Himachal Pradesh High Court
Tej Ram vs State Of H.P on 12 October, 2015
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 190 of 2015
Reserved on: October 09, 2015.
Decided on: October 12, 2015.
.
Tej 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.
of
For the appellant: Mr. Vinay Thakur, Advocate.
For the respondent: Mr. P.M.Negi, Dy. AG.
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Justice Rajiv Sharma, J.
This rt appeal is instituted against the judgment dated 10.4.2015, rendered by the learned Special Judge, Chamba, H.P, in Sessions Trial No. 3 of 2013 (44/13), whereby the appellant-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 ND & PS Act), has been convicted and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs. 1,00,000/-
and in default of payment of fine, he was further ordered to undergo simple imprisonment for one year.
2. The case of the prosecution, in a nut shell, is that on 23.12.2012, at 6:30 AM, ASI Rajinder Kumar, I.O Police Post Sultanpur, alongwith HC Raghubir Singh, Const. Dalip Kumar and HHG Harsh Jasrotia and I.O. kit was present at Bataluan Mor near Hanuman Mandir in connection with Nakabandi. In the meantime, Sanjeev Kumar son of ::: Downloaded on - 15/04/2017 19:10:58 :::HCHP 2 Taru Ram, resident of Mangla and Harish Chander son of Tara Chand resident of Obri, Chamba also came there. One person was noticed .
coming from Sultanpur side who was on his way towards Mangla side.
On noticing the police party, he turned back and started running. The person was holding a bag in his right hand, which raised suspicion in the mind of ASI Rajinder Kumar. He suspected that the person might be carrying some contraband or narcotic drugs. The person was nabbed by of the police party at a distance of 40 meters alongwith the bag. The person disclosed his name as Tej Ram. ASI Rajinder Kumar in the presence of rt witnesses Sanjeev Kumar and Harish Chander told accused that his bag was to be searched and that he has a legal right to be searched in the presence of a Magistrate or a Gazetted Officer. Accused told that he is illiterate and only knows how to sign. He told the police that he wanted to be searched in the presence of a Gazetted Officer. The Addl. S.P., Chamba, Kulwant Singh was informed and requested to visit the spot. A consent memo was prepared in this regard. The police officials including the witnesses gave their personal search to the accused and on the direction of Addl. S.P., the bag of the accused was checked which was found to be containing carry bag having black substance in it. It was weighed. It weighed 1 kg 150 grams. Thereafter, the recovered contraband was put in the same carry bag and the other bag in the same manner as it was recovered which was packed in a cloth parcel and sealed with six seals of impression "T". NCB forms in triplicate were filled in.
::: Downloaded on - 15/04/2017 19:10:58 :::HCHP 3Specimen of seal "T" were retained on a separate cloth piece. The seal "T"
after its use was handed over to witness Harish Chander. The charas was .
taken into possession. Rukka was prepared and sent to the Police Station through Const. Dalip Kumar for registration of a case against the accused. FIR was got registered. The case property was produced before ASI Bishambhar Singh for resealing. ASI Bhishambhar Singh resealed the parcel with seal impression "S" and prepared reseal memo. He of deposited the case property with MHC Pawan Kumar. The case property was sent to FSL Junga. The investigation was completed and the challan rt was put up in the Court after completing all the codal formalities.
3. The prosecution, in order to prove its case, has examined as many as 16 witnesses. The accused was also examined under Section 313 Cr.P.C. The accused has denied the prosecution case. His defence was of simplicitor denial. The learned trial Court convicted and sentenced the accused, as noticed hereinabove.
4. Mr. Vinay Thakur, 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. P.M.Negi, Dy. AG, for the State has supported the judgment of the learned trial Court dated 10.4.2015.
5. We have heard learned counsel for both the sides and gone through the judgment and records of the case carefully.
::: Downloaded on - 15/04/2017 19:10:58 :::HCHP 46. PW-1 Sanjeev Kumar, deposed that on 23.12.2012, at about 7:00 AM, he was going to bring vegetable on his scooter. When he .
reached near Bhataluna Nalla, he found that the police had laid a Naka.
In the mean time, one Harish Kumar, who was on morning walk, also came there. He was stopped by the police for checking. The police told him to stop there as they wanted to make him as witness. Nothing had happened in his presence. He was declared hostile and cross-examined of by the learned Public Prosecutor. He denied the suggestion that on 23.12.2012, at about 6:30 AM, the accused came from Obri Mohalla rt towards Bhatalwan temple. He denied that on seeing the police, the accused tried to escape from the spot. He denied that he was carrying a Thela (bag) in his right hand. He also denied the suggestion that the accused was apprehended by the police at a distance of 40 meters from the place of Naka. He also denied the suggestion that the accused disclosed his name as Tej Ram son of Pamtu. He also denied the suggestion that the police gave any option for search to the accused in his presence. He also denied the suggestion that the I.O. informed Addl. S.P, Chamba. He also denied the suggestion that Addl. S.P. Kulwant Singh gave option to the accused for his search. He also denied the suggestion that the bag which the accused was carrying was searched in their presence. He also denied portion D to D of his statement mark 'A" to be correct. According to him, he has not made any such statement. Neither the bag was searched nor the carry bag was found inside the bag. The ::: Downloaded on - 15/04/2017 19:10:58 :::HCHP 5 bag was not opened in their presence. He also denied the suggestion that the carry bag was opened in their presence and cannabis in the shape of .
sticks was found in the carry bag. He also denied the suggestion that the recovered cannabis was again put in the same carry bag and the same was put in a parcel and sealed with six seals of seal "T". He admitted his signatures on memo Ext. PW-1/A. He identified his signatures at Mark "B". His signatures were obtained by the police of Police Post Sultanpur.
of No personal search of the accused was taken by the police in his presence. The case property was produced by the learned P.P. while rt recording the statement of PW-1 Sanjeev Kumar. In his cross-
examination, by the learned Advocate appearing on behalf of the accused, he admitted that he was acquainted with the police people.
7. PW-2 Harish Chander was also declared hostile. He categorically deposed in his examination-in-chief that nothing has happened in his presence. He denied the suggestion that on 23.12.2012, at about 6:30 AM, the accused was coming from Obri Mohalla towards Bhatalwan temple. He denied that on seeing the police, the accused tried to escape from the spot. He denied that he was carrying a Thela (bag) in his right hand. He also denied the suggestion that the accused was apprehended by the police at a distance of 40 meters from the place of Naka. He also denied the suggestion that the bag which the accused was carrying was searched in his presence. He denied portion C to C of his statement mark "B". According to him, he has not made any such ::: Downloaded on - 15/04/2017 19:10:58 :::HCHP 6 statement. He also denied that the accused told the police that he was totally uneducated and he could only sign. He also denied that the IO .
informed the Addl. SP, Chamba about the apprehension of the accused.
He also denied that Addl. SP Kulwant Singh gave option to the accused for his search. He also denied that the bag which was being carried by the accused was searched in his presence. He denied portion D to D of his statement mark "B". No statement was made by him before the police.
of He also denied that in his presence bag was searched and carry bag was found inside the bag which was tied. He also denied that cannabis was rt found in his presence in the shape of sticks. He also denied that the charas was weighed in their presence and it weighed 1 kg. 150 grams. He also denied that the recovered charas was again put in the same carry bag. He also denied that the recovered charas was sealed with six impressions of seal "T". He also denied that the sample of seal "T" was taken on cloth piece by the police and seal after use was handed over to him. He also denied that the recovered charas was taken into possession vide memo Ext. PW-1/A. He identified his signatures on mark "B" and his signatures were obtained at Police Post Sultanpur. In his cross-
examination by the learned Advocate appearing on behalf of the accused, he admitted that he has been made as witness by the police people in number of cases.
8. PW-3 HC Raghubir Singh deposed that on 23.12.2012, he alongwith Const. Dalip Singh HHG Harash Jasrota accompanied ASI ::: Downloaded on - 15/04/2017 19:10:58 :::HCHP 7 Rajinder Kumar in his personal vehicle for Nakabandi alongwith IO kit and home light and laid Naka at Bhatalwan morh near Hanuman Mandir .
at 6:30 AM. The accused was seen coming from Obri Mohalla side. He tried to run away. He was carrying one Thela (bag) in his right hand. On suspicion, he was nabbed and enquiry was made. The accused was informed of his legal right that he has a right to give personal search and the search of his Thela in the presence of Magistrate or a Gazetted Officer.
of The accused told that he is illiterate and only knows to sign and he wanted to give his personal search and that of bag (Thela) to the Gazetted rt Police Officer. Consent memo Ext. PW-3/A was prepared. It was signed by Sanjeev Kumar and Harish Chander in his presence. He also signed the same. Thereafter, Addl. SP Kulwant Singh through wireless set was informed and he reached the spot. The bag was searched. It contained charas. It weighed 1 kg 150 grams. The sealing proceedings were completed on the spot and NCB forms in triplicate were also filled in. The case property was also produced while examining PW-3 HC Raghubir Singh. In his cross-examination, he deposed that first of all search of bag (Thela) of the accused was taken and personal search was taken at the time of his arrest. When the personal search of the accused was taken, the accused was not informed that he has legal right to be searched before the Gazetted Officer or Magistrate.
9. PW-9 HHC Karam Singh deposed that on 23.12.2012 at about 11:00 AM, ASI Rajinder Kumar produced the case property stated ::: Downloaded on - 15/04/2017 19:10:58 :::HCHP 8 to be containing 1 kg 150 grams charas sealed with six seals of seal "T"
along with NCB forms and sample seal before ASI Bishambhar Singh for .
resealing. In his presence, ASI Bishambhar Singh resealed the parcel with three seals of seal "S" and filled in the NCB forms and memo Ext.
PW-9/A was prepared.
10. PW-10 HC Pawan Kumar deposed that on 23.12.2012, ASI Bishambhar Singh handed over to him one parcel stated to be containing of 1 kg 150 grams charas, sealed with six seals of seal "T" and three seals of "S" alongwith sample seals, NCB forms, recovery memo and he entered rt the same in Malkhana register at Sr. No. 723. He sent these articles to FSL Junga through Constable Krishan Kumar.
11. PW-11 Krishan Kumar deposed that he took the samples to FSL Junga and deposited the same on 24.12.2012.
12. PW-13 ASI Rajinder Kumar deposed the manner in which the accused was seen, apprehended, charas was recovered from the accused, search, seizure and sealing proceedings were completed on the spot. In his examination-in-chief, he has categorically deposed that he told the accused that he might be carrying some suspicious substance and his search was required to be taken and he could give his search in the presence of Gazetted Officer, him or the Magistrate. The accused told him that he want to give his search before the higher officer of the Police. He prepared rukka Ext. PW-13/B. It was sent to the Police Station through Const. Dalip Kumar.
::: Downloaded on - 15/04/2017 19:10:58 :::HCHP 913. PW-14 ASI Bishambhar Dass deposed that the case property was produced before him for re-sealing. He resealed the same.
.
14. PW-15 Addl. S.P. Kulwant Singh deposed that on 23.12.2012, he received a message through wireless that ASI Rajinder Kumar, Incharge PP Sultanpur has detained one person namely Tej Ram at Bhatalwan morh near Hanuman temple. He proceeded towards the spot.
He reached the spot at about 7:00 AM. ASI Rajinder Kumar told him that of accused has been detained by the police party he suspected to have some contraband in his bag. He gave his introduction to Tej Ram He ordered rt ASI Rajinder Kumar to conduct search of the bag of the accused. Search, seizure and sealing proceedings were completed on the spot. In his cross-
examination, he deposed that his statement under Section 161 Cr.P.C.
was recorded. He got recorded in his statement under Section 161 Cr.P.C that he has ascertained from the accused whether he wanted to be searched before the Gazetted Officer. Confronted with statement mark "Y", wherein it is not so recorded. Volunteered that he had interrogated the accused on his willing for search. He denied that the accused never opted to be searched before the Gazetted Officer.
15. The case of the prosecution has not been supported by independent witnesses PW-1 Sanjeev Kumar and PW-2 Harish Chander.
According to them, nothing has happened in their presence. The accused was never apprehended. He was not carrying any Thela (bag). No search of the bag was carried out. The carry bag was not opened in their ::: Downloaded on - 15/04/2017 19:10:58 :::HCHP 10 presence and no cannabis was recovered in their presence. it was not weighed in their presence. It has come in the statement of PW-2 Harish .
Chander that he has appeared as witness in many cases.
16. PW-3 HC Raghubir Singh has admitted specifically in his examination-in-chief that the accused was informed about his legal right that he has right to give personal search and that of bag (Thela) in the presence of Magistrate or Gazetted Officer. In his cross-examination, he of has admitted that when the personal search of the accused was taken, the accused was not informed that he has right to be searched before the rt Gazetted Officer or Magistrate. There is a major contradiction in his statement.
17. PW-13 ASI Rajinder Kumar has in his examination-in-chief, categorically deposed that he told the accused that he might be carrying some suspicious substance and his search was required to be taken and he could give his search in the presence of Gazetted Officer, him or the Magistrate. The accused is required to be informed of his legal right to be searched either before the Executive Magistrate or before the Gazetted Officer and not before the Police Officer. There is no provision of third option under the ND & PS Act to be given to the accused. Since the charas has been recovered from the bag, it was not necessary to conduct the personal search of the accused. However, it is evident from the statement of PW-3 HC Raghubir Singh and PW-13 ASI Rajinder Kumar that the personal search of the accused was also undertaken. He was to ::: Downloaded on - 15/04/2017 19:10:58 :::HCHP 11 be told specifically that he has legal right to be searched before the Executive Magistrate or the Gazetted Officer. PW-3 HC Raghubir Singh, .
as noticed hereinabove, in his cross-examination has admitted that when the personal search of the accused was taken he was not informed that he has right to be searched before the Gazetted Officer or Magistrate.
Similarly, illegality has been committed by PW-13 ASI Rajinder Kumar while asking the accused at the time of his personal search as to whether of he wanted to be searched before the Magistrate, Gazetted Officer or before him.
18. rt Their lordships of the Hon'ble Supreme Court in the case of Suresh and others vrs. State of Madhya Pradesh, reported in (2013) 1 SCC 550, have held that in a case where the accused were merely asked whether they would offer their personal search to police officer concerned or to gazetted officer and the appellants gave their consent for their personal search by police officer concerned, it will amount to non-
compliance of Section 50(1) of the ND & PS Act. Their lordships have held as follows:
"16) The above Panchnama indicates that the appellants were merely asked to give their consent for search by the police party and not apprised of their legal right provided under Section 50 of the NDPS Act to refuse/to allow the police party to take their search and opt for being searched before the Gazetted officer or by the Magistrate. In other words, a reading of the Panchnama makes it clear that the appellants were not apprised about their right to be searched before a gazetted officer or a Magistrate but consent was sought for their personal search. Merely asking them as to whether they would offer their personal search to him, i.e., the police officer or to gazetted officer may not satisfy the protection afforded under Section 50 of the NDPS Act as interpreted in Baldev singh's case.::: Downloaded on - 15/04/2017 19:10:58 :::HCHP 12
17. Further a reading of the judgments of the trial Court and the High Court also show that in the presence of Panchas, the SHO merely asked all the three appellants for their search by him and they simply agreed. This is reflected in the Panchnama. Though in .
Baldev Singh's case, this Court has not expressed any opinion as to whether the provisions of Section 50 are mandatory or directory but "failure to inform" the person concerned of his right as emanating from sub-section (1) of Section 50 may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law. In Vijaysinh Chandubha Jadeja's case (supra), recently the Constitution Bench has explained the mandate provided under sub-section (1) of Section 50 and concluded that it is mandatory and requires strict compliance. The Bench also held that failure to comply with the provision would render the recovery of the of illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. The concept of substantial compliance as noted in Joseph Fernadez (supra) and Prabha Shankar Dubey (supra) were not acceptable by the Constitution rt Bench in Vijaysinh Chandubha Jadeja, accordingly, in view of the language as evident from the panchnama which we have quoted earlier, we hold that, in the case on hand, the search and seizure of the suspect from the person of the appellants is bad and conviction is unsustainable in law."
19. In the instant case the accused was to be apprised of his legal right to be searched either before the Gazetted Officer or before the Magistrate and not before the Police Officer.
20. 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 that if merely a bag is carried by person is searched without there being any search of his person, S. 50 will have no application but if bag carried by him is searched and his person is also searched, S. 50 would be attracted. Their lordships have also held that it was improper for PW-10 SI "Q" to tell respondents that a third alternative was available. It has been held as follows:
::: Downloaded on - 15/04/2017 19:10:58 :::HCHP 13"15. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have .
application. In this case, respondent No.1 Parmanand's bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of respondent No.2 Surajmal was also conducted. Therefore, in light of judgments of this Court mentioned in the preceding paragraphs,Section 50 of the NDPS Act will have application.
19. We also notice that PW-10 SI Qureshi informed the respondents that they could be searched before the nearest Magistrate or before a nearest gazetted officer or before PW-5 J.S. Negi, the of Superintendent, who was a part of the raiding party. It is the prosecution case that the respondents informed the officers that they would like to be searched before PW-5 J.S. Negi by PW-10 SI Qureshi. This, in our opinion, is again a breach of Section 50(1) of the NDPS Act. The idea behind taking an accused to a nearest rt Magistrate or a nearest gazetted officer, if he so requires, is to give him a chance of being searched in the presence of an independent officer. Therefore, it was improper for PW-10 SI Qureshi to tell the respondents that a third alternative was available and that they could be searched before PW-5 J.S. Negi, the Superintendent, who was part of the raiding party. PW-5 J.S. Negi cannot be called an independent officer. We are not expressing any opinion on the question whether if the respondents had voluntarily expressed that they wanted to be searched before PW-5 J.S. Negi, the search would have been vitiated or not. But PW-10 SI Qureshi could not have given a third option to the respondents when Section 50(1) of the NDPS Act does not provide for it and when such option would frustrate the provisions of Section 50(1) of the NDPS Act. On this ground also, in our opinion, the search conducted by PW-10 SI Qureshi is vitiated."
21. The case property was produced while recording the statement of PW-1 Sanjeev Kumar, PW-3 HC Raghubir Singh and PW-13 ASI Rajinder Kumar. The extract of copy of the malkhana register is Ext.
PW-10/A. There is entry of the deposit of the contraband on 23.12.2012 and when it was received back from the FSL Junga. There is no entry when the case property was taken out from the malkhana and produced in the Court. There is no DDR recorded when the case property was ::: Downloaded on - 15/04/2017 19:10:58 :::HCHP 14 produced before the trial Court. Similarly, there is no entry when the case property after production in the trial Court was re-deposited in the .
malkhana register. It is necessary for the prosecution to prove that the case property was taken out from the malkhana for the production in the Court and also preparing DDR to this effect and the same process is to be undergone when the case property after its production in the Court is taken back and deposited in the malkhana. There has to be entry in the of malkhana register when it is re-deposited and DDR is also prepared. The production of the case property in the Court is mandatory. There is doubt rt whether the case property which was produced in the Court was the same which was recovered from the accused and sent to FSL, Junga in the absence of any corresponding entries made at the time of taking it and re-
deposit in the malkhana register or it was case property of some other case. It has caused serious prejudice to the accused. The nabbing of the accused, recovery and sealing proceedings in the instant case are doubtful. When the case property was produced in the Court, there is no reference as to who brought the case property to the Court from malkhana and by whom it was taken back. It is necessary to keep the case property in safe custody from the date of seizure till its production in the Court in ND & PS cases.
22. The prosecution has failed to prove the case against the accused for the commission of offence under Section 20 of the N.D & P.S., Act.
::: Downloaded on - 15/04/2017 19:10:58 :::HCHP 1523. Accordingly, in view of the analysis and discussion made hereinabove, the appeal is allowed. Judgment of conviction and sentence .
dated 10.4.2015, rendered by the learned Special Judge, Chamba, H.P., in Sessions trial No. 3 of 2013 (44/2013), is set aside. Accused is acquitted of the charges framed against him. Fine amount, if any, already deposited by the accused is ordered to be refunded to him. Since the accused is in jail, he be released forthwith, if not required in any other of case.
24. The Registry is directed to prepare the release warrant of the rt accused and send the same to the Superintendent of Jail concerned, in conformity with this judgment forthwith.
( Rajiv Sharma ), Judge.
October 12, 2015, ( Sureshwar Thakur ),
(karan) Judge.
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