Himachal Pradesh High Court
Dhyan Singh vs State Of H.P on 14 July, 2015
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal Nos. 54 of 2014 & 55 of 2014.
Reserved on: July 10, 2015.
Decided on: July 14, 2015.
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1. Cr. Appeal No. 54 of 2014.
Dhyan Singh ......Appellant.
Versus
State of H.P. .......Respondent.
2. Cr. Appeal No. 55 of 2014.
Nikka Ram ......Appellant.
Versus
State of H.P. .......Respondent.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? Yes.
For the appellant(s): Mr. Anoop Chitkara, Advocate in both the appeals.
For the respondent: Mr. M.A.Khan, Addl. AG, with Mr. P.M.Negi, Dy. AG and
Mr. Ramesh Thakur, Asstt. AG.
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Justice Rajiv Sharma, J.
Since common questions of law and facts are involved in these appeals, both these appeals were taken up together for disposal.
2. These appeals are directed against the judgment and order dated 12.12.2013 and 26.12.2013, respectively, rendered by the learned Special Judge, Kinnaur at Rampur Bushahr, H.P, in Sessions Trial No. 0100026/2011, whereby the appellants-accused (hereinafter referred to as the "accused", namely, Nikka Ram and Dhyan Singh), who were charged with and tried for offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ND & PS Act), have been convicted and sentenced to ::: Downloaded on - 15/04/2017 18:33:40 :::HCHP 2 undergo rigorous imprisonment for a period of 10 years each and to pay fine of Rs. 1,00,000/- each and in default of payment of fine, they were .
further ordered to undergo rigorous imprisonment for one year each.
2. The case of the prosecution, in a nut shell, is that the police party led by SI Rattan Singh comprising of HC Tilak Raj, HC Neel Kanth, HHC Laiq Ram of PS CID Bharari (Shimla), had departed from headquarters on 3.5.2011 towards Nirath, Rampur etc. in connection with detection of cases under the Act. On 4.5.2011, at about 7:30 AM, the police party reached Nogli, when SI Rattan Singh received secret information that Nikka Ram and Dhyan Singh, who were wearing jeans and green coloured T shirts, were coming with narcotics substance towards Rampur from Nirmand side. On getting this information, SI Rattan Singh prepared 'reasons of belief' in writing and sent the same through HHC Laiq Ram to his superior officer. He then proceeded with other police officials to 'Wazir Bawri' and set up a naka. Some vehicles were checked. At about 9:00 AM, a three wheeler bearing No. HP-50- 0683 came from Nirmand side. It was occupied by three persons, a driver and two other persons, who were sitting on the back seat. The persons sitting on the back seat, were wearing jeans and green coloured T shirts and their physical appearance also tallied with the information which was given to SI Rattan Singh. The vehicle was signaled to stop. The driver of the auto disclosed his name as Roshan Lal whereas the other two occupants revealed their identities as Nikka Ram and Dhyan Singh. SI ::: Downloaded on - 15/04/2017 18:33:40 :::HCHP 3 Rattan Singh informed the accused about the information received by him. He apprised them that he wanted to conduct their search. The IO .
associated Sh. Roshan Lal and HC Tilak Raj in the investigation and apprised the accused that they had a legal right to get their search conducted in the presence of gazetted officer or the Magistrate. The accused consented to be searched before the witnesses. Accused Nikka Ram was holding a carry bag (Pithu) on his back. It was searched. One taped wrapper was recovered from it containing charas. It weighed 1.600 kg. The recovered charas was put into the same wrapper and bag and then parceled separately in a cloth parcel after sealing with eight seals of impression "S". Thereafter, personal search of accused Dhyan Singh was conducted and a taped wrapper was found tied on his waist. It was found containing charas. It weighed 1.780 kg. It was packed and re-sealed after performing codal formalities. SI Rattan Singh prepared the seizure memo and filled in NCB forms in triplicate. He prepared rukka and sent it through HC Neel Kanth, alongwith the case property for registration of FIR. The FIR was registered. The sealed parcels containing contraband and other documents were produced before SI Balbir Singh by HC Neel Kanth on 4.5.2011 itself and resealed the parcels in separate cloth parcels by affixing seals of "N". He also filled in the relevant columns of NCB form in triplicate and deposited all the articles with MHC Parkash Chand. The contraband was got analyzed in State Forensic Laboratory, Junga. The ::: Downloaded on - 15/04/2017 18:33:40 :::HCHP 4 investigation was completed and the challan was put up after completing all the codal formalities.
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3. The prosecution, in order to prove its case, has examined as many as 14 witnesses. The accused were also examined under Section 313 Cr.P.C. They have denied the prosecution case. They have raised the plea of false implication. According to them, there were two more persons in the auto when it was stopped. Those two persons alighted from it. The police already had the contraband with them and they were planted with it. The learned trial Court convicted and sentenced the accused, as noticed hereinabove.
4. Mr. Anoop Chitkara, Advocate, appearing on behalf of the accused, has vehemently argued that the prosecution has failed to prove its case against the accused. On the other hand, Mr. M.A.Khan, Addl.
AG, for the State has supported the judgment of the learned trial Court dated 12.12.2013/26.12.2013.
5. We have heard learned counsel for both the sides and gone through the judgment and records of the case carefully.
6. PW-1 HC Tilak Raj deposed that on 4.5.2011, at about 7:30 AM, he alongwith HC Neel Kanth, HHC Laiq Ram and Const. Brij Lal went in govt. vehicle towards NH-22 at place Nogli. A secret information was received by SI Rattan Singh that Nikka Ram and Dhyan Singh, resident of Banzar, wearing blue jean pants and green T shirts, were coming in some vehicle from Nirmand to Rampur with the contraband. The gist of the ::: Downloaded on - 15/04/2017 18:33:40 :::HCHP 5 information was recorded under Section 42(2) of the ND & PS Act and sent through HHC Laiq Ram to Dy. S.P (CID) Bharari. Thereafter, they .
headed towards 'Wazir Bawdi' and laid a naka. They checked heavy and light vehicles coming from Nirmand side. At about 9:00 AM, a three wheeler bearing No. HP-50-0683 came from Nirmand side. The accused persons were informed about their right to get searched before the Gazetted Officer or Magistrate. They opted to be searched by the police.
Seizure memo was prepared vide Ext. PW-1/A. Thereafter, the Khakhi coloured Pithu bag on which word "Diesel" was inscribed was checked by the IO. It contained one taped wrapper of light yellow colour in which black coloured substance was found in the shape of sticks and chapatti.
It was found to be charas. It weighed 1 Kg. 600 gms. Thereafter, the recovered charas was put in the same Pithu bag and sealed with seal impression "S" (8 numbers) and taken into possession vide seizure memo Ext. PW-1/B. Thereafter, IO had conducted the personal search of accused Dhyan Singh. He was found tying one tape wrapper of light yellow colour with his waist. It was checked and found to be charas. It weighed 1 kg. 780 gms. The charas was put into the same tape wrapper and put in white coloured cloth and made into a parcel and sealed with seal impression "S". The charas was taken into possession vide seizure memo Ext. PW-1/B. The seal after use was handed over to independent witness Roshan Lal. The IO filled in the NCB forms in triplicate on the ::: Downloaded on - 15/04/2017 18:33:40 :::HCHP 6 spot. The IO also prepared the spot map. The case property was produced in the Court, while examining him by the learned APP.
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7. PW-4 HHC Laiq Ram, also deposed the manner in which the accused were apprehended, search, seizure and sealing proceedings were completed on the spot. IO Rattan Singh received secret information and he prepared the 'reasons of belief' under Section 42(2) of the Act. It was handed over to him to give the same to Dy. SP (CID), Crime Shimla. He proceeded to Shimla by bus at about 8:45 PM.
8. PW-5 HC Pradeep Kumar deposed that Laiq Ram handed over to him a copy of 'reasons of belief', which he immediately produced before the Dy. SP, Sunil Negi, CID (Crime).
9. PW-6 HC Prakash Chand deposed that SHO Balbir Singh handed over to him rukka written by SI Rattan Singh for registration of FIR. He entered the rukka and FIR No. 11 of 2011 was registered on the same day. At about 6:40 PM, SI Balbir Singh handed over to him the case property of this case i.e. two parcels, out of which, one parcel was resealed with 5 seals of impression "N" allegedly containing one parcel sealed with 8 seals of impression "S" in which 1 kg. 600 gms. charas was contained. The other parcel was also sealed with 5 seals of impression "N" in which one parcel containing 1 kg. 780 gms. charas sealed with 8 seals of impression "S" was handed over to him alongwith the sample seals "S" and "N", NCB forms in triplicate, copy of seizure memo and reseal certificate to be deposited in the malkhana. He made entry of the ::: Downloaded on - 15/04/2017 18:33:40 :::HCHP 7 same in the malkhana register at Sr. No. 45. The extracts of the malkhana register are Ext. PW-6/A and Ext. PW-6/B. He proved copy of .
RC vide Ext. PW-6/C.
10. PW-9 Roshan Lal is the independent witness. According to him, when he reached at 'Wazir Bawdi', there were four passengers with him in the three wheeler. Four-five persons in civil dress signaled to stop the three wheeler. He stopped the same. Two of the passengers ran away. One bag was lying on the side of the road. The police took into possession his three wheeler and bag. The accused persons were also taken by the police to Nogli from his three wheeler in their vehicle. They prepared some documents and obtained his signatures thereon. He was declared hostile. In his cross-examination, he admitted that on 4.5.2011, he was carrying milk in his three wheeler from 'Tikri Kainchi'. He also admitted that when he reached at place Remu, two boys signaled to stop the three wheeler and he stopped the same. They boarded the three wheeler. He also admitted that he alongwith HC Tilak Raj were associated as witnesses. He denied the suggestion that the police had told that they had received information that boys sitting in the three wheeler were having contraband. He denied the suggestion that the accused persons opted to be searched by the police. He also denied that thereafter, the police party gave their personal search to the accused. He identified his signatures on Ext. PW-1/A. He denied the suggestion that khakhi coloured Pithu bag on which word "diesel" was inscribed, on the back of ::: Downloaded on - 15/04/2017 18:33:40 :::HCHP 8 accused Nikka Ram, was checked by the I.O and on checking one tape wrapper of light yellow colour in which black coloured substance was .
found in the shape of sticks and chapatti. He also denied that it was found to be charas. He also denied that the recovered substance was weighed with the help of weight and scale carried by the police in the IO kit and it was found to be 1 kg. 600 gms charas. He also denied that the recovered charas was put in the same Pithu bag and sealed with seal impression "S" (8 seals). He denied that the parcel was taken into possession vide seizure memo Ext. PW-1/B. He also denied that the IO conducted the personal search of accused Dhyan Singh. He further denied that during the search, the accused had tied one tape wrapper of light yellow colour with his waist and on checking the tape wrapper, black coloured substance in the shape of sticks and chapatti was found and on smelling it was found to be charas. He also denied that the substance was weighed and was found to be 1 kg. 780 gms. charas. He further denied that the recovered charas was put in the same tape wrapper and was put in a white coloured cloth and made into a parcel and sealed with 8 seals of impression "S". He denied that the seal after use was handed over to him. He also denied that seizure memo Ext. PW-1/B was prepared by the police in his presence and the contents were read over and explained to him. He admitted his signatures on Ext. PW-1/E. In his cross-examination by the learned Advocate appearing on behalf of the accused, he testified that the papers on which his signatures were ::: Downloaded on - 15/04/2017 18:33:40 :::HCHP 9 obtained were not read over to him by the police. He only put his signatures at the instance of the police as the police had threatened him .
to impound his three wheeler and to implicate him in this case. He signed the papers under the fear of being implicated in this case falsely.
11. PW-10 HC Bala Ram has taken the parcels to FSL Junga vide RC No. 31 of 2011.
12. PW-11 SI Balbir Singh deposed that Constable Neel Kanth brought a rukka Ext. PW-11/A for registration of the case alongwith the case property and FIR Ext. PW-11/B was registered. One parcel sealed with 8 seal impressions of seal "S" containing charas weighing 1 kg. 600 gms. was wrapped in a separate piece of cloth and second parcel sealed with 8 seals of "S" allegedly containing charas 1 kg. 780 gms., wrapped in a separate piece of cloth were resealed with 5 seals of impression "N" and sample of seal "N" was taken on a piece of cloth vide Ext. PW-11/D. The column Nos. 9 to 11 of NCB form Ext. PW-6/C were filled in by him. Re-
sealing certificate was prepared. The parcel alongwith the samples of seals "S" and "N", NCB forms in triplicate, seizure memo, certificate of resealing were handed over to MHC Prakash Chand to keep in a safe custody.
13. PW-12 SI Rattan Singh deposed the manner in which the accused were apprehended, search, seizure and sealing proceedings were completed on the spot. In his cross-examination, he admitted that he had issued single notice to both the accused persons, apprising them of their ::: Downloaded on - 15/04/2017 18:33:40 :::HCHP 10 right to be searched before the gazetted officer or the Executive Magistrate.
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14. PW-13 ASI Neel Kanth, also deposed the manner in which the accused were apprehended, search, seizure and sealing proceedings were completed on the spot, including filling up of NCB forms. The IO prepared the rukka Ext. PW-11/A and it was handed over to him alongwith two parcels. He handed over the rukka to MHC for registration of case alongwith the case property for keeping in the safe custody.
15. The case of the prosecution, precisely, is that the three wheeler was signaled to stop. It was coming from Nirmand towards Rampur side. It was driven by PW-8 Roshan Lal. The bag carried by accused Nikka Ram was searched. It contained charas. On the personal search of accused Dhyan Singh, charas was also recovered. The same was produced before PW-11 SI Balbir Singh. He resealed the same and produced before the MHC for safe custody. The contraband was sent for chemical examination at FSL Junga.
16. The accused were given joint option as per the contents of PW-1/A, to be searched either before the Executive Magistrate or the Gazetted Officer. It is settled law by now that the option is to be given to the accused to be searched before the Executive Magistrate or the gazetted Officer individually. It has vitiated the trial.
::: Downloaded on - 15/04/2017 18:33:40 :::HCHP 1117. Their lordships of the Hon'ble Supreme Court in the case of State of Rajasthan vrs. Parmanand and another, reported in (2014) .
5 SCC 345, have held as follows:
"17. In our opinion, a joint communication of the right available under Section 50(1) of the NDPS Act to the accused would frustrate the very purport of Section 50. Communication of the said right to the person who is about to be searched is not an empty formality. It has a purpose. Most of the offences under the NDPS Act carry stringent punishment and, therefore, the prescribed procedure has to be meticulously followed. These are minimum safeguards available to an accused against the possibility of false involvement. The communication of this right has to be clear, unambiguous and individual. The accused must be made aware of the existence of such a right. This right would be of little significance if the beneficiary thereof is not able to exercise it for want of knowledge about its existence. A joint communication of the right may not be clear or unequivocal. It may create confusion. It may result in diluting the right. We are, therefore, of the view that the accused must be individually informed that under Section 50(1) of the NDPS Act, he has a right to be searched before a nearest gazetted officer or before a nearest Magistrate. Similar view taken by the Punjab & Haryana High Court in Paramjit Singh and the Bombay High Court in Dharamveer Lekhram Sharma meets with our approval."
18. The case of the prosecution has not been supported by independent witness PW-9 Roshan Lal. According to him, no recovery ::: Downloaded on - 15/04/2017 18:33:40 :::HCHP 12 was made from the Pithu bag carried by accused Nikka Ram and body of Dhyan Singh. He was made to sign the papers under threat by the police.
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19. The case property was produced in the Court, while examining PW-1 HC Tilak Raj. The case property has been produced before the Court by the learned APP. The prosecution has not proved as to when the case property was withdrawn from the malkhana. It is mandatory that as and when the case property is deposited or taken out from the malkhana, corresponding entry has to be made in the malkhana register. No DDR was also prepared when the case property was taken out from the malkhana and produced before the Court and when it was re-deposited in the malkhana after its production before the Court. We have gone through the extract of malkhana register Ext. PW-6/A and Ext.
PW-7/B. In ND & PS cases, it is necessary to ensure the safe custody of the case property from its seizure till its production in the Court. Who has produced the case property before the Court has also not been proved. It casts doubt as to whether it was the same case property which was seized from the accused persons and produced before the Court in the absence of entry made in the malkhana register at the time of withdrawal and re-deposit in the malkhana or it was the case property of some other case.
20. Thus, the prosecution has failed to prove the case against the accused persons for the commission of offence punishable under Section 20 of the N.D & P.S., Act.
::: Downloaded on - 15/04/2017 18:33:40 :::HCHP 1321. Accordingly, in view of the analysis and discussion made hereinabove, both the appeals are allowed. Judgment and order of .
conviction and sentence dated 12.12.2013 and 26.12.2013, respectively, rendered by the learned Special Judge, Kinnaur at Rampur Bushahr, H.P., in Sessions trial No. 0100026/2011, is set aside. Accused are acquitted of the charges framed against them. Fine amount, if any, already deposited by the accused is ordered to be refunded to them.
Since the accused are in jail, they be released forthwith, if not required in any other case.
22. The Registry is directed to prepare the release warrants of the accused and send the same to the Superintendent of Jail concerned, in conformity with this judgment forthwith.
( Rajiv Sharma ), Judge.
July 14, 2015, ( Sureshwar Thakur ),
Judge.
(karan)
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