Himachal Pradesh High Court
State Of H.P vs Bhag Chand on 22 November, 2023
Bench: Tarlok Singh Chauhan, Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.A. No. 70 of 2012 Reserved on: 20.11.2023 .
Decided on: 22.11.2023
State of H.P. ...Appellant
Versus
Bhag Chand ...Respondent
Coram:
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
of Hon'ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting? 1 No. For the Appellant :
rt Mr. I. N. Mehta, Sr. Addl. A.G. with Mr. Navlesh Verma, Ms. Sharmila Patial, Addl. A.Gs. and Mr. J. S. Guleria. Dy. A.G. For the Respondent: Ms. Sheetal Vyas, Advocate.
Tarlok Singh Chauhan, Judge Aggrieved by the acquittal of the respondent of the offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the ND&PS Act), the State has filed the instant appeal.
2. The parties do not dispute that the case, as set out by the prosecution, has correctly been enumerated by the learned trial Court, therefore, the same is extracted as such from the judgment.
"2. Put briefly, the case of the prosecution is that on 19.06.2009 PW-6 ASI Jai Lal alongwith HC Narain Chand, PW-5 C Om Parkash and C Sunder proceeded for patrolling towards Van Bihar, Manali Bazaar and Old Manali etc vide 1 Whether reporters of the local papers may be allowed to see the judgment? yes ::: Downloaded on - 22/11/2023 20:33:02 :::CIS 2 rapat Ext. PW.6/C. At about 5.45 PM, when the police party reached Van Bihar, they noticed the accused sitting on a boulder and the accused on sighting the police party got perplexed and tried to escape, but was nabbed on the .
basis of suspicion. Since the place of occurrence was a secluded one, therefore, PW-6 ASI Jia Lal deputed PW-5 C Om Parkash to bring an independent witness but no person was found. The name and address of the accused was ascertained. PW- 6 ASI Jia Lal apprised the accused about his legal right to be searched either before a of magistrate or a gazetted officer. The accused opted to give search to the police present on the spot vide memo Ext. PW.5/A in the presence of witnesses HC Narain Chand rt and PW- 5 C Om Parkash. PW-6 ASI Jai Lal gave his personal search to the accused vide memo ext. PW.5/B and nothing incriminating was found. Thereafter, Investigating Officer PW-6 Jia Lal conducted personal search of the accused and it was found that the accused had tied an envelope around his waist with the help of a piece of cloth in which a polythene envelope containing a brown-coloured semi-liquid substance was found which on checking was found to be opium. The opium so recovered was weighed and found 515 grams and the same was thereafter packed in the polythene envelope and sealed in a cloth parcel with six seal impressions of H. The Investigating Officer filled NCB forms in triplicate Ext. PW-
1/D and drew specimen impression of seal H Ext. PW.5/C. The seal after use was handed over to HC Narain Chand for safe custody. The case property was taken in possession vide memo Ext. PW.5/A and one copy of the same was given to the accused free of cost.
3.Thereafter, the Investigating Officer prepared Ruqa Ext. PW6/A and sent the same to Police Station, Manali through PW- 5 C Om Parkash for registration of the case. On receipt of Ruqa, PW-2 ASI Lal Singh registered FIR Ext.
::: Downloaded on - 22/11/2023 20:33:02 :::CIS 3PW2/A and made endorsement Ext. PW.2/B on the ruqa and prepared the case file. Thereafter the case file was sent back through PW-5 C Om Parkash with the direction to hand over the same to the I.O. on the spot. The .
accused was apprised about the grounds of arrest vide memo Ext. PW.5/E. The Investigating Officer prepared the spot map Ext. PW.6/B and recorded the statements of the witnesses as per their versions.
4. Thereafter, the Investigating Officer produced the of accused and case property alongwith relevant documents before PW- 4 SHO Om Chand, who resealed parcel Ext. P-1 with seal "M" at six places and a facsimile of seal M was taken on a piece of cloth, which is Ext. PW.4/A. SHO rt deposited the case property with MHC. PW-1 MHC Sher Singh, who entered the same in Malkhana register, the abstract of the same is Ext.PW 1/C.
5. Thereafter, the special report Ext. PW. 3/A was submitted before the SDPO, Manali, who made his endorsement Ext. PW.3/B over it and the same was entered by PW-3 HC Sher Singh in the relevant register, the abstract of which is Ext. PW.3/C. PW-1 MHC Sher Singh sent the case property Ext. P-1 alongwith relevant documents to FSL, Junga for chemical analysis through PW-1 C Om Parkash. Before sending the same, he filled column NO.12 of the NCB forms in triplicate. PW-1 C Om Parkash deposited the case property in FSL, Junga vide receipt Ext.PW.1/B and in return deposited the RC with MHC. On receipt of FSL report Ext. PA, the sample was found to be that of opium. Thereafter, the challan was prepared piti Distiller Section 173 Cr.P.C. and presented in the Court for judicial verdict.
3. The learned Special Judge after finding a prima facie case and sufficient grounds to presume that the respondent had ::: Downloaded on - 22/11/2023 20:33:02 :::CIS 4 committed an offence under Section 18 of the ND&PS Act, accordingly framed charges to which the accused/respondent pleaded not guilty and claimed trial.
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4. The prosecution in order to prove its case and bring home the guilt of the accused/respondent examined as many as 10 witnesses besides placing reliance on documentary evidence on record.
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5. After the closure of the prosecution evidence, the incriminating circumstances against the accused/respondent rt were put to him, which the accused/respondent termed to be incorrect and wrong. The accused/respondent had taken up the defence that no recovery of opium was effected and he had been falsely implicated. The accused/respondent was afforded an opportunity to lead evidence but he chose not to lead any evidence in defence.
6. The learned Special Judge after evaluating the evidence on record, acquitted the respondent on the ground that the prosecution had failed to establish that the seized material was not the genesis of a plant of papaver somniferum L or any other plant, which is notified by the Central Government under Section 2(xvii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ND&PS Act). In coming to such conclusion reliance was placed on various Division Bench ::: Downloaded on - 22/11/2023 20:33:02 :::CIS 5 judgments of this Court as it was otherwise the consistent view of this Court.
7. It is not in dispute that on an appeal from one of .
such decisions of the Division Bench of this Court, the Hon'ble Supreme Court in State of Himachal Pradesh vs. Nirmal Kaur alias Nimmo & Ors. (2023) Crl. L.J. 532, decided the issue and it has been held that once it is found that the seized of material contains 'morphine' and 'meconic acid', it is sufficient to establish that the seized material comes within the definition of rt Section 2 (xvii) of the ND&PS Act.
8. This position of law has thereafter been reiterated in yet another appeal arising out of the decision of this Court in Cr.
A. No. 959 of 2012, titled as State of Himachal Pradesh vs. Angrejo Devi & Ors., decided by the Hon'ble Supreme Court on 23.11.2022, wherein it was observed as under:-
1. Leave granted in SLP(Crl) No. 761/2014.
2. The High Court basically allowed the appeals on the ground that the prosecution has failed to establish that the seized material is not the genesis of a plant of Papaver somniferum L or any other plant, which is notified by the Central Government Under Section 2(xvii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'NDPS Act').
3. On a reference, this Court in State of Himachal Pradesh v. Nirmal Kaur alias Nimmo and Ors. reported in MANU/SC/1371/2022, has decided the issue and it has been held that once it is found that the seized material ::: Downloaded on - 22/11/2023 20:33:02 :::CIS 6 contain 'morphine' and 'meconic acid' it is sufficient to establish that the seized material comes within the definition of Section 2(xvii) of the NDPS Act.
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4. In that view of the matter, the impugned judgments and orders are quashed and set aside and the cases are remitted back to the High Court to consider the same afresh, in accordance with the judgment of this Court rendered in Nirmal Kaur alias Nimmo and Ors. (supra).
5. The sentence imposed on the Respondents herein are of suspended till the High Court decides the matters on merits.
6. The appeals are allowed in the aforesaid terms rt
9. Obviously, in view of the aforesaid judgments, the judgment of acquittal as passed by the learned Court below cannot be sustained. Ordinarily, the matter would have to be remanded back to the learned Special Judge, however, learned counsel for the respondent, on instructions, submitted that the appeal instead of being remanded back to the learned Special Judge, be heard on merit by this Court itself.
10. The Learned Additional Advocate General had no objection to the proposal and thereafter, the arguments were heard and judgment was ordered to be reserved.
11. It is vehemently argued by Mr J. S. Guleria, learned Deputy Advocate General, that since the learned Special Judge has acquitted the respondent only on the basis of the earlier judgments of this Court, which are no longer to be held as good law, the respondent deserves to be convicted and sentenced as ::: Downloaded on - 22/11/2023 20:33:02 :::CIS 7 the prosecution has proved its case to the hilt and beyond all reasonable doubt.
12. On the other hand, Ms Sheetal Vyas, learned .
Advocate, has raised the following points in support of her case:-
(i) non-association of independent witnesses despite the availability, is fatal to the prosecution evidence;
(ii) link evidence missing inasmuch as Narayan Chand to whom seal is alleged to have been handed over, not of examined; and
(iii) non-mentioning of I.O. Kit in the departure report making the entire case of the prosecution doubtful.
rt We have heard learned counsel for the parties and have gone through the records of the case carefully.
13. In order to appreciate the rival contention of the parties, it would be necessary to refer to the oral and documentary evidence that has come on record.
14. In order to prove the search, recovery and seizure of charas in question from the exclusive and conscious possession of the respondent/accused, the testimonies of PW-5 C. Om Parkash and Investigating Officer PW-6 ASI Jia Lal, would be relevant and they in one voice have stated that on 19.6.2009, they alongwith HC Narayan Chand, C. Om Parkash and Sunder, started from Police Station, Manali for patrolling duty. At about 5.45 p.m., they reached at a place known as Van Vihar, Manali, where they noticed a person sitting on a big boulder. On seeing the police party, the said person got perplexed and tried to run ::: Downloaded on - 22/11/2023 20:33:02 :::CIS 8 away. He was nabbed by PW-6 ASI Jia Lal with the help of other police officials. His activities raised suspicion and since the place was secluded one, as such, PW-6 ASI Jia Lal, deputed PW-5 C. Om .
Parkash to bring local independent witnesses. After ten minutes, PW-5 C. Om Parkash returned and apprised PW-6 ASI Jia Lal that no local witness was found available. The name and address of the respondent/accused was then ascertained. PW-6 ASI Jia Lal of apprised him of the suspicion of the police that he might be having some contraband in his possession and as such, his rt search was required and gave an option to him as to whether he wanted to be searched either in the presence of a magistrate or gazetted officer. The respondent/accused opted to be searched by the police officials present on the spot vide memo Ext.
PW.5/A. Thereafter, PW-6 ASI Jia Lal gave his personal search to the respondent/accused and nothing incriminating was found vide memo Ext. PW.5/B. Thereafter, the respondent/accused was searched by frisking after associating HC Narayan Chand and PW-5 C. Om Parkash as witnesses. It was found that the accused had tied a patka (a piece of cloth) around his waist inside which an envelope was kept. When the said envelope was taken out, the same was found containing another polythene envelope containing brown coloured semi-liquid substance in it. On checking the same, it was found to be opium and on weighing the same on electronic weighing machine, it was found to be 515 ::: Downloaded on - 22/11/2023 20:33:02 :::CIS 9 grams. The recovered opium was again put in the same transparent polythene envelope and the said envelope was put in the cloth parcel and sealed with six seals of seal 'H'. PW-6 ASI .
Jia Lal obtained specimen sample of seal 'H' Ext. PW. 5/C. The seal after its use was handed over to HC Narayan Chand.
Thereafter, PW-6 ASI Jia Lal, Investigating Officer filled in the NCB form in triplicate Ext. PW1/D. The case property was taken into of possession vide memo Ext. PW.5/C. Thereafter, ruqa Ext. PW6/A was prepared and was sent through PW-5 C. Om Parkash to the rt Police Station, Manali for registration of a case. Spot map Ext.
PW.6/B alongwith its marginal notes was prepared and the statements of witnesses were recorded as per their versions. The accused was arrested and apprised about the grounds of arrest vide memo Ext. PW.S/E. Thereafter, the case property alongwith the accused was produced before SHO Om Chand, who resealed Ext P-1 with his seal 'M'. PW-6 ASI Jia Lal during investigation obtained copies of relevant documents from MHC, PS, Manali and Reader to Dy. SP, Manali and placed the same on the file.
15. PW6 ASI Jia Lal, on his being cross-examined, stated that the police party had proceeded from the police station, Manali towards Ibex Chowk, Manali by taking a lift in a vehicle and from there proceeded on foot. He further deposed that they had not gone to old Manali. He denied the suggestion that place known as 'Van Vihar' is a parked area (should have been packed ::: Downloaded on - 22/11/2023 20:33:02 :::CIS 10 area). He admitted that entry to that area was through a gate.
However, he denied the suggestion that the residences of the Range Officer and other forest officials were located in the area .
known as 'Van Vihar'. He further deposed that usually, entry to that area was through a ticket but at the relevant time, no one was there. He admitted that in the month of June, there is a great rush of tourists in Manali. He denied the suggestion that there of remains a great rush of tourists in Van Vihar. He further deposed that on seeing the police party respondent/accused ran up to a rt distance of twenty feet and was immediately nabbed by the police party. He further deposed that C. Om Parkash had gone towards old Manali in search of independent witnesses. It took about fifteen minutes to give options to the respondent/accused as per the provisions of Section 50 of the ND&PS Act and to prepare the memo in this regard. He got prepared this document Ex.PW5/A and scribed the same through C. Om Parkash. The entire contents of this document Ex.PW5/A from top to bottom were got prepared at the spot. It took about ten minutes to give my personal search and in preparation of memo Ex.PW5/B. He further deposed that he handed over Ruqa Ex.PW6/A to C. Om Parkash at 7.15 p.m. and the file was again received by him in the police station at about 8.10 pm. He denied the suggestion that the accused/respondent had been falsely implicated.
::: Downloaded on - 22/11/2023 20:33:02 :::CIS 1116. As regards PW-5 C. Om Prakash, in his cross-
examination, he denied the suggestion that the entry to the place known as 'Van Vihar' was through a gate. He denied the .
suggestion that near the said area of Van Vihar, there were residences of the Range Officer and other forest officials. He also denied the suggestion that adjoining the place there were hotels and commercial area. He further denied the suggestion that of when the accused/respondent was nabbed, the area of Van Vihar was packed with tourists. He like PW6 ASI Jia Lal stated that the rt police party left the police station towards the main chowk in a taxi and from there had gone on foot. He too like PW6 ASI Jia Lal deposed that the accused/respondent ran upto distance of 20 feet, when he saw the police party and thereafter nabbed. He further deposed that he went upto the distance of half a kilometer towards old Manali to find independent witnesses. He further deposed that all the contents of the memo were written on the spot except FIR. He stated that I.O. had given an option to the accused/respondent that he was free to give his search to a gazetted officer or Magistrate or the police present at the spot.
He stated that he left with the ruqa from the spot at 7:15 p.m. by taking a lift in a vehicle and reached the police station, Manali at about 7:35 p.m. and ASI Lal Chand handed over the case file to him at about 8:05 p.m. He denied the suggestion that the police had found an unclaimed packet at the bus stand Manali.
::: Downloaded on - 22/11/2023 20:33:02 :::CIS 1217. PW-2 ASI Lal Chand was posted as officiating SHO in PS, Manali. At about 7.35 PM on 19.6.2009, PW-5 C. Om Parkash brought Ruqa Ext. PW.2/B to Police Station. He got recorded FIR .
Ext. PW.2/A and made his endorsement Ext. PW. 2/B on the ruqa.
He prepared the case file and handed over the same to PW-5 C. Om Parkash with a direction to submit the same to I.O. on the spot. On being cross-examined, he stated that he had handed of over the case file to C. Om Prakash after about half an hour after his arrival at the police station. He denied the suggestion that no rt rule had been brought to the police station by C. Om Prakash nor any FIR was registered on its basis.
18. PW-4 SI Om Chand has stated that on 19.6.2009 PW-
6 ASI Jia Lal had produced case property sealed with seal 'H'. He resealed the case property with seal 'M' at six places and facsimile of seal 'M' Ext. PW.4/A was drawn. He also filled columns No. 9 to 11 of NCB forms Ext. PW.1/D and thereafter deposited the case property with MHC. On being cross-examined, he stated that he received the case property as he was officiating as SHO on that day. The case property had been produced before him at 8:15 p.m. on 19.06.2009. He deposited the sample seals 'H' and 'M' and NCB forms with MHC.
19. PW1 HC Sher Singh deposed that on 19.6.2009, PW-4 SI Om Chand deposited the case property sealed with impression seal 'H' and resealed with seal 'M' alongwith relevant documents ::: Downloaded on - 22/11/2023 20:33:02 :::CIS 13 with him. On 21.6.2009, he handed over the case property alongwith all relevant documents to PW-5 C. Om Parkash vide RC No. 102/09 Ext. PW.1/B. Before handing over the case property, .
he filled in column No. 12 of the NCB forms in triplicate. C. Om Prakash deposited the case property in FSL Junga on 22.06.2009 and on return deposited the receipt and RC Ext.PW1/B with him.
He further deposed that so long the property remained with him of the same remained intact. The witness further proved on record the abstract of Register No. 19 Ext.PW1/C and NCB form Ext.
PW1/D. rt
20. PW-7 Kapil Sharma, Assistant Director and Chemical Examiner, FSL, Junga testified that the case property alongwith relevant documents was received in the laboratory through PW5 C. Om Parkash on 22.6.2009. The seals were found intact and tallied with specimen seals sent by the SHO. After examination, report Ext. PA was issued. On being cross-examined, he stated that it was incorrect that he was deposing falsely.
This in entirety is the evidence led by the prosecution.
(i) Non-association of independent witnesses despite the availability is fatal to the prosecution evidence
21. The testimonies of the official witnesses, as referred to here-in-above, would clearly go to show that not only the statements are consistent but otherwise also trustworthy with regard to the time, place and non-availability of independent ::: Downloaded on - 22/11/2023 20:33:02 :::CIS 14 witnesses at the time of search and seizure. Both PW5 C. Om Prakash and Investigating Officer PW6 Jia Lal have in one voice stated that C. Om Prakash had gone to bring independent .
witness but could not find anyone and it is thereafter that PW6 ASI Jia Lal associated PW5 C. Om Prakash as a witness to the recovery. No doubt, independent witness has not been associated by the police party but there is nothing on record to of prove that there was some witnesses available on the spot and moreover this is not even the requirement of law as admitted its rt a case of chance recovery. It has specifically come in the evidence of PW 5 C. Om Parkash and PW6 ASI Jial Lal that normally the area where the accused/respondent was apprehended could be packed with tourist but on the said date no one was available and have also denied the suggestions that in and around the place there was residences of Range Officer and other forest officials. In such circumstances, it was upon the respondent to have rebutted the contention of the prosecution by leading evidence in this behalf.
22. Learned counsel for the respondent would argue that the failure of the police official to join an independent witness during the recovery was fatal to the case of the prosecution and has placed strong reliance on the judgment rendered by the Hon'ble Supreme Court in Krishan Chand vs. State of H. P. AIR ::: Downloaded on - 22/11/2023 20:33:02 :::CIS 15 2017 SC 3751, more particularly, para-15 thereof which reads as under:-
15. From the evidence which has come on record, it is .
quite clear that the place, where the accused is alleged to have been apprehended, cannot be said to be an isolated one as the house of Govind Singh DW-2 is situated on the edge of Patarna bridge. Thus, the version of the complainant PW-6 that independent witnesses could not be associated as it was an isolated place does not inspire of confidence. Moreover, from the evidence of Govind Singh PW-2 the case of the prosecution regarding the apprehension of the accused, at Patarna bridge, while rt being in possession of a bag containing 7 kgs of charas, becomes highly doubtful because had he been so apprehended, by the police, this fact was to come to his notice, for the reason, that his house is situated at the edge of the bridge in which he resides, along with his family.
23. However, we find no merit in such contention because as observed above, it was not the requirement of the law to have associated independent witnesses as has been contended by the learned counsel for the respondent.
24. No doubt, there would always be a desirability, not a requirement of law to associate independent witness(s) so as to lend more credence to the prosecution case, but non-association thereof cannot prove to be fatal.
25. It is then contended by learned Counsel for the respondent that no credence could have been given to the testimonies of the official witnesses who obviously would be ::: Downloaded on - 22/11/2023 20:33:02 :::CIS 16 interested in the success of the appeal. Even this contention is clearly without merit.
26. Mere non-association of the independent witness in .
the background of the case is not at all fatal to the prosecution case. The mere fact that the case of the prosecution is based on official witnesses does not mean that the same should not be believed. In taking this view, we are duly supported by the of judgment of the Hon'ble Supreme Court in Jarnail Singh vs. State of Punjab (2011) 3 SCC 521.
27. rt In the aforesaid judgment, the Hon'ble Supreme Court held that merely because the prosecution did not associate any independent witness would not necessarily lead to the conclusion that the accused was falsely implicated. The evidence of the official witnesses cannot be distrusted and disbelieved merely on account of their official status.
28. The judgment in Jarnail Singh's case (supra) was thereafter affirmed by the Three-Judge Bench of the Hon'ble Supreme Court initially in Surinder Kumar vs State of Punjab (2020) 2 SCC 563 and thereafter by another Three-Judge Bench of the Hon'ble Supreme Court in Rizwan Khan vs. State of Chattisgarh (2020) 9 SCC 627, wherein it was observed as under:-
12. It is settled law that the testimony of the official witnesses cannot be rejected on the ground of non-
corroboration by independent witnesses. As observed and ::: Downloaded on - 22/11/2023 20:33:02 :::CIS 17 held by this Court in a catena of decisions, examination of independent witnesses is not an indispensable requirement and such non-examination is not necessarily fatal to the prosecution case, [see Pardeep Kumar .
(supra)]. 13. In the recent decision in the case of Surinder Kumar v. State of Punjab, (2020) 2 SCC 563, while considering somewhat similar submission of non-
examination of independent witnesses, while dealing with the offence under the NDPS Act, in paragraphs 15 and 16, this Court observed and held as under:
of "15. The judgment in Jarnail Singh v. State of Punjab (2011) 3 SCC 521, relied on by the counsel for the rtrespondent State also supports the case of the prosecution. In the aforesaid judgment, this Court has held that merely because the prosecution did not examine any independent witness, would not necessarily lead to the conclusion that the accused was falsely implicated. The evidence of official witnesses cannot be distrusted and disbelieved, merely on account of their official status. 16. In State (NCT of Delhi) v. Sunil, (2011) 1 SCC 652, it was held as under: (SCC p. 655) "It is an archaic notion that actions of the police officer should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law, the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature."
29. Similar reiteration of law can be found in subsequent judgments of the Hon'ble Supreme Court in Guru Dutt Pathak ::: Downloaded on - 22/11/2023 20:33:02 :::CIS 18 vs. State of Uttar Pradesh (2021) 6 SCC 116 and Kallu Khan vs. State of Rajasthan AIR 2022 SC 50.
(ii) link evidence missing inasmuch as Narayan .
Chand to whom seal is alleged to have been handed over, not examined
30. It is not in dispute that Narayan Chand to whom the seal after recovery and sealing of the case property is stated to be handed over has not been examined as a witness. Meaning of thereby, even the seal has not been produced but this fact cannot be considered in isolation and has to be considered with rt the other material which has come on record. There is nothing on record to show that the contraband after recovery was in any manner tampered with either before or at the time of its deposit in the Malkhana or at the time when it was sent for chemical analysis or for that mater before the SFSL. Rather, the evidence is to the contrary that the contraband was not at all tampered and reached safely before the SFSL as all the seals there upon, as affixed by the Investigating Officer and thereafter by the officiating SHO, were found to be intact.
31. In Jauni Ram vs. State of H.P. 2005 (1) SLC 54 and the host of other judgments rendered by the learned Division Bench(es) of this Court from time to time, it has been held that mere non-production of specimen seal during trial cannot lead to an inference that the entire seizure and recovery was wrong and illegal.
::: Downloaded on - 22/11/2023 20:33:02 :::CIS 1932. Moreover, in Rajesh Basniyat vs. State of H.P. Latest 2004 (2) HLJ 875, the Court has held that there is no law or rule which makes it mandatory to produce the seal in .
evidence at the time of trial.
(iii) non-mentioning of I.O. Kit in the departure report making the entire case of the prosecution doubtful
33. It is the specific case of the prosecution that the of contraband was weighed with electronic scale, which would be normally in the I.O. Kit. It is also not in dispute that as regards rt the DDR Rapat No. 41(A) Ext. PW6/C, there is no mention of the I.O. kit being carried by any of the police officials at the time of departure from the police station, but this fact regarding the I.O.
kit being with the raiding party finds mentioned not only in the ruka Ext. PW6/A but also in the seizure memo Ext. PW5/A. Unfortunately, respondent has not chosen to cross-examine the material witnesses i.e. PW5 C. Om Prakash and PW6 ASI Jia Lal on this aspect of the matter. Therefore, in the given facts and circumstances, the mere non-mentioning of I.O. kit being carried by the police officials in DDR Rapat No. 41(a) Ext. PW6/C, does not in any way create a dent or doubt in the prosecution story.
34. On re-appreciating the evidence on record, we are of the firm view that the prosecution has proved its case beyond reasonable doubt. The testimonies of C. Om Prakash and I.O.
PW6 Jia Lal, are absolutely consistent and trustworthy to the fact ::: Downloaded on - 22/11/2023 20:33:02 :::CIS 20 that when the police party reached at place known as 'Van Vihar', they noticed that the respondent sitting on a big boulder, who on seeing the police party got perplexed and ran away. He was .
nabbed by PW6 ASI Jial Lal with the help of other police officials.
His activities raised suspicion and since the person of the respondent was required to be searched, PW6 ASI Jia Lal deputed PW5 C. Om Prakash to bring independent witness, but he could of not find anyone. Then on return, PW6 ASI Jia Lal apprised the respondent/accused of his right of being search before a rt Magistrate or a gazetted officer and it is specifically put to the respondent that this was his right under the law. The respondent/accused opted to be searched by the police officials present at the spot vide memo Ext. PW5/A and thereafter PW6 ASI Jia Lal gave his personal search to the respondent/accused and nothing incriminating material was found vide memo Ext.
PW5/A. Thereafter, the respondent/accused was searched and it was found that the respondent had tied a patka (piece of cloth) around his waist inside which there was an envelope and on opening of the same it was found to be containing another envelope containing brown coloured semi-liquid substance, which was on checking found to be opium and on weighing it was found to be 515 grams. The further proceedings as envisaged under the law was then conducted at the spot and thereafter ruka and special report as required under the law was sent to the ::: Downloaded on - 22/11/2023 20:33:02 :::CIS 21 concerned quarter and after registration of the FIR other formalities as required under the law were also completed. The testimonies of all the official witnesses have withstood the test of .
cross-examination and nothing material could be extracted by the respondent/accused.
35. In view of the aforesaid discussion, the appeal is allowed and the judgment passed by the learned Special Judge is of set aside. Since, the respondent is required to be convicted, therefore, let production warrants be issued against the rt respondent for his presence before this Court on 18.12.2023 for hearing on the quantum of sentence.
(Tarlok Singh Chauhan) Judge (Satyen Vaidya) nd 22 November, 2023 Judge (sanjeev) ::: Downloaded on - 22/11/2023 20:33:02 :::CIS