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2004 DIGILAW 150 (HP)

ROSHAN LAL v. STATE OF H. P.

2004-07-13

LOKESHWAR SINGH PANTA, R.L.KHURANA

body2004
JUDGMENT Lokeshwar Singh Panta, J.—Roshan Lal-appellant (hereinafter referred to as the accused) has filed this appeal against the judgment and order of conviction and sentence dated 6th/7th September, 2001 passed by learned Sessions Judge, Solan in Sessions Trial No. 26-S/7 of 2000 under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short NDPS Act). He was sentenced to undergo rigorous imprisonment for 12 years and to pay a fine of Rs. 1,00,000 failing which he was to suffer two years rigorous imprisonment. 2. The prosecution case against the accused is that on 30.5.2000 Head Constable Vijay Kumar (PW-8) received telephonically secret information that the accused is dealing in the business of contraband. He passed on the said information to PW-9 Sh. Sunder Lal, Additional Superintendent of Police, Solan on the same day at about 7.30 a.m. PW-8 prepared reasons of belief (Ext. PG). One copy thereof was sent to PW-9. PW-8 formed a raiding party consisting of himself, Head Constable Ravinder, Constable Ajay Kumar, Constable Chhabil Kumar and Constable Narender Kumar. The raiding party proceeded to Oachghat Two independent witnesses, namely, PW-1 Sunil Kumar and PW-10 Ajay Bhaskar were also associated by PW-8 in the raiding party at Oachghat. When the accused reached at Oachghat he was apprehended by PW-8. PW-9 also reached at the spot at about 11.05 a.m. He disclosed his identity to the accused and served notice (Ext. PA) under Section 50 of the NDPS Act to the accused asking him to give an option if the accused wanted to be searched by him in the capacity of Authorized Officer or to be searched before a Magistrate or any other gazetted officer. The accused consented to be searched by PW-9. PW-9 and other members of the raiding party gave their personal search to the accused vide memo Ext. PB. No incriminating article was found in their possession. Haversack being carried by the accused on his back was searched by PW-9 out of which Charas in the shape of rollers and balls were recovered having been concealed in a Dibba which was covered with three polythene covers. The recovered Charas was taken into possession. 3. PW-9 summoned Ravinder Sharma Shopkeeper to bring scale for weighment. On weighment, Charas was found to be 2 kg. Two samples of 12-1/2 Gms. The recovered Charas was taken into possession. 3. PW-9 summoned Ravinder Sharma Shopkeeper to bring scale for weighment. On weighment, Charas was found to be 2 kg. Two samples of 12-1/2 Gms. each were drawn and the remaining samples were wrapped, seized and sealed with seal impression N. Punchnama (Ext. PC) was prepared. Seal N after use was entrusted to PW-10. Rukka (Ext. PH) prepared at the spot was sent to Police Station through Constable Narender Kumar for registration of formal First Information Report. PW-3 Head Constable Mast Ram recorded FIR (Ext. PJ) at Police Station, Solan at about 13.30 hours on receipt of rukka. PW-11 Head Constable Babu Ram also reached at the spot who took further investigation of the case from PW-9. PW-11 prepared site plan (Ext. PN) and recorded the statements of the prosecution witnesses. He sent special report (Ext. PL) prepared under Section 57 of the NDPS Act to Superintendent of Police, Solan on 31.5.2000 which was received by PW-9 Additional Superintendent of Police. Three sealed parcels of samples and seized Charas were deposited by PW-11 to PW 5 S.I. Nutan Prasad. PW-5 re-sealed all the parcels with his seal impression A. On 31.5.2000, PW-5 handed over one sealed sample parcel to PW-3 Head Constable Mast Ram who further handed over the same to PW-4 Constable Veer Chand. PW-4 deposited sample parcels in Chemical Laboratory, Kandaghat for examination. PW-7. Ramesh Chajjta, Deputy Superintendent of Police, Solan at the relevant period was discharging the duties of Station House Officer, Police Station, Solan as a probationer. On Receipt of the report of Chemical Examiner (Ext. PM), PW-7 submitted a charge-sheet against the accused for the commission of the offence punishable under Section 20 of the NDPS Act. The accused came to be tried by the learned Sessions Judge. 4. To prove its case against the accused, the prosecution examined as many as 11 witnesses. In his statement under Section 313 Cr.P.C, the accused denied the prosecution case as a whole. He pleaded that he has been falsely implicated in the case and he was not in possession of any contraband. His defence was that the real culprit had fled away at Oachghat and the police officials roped him showing false recovery of the Charas from his possession. In his defence he examined three witnesses. 5. He pleaded that he has been falsely implicated in the case and he was not in possession of any contraband. His defence was that the real culprit had fled away at Oachghat and the police officials roped him showing false recovery of the Charas from his possession. In his defence he examined three witnesses. 5. The learned Sessions Judge upon consideration of the evidence led before him, found the accused guilty of the commission of the offence under Section 20 of the NDPS Act and accordingly convicted and sentenced him as aforesaid. Hence the accused has challenged his conviction and sentence in this appeal. We have heard learned Counsel for the accused and the learned Additional Advocate General for the State and have also gone through the record. 6. The learned Counsel for the accused has assailed the impugned conviction and sentence on the following grounds: 1. That no specimen of the seal was deposited in the Malkhana along with sample packets. 2. That no seal was affixed on the NCB form. 3. That the register of Malkhana of the Police Station showing the entry of deposit of sample parcels and remaining seized Charas was not produced by the prosecution before the learned trial Court. 4. That there is no link evidence to connect the bulk Charas allegedly seized with the sample which was analyzed by the chemical Examiner, Kandaghat. Ground No. 1. 7. In support of this ground, the leaned Counsel for the accused has taken us through the evidence of the relevant witnesses. It is the evidence of PW-3 H.C. Mast Ram that on 30.5.2000 in the evening at about 6.25 p.m. PW-5 Nutan Prasad S.H.O. had deposited three packets of the case property to him. He made entry in the register and thereafter returned the packets to the Station House Officer on the same day who kept the packets in his own custody in the Malkhana. On 31.5.2000, PW-5 Station House Officer handed over one sample packet of Charas to him which he further handed over to PW-4 Constable Veer Chand. PW-4 deposited the packet in the office of Chemical Laboratory, Kandaghat for analysis. On scrutiny of evidence of PWs 3 and 5, we find that specimen of seal N used by PW-9 for sealing the sample packets was not deposited by the Investigating Officer in the Police Malkhana. PW-4 deposited the packet in the office of Chemical Laboratory, Kandaghat for analysis. On scrutiny of evidence of PWs 3 and 5, we find that specimen of seal N used by PW-9 for sealing the sample packets was not deposited by the Investigating Officer in the Police Malkhana. PW-5 re-sealed the packets with his seal impression A which was also not deposited by him in the Malkhana. Two samples packets and one packet of bulk Charas were returned by PW3 to PW-5 Station House Officer on 30.5.2000 for safe custody in the Malkhana. Thus, the prosecution has not led any evidence to prove that the specimen of seal impressions N and A were deposited by Station House Officer in the Malkhana. Ground No. 2. 8. We have perused N.C.B. form (Ext. PM). This form appears to have been prepared by Station House Officer, Police Station, Solan and counter signed by PW-9 Additional Superintendent of Police as seizing officer. On scrutiny of the evidence of PW-9, we find that he has not said a word in his deposition in regard to filling up the N.C.B. form. PW-11 Head Constable Babu Ram who partly conducted the investigation has also not said that N.C.B. form was prepared by him at the spot. It is also not the evidence of PW-5 Station House Officer that N.C.B. form was prepared by him. N.C.B. form is marked as Ext. PM treating it to be a report of the Chemical Examiner placed on record by PW-7 Ramesh Chajjta, Deputy Superintendent of Police. No seal impression had been sent to the Chemical Examiner along with the sample packets. On perusal of the report of the Chemical Examiner, we find that there is no mention of seal impressions N or A recorded in the said report. In certificate of repacking and resealing of the parcels produced before him, PW-5 Station House Officer has not mentioned as to how many seal impressions were affixed by him on each of the packets of the sample and remaining case property after resealing them nor it is stated by him in his deposition before the Court. In certificate of repacking and resealing of the parcels produced before him, PW-5 Station House Officer has not mentioned as to how many seal impressions were affixed by him on each of the packets of the sample and remaining case property after resealing them nor it is stated by him in his deposition before the Court. No evidence has come on record to show that any specimen of the seal used in sealing the samples either by the Investigating Officer or resealing by PW-5 S.I. Nutan Parsad was sent to the office of the Chemical Examiner in a sealed cover while sending the samples for the purpose of analysis. Though the Chemical Examiner in his report (Ext. PM) has certified to the effect that the seals found on the sealed packets were found intact and unbroken, yet in the absence of evidence that the specimen of the seals were with the Chemical Examiner, which is a part of this certificate cannot be accepted. Therefore, the prosecution has not been able to rule out the possibility of the contents of the sealed packets having been tampered with during the period it remained in the custody of PW-3 or PW-5 Station House Officer or during the course of its transit to the office of the Chemical Examiner. Grounds No. 3 and 4. 9. Both these grounds are taken up together for consideration. On reappraisal and re-assessment of the evidence on record, it is proved that the NCB form was not deposited in the Malkhana nor it was sent along with the sample parcel to the office of C.T.L. Kandaghat. The register of Malkhana showing the deposit of the sample packets and other case property was not produced by the prosecution before the trial Court. The evidence of PW-3 and PW-5 is silent on this aspect of the matter. PW-1 Sunil Kumar the independent witness has turned hostile to the prosecution. Nothing favourable to the prosecution case was elicited from his cross-examination by the learned Public Prosecutor. The evidence of PW-10 Ajay Bhaskar is not free from doubt. He is a resident of Solan Town. He has admitted in the cross-examination that he was summoned telephonically by PW-9 Additional Superintendent of Police to become a police witness in the raiding party. He had gone with PW-9 to the spot. The evidence of PW-10 Ajay Bhaskar is not free from doubt. He is a resident of Solan Town. He has admitted in the cross-examination that he was summoned telephonically by PW-9 Additional Superintendent of Police to become a police witness in the raiding party. He had gone with PW-9 to the spot. It is admitted by him that he is acquainted with PW-9 Additional Superintendent of Police since the time when PW-9 joined his duties at Solan. He is a reporter of the court cases of daily newspaper Punjab Kesri. The seal impression N used by PW-9 in sealing the sample packets and the remaining bulk Charas packet entrusted to him was not produced by him in the Court. It has come in the evidence of PW-6 Head Constable Yoginder Singh that special report (Ext. PL) submitted by PW-11 S.I. Babu Ram was not placed before the Superintendent of Police as he was not in the office on 31.5.2000. He submitted the special report to PW-9, Additional Superintendent of Police. It was PW-9 who recovered the Charas from the haversack of the accused, arrested him and prepared Ruka (Ext. PH) on the basis of which FIR (Ext. PJ) was recorded by PW-3. He himself received the special report. PW-9 has practically completed the investigation of the case whereas PW-11 has only prepared the site plan (Ext. PN) and recorded the statements of the witnesses. 10. Accused in his defence has examined DW-1 Ved Parkash, DW-2 Kuldeep Sharma, and DW-3 Ravinder Kumar. It is the evidence of DW-1 that on 29.5.2000 the accused stayed with him for the night and on the next morning at about 6.30 a.m. the accused boarded a bus at Kotli as he wanted to go to Solan. The evidence of this witness cannot be relied upon as he is the brother of the wife of the accused. DW-2 Kuldeep Sharma has stated that he is running a grocery shop at village Sanaura. On 30th May, 2000 he was a passenger travelling in a private bus going from Haban to Solan. When the bus reached near Oachghat it was stopped by the Police. One person alighted from the rear door of the bus and went away. The police came inside the bus from front door. The police officials searched the bus and found a bag lying inside the bus. 11. When the bus reached near Oachghat it was stopped by the Police. One person alighted from the rear door of the bus and went away. The police came inside the bus from front door. The police officials searched the bus and found a bag lying inside the bus. 11. DW-3 Ravinder Kumar has deposed that on 30.5.2001 his scale was requisitioned by the Police. It is his evidence that he had not gone to the spot as stated by PW-9 in his version. He stated that he was made to append his signature on some papers by the Police. He could not know whether the accused was present in the Verandah on the upper story of the shop where the contraband was weighed. 12. On careful scrutiny of the evidence as discussed above, the prosecution has not led cogent, trustworthy and convincing link evidence to prove the charge against the accused. The accused is certainly entitled to the benefit of doubt for vital lapses in the prosecution version. We are supported in our view by the decisions of the courts in Sandeep Kumar v. State of H.P., 2002 (2) Shim. L.C. 224 (H.P.); State of H.P. v. Gurdeep Lal and another Latest HLJ 2002 (HP)-(DB) 1018; Amar Singh v. State of H.P., (Criminal Appeal No. 303 of 1998); Titu Singh v. State of H.P., (Criminal Appeal No. 528 of 2000, decided on 26.4.2002); Laloo Ram v. State of H.P., 2003 (2) Current L.J. 293 (H.P.); Rajan Ali v. The State (Delhi Admn.), 1999 (4) RCR (Criminal) 632; Mool Chand v. State, 1993 (3) Crimes 224; Lalman v. State, 1999 (1) Crimes 484 (Delhi High Court); Jagat Singh v. State of H.P., (Criminal Appeal No. 9 of 2002), decided on 25.6.2004 and State of Rajasthan v. Gopal, (1998) 8 Supreme Court Cases 449. 13. In cases, where the legislature has provided for such stringent punishment, the Courts would be justified in insisting for standard of proof beyond any shadow of doubt against the accused. 14. In the result, this appeal is allowed and the impugned conviction and sentence are set aside. The accused is acquitted of the charge framed against him. The accused is in custody undergoing the sentence of imprisonment imposed upon him by the learned trial Court. He be set at liberty forthwith, if not required to be detained under any other case. In the result, this appeal is allowed and the impugned conviction and sentence are set aside. The accused is acquitted of the charge framed against him. The accused is in custody undergoing the sentence of imprisonment imposed upon him by the learned trial Court. He be set at liberty forthwith, if not required to be detained under any other case. Fine, if recovered, be refunded to the accused. Case property be dealt with as per the direction of the trial Court.