Himachal Pradesh High Court
State Of H.P vs Mohan Lal on 19 September, 2016
Author: Rajiv Sharma
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 206 of 2012.
.
Reserved on: September 16, 2016.
Decided on: September 19, 2016.
State of H.P. ......Appellant.
Versus
Mohan Lal .......Respondent.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
of
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? 1 Yes.
For the appellant: Mr. M.A.Khan, Addl. AG.
For the respondent: Mr. Sanjeev Bhushan, Sr. Advocate with Ms. Abhilasha
Kaundal, Advocate.
rt
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Justice Rajiv Sharma, J.
The State has come in appeal against the judgment dated 31.5.2011, rendered by the learned Special Judge (FTC), Kullu, H.P., in Sessions Trial No. 51/2010, whereby the respondent-accused (hereinafter referred to as the accused), who was charged with and tried for offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act), has been acquitted.
2. The case of the prosecution, in a nut shell, is that on 16.2.2010 at about 8:10 PM at place known as "Fagu Bridge" Inspector SHO along with HC Purshotam, HHC Hem Raj and HHG Sher Singh was going towards Larji in official vehicle in connection with patrolling duty. When the police party reached near Fagu bridge, they noticed one boy standing on the bridge. On seeing the police vehicle, he turned 1 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:15:11 :::HCHP 2towards Ghambhir road and tried to run down towards the rivulet. The police party became suspicious and nabbed the accused. The boy .
disclosed his identity. SHO suspected that the boy was carrying some narcotic substance. The place was isolated. The police waited for sometime, but when neither any vehicle nor any person passed through the road, SHO joined HC Purshotam and HHC Hem Raj as witnesses.
of The accused was apprised of his right to be searched either before a Gazetted Officer or a Magistrate. He consented to be searched by the rt police present at the spot. SHO gave his personal search. Thereafter, search of the accused was conducted and during his search one polythene envelope from the inner pocket of brown coloured coat of accused was recovered. From the envelope, marble shaped black substance was recovered. It was found to be charas. It weighed 250 grams. The same was wrapped in white coloured cloth and sealed with five impressions of seal "H". NCB-I form in triplicate was filled in and impression of seal on separate pieces of cloth was also taken. Recovery memo was prepared. Rukka was sent to the Police Station through HHC Hem Raj, on the basis of which, FIR was registered. I.O.
deposited the case property with MHC along with other relevant documents at Police Station. The case property was sent to FSL, Junga. The report of the Chemical Examiner was procured. The investigation was completed and the challan was put up before the Court after completing all the codal formalities.
::: Downloaded on - 15/04/2017 21:15:11 :::HCHP 33. The prosecution, in order to prove its case, has examined as many as nine witnesses. The accused was also examined under .
Section 313 Cr.P.C. According to him, he was falsely implicated. He denied the prosecution case in entirety. The learned trial Court acquitted the accused, as noticed hereinabove. Hence, this appeal.
4. Mr. Mr. M.A.Khan, Addl. AG, has vehemently argued that of the prosecution has proved its case against the accused. On the other hand, Mr. Sanjeev Bhushan, Sr. Advocate for the accused has
5. rt supported the judgment of the learned trial Court dated 31.5.2011.
We have heard the learned counsel for both the sides and have also gone through the judgment and records of the case carefully.
6. PW-1 HHC Hem Raj testified that on 16.2.2010, he along with HC Purshotam and HHG Sher Singh was accompanying Insp.
Prem Dass. They reached at Fagu bridge at about 8:10 PM. They noticed one boy standing on the bridge. On seeing the police vehicle, the boy turned towards Ghambhir road and tried to run away down towards the nullah (rivulet). The police party became suspicious and nabbed the accused. The boy disclosed his identity. The place was isolated. Insp. SHO suspected that the boy was carrying some narcotic substance. The police party waited for arrival of some vehicle passing through the road, but when neither any vehicle nor any person passed through the road, SHO joined him and HC Purshotam as witnesses. In their presence, the accused was apprised of his right to be searched ::: Downloaded on - 15/04/2017 21:15:11 :::HCHP 4 either before a Gazetted Officer or a Magistrate. The accused consented to be searched by the police present at the spot. Consent memo Ext.
.
PW-1/A was prepared to this effect. Insp./SHO gave his personal search but nothing incriminating was recovered and memo Ext. PW-
1/B was prepared. Thereafter, personal search of the accused was conducted and during his search one round shaped material kept of inside the polythene envelope from the left pocket of coat of accused was recovered. It was found to be charas. It weighed 250 grams. The rt same was wrapped in white coloured cloth and sealed with five impressions of seal "H". NCB-I form in triplicate was filled in and impression of seal on separate pieces of cloth was also taken. Recovery memo was prepared. Rukka was sent to the Police Station through HHC Hem Raj, on the basis of which, FIR was registered. In his cross-
examination, he deposed that he did not know when the last bus starts from Kullu to Banjar but deposed that last bus from Banjar to Kullu starts at 6:00 PM. He along with Purshotam Lal was associated by the I.O. He did not remember that there were 9-10 houses in village Jol.
He did not remember the exact distance between Village Jol and the bridge. He did not remember that village Bihali was also situated by the side of Ghambhir road. He admitted that cemented stairs also originate from other side of the bridge. He did not remember that house of Gurbachan Singh was situated near the foot path which originates from other side of the bridge. He did not know that five ::: Downloaded on - 15/04/2017 21:15:11 :::HCHP 5 houses of sons of Mal Singh were also situated on the other side of the bridge. He denied that village Trigyali was at a distance of 1 km. from .
the spot. Voluntarily deposed that it was more than 1 km. The SHO came out from the vehicle first and ran towards the accused and thereafter other police officials followed him. There was no street light at the place of incident. The accused ran about 15-20 paces and then of climbed down. He did not remember as to how far the accused went down from the bridge towards the rivulet. SHO nabbed the accused rt first. They waited for the arrival of vehicle and people passing through that place for 15 minutes only. He admitted that SDM and Tehsildar are also housed at Banjar. Consent memo Ext. PW-1/A was in the hand writing of HC Purshotam which was dictated by the SHO.
7. PW-2 HC Purshotam testified the manner in which the accused was apprehended near the bridge and all the codal formalities were completed on the spot. In his cross-examination, he deposed that new bus stand was about 1 km. from the Police Station and old one was about 200 meters from the Police Station. The distance of village Sidhwan from Police Station was about 2 kms. He did not remember the distance from Police Station to Village Trigyali. Fagu bridge was about 7 kms from the Police Station. He did not know that village Bihali was about 400 meters from Fagu bridge. He did not know that there were 4-5 families in village Bihali. He admitted that there were 10-12 houses at village Jol. He also admitted that there was pucca ::: Downloaded on - 15/04/2017 21:15:11 :::HCHP 6 path situated on other side of bridge leading to some village. He did not know that the house of Gurbachan Singh was situated on the other .
side of Fagu bridge. He also testified that the accused was nabbed by the SHO.
8. PW-4 HC Chaman Lal testified that on 16.2.2010, Insp./SHO Prem Dass handed over one parcel containing 250 grams of of charas sealed with five seal impressions of seal "H" along with the sample seals and NCB form in triplicate. Insp./SHO Prem Dass rt handed over these articles to him at 11:50 PM. He made entry of the same in the relevant register at Sr. No. 124 vide Ext. PW-4/A. On 18.2.2010, he handed over the case property along with the relevant documents to Const. Vijay Kumar for depositing the same with FSL, Junga vide RC No. 26/10.
9. PW-6 Const. Vijay Kumar deposed that on 18.2.2010, MHC Chaman Lal handed over to him one parcel containing 250 grams of charas sealed with five seal impressions of seal "H" along with the sample seal, NCB form in triplicate and other relevant documents vide RC No. 26/10 with direction to deposit the same at FSL, Junga. He handed over the same to the official of FSL, Junga and handed over the receipt to the MHC.
10. PW-9 Insp./SHO Prem Dass also deposed the manner in which the accused was apprehended on 16.10.2010 at 8:00 PM. He gave his personal search to the accused in the presence of witnesses.
::: Downloaded on - 15/04/2017 21:15:11 :::HCHP 7Thereafter, personal search of accused was conducted and during his search one polythene transparent envelope from the left pocket of coat .
was recovered. It was found to be charas. It weighed 250 grams.
Rukka Ext. PW-8/A was sent to the Police Station through HHC Hem Raj, on the basis of which, FIR Ext. PW-8/B was registered at PS Banjar. In his cross-examination, he deposed that HHC Hem Raj of chased the accused and he was apprehended by Hem Raj and Purshotam. The accused was apprehended at about 10 mtrs. below rt towards river side from the road. The accused ran about 25 meters from the place where he was standing before running towards river side. He has arrested the accused after sending the rukka to the Police Station. HHC Hem Raj handed over the case file to him at 11:00 PM at the spot. He denied the suggestion that some houses were visible from the place of incident. He denied that house of Gurbachan Singh was visible from the spot. He did not know that 5-6 houses were also situated near to the house which belongs to the children of Mal Singh.
According to him, village Trigyali was about 1 ½ km. before Fagu bridge. He denied that village Bihali was also near to the spot.
Volunteered that it was about 2 kms. away from the spot.
11. According to PW-1 HHC Hem Raj, Insp. /SHO Prem Singh nabbed the accused. PW-2 HC Purshotam also deposed that the accused was nabbed by PW-9 Insp./SHO Prem Dass. However, PW-9 Insp./SHO Prem Dass deposed that HHC Hem Raj chased the accused ::: Downloaded on - 15/04/2017 21:15:11 :::HCHP 8 and he was apprehended by Hem Raj and Purshotam. The prosecution has not examined any independent witness. The case of the .
prosecution is that the place where the accused was apprehended was isolated and desolate and no vehicle passed through the bridge at the relevant time. However, it has come on record in the statement of PW-1 HHC Hem Raj that he took lift in the private vehicle to Police Station, of Banjar.
12. PW-1 HHC Hem Raj has categorically testified in his cross-
Police Station.
rt examination that the accused was arrested before he took rukka to the However, PW-9 Insp./SHO Prem Dass deposed that accused was arrested after sending the rukka to the Police Station.
PW-1 HHC Hem Raj deposed that he handed over the case file to SHO when he reached at the Police Station. However, PW-9 Insp./SHO Prem Dass deposed that PW-1 HHC Hem Raj has handed over the case file to him on the spot. These are major contradictions in the statements of the official witnesses.
13. PW-1 HHC Hem Raj deposed that he has taken lift in the private vehicle to reach Police Station, Banjar. Thus, it is evident that it was a busy road and police could easily associate independent witnesses at the time of search, seizure and sealing proceedings on the spot. The police officials instead of denying the suggestions in their cross-examinations have testified that they did not remember or that they did not know whether human habitation was nearby the place ::: Downloaded on - 15/04/2017 21:15:11 :::HCHP 9 where the accused was apprehended. Thus, no credence can be given to the statements of the official witnesses.
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14. The prosecution has failed to prove that the charas weighing 250 grams was recovered from the conscious and exclusive possession of the accused and thus this Court has no occasion to interfere with the well reasoned judgment of the learned trial Court of dated 31.5.2011.
15. Accordingly, there is no merit in this appeal and the same is dismissed.
rt ( Rajiv Sharma ),
Judge.
September 19, 2016, ( Sureshwar Thakur ),
(karan) Judge.
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