Himachal Pradesh High Court
Surender Kumar Alias Teena And Another vs State Of Himachal Pradesh on 21 November, 2015
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 305/2015
Reserved on: 20.11.2015
Decided on: 21.11.2015
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.
Surender Kumar alias Teena and another ...... Appellants
Versus
State of Himachal Pradesh ........Respondent
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Coram:
of
Hon'ble Mr. Justice Rajiv Sharma, Judge
Hon'ble Mr. Justice Sureshwar Thakur, Judge
Whether approved for reporting? 1 yes.
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For the appellants rt: Mr. H.S. Rangra, Advocate.
For the respondent :
Mr. Ramesh Thakur, Assistant
Advocate General
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Per Rajiv Sharma, Judge:
The instant appeal has been preferred against Judgment/order dated 23.5.2015/25.5.2015, rendered by learned Special Judge, Kinnaur Sessions Division at Rampur Bushahr (HP) in Sessions Trial No. 0100003/2013, whereby the appellants-accused (hereinafter referred to as 'accused' for convenience sake), who were charged with and tried for offence under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'Act' for convenience sake), have been convicted and sentenced to undergo rigorous imprisonment for ten years and to pay a fine 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 19:22:26 :::HCHP 2of `1.00 Lakh, and, in default of payment of fine, to further undergo simple imprisonment for one year.
2. Case of the prosecution, in a nutshell is, that on .
2.1.2013 at about 9 am, police party, headed by HC Amar Singh No. 40, accompanied by HHC Jiwa Nand No. 216, Constable Chand Mishra No. 352 and Constable Ramesh Chand No. 191, left Police Station Nirmand for routine patrol of duty towards Bagipul, Urtu, Bandal and Sarbi. Police officials stayed at village Bandal. On 3.1.2013, while patrolling at Banugad, they came across accused persons sitting at a rt resting place. Accused Surender Kumar was carrying a green coloured bag with red strips. Police officials ascertained their identities. HC Amar Singh made efforts to find out independent witnesses. Constable Chand Mishra was also sent to find out independent witnesses. However independent witnesses could not be located as the place was secluded and deserted. Thereafter, HC Amar Singh constituted a raiding party by associating Chand Mishra and Ramesh Kumar as witnesses. Bag carried by the accused was searched, which led to recovery of a plastic bag containing black coloured substance, which was identified as Charas. Contents of the plastic bag were weighed with the help of an electronic weighing machine. It was found to be 2 kg. Thereafter, contraband was put back in the plastic bag. The plastic was also put in the same bag, which was sealed in cloth parcel by ::: Downloaded on - 15/04/2017 19:22:26 :::HCHP 3 affixing 10 seals of 'T'. It was taken into possession vide separate recovery and seizure memos. NCB form in triplicate was filled in. HC Amar Singh scribed Rukka and sent the same .
through Constable Ramesh Kumar No. 191 to Police Station Nirmand. FIR No. 2/2013 dated 3.1.2013 was registered.
Contraband was produced by HC Amar Singh before SI Het Ram, SHO Police Station Nirmand for resealing. The parcel of sealed with 10 seals of 'T', was resealed with 6 seals of 'A' by SI Het Ram, who also filled in columns No. 10 and 11 of the NCB form. He handed over case property alongwith NCB form-I in rt triplicate and sample seals to HC Pushap Dev. Entries regarding deposit of case property in the Malkhana register were made at Sr. No. 212 of Malkhana register No. 19.
Contraband was sent to FSL Junga through Jiwa Nand.
Investigation was completed. Challan after completing all the codal formalities was put up in the Court.
3. Prosecution has examined as many as 10 witnesses to prove its case against the accused. Accused were also examined under Section 313 CrPC. They pleaded innocence. Trial Court convicted and sentenced the accused as noticed above. Hence, this appeal.
4. Mr. H.S. Rangra, Advocate has vehemently argued that the prosecution has failed to prove its case against the accused.
::: Downloaded on - 15/04/2017 19:22:26 :::HCHP 45. Mr. Ramesh Thakur, Assistant Advocate General, has supported the judgment of conviction.
6. We have heard the learned counsel for the parties .
and also gone through the record carefully.
7. PW-1 Chand Mishra deposed that they found two persons sitting at a resting place at Banugad. They were talking with each other. They suspected that they must be of carrying some contraband with them. He was sent by HC Amar Singh in search of independent witnesses. However, no person was available since it was a secluded place. He came rt back to the spot. HC Amar Singh associated him and Constable Ramesh Kumar in the investigation. The accused disclosed their names as Surender Kumar and Dharam Pal.
Surender Kumar was holding a dark green coloured bag with red strips in his lap. Bag was checked by HC Amar Singh. It contained Charas. The contraband was weighed. It weighed 2 kg. Plastic bag was put into the same bag. It was sealed in a cloth parcel and parcel was sealed by affixing ten seals of 'T'.
IO filled up NCB form. Case property was produced during the examination of PW-1 Chand Mishra. In his cross-examination, he has admitted that he went in search of independent witnesses. The bag was with Surender Kumar when he left and when he came back, then also it was with Surender Kumar.
He has admitted that some persons were grazing cattle at some distance from spot. He did not produce the seal before ::: Downloaded on - 15/04/2017 19:22:26 :::HCHP 5 the Court since it was lost. He has not filed any police report regarding it.
8. PW-2 Ramesh Kumar also deposed the manner in .
which accused were apprehended and codal formalities of search, seizure and sampling were completed at the spot. He has categorically deposed in his examination-in-chief that Surender Kumar was carrying green coloured bag with him.
of
9. PW-3 HHC Jiwa Nand deposed that the MHC Pushap Dev has handed over him one sealed parcel, NCB form as well as sample seals vide RC No. 102/2013 to be deposited rt with FSL Junga. He deposited the same on 5.1.2013 at FSL Junga and gave receipt to MHC. In his cross-examination, he has admitted that he took case property to FSL Junga after making entry. He stayed at Police Training College Junga on 4.1.2013.
10. PW-6 Het Ram also deposed that he recorded FIR Ext. PW-6/A. HC Amar Singh has produced the case property i.e. parcel sealed with 10 seals of 'T', NCB form in triplicate, sample seals as well as accused. He resealed the same by affixing six seals of 'A' and took sample of seal vide Ext. PW-
6/C. He also filled columns No. 10 and 11 of NCB form Ext.
PW-6/D.
11. PW-7 Pushap Dev deposed that SHO Het Ram deposited with him one sealed parcel sealed with 10 seals of 'T' and six seals of 'A' alongwith NCB form and sample seals 'T' ::: Downloaded on - 15/04/2017 19:22:26 :::HCHP 6 and 'A' for depositing in the Malkhana. He made entry in the Malkhana register to this extent vide entry No. 212 and deposited the case property in the Malkhana. The abstract of .
the register is Ext. PW-7/A. In his cross-examination, he has admitted that no time was mentioned in the Malkhana Register when the case property was deposited with him. He could not tell the time when case property was deposited with of him. He also did not remember the time when case property was handed over to Jiwa Nand to be deposited with the FSL Junga. rt
12. PW-10 HC Amar Singh is a material witness.
According to him, he sent Chand Mishra to bring independent witnesses. However, he returned after some time. It was a secluded place. No independent witnesses were available. The person holding the bag disclosed his name as Surender Kumar and the other person disclosed his name as Dharam Pal.
Search, seizure and sealing proceedings were completed at the spot. He filled in the NCB form Ext. PW-6/D, Rukka Ext. PW-
10/A was prepared and sent to the Police Station Nirmand. In his cross-examination also, he has admitted that the bag was outside the shawl in the lap of Surender Kumar. Chand Mishra went in search of independent witnesses firstly on upper side and then on lower side and returned after 15 minutes.
::: Downloaded on - 15/04/2017 19:22:26 :::HCHP 713. PW-1 Chand Mishra has categorically deposed that Surender Kumar was holding a dark green coloured bag with red strips in his lap. In his cross-examination, he has admitted .
that when he went in search of independent witnesses, bag was with Surender Kumar and when he came back then also bag was with Surender Kumar. PW-2 Constable Ramesh has admitted in his examination-in-chief that Surender Kumar was of holding a green coloured bag with him. Though, he also deposed that on asking the accused about the bag, they started shifting the burden on each other. PW-10 Amar Singh rt has deposed that the person holding the bag disclosed his name as Surender Singh son of Karan Singh. In his cross-
examination, he has admitted that the bag was outside the shawl in the lap of accused Surender Kumar. Thus, even as per the Prosecution version, the bag was recovered from the possession of Surender Kumar and not from the possession of Dharam Pal. However, fact of the matter is that Dharam Pal has also been convicted by the trial Court, though the alleged contraband was never recovered from his conscious possession.
14. PW-1 Chand Mishra, in his cross-examination, has admitted that some persons were grazing cattle in the jungle at some distance from the spot. However, despite that, no independent witnesses were associated at the time of search, seizure and sealing proceedings, to inspire confidence in the ::: Downloaded on - 15/04/2017 19:22:26 :::HCHP 8 case of the prosecution. According to PW-1 Chand Mishra, he was sent by HC Amar Singh in search of independent witnesses. However, on search, no person was available. In his .
cross-examination, he has admitted that he came to the place after 25 minutes. He has testified that some persons were grazing cattle at some distance. Thus, these persons could be easily associated as independent witnesses. Statements of PW-
of 1 Chand Mishra, PW-2 Ramesh and PW-10 Amar Singh, that no independent witnesses were available, do not inspire confidence. PW-1 Chand Mishra could easily go to the persons, rt who were grazing cattle to associate them as independent witnesses before search, seizure and sealing process. Thus, the place of occurrence can not be said to be a secluded place.
15. Case property was produced while recording the statement of PW-1 Chand Mishra. It was produced by the Public Prosecutor. Person, who has brought the case property from Malkhana to the Court has not been examined. Entry in the Malkhana register is required to be made to the effect that who has taken the property to the Court, as per Punjab Police Rules, 1934. Para 22.70 of the Punjab Police Rules, 1934, as applicable to the State of H.P., reads as under:
"22.70. Register No. XIX- This register shall be maintained in Form 22.70. With the exception of articles already included in register No. XVI every article placed in the store-room shall be entered in this register and the removal of any such article shall be noted in the appropriate column.::: Downloaded on - 15/04/2017 19:22:26 :::HCHP 9
The register may be destroyed three years after the date of the last entry."
The register is to be maintained in Form 22.70. It reads as under.
.
"FORM NO. 22.70.
POLICE STATION_________
____DISTRICT
Register No. XIX.-Store-Room
Register (Part-I)
Column 1.- Serial No.
2. No. of first information report (if any), from whom taken (if taken from a of person), and from what place.
3. Date of deposit and name of depositor.
4. Description of property.
5. Reference to report asking for order regarding disposal of property. rt 6.7.
How disposed of and date.
Signature of recipient (including person by whom dispatched).
8. Remarks.
(To be prepared on a quarter sheet of native paper)."
16. 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 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 or it was case property of some ::: Downloaded on - 15/04/2017 19:22:26 :::HCHP 10 other case. The prosecution has failed to prove case against the accused under Sections 20 and 29 of the Act.
17. Accordingly, the present appeal is allowed.
.
Judgment/order dated 23.5.2015/25.5.2015, rendered by learned Special Judge, Kinnaur Sessions Division at Rampur Bushahr (HP) in Sessions Trial No. 0100003/2013 is set aside.
Accused are acquitted of the offences under Section 20 of the of Narcotic Drugs & Psychotropic Substances Act, 1985. The accused are ordered to be released forthwith, if not wanted by the police in any other case. Fine amount, if any deposited by rt the accused, be also refunded to them. Registry is directed to prepare the release warrants of the accused and send the same to the concerned Superintendent of Jail forthwith.
(Rajiv Sharma) Judge (Sureshwar Thakur) Judge November 21, 2015 (vikrant) ::: Downloaded on - 15/04/2017 19:22:26 :::HCHP