Research › Search › Judgment

Himachal Pradesh High Court · body

2004 DIGILAW 142 (HP)

BRUCE CLARIDGE v. STATE OF H. P.

2004-07-06

LOKESHWAR SINGH PANTA, R.L.KHURANA

body2004
JUDGMENT R.L. Khurana, J.—The appellant, Bruce Claridge a British National, hereinafter referred to as the accused, stands convicted for the offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (for short : the Act) by the learned Sessions Judge, Mandi, vide judgment dated 22.1.2002 and upon such conviction he has been sentenced to rigorous imprisonment for ten years and to pay a fine of rupees one lac. In default of payment of fine, he has been sentenced to undergo rigorous imprisonment for a further period of four years. 2. Briefly, the prosecution story may be stated thus. On 13.1.2001 Sub Inspector Jitender Kumar along with Assistant Sub Inspector Shiv Chand, Head Constable Rajender Kumar, Head Constable Hem Raj and Constables Nihal Singh and Dhani Ram was present at Pungh barrier, Sundernagar, in connection with traffic checking. At about 11.15 a.m. a white coloured maruti car was seen coming from Mandi side. It was signalled to stop. A foreigner lady was found driving the same, while another person, that is, the accused was found sitting on the rear seat of the car? One child was also found on the front seat by the side of the lady driving the car. Passports and other documents of the two occupants of the car, that is, the lady driving the car and the accused, were checked by Sub Inspector Jitender Kumar (PW 10). Since PW 10 carried a suspicion that some contraband may not be carried in the car, he expressed his intention to carry out a search of the car. He accordingly after associating PW 3 Rajnish Kumar and PW 4 Ramesh Kumar, the two independent witnesses, carried out a search of the car. Bag Ex. PI was found on the rear seat of the car where the accused was sitting. On a further search of the bag, a coconut was recovered therefrom. The top side of such coconut was found tied with a shoe lace. On opening of the shoe lace and separation of two parts of the coconut, "Charas" wrapped in polythene bag was recovered therefrom which on weighment was found to be 475 grams. Two samples of 25 grams each were taken. Such samples along with the remaining bulk of "Charas" and the coconut shell were separately sealed with seal "H" and taken into possession by PW 10 vide seizure memo Ex. PC. Two samples of 25 grams each were taken. Such samples along with the remaining bulk of "Charas" and the coconut shell were separately sealed with seal "H" and taken into possession by PW 10 vide seizure memo Ex. PC. The accused, after being informed the grounds for arrest, was arrested. Rukka Ex. PH was sent for registration of the case, on the basis of which a case under Section 20 of the Act came to be registered at Police Station, Sundernagar vide FIR No. 30, Ex. PG. The passport of the accused Ex. PQ was also taken into possession. The case property, namely/sealed packets containing the samples and the remaining bulk of "Charas" was produced before PW 9, the Incharge of Police Station, who after re-sealing the same with seal "T" deposited it in the Malkhana for safe custody. One of the sealed packet containing the sample was sent to the Chemical Examiner on 16.1.2001, which upon analysis vide report Ex. PN was found to be that of "Charas". 3. On completion of investigation the accused was sent up for trial for the offence under Section 20 of the Act for having been found in possession of 475 grams of "Charas". He pleaded not guilty to the charge and claimed trial. His case is that of denial simpliciter. 4. The prosecution in support of its case examined ten witnesses in all. No defence, however, was led by the accused. 5. The learned trial Judge, on consideration of the evidence coming on record, came to the conclusion that a case under Section 20 of Act stood proved against the accused beyond a reasonable doubt. He, therefore, vide judgment dated 22.1.2002 convicted and sentenced the accused as aforesaid. 6. Feeling aggrieved by the conviction and sentence imposed upon him, the accused has come up before this Court by way of the present appeal. 7. We have heard the learned Counsel for the accused and the learned Additional Advocate General for the State and have also gone through the record of the case. 8. The learned Counsel for the accused, at the very out set, has contended that the conviction and sentence of the accused cannot be sustained since the prosecution has miserably failed to prove that the accused was found in possession of "Charas". It was further contended that the bag Ex. 8. The learned Counsel for the accused, at the very out set, has contended that the conviction and sentence of the accused cannot be sustained since the prosecution has miserably failed to prove that the accused was found in possession of "Charas". It was further contended that the bag Ex. PI from which "Charas hidden in a coconut is alleged to have been recovered has not been linked to and belonging to the accused. 9. The admitted case of the prosecution is that when the maruti car was stopped at the Barrier by PW 10, one foreigner lady by the name of "Kirsten Krohn" was found driving the same and the accused was found sitting on the rear seat of the car. The bag Ex. PI is alleged to have been recovered from the car during the course of search. 10. It is by now well settled that before a person can be convicted for the offence under Section 20 of the Act, the prosecution is obliged to prove that such person was found in possession of contraband. 11. The learned Additional Advocate General for the State while supporting the conviction and sentence imposed upon the accused by the learned trial Judge, has contended by referring to the evidence coming on record that admittedly the accused was travelling in the car at the relevant time. He was sitting on the rear seat of the car. The bag was recovered by PW 10 from the rear seat where the accused was sitting. Therefore, there is ample evidence to link the bag Ex. PI to the accused. 12. It may be stated that the fact that the bag was recovered from rear seat of the car where the accused was sitting has not been proved beyond a reasonable doubt. 13. Ex. PC is the recovery cum search memo alleged to have been prepared by PW 10 immediately after the search of the car and the recovery of bag Ex. P 1. The relevant portion as to the recovery of the bag Ex. P1 reads :— "During the course of search of the car, one coconut which was tied from its upper portion with a shoe lace was recovered from a white cloth bag, bearing the label "LEBENDIGE FLUSSE in English which was kept in the car.” 14. P 1. The relevant portion as to the recovery of the bag Ex. P1 reads :— "During the course of search of the car, one coconut which was tied from its upper portion with a shoe lace was recovered from a white cloth bag, bearing the label "LEBENDIGE FLUSSE in English which was kept in the car.” 14. In this memo, which purports to record the first and immediate version of what transpired at the spot, there is no mention that the bag Ex. PI was recovered from the rear seat of the car where the accused was sitting. 15. The prosecution during the course of trial has in fact made an attempt to make an improvement in the case that the bag was recovered from the rear seat of the car. 16. A different version is mentioned in the Rukka Ex. PH sent by PW 10 for the registration of the case as well as in Ex. PF the special report sent by PW 10, under Section 57 of the Act to his superior officer. In both these documents it is stated that the accused got his white coloured bag bearing a label in English "LEBENDILE - FLUSSE" kept in the car checked. 17. Nothing has come in evidence whether the maruti car in question belonged to the lady, who was driving the same or to the accused. Though PW 10 was carrying on traffic checking at the relevant time and is alleged to have checked the passports and other papers of the British lady and the accused, nothing has come in his statement about the fact as to in whose name the car stood registered. 18. There is also no evidence on the record if there was any previous acquaintance and/or relationship between the said British lady and the accused or as to the fact as to in what capacity the accused was travelling in the car. 19. The prosecution case as revealed in the evidence is that the accused had taken a lift in the car at Manali from the British lady. If that be so, then it can be safely said and presumed that the accused was neither the owner nor was in any manner having the control over the car. 20. To the contrary, while asking for the option for being searched vide Ex. If that be so, then it can be safely said and presumed that the accused was neither the owner nor was in any manner having the control over the car. 20. To the contrary, while asking for the option for being searched vide Ex. PA, PW 10 had expressed his intention to search the car of the accused, Ex. PA records :— "I, Sub Inspector Jatinder Kumar posted as Incharge Detective Cell in Police Station, Sundernagar, Distt. Mandi, want to inform you Mr. Bruce Claridge, British Citizen travelling in Maruti No. DL-5CA-8383 having passport No. 029576753 that you are carrying some contra veins (sic) in your vehicle, in the presence of following under written witnesses you give me consent whether you want to give search of your person and vehicle to me or to some Magistrate or to some G.O. of Police Deptt." (Emphasis supplied) 21. Similar in Ex. PC the memo regarding search and recovery records: "In the presence of witnesses S/Shri Ramesh Kumar and Rajinder Kumar, written consent of Shri Bruce Claridge was taken for conducting his personal search and search of the vehicle. He gave his consent in writing for allowing his personal search as well as the search of his car by me the S.I. 22. If the accused was not the owner of the car or was not having any control thereon and it was the British Lady who was either the owner or having control over the car, the option of search ought to have been obtained from the said British lady and not from the accused. 23. It appears that a twist has been given during the course of evidence by trying to show that the British lady was the owner of the car and she had raised no objection to the search of the car being carried out. PW-10 during his cross-examination has specifically gone to state that "the lady driving the car had not objected for search of the vehicle." 24. There is another significant aspect of the case. PW-10 in his examination-in-chief stated that after inspecting the passports and other documents of both the passengers, he associated PWs Ramesh Kumar and Rajnish Kumar in the investigation since he intended to search the luggage of the foreigners lying in the car. 25. As per the prosecution case a search of the car was carried out by PW 10. PW-10 in his examination-in-chief stated that after inspecting the passports and other documents of both the passengers, he associated PWs Ramesh Kumar and Rajnish Kumar in the investigation since he intended to search the luggage of the foreigners lying in the car. 25. As per the prosecution case a search of the car was carried out by PW 10. Surprisingly, however, no other luggage, except the bag Ex. PI, is shown to have been found in the car. Were the lady driving the car along with her child and the accused travelling in the car without any luggage and/or other belongings? It is hard to believe. There is also nothing on the records whether the papers of the car or the tools or even the spare wheel was found in the car or not. Nothing has also come on the record to show that there was nothing else in the bag Ex. PI except the coconut containing the Charas. The other articles, if any, in the bag Ex. PI would have been very material to show if the bag belonged to the accused or the British lady driving the car. 26. In the face of the admitted case of the prosecution that there was one more occupant of the car, namely, the lady who was driving the same and in the absence of evidence linking the bag Ex. PI to the accused, it cannot be said that the bag Ex. PI belonged to the accused. It could be of the said British lady who was driving the car. 27. In Duni Chand v. Emperor, AIR 1940 Lahore 36, seven persons were found sitting in a restaurant around two tables lying side by side, on four chairs and a cot lying near the table. They had their hands or elbows on the table on which there were four tumblers containing small quantities of liquor. Some empty tumblers were also found on the table. A bottle containing eight ounces of liquor of the same variety was also found on the table. The trial Magistrate convicted all the seven persons for the offence under Section 61(i)(a), Punjab Excise Act, on the ground of their being collectively responsible for possession of liquor on the table without trying to find out if any of these seven persons was in individual possession of any tumbler containing the liquor. The trial Magistrate convicted all the seven persons for the offence under Section 61(i)(a), Punjab Excise Act, on the ground of their being collectively responsible for possession of liquor on the table without trying to find out if any of these seven persons was in individual possession of any tumbler containing the liquor. On revision having been preferred by one of those seven persons, the High Court of Lahore set aside the conviction and sentence by holding that the conviction on the ground of collective responsibility was bad and the trial court ought to have enquired into if any of these persons was in individual possession of liquor. 28. The Honble Apex Court recently had an occasion to deal with a similar situation in Ismail Khan Aiyub Khan Pathan v. State of Gujarat, (2000) 10 SCC 257. In this case, Inspector of Police Crime Branch in the Vigilance Squad received secret information that illicit trafficking was going on in the room on the first floor of a building which was in possession of one Nasir and that the said Nasir had kept a stock of Charas and was dealing with the same through his servants. A raid was conducted. Upon entering the room six persons were found present there. He also found one gunny bag kept in the corner of the room. On opening the gunny bag Charas was recovered therefrom. All the six persons found present in room were arrested and put to trial for the offence under Section 20, NDPS Act. The learned trial court convicted five persons and acquitted the sixth one. The conviction and sentence of such five persons were confirmed in appeal by the Gujarat High Court. On further appeal before the Apex Court the conviction had sentence of all the five persons were set aside and they were acquitted of the offence. It was held :— "There is no evidence that anybody had seen that any one of the accused was dealing with narcotic drugs. There is also no evidence to show that any one of them had admitted either through a confession or otherwise of any incriminating role. Nor is there evidence that the accused persons, who were found sitting in the room, had possession of the room, actual or constructive. It is the prosecution case that the said room was in the possession of Nasir. Nor is there evidence that the accused persons, who were found sitting in the room, had possession of the room, actual or constructive. It is the prosecution case that the said room was in the possession of Nasir. But that Nasir is not an accused in this case. He was not examined as a prosecution witness to disclose as to how the accused persons happened to be in the room. None of the neighbours supported the prosecution case that any one of the accused had a connection with the article in question. Thus, we are left with only a modicum of evidence as against the accused, which only shows that they were present in the room which was in the possession of one Nasir and that the said room contained a gunny bag with the narcotic substance "Charas". It appears that the High Court put the burden on the appellants to explain as to how they were present in the room. This is what the High Court has observed : In the present case, at odd hours of the night when the premises was raided, all the accused were present and have not explained as to how and why and since when they were present in the premises. Therefore, in our opinion, only inference can be drawn from their unexplained presence in the premises, they being not tenants of the premises is that they were in possession of the premises at the relevant time and the substance ground from that premises is possessed by them." 29. In Bhagwan Dass v. State of Himachal Pradesh, 2002 (2) Shim. L.C. 305, two persons were found sitting by the roadside and a bag was found lying between them. On search of the bag, a five litres container wrapped in the shawl was recovered. The said container contained 1100 grams of Charas. 30. Following the ratio laid down in Ismail Khan Aiyubkhan Pathans case (supra) a Division Bench of this Court of which one of us was a member held: "In the present case as well, the case of the prosecution is that the two accused were found sitting on the road side and a bag was lying in between them. There is no evidence that anybody had seen any of the two accused handling the bag. There is no evidence that anybody had seen any of the two accused handling the bag. Nor their is any evidence to show that any of them or both had, either through a confession or otherwise, admitted the bag to be belonging to him/them. The prosecution evidence, in fact, is absolutely silent as to in whose conscious possession the bag was recovered. Merely because the two accused were found sitting on the road side and a bag was found lying in between them, it cannot be presumed that they were in possession of such bag. Assuming that the bag was in possession of one of them, the question is in whose possession. "Nothing is forth coming in this regard in the evidence of the prosecution." 31. Similarly in Ms. Shriki Ravit v. State of H.P., 2002 (2) Shim. L.C. 276, where a bag containing the Charas was recovered lying in between the two foreign ladies sitting on the rear seat of the vehicle while travelling from Manali to Delhi, in the absence of evidence as to whom the said bag belonged, it was held by a Division Bench of this Court, of which one of us was the member, that the prosecution had not been able to prove the recovery of "Charas" from the conscious possession of either of the two ladies. 32. Reliance was sought to be pi aced by the learned Additional Advocate General on the judgment of the Honble Supreme Court in Madan Lai and another v. State of H.P., (2003) 7 SCC 465. In the said case five persons including the driver were found travelling in a car. During the course of search of the car, a black bag was recovered therefrom which contained 820 grams of "Charas" kept in a steel container. All the five persons were tried for the offence under Section 20 of the Act. They were convicted and sentenced by the trial Court. The appeal preferred by them against their conviction and sentence was dismissed by a Division Bench of this Court. On further appeal, the Honble Supreme Court maintained their conviction and sentence by holding that all the accused therein were in conscious possession of "Charas". It was held : "Whether there was conscious possession has to be determined with reference to the factual backdrop. On further appeal, the Honble Supreme Court maintained their conviction and sentence by holding that all the accused therein were in conscious possession of "Charas". It was held : "Whether there was conscious possession has to be determined with reference to the factual backdrop. The facts which can be culled out from the evidence on record are that all the accused persons were travelling in a vehicle and as noted by the trial Court they were known to each other and it has not been explained or shown as to how they travelled together from the same destination in a vehicle which was not a public vehicle." 33. The facts of the abovenoted case are distinguishable from the facts of the present case and as such the ratio laid down therein is not applicable to the present case. 34. As stated above, in the present case, admittedly one British lady was also in the car along with the accused. The said lady was neither impleaded as an accused nor was even associated in the investigation of the case to establish that the bag Ex. PI belonged to the accused and was recovered from his conscious possession. She was the best person to state whether the bag Ex. PI belonged to her or to the accused and from which portion of the car the same was recovered. 35. Section 67 of the Act empowers the authorised officer referred to in Section 42 of the Act, during the course of any enquiry in connection with the contravention of any provisions of the Act to :— (a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of the Act or any rule or order made thereunder; (b) require any person to produce or deliver any document or thing useful or relevant to the enquiry; (c) examine any person acquainted with the facts and circumstances of the case. No recourse to the said provision appears to have been taken by PW 10 insofar as the British lady found driving the car is concerned. Nor any reasons therefor are forthcoming. 36. There is no evidence worth the name to show that anybody had seen the accused handling the bag Ex. P-l. Nor there is evidence that the accused had either through a confession or otherwise, admitted the bag to be belonging to him. Nor any reasons therefor are forthcoming. 36. There is no evidence worth the name to show that anybody had seen the accused handling the bag Ex. P-l. Nor there is evidence that the accused had either through a confession or otherwise, admitted the bag to be belonging to him. The prosecution story is absolutely silent as to in whose conscious possession the bag Ex. P-l was recovered. The evidence coming on record tends to show that the bag Ex. P-l might have been in possession of either the accused or the British lady driving the car. Evidence is lacking that it was only the accused and none else who was in conscious possession of the bag Ex. P-l. 37. In the factual scenario of the case, we are satisfied that the prosecution has miserably failed to prove the recovery of the bag Ex. P-l and the "Charas" therefrom from the conscious possession of the accused. 38. There is also vital contradiction with regard to the sending of sample to the Chemical Examiner. PW 5 Head Constable Govind Ram, who at the relevant time was the Additional Moharir Head Constable, Police Station Sundernagar has deposed with regard to the dispatch of sample to the Chemical Examiner in the following terms :— "On 16.1.2001 I vide R.C. No. 1/2001 through L.H.C. Pal Singh sent one parcel of sample alongwith specimen seal, NCB form and request for chemical examination etc. to the Chemical Examiner, Kandaghat. On return he handed over me the receipt which I place on the record.” 39. On the contrary PW 2 LHC Pal Singh, who is alleged to have carried the sealed packet containing the smaple for delivery to the Chemical Examiner has deposed that on 16.1.2001 PW 5 had handed over one sealed parcel sealed with seal "T" vide R.C. No. 3/2001 for delivery to the Chemical Examiner, Kandaghat which he had delivered on the same day and on return he had handed over the receipt to PW 5. 40. There is thus difference between the R.C. number as given by the two witnesses, namely, PW 2 and PW 5. There is no other evidence to show whether case property comprising of the sample pertaining to this case was sent vide R.C. No. 1/2001 or vide R.C. No. 3/2001. The original R.C. has not been proved on the record of the present case. There is no other evidence to show whether case property comprising of the sample pertaining to this case was sent vide R.C. No. 1/2001 or vide R.C. No. 3/2001. The original R.C. has not been proved on the record of the present case. In view of contradictory evidence as to the number of R.C. vide which the sample was sent to the Chemical Examiner, the original R.C. was the most material evidence to prove the dispatch of sample in this case to the Chemical Examiner. Therefore, there is a doubt about the despatch of the sample of the present case for analysis and in view of the same it cannot be said that the report Ex. PN pertains to the sample taken in the present case and as such no reliance can be placed thereon to hold that what was recovered from the accused, was "Charas". 41. Even otherwise, the prosecution has not been able to prove that the sample was not tampered with from the time it was seized till the same had reached the Chemical Examiner. 42. As per PW 10, the officer seizing the sample, on return to the Police Station he had produced the case property before PW 9 Prem Singh, Incharge of Police Station, who after having resealed the packets with the seal mark "T" had deposited the same in the Malkhana. PW 9 Prem Singh in this regard as deposed :— "At 6 p.m. S.I. Jitender Kumar produced three parcels alongwith NCB forms and specimen of seals before me, I resealed all three parcels with seal impression "T" and filled up the portion of NCB form regarding my seal and then handed over the case property, specimen seals NCB forms to Additional MHC Govind Ram for safe custody. I also obtained receipt Ex. PJ from Additional MHC Govind Ram." 43. According to PW 9 he resealed the three parcels and filled up the NCB forms on 13.1.2001. However, a perusal of the NCB form Ex. PN shows that the endorsement thereon made by PW 9 about the resealing of the sample with seal "T" is under the date-line of 15.1.2001, that is, two days after the sample was seized by PW 9 and produced before PW 10. This endorsement on Ex. However, a perusal of the NCB form Ex. PN shows that the endorsement thereon made by PW 9 about the resealing of the sample with seal "T" is under the date-line of 15.1.2001, that is, two days after the sample was seized by PW 9 and produced before PW 10. This endorsement on Ex. PN in the hand of PW 9 and signed by him under the date line of 15.1.2001 belies the prosecution case and the sample was resealed by PW 9 on 13.1.2001 on the same having been produced before PW 9 by PW 10. 44. Further PW 5 H.C. Govind Ram with whom the case property was deposited by PW 9 has deposed that on 14.1.2001 Sub Inspector Jitender Kumar (PW 10) had taken back the case property for being produced before the learned Additional Chief Judicial Magistrate, Sundernagar and that such case property was redeposited by PW 10 with him on the same day. 45. PW 10 is, however, silent on this aspect of the case. There is nothing in his statement if he had taken back the case property from PW 5 on 14.1.2001 for being produced before the Magistrate and if so, whether such property was produced before the Magistrate and the purpose of such production. There is also nothing on record to suggest whether the seals were opened by the Magistrate and if so, with what seal the packets were resealed. PW5 has also not stated as to with which seal impression the packets were sealed when the case property was redeposited with him on 14.1.2001 by PW 10. 46. Therefore, the necessary link evidence is missing to show that the sealed packets were not tampered with right from the time of seizure till it had reached the Chemical Examiner. 47. For the foregoing reasons, the conviction and sentence imposed upon the accused by the learned trial Judge cannot be sustained and the same are liable to be set aside. 48. Resultantly, the appeal is allowed. Conviction and sentence of the accused are set aside and he is acquitted of the offence under Section 20 of the Act. 49. The accused, who is presently lodged in Jail undergoing sentence, shall be released forthwith, if not required in any other case. The amount of fine, if already deposited/realised shall be refunded to the accused. Conviction and sentence of the accused are set aside and he is acquitted of the offence under Section 20 of the Act. 49. The accused, who is presently lodged in Jail undergoing sentence, shall be released forthwith, if not required in any other case. The amount of fine, if already deposited/realised shall be refunded to the accused. His passport seized in the present case shall also be returned to him, if not already released. Appeal allowed.