Himachal Pradesh High Court
State Of H.P vs Surender Kumar & Ors on 7 July, 2016
Author: Rajiv Sharma
Bench: Rajiv Sharma, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 589 of 2008.
Reserved on: July 05, 2016.
.
Decided on: July 07, 2016.
State of H.P. ......Appellant.
Versus
Surender Kumar & ors. .......Respondents.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
of
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting? 1 Yes.
For the appellant: Mr. V.S.Chauhan, Addl. AG with Mr. Vikram Thakur, Dy.
AG and Mr. Puneet Rajta, Asstt. AG.
For the respondents:rt Mr. Manoj Pathak, Advocate, for respondent No. 1.
Mr. Ashish Verma, Advocate, vice counsel for respondents
No. 2 & 3.
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Justice Rajiv Sharma, J.
The State has come in appeal against the judgment dated 6.6.2008, rendered by the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, H.P., in Sessions trial No. 11 of 2007, whereby the respondents-accused (hereinafter referred to as the accused), who were charged with and tried for offences punishable under Sections 20 & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ND & PS Act), have been acquitted.
2. The case of the prosecution, in a nut shell, is that on 6.11.2006, at about 3:00 AM, SI Balwant Singh, Police Post Luhri along with other police officials was on nakabandi at Kot nullah. Maruti car bearing registration No. HR-20E-0102 came from Chhonti side and the 1 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 20:46:12 :::HCHP 2police stopped the car to check documents. Accused Tara Chand was driver of the car. Accused Surinder Kumar was sitting on the front seat .
of the car. Accused Surinder Kumar tried to hide the bag in the car.
The accused were apprised of their right to be searched before a Magistrate or gazetted officer vide Ext. PW-5/A. The search of the bag was carried out. It contained charas. It weighed 4 kg. 500 grams. in the of shape of balls and sticks. Out of the recovered charas, two samples of 25 grams each were taken out and sealed in separate parcels with seal impression "H" and bulk of charas was also sealed separately with rt impression "H". NCB form in triplicate was filled in at the spot. The specimen impression was also taken on separate cloth. Rukka Ext. PW-
11/E was prepared and sent to the Police Station, upon which FIR Ext.
PW-3/A was registered. The case property was deposited with MHC of the Police Station. It was sent to chemical examination. It was found to be charas vide report Ext. PY. The investigation was completed and the challan was put up before the Court after completing all the codal formalities.
3. The prosecution, in order to prove its case, has examined as many as eleven witnesses. The accused were also examined under Section 313 Cr.P.C. According to them, they were falsely implicated.
The learned trial Court acquitted the accused, as noticed hereinabove.
Hence, this appeal.
4. Mr. V.S.Chauhan, Addl. AG has vehemently argued that the prosecution has proved its case against the accused. On the other hand, ::: Downloaded on - 15/04/2017 20:46:12 :::HCHP 3 Mr. Manoj Pathak Advocate appearing for respondent No. 1 and Mr. Ashish Verma, Advocate appearing vice counsel for respondents No. 2 & .
3 have supported the judgment of the learned trial Court dated 6.6.2008.
5. We have heard the learned counsel for both the sides and have also gone through the judgment and records of the case carefully.
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6. PW-1 HHC Neel Chand deposed that on 20.11.2006 MHC Pushap Dev handed over to him one sealed parcel along with sample of seals, vide RC No. 67/06 which he took to CFSL, Chandigarh. It was rt sent back with objection and he again deposited the same with MHC PS Ani on 22.11.2006. On 23.11.2006, the samples were again handed over to him and he deposited the same at CFSL, Chandigarh on 24.11.2006 under receipt. In his cross-examination, he deposed that the objection raised at Chandigarh was oral. The officials of CFSL, Chandigarh told him that NCB form was old and he was asked to bring the report on new form. New NCB form was filled in at PS Anni and then the same was taken to CFSL, Chandigarh.
7. PW-3 Insp. Daya Sagar, testified that on 6.11.2006 HC Darshan Singh brought rukka to the Police Station and he recorded FIR Ext. PW-3/A. On the same day at 12:45 PM, SI Balwant Singh produced before him three sealed parcels stated to be containing charas, which were sealed with seal impression "H" and thereafter, he resealed all the three parcels with seal "X". He filled in column No. 11 of the NCB form.
Thereafter, he handed over the sealed parcels along with NCB form to ::: Downloaded on - 15/04/2017 20:46:12 :::HCHP 4 MHC PS Ani. There was objection regarding NCB form from CFSL, Chandigarh and new NCB form was filed in upon which his signatures .
are Ext. PW-3/B.
8. PW-5 Const. Mukesh Kumar testified that at 3:00 AM, one maruti car came from Chhonti side. It was signaled to stop. The documents of the vehicle were checked. The driver disclosed his of identity. Another person sitting with the driver was accused Surinder Kumar. He was carrying bag on his lap. One person was sitting on the rear seat, who disclosed his name as Mani Ram. The name of the driver rt was Tara Chand. The accused consented to be searched before the police. Search of the bag was carried out. It contained charas. It weighed 4 kg. 500 grams. All the codal formalities were completed on the spot. I.O. sent rukka to PS Anni through HHC Darshan Singh. In his cross-examination, he deposed that the consent was obtained from all the three accused persons and memos were prepared from all the accused persons. He denied the suggestion that NCB form was filled up in his presence. NCB form was filled in at the spot. In his cross-
examination by Mr. Swadesh Kainthla, Advocate, he denied the suggestion that the bag Ext. P-1 was not searched in presence of accused Tara Chand. He also denied that no charas was recovered from accused Tara Chand. In his cross-examination by Mr. Puneet Gupta Advocate, he denied the suggestion that the accused were falsely implicated.
::: Downloaded on - 15/04/2017 20:46:12 :::HCHP 59. PW-6 HHC Darshan Singh deposed the manner in which the car was intercepted, charas was recovered and codal formalities were .
completed on the spot. In his cross-examination by Mr. Ramesh Negi, Advocate, he admitted that village Kot was at a distance of 3 minute walk from Kot Nullah. He also admitted that village Chhonti was at a distance of 1.5 km. from the spot. He denied the suggestion in the of cross-examination by Mr. Swadesh Kainthla and Mr. Puneet Gupta, Advocates that nothing was recovered in the presence of accused Tara Chand. rt
10. PW-7 HC Pushap Dev deposed that on 18.11.2006, MHC Lal Chand handed over to him case property along with samples, sample seals and NCB form. He sent one of the sample along with the NCB form and sample of seal through Const. Neel Chand to CFSL, Chandigarh on 20.11.2006 vide RC No. 67/06. MHC Neel Chand came back from CFSL, Chandigarh on 22.11.2006 and told that CFSL, Chandigarh had raised objection. He called S.I. Balwant Singh from PP Luhri to fill the new NCB form. S.I. Balwant Singh came and filled the new NCB form. On 23.11.2006, he again sent the samples along with new NCB form to CFSL, Chandigarh through HHC Neel Chand, who deposited the same there under receipt.
11. PW-8 MHC Gulab Chand deposed that MHC Lal Singh handed over one parcel of sample weighing about 25 grams duly sealed with seal impression "H" and "X" along with NCB form in triplicate vide RC No. 61/06 dated 13.11.2006, which he took to CFSL, Chandigarh ::: Downloaded on - 15/04/2017 20:46:12 :::HCHP 6 but the same were brought back as objection was raised by CFSL, Chandigarh. He deposited the same back with MHC On 16.11.2006.
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12. PW-10 ASI Lal Singh deposed that on 6.11.2006 SI Daya Sagar handed over to him two sealed parcels containing 25 grams charas each and sealed with seal "H" and resealed with seal "X" along with one parcel of bulk charas containing 4.450 Kg charas, duly sealed of with seal "H and resealed with seal "X". The parcels were deposited with him along with NCB form in triplicate. The same were deposited by him in the malkhana.
rt On 13.11.2006, the samples of seal and parcel of charas along with NCB form were handed over by him to HHC Gulab Chand for depositing the same with CFSL, Chandigarh vide RC No. 61/06, copy of which is Ext. PW-10/A. The parcels were received back with oral objection on 16.11.2006 and the same were kept deposited in malkhana of PS Anni.
13. PW-10-A SI Balwant Singh also deposed the manner in which the maruti car was intercepted, charas was recovered from the possession of the accused Surender Kumar. The bag carried by accused Surender Kumar was searched. It contained charas. All the codal formalities were completed on the spot. New NCB form was filled by him vide Ext. PW-3/B. He filled in column Nos. 1 to 8 and columns No. 9 to 11 were filled by SHO Daya Sagar. The resealing was done by SHO PS Ani and he deposited the case property with MHC. In his cross-
examination, he deposed that NCB form PW-10/B was not tagged with case file inadvertently, but it remained in police file. He had gone to PS ::: Downloaded on - 15/04/2017 20:46:12 :::HCHP 7 Anni on 23.11.2006 and on the same day he filled the columns No. 1 to 8 and SHO Daya Sagar filled column No. 9 to 12. He denied the .
suggestion that no charas was recovered from the accused.
14. The accused were acquitted by the learned trial Court on the premise that Section 42 of the ND & PS Act has not been complied with.
Independent witnesses, though available were not examined. There is of variation in the contents of new NCB form Ext. PW-3/B vis-à-vis old format Ext. PW-10/B. The vehicle in which the accused were travelling was intercepted at 3:00 AM, which was coming from Chhonti side rt towards Luhri. It was a chance recovery. The police had no prior information that charas was being transported. Thus, Section 42 of the ND & PS Act was not required to be complied with.
15. Their lordships of the Hon'ble Supreme Court in the case of Hamid Bhai Azambhai Malik vs. State of Gujarat, reported in (2009) 3 SCC 403, have held that Section 42 of the ND & PS Act is invocable only if search is made by police officer or authority concerned, upon prior information. When such information or intimation or knowledge comes to the notice of investigating Officer in the course of regular patrolling or investigation of some other offence, it is not necessary to follow the conditions incorporated in Section 42 in all cases. It has been held as follows:
"12. Coming to the factual background it has to be noted as follows:
The search was made by the raiding party at about 4.30 P.M. on 15. 12.1995. Section 42 will be invocable only if the search is made by the police officer or the concerned authority, upon the prior ::: Downloaded on - 15/04/2017 20:46:12 :::HCHP 8 information. If such a person has reason to believe from personal knowledge or information given by any person and obliged to take down in writing as such the information about the accused having .
possessed of and dealing with contraband article like 'charas' came to be appraised of by the concerned PSI Mr. K,D,Pandya, LCB Branch of Bharuch Police Station, in course of his investigation of an offence, registered vide CR No.II-135 of 1995. Therefore, it is settled proposition of law when such an information or intimation or knowledge comes to the notice of the Investigating officer in course of the regular patrolling or an investigation of some other offence, it is not necessary to follow in all cases the conditions incorporated in Section 42."
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16. Thus, in the instant case, the learned trial Court has erred in law by holding that Section 42 of the ND & PS Act was not complied with.
17. rt The maruti car was intercepted at 3:00 AM. The place was isolated and desolate. No independent witnesses could be present at 3:00 AM, though PW-6 HHC Darshan Singh has stated that village Kot was at a distance of 3 minute walk from Kot Nullah. He also admitted that village Chhonti was at a distance of 1.5 km. from the spot. The statements of official witnesses, as stated hereinabove, are trustworthy and inspire confidence.
18. The learned trial Court has given undue importance by comparing contents of NCB form Ext. PW-10/B vis-à-vis new format Ext.
PW-3/B. According to the old format of NCB form also, the charas was recovered on 6.11.2006 at Kot nullah and two samples of 25 grams each were drawn and the net weight of the contraband was 4.500 kgs. The description of the contraband was also given. It was signed by S.I. Balwant Singh. Ext. Ext. PW-10/B was returned by CFSL, Chandigarh and new NCB form was filled in by PW-10-A SI Balwant Singh. He has ::: Downloaded on - 15/04/2017 20:46:12 :::HCHP 9 filled in column Nos. 1 to 8 of Ext. PW-3/B and columns No. 9 to 11 have been filled in by the SHO. PW-10-A SI Balwant Singh had gone to .
PS Luhri to fill up the new form. Merely that some additional information was supplied in Ext. PW-3/B has not prejudiced the case of the accused since earlier there were only 7 columns in the NCB form and in the new format Ext. PW-3/B, there were 12 columns. The additional of information was required to be supplied. Column Nos. 9 to 11 of Ext.
PW-3/B have been filled in by the SHO and column No. 12 has been filled in by the MHC, PS Anni. The date, time and place of seizure has rt remained the same. The weight of the contraband has also remained the same. The seals were embossed on Ext. PW-3/B as well as on Ext. PW-
10/B. It has come in the statement of PW-5 Const. Mukesh Kumar that the I.O. took two samples of 25 grams each out of the recovered bulk of charas and sealed the bulk and samples in a piece of cloth with seal "H"
and prepared seizure memo Ext. PW-5/C. PW-10-A SI Balwant Singh has also deposed that the charas was put in saffron cloth and said cloth was put in bag and the bag was put in white coloured cloth and was sealed with seal "H". He has produced the case property and accused at Police Station Anni. The SHO re-sealed the case property and put seal on the NCB form and deposited the same with MHC PS Anni. The MHC has also admitted that the case property was sealed with seal "H" and resealed with seal "X".
19. The learned trial Court has also erred in law that the prosecution has failed to prove as to wherefrom the accused collected Rs.
::: Downloaded on - 15/04/2017 20:46:12 :::HCHP 1045,000/-. It has come in the statement of PW-10-A SI Balwant Singh that he made inquiry from accused and they told that they contributed .
Rs. 15,000/- each and purchased the recovered charas for Rs. 45,000/-.
The accused had come to this area for this purpose of purchasing charas. The accused were travelling in the same Maruti car bearing registration No. HR-20E-0102. Two accused, namely, Surender Kumar of and Tara Chand are residents of Narwana, Thesil Narwana, Distt. Jind (Haryana) and accused Mani Ram is resident of Vill. Sulehsa, Tehsil Narwana, Distt. Jind (Haryana). The accused have conspired and agreed rt to buy charas from the area and were travelling in a Maruti car bearing registration No. HR-20E-0102, when their car was intercepted on 6.11.2006 at about 3:00 AM at Kot nullah. Thus, the prosecution has proved its case against the accused beyond reasonable doubt.
20. Accordingly, the appeal preferred by the State is allowed.
The judgment of the trial Court dated 6.6.2008 is set aside. Accused Surender Kumar is convicted under Section 20 of the ND & PS Act.
Accused Tara Chand and accused Mani Ram are convicted under Section 29 of the ND & PS Act. The accused be heard on the quantum of sentence on 18.7.2016. The Registry is directed to prepare and sent the production warrants to the quarter concerned.
( Rajiv Sharma ), Judge.
July 07, 2016, ( Ajay Mohan Goel ),
(karan) Judge.
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