signatures on memo and cloth piece were obtained from him in the Police Station on the next day where he was called again.
11. PW-10 HHC Satwinder Singh deposed the manner .
in which accused was apprehended and search, sealing and seizure proceedings were completed at the spot. IO handed over to him one Rukka Ext. PW-1/A to be taken to the Police Station.
He handed over the Rukka to MHC Police Station, Sadar, Una, of on the basis of which, FIR Ext. PW-1/B was recorded.
12. PW-11 Ravi Kant deposed that on 28.10.2013, rt Inspector/ SHO Sh. K.L. Beri deposited with him at 5.10 am six impressions each of seal 'A' and 'T' alongwith NCB form in triplicate, sample impressions of seals 'A' and 'T' and accordingly, he made entry in the malkhana register No. 19 at Serial No. 1394/13. On 30.10.2013, as per RC No. 175/13, he handed over case property and documents to HHC Satwinder Singh to deliver the same to FSL Junga for chemical examination. On 27.11.2013, HHC Mool Raj brought FSL report and case property and deposited the same with him.
13. PW-12 HC Vijay Kumar also deposed the manner in which accused was apprehended and search, sealing and seizure proceedings were completed at the spot. Case property was produced before the Court during the course of examination-in-chief of PW-12 HC Vijay Kumar.
::: Downloaded on - 15/04/2017 19:48:33 :::HCHP 1014. PW-13 SI Durjesh Kumar testified that he alongwith patrolling party was proceeding towards bus stand from petrol pump. In front of Kapila Confectionery shop which was closed .
at that time, one boy was found sitting in front of shop. On seeing the police party, the boy got frightened and started running towards bus stand and was nabbed by the police at abut 25-30 steps ahead in front o shop of Radha Krishan. He of called two independent witnesses namely Radha Krishan and Rohit Sharma and in their presence inquired name and rt whereabouts of the accused. Accused was carrying a black coloured bag with words 'D-Diesel' inscribed thereupon. On opening the bag, he found a polythene bag which was containing stick shaped hard substance. It was found to be charas. It weighed 350 grms. He filled in columns No. 1 to 8 of NCB form, Ext. PW-1/C. He prepared Rukka Ext. PW-1/A. It was sent to the police station Sadar, Una through HHC Satwinder Singh. Spot map Ext. PW-13/B was prepared by him.
In his cross-examination, he has admitted that no official /independent witnesses were searched or offered for search prior to making search of bag of accused. Before the search of the bag of accused, he was not informed of his right in terms of section 50 of the Act.
15. PW-8 Radha Krishan and PW-9 Rohit Sharma have not supported the case of the Prosecution in its entirety. They ::: Downloaded on - 15/04/2017 19:48:33 :::HCHP 11 were declared hostile and were cross-examined. However, fact of the matter is that they have identified their signatures on Ext.
PW-1 and Ext. PW-8/A. However, PW-9, Rohit Sharma, in his .
cross-examination, has deposed that the signatures on memo and cloth piece were obtained from him in the Police Station on the next day where he was again called.
16. PW-11 HHC Ravi Kant testified that on 28.10.2013, of Inspector K.L. Beri deposited at 5.10 am one sealed parcel containing six seal impressions 'A' and 'T' alongwith NCB form rt in triplicate. Accordingly, he made entries in Malkhana Register No. 19 at Serial No. 1394/13. Case property was sent through HC Satwinder Singh to FSL Junga for chemical examination.
PW-10 Satwinder Singh deposed that MHC Ravi Kant on 30.10.2013 handed over one sealed parcel sealed with six impressions of 'A' and 'T' vide RC No. 175/13. Accordingly, he deposited the same with FSL Junga. Case property was produced while recording statement of PW-12 HC Vijay Kumar.
17. 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.
18. 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 ::: Downloaded on - 15/04/2017 19:48:33 :::HCHP 12 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 of or it was case property of some other case.
19. Sub-rule (2) Rule 22.18 of Punjab Police Rules, reads as under:
rt (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 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.
20. 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.::: Downloaded on - 15/04/2017 19:48:33 :::HCHP 13
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, of 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. rt (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 shall be repounded under the supervision of a head constable.
::: Downloaded on - 15/04/2017 19:48:33 :::HCHP 1421. 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 of required to be given on the label and in the store-room register.
Similarly, it is provided in Rule 27.18 that Weapons, articles rt 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 ::: Downloaded on - 15/04/2017 19:48:33 :::HCHP 15 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 of closing in the evening shall invariably be in the presence of the police officials named in this rule. In case property is required rt 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.
22. In this 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 ::: Downloaded on - 15/04/2017 19:48:33 :::HCHP 16 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.
.
23. In view of the discussion and analysis made hereinabove, the present appeal is allowed. Judgment dated 27.3.2015 rendered by learned Special Judge (I), Una (HP) in Sessions Trial No. 04/2014 is set aside. Accused is acquitted of of the offence under Section 20 of the Act. He be released forthwith, if not required by the Police in any other case. Fine amount, if any deposited by him, be refunded to him. Registry is directed to rt prepare and send the release warrant of the accused to the Superintendent of Jail concerned, forthwith.
(Rajiv Sharma) Judge March 1, 2016 (vikrant) ::: Downloaded on - 15/04/2017 19:48:33 :::HCHP