Himachal Pradesh High Court
Budh Ram vs State Of H.P on 23 April, 2015
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 321 of 2012
Reserved on: April 22, 2015.
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Decided on: April 23, 2015.
Budh 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? 1 Yes.
For the appellant: Mr. Dibender Ghosh, Advocate.
For the respondent: Mr. M.A.Khan, Addl. Advocate General.
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Justice Rajiv Sharma, J.
This appeal is instituted against the judgment dated 20.8.2011/26.8.2011, rendered by the learned Special Judge, Kullu, Distt. Kullu, H.P, in Sessions Trial No. 30 of 2008, whereby the appellant-
accused (hereinafter referred to as the accused), who was charged with and tried for offence punishable under Sections 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 imprisonment for one year.
2. The case of the prosecution, in a nut shell, is that on 21.3.2008, the police party headed by Addl. SHO Tensin alongwith his team was present at Sharabai on NH-21 at 5:00 AM. At about 5:30 AM, the police party spotted the accused coming from Bhunter side who was 1 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 18:02:52 :::HCHP 2going towards Bajaura side, carrying a black and light green coloured bag in his hand. On seeing the police party, the accused tried to flee away.
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He was nabbed by the police. The name and address of the accused was ascertained. The I.O. opened the bag being carried by the accused. It was found containing a synthetic blanket and wearing apparels and beneath it three polythene envelopes containing charas were found. The same were weighed. It weighed 4.00 Kg. The I.O. separated two samples of 25 gms. each from the recovered charas and put the same in separate cloth parcels. The remaining charas was also put in cloth parcel separately. All the parcels were sealed with seal impression "H" at four places each. The case property was taken into possession vide seizure memo Ext. PW-5/B and other articles were taken into possession vide memo Ext. PW-5/C. The personal search of the accused was also carried out. The I.O. found matchbox Ext. P-7, upon which words "Mangaldeep"
were printed, in which stick shaped charas was found besides few match sticks. The same was weighed and it was found to be 10 gms. Thereafter, the I.O. has drawn a sample of 4 gms. from it. The sample and bulk charas were put in a separate parcels, which were sealed with seal "H" at two places each and taken into possession vide memo Ext. PW-5/G. Specimen of seal "H" was also taken on a piece of cloth. The I.O.
thereafter, filled in the NCB-1 form in triplicate. The special report was prepared. The case property alongwith the requisite documents were sent to FSL on 23.3.2008 through PW-6 Tikam Ram. Const. Tikam Ram deposited the case property alongwith the requisite documents at FSL, ::: Downloaded on - 15/04/2017 18:02:52 :::HCHP 3 Junga on 24.3.2008 and copy of receipt Ext. PW-1/C was deposited with the MHC on his return. The reports of FSL, Junga are Ext. PA and PB.
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The investigation was completed and the challan was put up after completing all the codal formalities.
3. The prosecution, in order to prove its case, has examined as many as 15 witnesses. The accused was also examined under Section 313 Cr.P.C. The accused has denied the prosecution case. The learned trial Court convicted the accused, as noticed hereinabove. Hence, this appeal. r
4. Mr. Dibender Ghosh, 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. M.A.Khan, Addl.
Advocate General for the State has supported the judgment of the learned trial Court dated 20.8.2011/26.8.2011.
5. We have heard learned counsel for both the sides and gone through the records of the case carefully.
6. PW-1 HC Manoj Kumari, testified that she was posted as MHC in PS Kullu from August, 2007. On 21.3.2008, SHO Partap Singh handed over to her the case property of case FIR No. 179 of 2008, which she duly deposited in the malkhana after making its entry in the malkhana register against Sr. No. 119/08 dated 21.3.2008. The description of the case property was given in the register of the malkhana vide Ext. PW-1/A. On 23.3.2008, she sent two sealed samples of this case through Const. Tikam Ram. One sample was containing charas ::: Downloaded on - 15/04/2017 18:02:52 :::HCHP 4 sealed with seal impressions "H" and "R" and another sample in which two grams of charas was there, again reiterated four grams of charas was .
having impression "H" and "R" was also sent. Along with the two sealed samples two sets of sample seals of "H" and "R", two sets of NCB forms and other documents were also sent through RC 18/08 vide Ext. PW-1/B. The samples were deposited by the Constable in the laboratory on 24.3.2008 and RC was handed over to her alongwith the receipt. The photocopy of the receipt is Ext. PW-1/C.
7. PW-4 Insp. Partap Singh, deposed that he made endorsement over Ext. PW-4/A and recorded the FIR Ext. PW-4/B on 21.3.2008. On the same day at 3:00 PM, SI Tenzin, I.O. produced before him the case property consisting of five parcels, sample seal and NCB form. The parcels were duly sealed. He also filled in the relevant columns of NCB form. Thereafter, five pulindas, NCB forms and case property was deposited with MHC Manoj Kumari of PS Kullu. In his cross-examination, he deposed that Pritam Singh brought the rukka at 11:30 AM during day time.
8. HC Pyare Lal, deposed that on 21.3.2008, he alongwith the police party comprising of SI Tenzin, ASI Ram Sarup, Const. Pritam, Const. Tikam Ram were on patrol duty in official vehicle. At about 5:30 AM, the police party reached at place known as Sharabai. The police party put a picketing at that place. At the same time, a person came there from Bhuntar side with bag in his hand. On seeing the police party, he turned back and tried to flee away. He was nabbed by the police.
::: Downloaded on - 15/04/2017 18:02:52 :::HCHP 5Thereafter, his whereabouts were ascertained. The Incharge of the police party checked the bag. The I.O. found some wearing apparels, blanket .
and three polythene envelopes under the said articles. All the three envelopes were opened and the same were found containing charas. The same were weighed. It weighed 4.00 Kgs. The samples of 25 gms each were separated from it. The bulk and the sample parcels were sealed with four seals each on each parcel with seal "H". Specimen seal impression was also taken. The I.O. filled in the relevant columns of the NCB forms.
The other articles were taken in possession vide separate memo. The specimen seal impression of "H" is Ext. PW-5/A. The case property, bulk as well as sample parcels were taken into possession vide recovery memo Ext. PW-5/B. The personal search of the accused was also carried out.
The I.O. found a matchbox bearing words "Mangaldeep" from the left pocket of the jacket worn by the accused. On opening the same, it was found containing some match sticks and charas. The pieces of charas were weighed and were found to be 10 gms. Out of the said charas, some pieces weighing about 4 gms. were separated as sample and were put in polythene envelope. The bulk as well as the sample parcel were put in cloth parcel and sealed with seal "H" by affixing two seals of each parcel.
The specimen seal impression of "H" was also taken on the piece of cloth.
The specimen seal impression is Ext. PW-5/F. The case property was taken into possession vide memo Ext. PW-5/G. In his cross-examination, he deposed that where the police party was standing, no abadi was there ::: Downloaded on - 15/04/2017 18:02:52 :::HCHP 6 near the said place. The abadi was situated at a distance of about 200 meters from the place where the police was standing.
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9. PW-6 Const. Tikam Ram, deposed that on 23.3.2008, MHC Manoj Kumari, handed over to him two sealed parcels sealed with seal "H"
and "R" alongwith the NCB form and relevant papers vide RC No. 88/08 Ext. PW-1/B for depositing the same with FSL, Junga. He deposited the same with FSL, Junga on the same day and returned the RC to MHC, PS Kullu on 24.3.2008. The receipt of the case property is Ext. PW-1/C. In his cross-examination, he admitted that the document Ext. PW-1/C bears the date of 24.3.2008. Voluntarily stated that he deposited the case property on 23.3.2008 and receipt was given to him on 24.3.2008. The case property was handed over to the dealing clerk in FSL Junga on 23.3.2008 in the evening in the office.
10. PW-7 Const. Rakesh Kumar, deposed the manner in which the accused was apprehended, search was carried out, contraband was taken into possession and codal formalities were completed.
11. PW-8 Const. Pritam Singh, also reiterated the manner in which the accused was apprehended, search was carried out, contraband was taken into possession and codal formalities were completed on the spot. Rukka was handed over to him at about 10:00 AM. He could reach the Police Station at about 11:30 AM, due to Holi festival.
12. PW-9 ASI Ram Sarup, was also member of the patrolling party, in whose presence the accused was nabbed, search was carried out, contraband was taken into possession and codal formalities were ::: Downloaded on - 15/04/2017 18:02:52 :::HCHP 7 completed. In his cross-examination, he deposed that the police party remained at the spot up to 3:30 PM.
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13. PW-10 Tenzin, is the I.O. He also narrated the manner in which the accused was apprehended, search was carried out, contraband was taken into possession and codal formalities were completed on the spot. He had asked the accused whether he would like to give his personal search to the Gazetted Officer, to the Magistrate or to the Police, upon which, he opted to be searched by the police on the spot. As far as the recovery of 10 gms of charas is concerned, in his cross-examination, he has admitted that the police party from 5:00 AM to 5:30 AM had not checked any vehicle on the spot. He admitted that usually there remains great rush on the National Highway but that day was Holi festival and as such no traffic was there on the road. The distance between Sharabai and Bhuntar is approximately 2 kms. The picketing was done by the police party at a place two kms. from Bhuntar towards Sharabai.
He also admitted that number of houses were situated at a place known as Sharabai. He had not tried to send any of his colleagues to bring any independent witness.
14. PW-11 HC Ram Krishan, deposed that he was posted as MHC, PS Kullu. On 25.5.2010, he sent the case property i.e. one bulk parcel and one sample parcel of case FIR No. 179 of 2008 alongwith specimen seal impressions of D& SJ, "H" and "R" and docket to FSL, Junga through Const. Inder Dev vide RC No. 134 of 2010 vide Ext. PW-
11/A. ::: Downloaded on - 15/04/2017 18:02:52 :::HCHP 8
15. PW-13 DSP Sanjiv Chohan, deposed that on 25.5.2010, after obtaining specimen seal impression from the Court, he sent the bulk .
parcel and a sample parcel alongwith sample seals affixed on the bulk as well as on the sample parcel to FSL, Junga through Const. Inder Singh.
The case property was sent to FSL vide RC No. 134/10.
16. PW-14/15 Kapil Sharma, has proved the chemical reports.
17. Mr. Dibender Ghosh, Advocate, for the accused has drawn the attention of the Court to NCB from Ext. PW-1/D. The time of deposit of the case property in the malkhana is 3:30 PM at PS Kullu. However, PW-9 ASI Ram Sarup, who was member of the patrolling party, in his cross-examination, has categorically deposed that the police party remained on the spot up to 3:30 PM. PW-4 Insp. Partap Singh, in his examination-in-chief, has deposed that at 3:00 PM, SI Tenzin has produced before him case property. In case, the police party has remained on the spot up to 3:30 PM, the case property could not be produced initially before Insp. Partap Singh at 3:00 PM and the same could not be deposited at 3:30 PM, as per Ext. PW-4/D in the malkhana.
18. The case property was handed over to PW-6 Const. Tikam Ram by PW-1 Manoj Kumari, for taking it to FSL, Junga on 23.3.2008.
PW-6 Tikam Ram, deposited the same at FSL, Junga on the same date and returned the RC to MHC PS Kullu on 24.3.2008. He has proved receipt Ext. PW-1/C. We have gone through Ext. PW-1/C. The date of receipt of the case property is 24.3.2008. In case the case property had been deposited by PW-6 Const. Tikam Ram on 23.3.2008, it was to be ::: Downloaded on - 15/04/2017 18:02:52 :::HCHP 9 received on 23.3.2008. The version of PW-6 Const. Tikam Ram that though he has deposited the case property on 23.3.2008 but receipt was .
handed over to him on 24.3.2008 is not believable. The Forensic Science Laboratory, being a professional organization, issues the receipts immediately when the case property is handed over to it for analysis. If, PW-6 Const. Tikam Ram was informed that receipt would be issued next morning, he should not have deposited the case property with the FSL, Junga.
19. There is another flaw in the case of the prosecution. PW-10 Insp. Tenzin had asked the accused at the time of his personal search as to whether he would like to give his personal search to the Gazetted Officer, to the Magistrate or to the Police, upon which, the accused opted to be searched by the police on the spot. PW-10 Insp. Tenzin should have only asked whether accused wanted to be searched before the Gazetted Officer or the nearest Magistrate and not before the Police Officer. The authorities contemplated under Section 50 of the ND & PS Act are nearest Magistrate or Gazetted officer and not the Police Officer.
20. The naka was laid on National Highway No. 21 on 21.3.2008.
It is a busy National Highway. PW-10 Insp. Tenzin, has admitted that he has not sent any official to bring any independent witnesses. It has come in his statement that the picketing was done by the police at a place two kilometers from Bhuntar towards Sharabai. He also admitted that number of houses were situated at a place known as Sharabai. But, despite that he has not associated any independent witnesses at the time ::: Downloaded on - 15/04/2017 18:02:52 :::HCHP 10 of nabbing the accused and when the proceedings were completed on the spot. The accused has not been nabbed at a secluded and isolated place.
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He was nabbed on the National Highway No. 21. As it was very busy road, the police could easily associate any person travelling on the highway.
21. The prosecution has failed to prove that the contraband was recovered from the exclusive and conscious possession of the accused.
Thus, the prosecution has failed to prove the case against the accused beyond reasonable doubt for the commission of offence under Section 20 of the N.D & P.S., Act.
22. Accordingly, in view of the analysis and discussion made hereinabove, the appeal is allowed. Judgment of conviction and sentence dated 20.8.2011/26.8.2011, rendered by the learned Special Judge, Kullu, Distt. Kullu, H.P, in Sessions Trial No. 30 of 2008, is set aside.
Accused is acquitted of the charges framed against him by giving him benefit of doubt. 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 case.
23. The Registry is directed to prepare the release warrant of the accused and send the same to the Superintendent of Jail concerned, in conformity with this judgment forthwith.
( Rajiv Sharma ), Judge.
April 23, 2015, ( Sureshwar Thakur ),
(karan) Judge.
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