Himachal Pradesh High Court
Narcotics Control Bureau vs Ajmer Kumar And Another on 13 April, 2016
Bench: Rajiv Sharma, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 428/2010
Reserved on: April 12, 2016
.
Decided on: April 13, 2016
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Narcotics Control Bureau ...... Appellant
Versus
Ajmer Kumar and another ........Respondents
_______________________________________________________________
Coram:
of
Hon'ble Mr. Justice Rajiv Sharma, Judge
Hon'ble Mr. Justice Ajay Mohan Goel, Judge
Whether approved for reporting? 1 yes.
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For the appellant
rt
: Mr. Ashwani Pathak, Senior
Advocate with Mr. Sandeep K.
Sharma, Advocate.
For the respondents : Mr. N.S. Chandel, Advocate.
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Per Rajiv Sharma, Judge:
This appeal has been instituted against Judgment dated 15.7.2010 rendered by the learned Special Judge, Fast Track Court, Solan, District Solan, Himachal Pradesh in Case No. 4FTC/7 of 2009, whereby respondents-accused (hereinafter referred to as 'accused' for convenience sake), who were charged with and tried for offence under Sections 8, 18, 29 and 60 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'Act' for convenience sake), have been acquitted.
1Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 20:07:36 :::HCHP2. Case of the prosecution, in a nutshell, is that on 19.10.2008 at about 2 AM a secret information was received by .
R.C. Bodh, Intelligence Officer that two persons namely Ajmer Kumar and Balwinder Singh are involved in drug trafficking and they will come from Baddi side towards Pinjore on Baddi Pinjore road on 19.10.2008 between 5 to 7 AM in their silver grey coloured Scorpio vehicle. Number of the vehicle was also given.
of Information was reduced into writing and put up before the Superintendent, Narcotics Control Bureau, Chandigarh and he rt directed the Intelligence Officer to constitute a team and lay Naka at Baddi. Search authorisation was also issued. At about 4 AM, complainant alongwith Ganesh Balooni, Intelligence Officer, Shri Rajesh Kumar, Sepoy and Shri Balwinder Singh, Sepoy associated two independent witnesses Mr. Kartar Singh and Jaswinder Singh to witness the whole process. The complainant alongwith the team of Narcotics Control Bureau and independent witnesses placed a Naka at Baddi near toll barrier Baddi on Baddi-Pinjore road at 4.20 AM. At 6.30 AM a grey coloured Scorpio vehicle was seen coming from Baddi side in which two persons were noticed. The NCB team signalled the vehicle to stop. It was stopped at a little distance. The NCB team ran to the vehicle and on reaching there, the complainant showed his identity card to both the persons sitting inside the vehicle and introduced himself, NCB team and witnesses. The ::: Downloaded on - 15/04/2017 20:07:36 :::HCHP persons sitting in the vehicle were told that the NCB team had an information that a consignment of opium is being .
transported in the vehicle and they wanted to search the same.
On this, the person driving the vehicle took out his pistol and after cocking the same aimed towards the complainant with intention to fire. In the meantime, NCB team snatched the pistol from him. Both the persons tried to run away. The NCB of team overpowered the accused. Accused disclosed their identity and also divulged that they were taking delivery from a person rt named Bagga. Complainant searched the vehicle and found black coloured substance in the coloured polythene under the rear seat of the vehicle. Small substance was taken out by the complainant and was given to Shri Ganesh Balooni, Intelligence Officer, who conducted test with the help of field drug detection kit and told that it was opium. It weighed 10 kg. It was taken into possession vide separate seizure memo, which was signed by the accused, witnesses and the complainant. Complainant took out small quantity from different places of the recovered opium and made two representative samples of 25 grams each, which were packed in small polythene pouch and were heat sealed and placed in a separate envelop and on opening side on both the envelopes, white paper slip was pasted. Representative samples marked A1 and A2 and remaining opium was packed in a big transparent polythene, heat sealed and again kept in a ::: Downloaded on - 15/04/2017 20:07:36 :::HCHP cloth bag. Impressions of NCB seal 06 were taken on test memos and Panchanama was prepared by the complainant on .
the spot and seal after use was returned to Ganesh Balooni.
Signatures were put on sample parcels and Lot A by the accused persons, witnesses and the complainant. Accused were arrested after explaining grounds of arrest and information of their arrest was given to their family members telephonically.
of Accused alongwith Lot A, two representative samples A1 and A2 and seized vehicle was produced before ACJM Kasauli on rt 20.10.2008 from where both the accused were sent to judicial custody. Case property was handed over to Superintendent NCB Chandigarh for safe custody alongwith compliance report of search authorisation. The Superintendent in the capacity of Godown In-charge issued Godown Receipt and deposited the case property given to him in the NCB godown. One sample packet mark A1 was sent alongwith two copies of test memos having facsimile impression of seal NARCOTICS CONTROL BUREAU 06 to the Chemical Examiner CRCL New Delhi through Balbinder Singh Sepoy who deposited the same with Chemical Examiner New Delhi and receipt was issued.
Investigation was completed and Challan was put up in the Court after completing all codal formalities.
3. Prosecution has examined as many as 6 witnesses to prove its case against the accused. Accused were also ::: Downloaded on - 15/04/2017 20:07:36 :::HCHP examined under Section 313 CrPC. They pleaded innocence.
Learned trial Court acquitted both the accused. Hence, this .
appeal.
4. Mr. Ashwani Pathak, learned Senior Advocate, has vehemently argued that the prosecution has proved its case against the accused.
5. Mr. N.S. Chandel, Advocate, has supported the of judgment of acquittal dated 15.7.2010.
6. We have heard the learned counsel for the parties rt and also gone through the judgment and record carefully.
7. PW-1 Kartar Singh testified that on 19.10.2008, NCB Inspector came to him at 4 AM at Baddi at Taxi Stand. He told him that he had information that some narcotic substance or drugs are likely to be transported from Nalagarh side towards Baddi on that day. He gave notice Ext. PW-1/A in this respect to him. It was signed by him. Thereafter, he proceeded to join some other witness. He accompanied NCB officials to the place of Naka, a little distance from the Taxi Stand. Naka was effected at about 4.30 AM. A Scorpio vehicle, number of which was not known to him, came from Nalagarh side proceeding to Pinjore side. NCB team signalled the vehicle to stop. NCB people disclosed their identity. Person occupying driver seat suddenly took out a pistol but NCB officials snatched the same from said person. Accused thereafter got down from Scorpio vehicle and ::: Downloaded on - 15/04/2017 20:07:36 :::HCHP tried to escape but were overpowered by the inspector and NCB constables. NCB officials thereafter commenced search of the .
vehicle and black substance wrapped in polythene was detected having been placed under rear seat of the vehicle under a mat.
The NCB inspector took out black substance and gave it for testing to the other inspector. It was found to be opium.
Substance was weighed. It weighed 10 kg. Recovery memo Ext.
of PW-1/B was prepared which was signed by him and other witness, both the accused and the inspector. Thereafter, the rt NCB team took out two samples of 25 grams each from the recovered substance which were placed in polythene packets and thereafter in paper envelope and both samples were sealed.
He did not remember what was the seal mark. Inspector outside the vehicle had taken seal from inspector sitting inside NCB vehicle and after sealing the samples with it, handed over seal back to the inspector sitting inside the NCB vehicle. Case property was produced in the Court while examining PW-1. He identified his signatures on paper mark A. Accused made confessional statements. In his cross-examination, he admitted that he was working as a Driver on daily wages with NCB at Chandigarh. There are many residential houses in the area of Baddi. Scuffle between NCB officials and accused lasted for 5 minutes. Taxi stand is situate at the spot at Baddi from where road goes to Barotiwala. He also admitted that the toll barrier ::: Downloaded on - 15/04/2017 20:07:36 :::HCHP remains open for 24 hours and is handled by officials on duty.
He admitted that near barrier there existed a petrol pump .
which also remained open through day and night and 4-5 workers remained present throughout at petrol pump. Naka had been effected at a distance of 100 meters from the spot where road bifurcates. He admitted that no person from the toll barrier or petrol pump was called to witness the incident. He of also admitted that many shops and hotels are situate at Baddi bus stand, and toll barrier and petrol pump are also situate there.
rt NCB officials have conducted personal search of the accused after apprehending them after the scuffle was over. He also admitted that his house is situate 75 kms from Baddi. His village was in Punjab.
8. PW-2 Balbinder Singh Sepoy deposed that he took sample A1 from NCB office Chandigarh to the chemical examiner Central Revenue Control Laboratory, Kusha Road, New Delhi alongwith covering letter Ext. PW-2/A alongwith two duplicate test memos. In his cross-examination, he admitted that his statement was not recorded by NCB officer in this case.
9. PW-3 Ganesh Balooni, Intelligence Officer testified that on 19.10.2008, a specific telephonic information was received by Intelligence Officer R.C. Bodh that one Scorpio will come from Nalagarh side towards Pinjore and number of the vehicle was also known. Thereafter, they took their seizure kit ::: Downloaded on - 15/04/2017 20:07:36 :::HCHP etc. from their office and proceeded towards Baddi. They proceeded to Baddi between 2.20 to 2.30 AM. They reached .
Baddi at about 4 AM. On reaching Baddi, RC Bodh associated two witnesses namely Kartar Singh and Jaswinder Singh. They were associated near Taxi Stand Baddi. Thereafter at about 4.20-4.30 AM, they placed Naka on Baddi-Pinjore road at a distance of 40-50 metres from Baddi Taxi Stand. The toll barrier of from the Naka was about 500 to 600 metres. Thereafter, at about 6.30 AM, a grey coloured Scorpio vehicle came from rt Nalagarh side towards Pinjore. . The vehicle was stopped. It stopped at a distance of 5 metres from the place of Naka.
Thereafter, he and RC Bodh went from driver side and RC Bodh told the person driving that they had got information that some narcotic drugs are being transported through the vehicle and they also disclosed their identity to the person sitting on driver seat. He took out pistol and pointed to fire on RC Bodh but in the meantime, they overpowered him and snatched the pistol.
Thereafter both the accused tried to run away from the spot but they were overpowered by the NCB team. Vehicle was searched.
Some black coloured substance was found under rear seat under a mat in the vehicle. A small quantity was taken out. It was found to be opium. It weighed 10 kg. Thereafter, Intelligence Officer R.C. Bodh took small quantities from different places from the contraband and prepared two ::: Downloaded on - 15/04/2017 20:07:36 :::HCHP representative samples of 25 grams each. These were sealed in three different parcels i.e. two parcels of samples and one parcel .
of the remaining substance. It was sealed with seal of Narcotics Control Bureau 06. The seal with which the parcels were sealed was given to him by the Superintendent and the same was given by him to R.C. Bodh for sealing the parcels. Thereafter seal remained in safe custody. In his cross-examination, he of admitted that his statement was not recorded by the IO. He admitted that there was a petrol pump and toll barrier. He did rt not know if the same remained open for 24 hours. They came to Baddi from Chandigarh via Pinjore.
10. PW-4 Balbinder Kumar deposed that he was working as a Superintendent in NCB Chandigarh. He received information on 19.10.2008 about drug trafficking. Information was supplied to him at 2 AM in the night at Chandigarh in NCB office. He directed R.C. Bodh to constitute a raiding team and to lay Naka by giving written order on the same paper. The written information received by him was Ext. PW-4/A. He issued authorisation to search Ext. PW-3/A. R.C. Bodh gave him compliance report vide Ext. PW-4/C. R.C. Bodh also handed over case property and two samples of opium, for which he issued Godown receipt Ext. PW-4/D. Receipt was issued on 20.10.2008 at 11.50 PM. Thereafter IO gave information of arrest and seizure under Section 57 of the NDPS Act vide letter ::: Downloaded on - 15/04/2017 20:07:36 :::HCHP dated 21.10.2008 vide Ext. PW-4/E. Sample of opium was sent to CRCL New Delhi through C. Balbinder Singh on 21.10.2008 .
vide letter dated 21.10.2008, Ext. PW-2/A with test memo Ext.
PW-2/B. In his cross-examination, he has admitted that there are two criminal cases in progress against him, one of which pertains to Narcotic Drugs & Psychotropic Substances Act and in said case, several persons were accused with him. Other of case was regarding embezzlement of `13,81,250/-. He admitted that he had come to the Court being in judicial custody. He had rt not brought any register pertaining to case property deposited with him. Volunteered that he had come in judicial custody. He also admitted that the writing in circle 'X' in Ext. PW-3/A was not in his hand. He admitted that the godown receipt Ext. PW-
4/D did not show that the parcels of contraband were signed by the witnesses and the accused persons. He also admitted that the godown receipt Ext. PW-4/D did not mention the date on which case property was deposited with the NCB.
11. PW-5 V.P. Bahuguna has proved Ext. PW-5/A.
12. PW-6 R.C. Bodh, Intelligence Officer testified that on 19.10.2008, a specific information was received by them that two persons namely Ajmer Kumar and Balbinder were transporting narcotic drugs in a vehicle. He reduced the information into writing vide Ext. PW-4/A. Same was put up before Sr. Superintendent who directed him, in writing, on this ::: Downloaded on - 15/04/2017 20:07:36 :::HCHP report, to constitute a team and lay Naka at Baddi. He also issued search authorisation. Thereafter, they proceeded to .
Baddi. They reached Baddi at 4 AM. They associated independent witnesses at the spot with them. Notices were issued to them vide Ext. PW-1/A and Ext. PW-6/A. They effected Naka at the joining of said road at 4.20 AM. At about 6.30 AM, they noticed a grey coloured Scorpio coming from of Baddi side, in which two persons were sitting. They signalled the vehicle to stop They rushed to the vehicle and disclosed rt their identity to the person sitting on driver seat and told that they had information that narcotic drug is being transported in the vehicle and they have got search authorisation. On this, the person on the driving seat took out his pistol and aimed at him.
However, the pistol was snatched and unloaded. On this, both the accused tried to escape. They were overpowered. The vehicle was searched. During search, black coloured substance wrapped in polythene bag was found on the floor on rear seat covered with a mat. It was found to be opium. Search and sealing proceedings were completed at the spot. They prepared Panchanama. Notice under Section 67 was given to Ajmer Kumar vide Ext. PW-6/B which was signed by accused and him. Similarly notice was given to accused Balbinder Singh vide Ext. PW-6/E which was also signed by the said accused and him. Confessional statements were recorded vide Ext. PW-6/F ::: Downloaded on - 15/04/2017 20:07:36 :::HCHP (Ajmer Kumar) and Ext. PW-1/H (Balbinder Singh). In his cross-examination, he admitted that there were many shops at .
Baddi. He also admitted that they used court premises during progress of trial earlier when witnesses were being examined.
He admitted that a criminal case was going on against their superintendent who was a witness in this case, which is under NDPS Act and 409 IPC In his cross-examination, he admitted of that he has not drawn site plan of the place of laying of alleged Naka. He also admitted that in Ext. PW-1/C, it is not mentioned rt as to where witnesses were contacted to be joined in the raiding party. He did not know as to who has filled Ext. PW-3/A. Volunteered that the Superintendent might have filed it. No time was mentioned in Ext. PW-1/B for the alleged apprehension of the accused and recovery effected thereon.
13. PW-1, Kartar Singh has categorically deposed in his cross-examination that a toll barrier existed towards Pinjore side from Baddi Taxi Stand. Toll barrier remained open 24 hours. It was handled by the officials on duty. He also admitted that near the barrier, there existed a petrol pump. It also remained open throughout day and night. 4-5 workers remained throughout at petrol pump. He also admitted that no person from the toll barrier or the petrol pump was called as witness. PW-6 R.C. Bodh admitted that there are many shops at Baddi. It was neither a secluded nor an isolated place. NCB ::: Downloaded on - 15/04/2017 20:07:36 :::HCHP team could easily associate independent witnesses from the toll barrier or petrol pump. PW-1 Kartar Singh was also working as .
driver with NCB team. He can not be termed as an independent witness. Evidence placed on record suggests that he must have accompanied the entire team from Chandigarh to Baddi otherwise there was no reason for him to be at Baddi, that too, at odd hours. He belonged to Punjab. His village was 75 kms of from the spot where accused were apprehended. PW-1 Kartar Singh has not disclosed the purpose of his visit at Baddi. He did rt not know the name of the person who was associated with him at the place of Naka. R.C. Bodh (PW-6) did not know who filled up Ext. PW-3/A. Volunteered that the Superintendent might have filled it. He also admitted that there is no facsimile of seal on Ext. PW-4/D. PW-4 Balbinder was the Senior Superintendent. He ordered constitution of raiding team. He also issued authorisation letter for the search of the vehicle. He was also facing trial under NDPS Act and for embezzlement of `13,81,250/-. Moreover, he came to the Court in judicial custody. According to him, IO, R.C. Bodh gave compliance report Ext. PW-4/C alongwith information. R.C. Bodh also handed over case property and two samples of opium, for which he issued Godown receipt Ext. PW-4/D. Receipt was issued on 20.10.2008 at 11.50 PM. In his cross-examination, he admitted that he has not brought any register pertaining to the case ::: Downloaded on - 15/04/2017 20:07:36 :::HCHP property deposited with him. Volunteered that he had come in judicial custody. He also admitted that writing in circle 'X' in .
Ext. PW-3/A was not in his hand. He also admitted that the godown receipt Ext. PW-4/D did not show that the parcels of contraband were signed by the witnesses and accused persons.
More particularly, he also admitted that the godown receipt Ext.
PW-4/D did not mention the date on which case property was of deposited with NCB. PW-6 R.C. Bodh, in his cross-examination admitted that in Panchanama, Ext. PW-1/C, it is not mentioned rt that where the witnesses were contacted to join the raiding party. Authorisation to search under sub-section (2) of Section 41 of the NDPS Act is Ext. PW-3/A. In his cross-examination, PW-4 Balbinder has admitted that that the writing in circle 'X' in Ext. PW-3/A was not in his hand. Volunteered that same was handwriting of Ganesh Balooni, Intelligence Officer, NCB. There is no date on Ext. PW-4/D when case property was deposited with NCB. This fact has been admitted by PW-4 Balbinder Kumar, in his cross-examination. Prosecution has not examined another witness Jaswinder to whom notice was issued vide Ext.
PW-6/A.
14. Learned trial Court has rightly concluded that there was no material on record to prove the time when alleged confessional statements were given by the accused before the NCB regarding involvement in the trade of opium. Malkhana ::: Downloaded on - 15/04/2017 20:07:36 :::HCHP Register was not produced. It was necessary to produce the Malkhana Register to prove that the case property was .
deposited and was taken out at the time of production of the same before the court. We have gone through the Ext. PW-4/D. It does not mention that the seals were also deposited in the godown /Malkhana of NCB Chandigarh.
15. Prosecution has failed to prove case against the of accused under Sections 8, 18, 29 and 60 of the Narcotic Drugs & Psychotropic Substances Act, 1985. Hence, there is no rt occasion for us to interfere with the well reasoned judgment passed by the learned trial Court.
16. Thus, the appeal is without merits, which is accordingly dismissed. All pending applications, are also disposed of. Bail bonds of the accused are discharged.
(Rajiv Sharma) Judge (Ajay Mohan Goel) Judge April 13, 2016 (vikrant) ::: Downloaded on - 15/04/2017 20:07:36 :::HCHP