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2000 DIGILAW 322 (HP)

STATE OF HIMACHAL PRADESH v. ROLF DAGFINN BAJARBO

2000-12-18

KAMLESH SHARMA, M.R.VERMA

body2000
JUDGMENT M.R. Verma, J Oral: - This is an appeal by the State of H.P. against the judgment dated 8.9.1999 passed by the learned special Judge (Sessions Judge, Solan) whereby the respondent/accused (here-after referred to as the accused) has been acquitted of the charge under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter referred to as the NDPS Act). 2. Be it stated at the very outset that vide order dated 22.12.1999 leave to appeal was granted by this Court and this appeal was admitted and bailable warrants in the sum of Rs.10,000/- with one surety in the like amount were ordered to be issued to secure the presence of the accused. At the time of passing of this order, the Court had the occasion only to go through the impugned judgment as the records of the trial court were not available. 3. The bailable warrants issued against the accused were received back with the report that the accused is a Swedish national; therefore, he could not be served. It was submitted for the State that in the absence of any scheduled legal assistance treaty with Sweden, the accused could not be served through Interpole. The State was, therefore, given time to take further steps in the matter within six weeks. However, the State failed to take any step in the matter and it came to be listed before this Court on 18.12.2000 when the learned Assistant Advocate General submitted that the steps could not be taken for want of treat, non-availability of the information regarding any paper in which proclamation may be got published against the accused etc. It was also submitted that the accused had entered India on the basis of a pass port which has since expired and he is not residing within the country nor does he own any property in India. Therefore, what finally emerged was that the accused may have to be declared proclaimed offender and thereafter the case may have to be consigned sine die as there was no possibility of securing the presence of the accused. 4. There is no doubt about the legal proposition that an appeal against acquittal can be heard only after due service of notice on the accused so that he has an opportunity of being heard before the appeal is finally disposed of. 4. There is no doubt about the legal proposition that an appeal against acquittal can be heard only after due service of notice on the accused so that he has an opportunity of being heard before the appeal is finally disposed of. This proposition in our view, must invariably apply to a case where there is likelihood of acceptance of appeal and conversion of the acquittal into conviction. However, if there is no likelihood of the success of the appeal, in such an eventuality instead of keeping the matter pending, the appeal can be disposed of by dismissal thereof because such an order will not cause any prejudice to the accused. 5. By now, the records of, the trial Court are available, therefore, we requested the learned Assistant Advocate General to assist us to come to a conclusion as to whether this is a case where after declaring the accused a proclaimed offender and for want of his presence the case must be adjourned sine die or it can be disposed of without adopting such a course. 6. We have heard the learned Assistant Advocate General at length and have also gone through the records and we propose to dispose of this appeal for the reasons assigned hereafter. 7. The case of the prosecution is that the. accused was travelling by Bus No.HP-42-845 from Manali to Delhi. On the way the driver of the Bus (PW-1) noticed that the accused and one another passenger, namely, Charan Dass started taking liquor and mis-behaving with the passengers. The accused was wielding a knife to cause scare amongst the passengers. Despite request by PW-2, the accused and his companion failed to behave properly, therefore, the bus was taken to Police Station, Nalagarh. The matter was reported at the Police Station where it was suspected that the accused and his companion may be in possession of Charas/some narcotic substance. A report Ext.PW-6/A was accordingly recorded and the information was given to the Supervising Officer vide Ext. PW-3/A. An offer was given to the accused vide Ext.PW-1/D in the presence of witnesses Tilak Raj and Tej Singh whether he wanted to be searched by a Gazetted Officer or by a Magistrate as he was suspected of being in possession of psychotropic substance. The accused opted to be searched by the Investigating officer (PW-11). PW-3/A. An offer was given to the accused vide Ext.PW-1/D in the presence of witnesses Tilak Raj and Tej Singh whether he wanted to be searched by a Gazetted Officer or by a Magistrate as he was suspected of being in possession of psychotropic substance. The accused opted to be searched by the Investigating officer (PW-11). Thereafter the Investigating Officer gave his personal search to the witnesses and also took search of the witnesses vide memos. Ext.PW-1/A, Ext.PW-1/B and Ext.PW-1/C and thereafter search of the accused was conducted. On such search, 130 gms of Charas (Ext.P-2) in a pouch Ext.P-1, three knives Exts. P-3 to P-5, pass port Ext.P-6, tickets and other articles were found in possession of the accused and were taken in possession vide memo Ext.PW-1/E. The recovered Charas was so taken in possession after separating the sample and dealing with it as per procedure for seizure. The sample of the Charas was sent for chemical analysis and vide report Ext. PW- 11/C it was found to be that of Charas. On submission of charge- sheet against the accused, a charge under Section 20 of the NDPS Act 1985 was framed against the accused by the learned trial judge. 8. To prove the charge against the accused prosecutions examined as many as 11 witnesses- 9. The accused was examined under Section 313 of the Criminal Procedure Code wherein while denying the case of the prosecution, the accused claimed that he is innocent and a false case has been planted against him at the instance of Tilak Raj and Tej Singh and in connivance with the police. He denied the recovery of Exts. P-l toP-5 from him and claimed that such articles were recovered from the passage within the bus for the movement of passengers when the bus was checked on routine checking. The accused in his defence examined one witness, namely, Om Datt Sharma (DW-1). 10. The learned trial Judge finally came to the conclusion that the prosecution had not been able to prove the case against the accused beyond reasonable doubt; therefore, the accused was acquitted of the charge. Hence the present appeal by the State. 11. It is initially the admitted case of the prosecution as per contents of Ext.PW-6/A that the accused and one other passenger in the bus started taking liquor and thereafter started quarrelling and mis- behaving with the passengers. Hence the present appeal by the State. 11. It is initially the admitted case of the prosecution as per contents of Ext.PW-6/A that the accused and one other passenger in the bus started taking liquor and thereafter started quarrelling and mis- behaving with the passengers. The accused was even weilding and brandishing a knife. When despite request the accused and his companion did not stop nuisance, the bus was taken to the Police Station at Nalagarh where PW-1 and the bus conductor informed that they suspected the accused to be in possession of some intoxicant substance. 12. Now, the version of PW-11 is that he was informed by PW-1 and the bus conductor that the accused might be in possession of some narcotic substance. This version is belied by PW-1. His version is that he did not inform the police that the accused might be or was in possession of such substance and that the police themselves suspected that the accused might be in possession of Charas. Thus, the very basis of the investigation is of highly suspicious nature and it is not clearly made out as to whether the accused was suspected of being in possession of Charas by the informant or by the Investigator or any other police official. Therefore, the record of information under Section 42 of the NDPS Act, as is alleged to have been prepared, does not appear to have been prepared in the natural course and correctly. 13. The initial allegation against the accused is that of consuming liquor in the bus and threatening the bus passengers. The investigating agency appears to have forgotten every thing about those allegations, so much so that the accused was not got medically examined to find out whether he had consumed liquor or not. In any case, no medical certificate, if any, in this respect has been produced to lend credence to the initial version of PW-1 and the bus conductor. This is yet another factor which creates doubt about the conducting of investigation in the case in a normal and desired lawful manner. 14. The learned trial Judge had come to the conclusion on the basis of statement of PW-1 that the accused was not given option of being searched in the presence of a Magistrate. This is yet another factor which creates doubt about the conducting of investigation in the case in a normal and desired lawful manner. 14. The learned trial Judge had come to the conclusion on the basis of statement of PW-1 that the accused was not given option of being searched in the presence of a Magistrate. This conclusion is further strengthened in view of the fact that PW-2 and PW-10 though were present throughout yet they have not stated that any option what-so- ever was given to the accused to get himself searched either before a Gazetted Officer or Magistrate. This, the learned trial Judge has rightly concluded that there had been violation of the provisions of Section 50 of the NDPS Act resulting in prejudice to the accused. In fact the lapse is fatal to the case of the prosecution. 15. Apart from the above, there are many suspicious and improbable circumstances in the case of the prosecution. One of such circumstances is that the Police Station at Nalagarh, admittedly, has in its near vicinity many shops. However, vide contents of Ext- PW- 9/A, a police official namely, Sohan Lal who was deputed to bring the weights and scale of weigh the Charas, brought the same from the house of one Chet Prakash in village Dadhi Bhola at a considerable distance of about 2 1/2 Kilo-meters from the Police Station. There is no explanation as to why the scale etc. were nor procured from one of nearby shops. What adds to the inquiry is that Chet Prakash was present at the Police Station as admitted by PW-10 and PW-11. It is further admitted by PW-11 that said Chet Prakash was summoned from his house but it is not explained as to why he was so summoned whereas he had not witnessed any thing during the investigation nor he has been examined as a witness. 16. The second such circumstance is that vide memo. ExtPW-1/E, 19 TIKKIES of Charas were allegedly found in possession of the accused. As observed by the learned trial Judge, the Charas which was produced in the Court, was not in the form of TIKKIES but was in the form of BATT1ES. There are two distinct forms of collected Charas. This difference of form of the Charas allegedly recovered and produced in the Court raises great suspicion about the alleged recovery. 17. Vide memoes, Exts. There are two distinct forms of collected Charas. This difference of form of the Charas allegedly recovered and produced in the Court raises great suspicion about the alleged recovery. 17. Vide memoes, Exts. PW-I to PW-l/C it has been stated that nothing concerning Charas was found on the person of PW-1, Tej Singh, PW-l0 and PW-11 who are the witnesses of search of each other. It is not known as to why they are specific about Charas which is allegedly recovered from the accused thereafter. It is indicative of the fact that these witnesses were satisfied that they would recover Charas from the accused. Such assurance can be possible in a case of planted recovery and not otherwise. 18. There is no allegation that after fee bus was taken to the Police Station and before the police at the instance of PW-1 and the bus conductor visited the bus and took the accused inside the Police Station, the accused made any attempt to bolt away as is expected of a person who is in conscious possession of any contraband. Thus, the conduct of the accused was inconsistent with the natural and normal conduct as per demand of the occasion which is improbable. 19. In view of the in above circumstances the version of the prosecution is doubtful and the vision as given by DW-1 who has stated that the recovered stuff was lying in the passage of the bus (space in between the rows of the seats to enable passengers to move from one seat to another or windows of the bus) seems to be plausible: and probable. 20. From the above discussion and reason, we have not hesitation on holding that this appeal can in no case succeed, therefore, it id dismissed.