Research › Search › Judgment

Himachal Pradesh High Court · body

2004 DIGILAW 189 (HP)

Yaseen Alias Yameen v. State Of Himachal Pradesh

2004-08-10

LOKESHWAR SINGH PANTA, R.L.KHURANA

body2004
JUDGMENT : R.L. Khurana, J. – 1. The appellant, Yaseen alias Yameen, hereinafter referred to as the accused stands convicted by the learned Sessions Judge, Bilaspur vide judgment dated 23.8.2001 for the offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short: the Act) and upon such conviction stands sentenced to rigorous imprisonment for ten years and to pay a fine of Rupees one lac. In default of payment of fine, the accused has been sentenced to undergo rigorous imprisonment for further period of two years. 2. The matrix of the prosecution case is this. On 21.12.2000 at about 8 p.m. PW 7 Sub Inspector Des Raj, Station House Officer of Police Station, Barmana along with Assistant Sub Inspector Bhim Singh, Head Constable Surender Singh Constable Kuldip Singh, Bhag Singh, Mohinder Singh and Ranjit Singh, was present at "Kainchi Mor" Barmana in connection with traffic and routine checking of vehicles. While carrying out such checking at about 9.30 p.m. bus No. HP-12-4137 which was coming from Manali was stopped, PW7 along with Assistant Sub Inspector entered the bus through its front door. Two constables were posted outside the back door of the bus. During the course of checking of the passengers and their luggage, the accused was found sitting on seat No.40. On seeing the police, the accused became perplexed, which raised a suspicion in the mind of PW7. The accused who was then carrying a bag on his lap, was .taken out of the bus along with the bag. The conductor and driver of the bus were associated and during the course of search of the bag of the accused in their presence three polythene envelops containing "charas" were recovered therefrom which on weighment was found to be 2750 grams. Two samples weighing ten grams each were separated. The two samples along with the remaining bulk of Charas, the polythene envelops and the bag was separately sealed with the seal mark "K" and taken into possession vide seizure memo Ex. PA PW7 thereafter recorded the necessary report and sent the same to the police station for registration of the case. A case for the offence under Section 20 of the Act came to be registered at Police Station, Barmana vide F.I.R. No. 168 of 2000 (Ex.PG). The accused was informed about the grounds of arrest and then he was arrested. PA PW7 thereafter recorded the necessary report and sent the same to the police station for registration of the case. A case for the offence under Section 20 of the Act came to be registered at Police Station, Barmana vide F.I.R. No. 168 of 2000 (Ex.PG). The accused was informed about the grounds of arrest and then he was arrested. One of the sealed sample was sent to the Chemical Laboratory which on analysis was found to be "Charas". 3. On completion of the investigation, the accused was sent up for trial fa the offence under Section 20 of the Act. He pleaded not guilty to the charge and claimed trial. 4. The prosecution is support of its case examined seven witnesses in all PW1 Manoj Kumar, PW2 Balbir Singh, PW3 Constable Mahender Singh, and PW7 Sub Inspector Des Raj are the witnesses to the search and recovery. The remaining three witnesses are formal witnesses to provide the necessary link evidence. 5. The defence of the accused is that of denial and false implication. The accused in his statement recorded under Section 313, Code of Criminal Procedure, has admitted that at the relevant time he was traveling in the bus and was occupying seat No.40. He However, denied that bag was recovered from his possession. He pleaded that on the bus having been stopped for checking, two police constables had referred the bus and during the course of checking picked up a bag which was lying under the seat in front of his seat. The passengers occupying the seat under which the bag was found denied their ownership qua such bag, whereupon the said Ho constables took him out of the bus on the ground that the bag belonged, to him. Thus he was falsely implicated in the case. 6. No evidence in defence was led by the accused. 7. The learned Sessions Judge, upon consideration of the evidence led before him, came to the conclusion that a case for the offence under Section 20 of Die Act stood proved against the accused beyond reasonable doubt. He, accordingly, vide the impugned judgment convicted and sentenced the accused as aforesaid. 8. Aggrieved by the conviction and sentence imposed upon him by the learned Sessions Judge, the accused has come up before this court by way of the present appeal. 9. He, accordingly, vide the impugned judgment convicted and sentenced the accused as aforesaid. 8. Aggrieved by the conviction and sentence imposed upon him by the learned Sessions Judge, the accused has come up before this court by way of the present appeal. 9. We have heard Shri R.L. Sud, learned Senior Counsel assisted and instructed by Shri Anup Chitkara and Sanjay Gandhi Advocates for the accused and Shri S.D. Vasudeva the learned Additional Advocate General assisted by Shri D.S. Nainta, Deputy Advocate General, for the State and have also gone through the record of the case. 10. It has been contended on behalf of the accused that the prosecution has miserably failed to prove and establish the offence against the accused beyond reasonable doubt and as such the conviction and sentence imposed upon him cannot be sustained. The following contentions were raised: (i) The bag Ex. P3 from which Charas is alleged to have been recovered has not been proved to have been recovered from the conscious possession of the accused: (ii) Contradictory evidence with regard to the place of search and recovery: (iii) The circumstance that bag Ex.P3 belonged to the accused not put to him in his statement recorded under Section 313, Code of Criminal Procedure. 11. The learned Additional Advocate General, on the other hand, has supported the conviction and sentence of the accused on the grounds and for the reasons recorded in the impugned judgment of the learned Sessions Judge. Contentions No. (i) and (ii). 12. 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 the contraband. 13. At the very outset, it may be stated that the evidence of the prosecution itself as to the recovery of bag Ex.P3 and place of search and seizure of Charas is highly contradictory and casts a shadow of doubt on the truthfulness of the prosecution story and leads to the inference that the investigation carried out was highly tainted. 14. At the very outset, it may be stated that the evidence of the prosecution itself as to the recovery of bag Ex.P3 and place of search and seizure of Charas is highly contradictory and casts a shadow of doubt on the truthfulness of the prosecution story and leads to the inference that the investigation carried out was highly tainted. 14. It is the case of the prosecution that the place where PW7 Sub Inspector Des Raj was present in connection with the checking of the vehicles and where the bus, in which the accused was traveling, was stopped and checked is located on the National Highway No. 21 about 200 metres away from the Police Station, Barmana towards North Ex.PF is the report (Rukka) sent by PW7 to the police station for the registration of the case on the basis of which the present case came to be registered vide FIR Ex. PG. This report reads" "...........at about 9.35 p.m. one bus no H.P. 12-4137 en-route Manali to Delhi, was signalled by me to stop. During the course of checking the bus, reached near a person, who was occupying seat No.40 and who has wrapped himself with a "Chaddar" and noticed that the said person had become perplexed on seeing the police. On become suspicious, associated Manoj Sharma and Balbir Singh, Conductor and enquired the name and address from the said person. He disclosed his name as Yaseen alias Yameen son of Sultan, Caste Muslim (Schedule caste) resident of village, Post Office, Tehsil and Police Station Julana, District Jind (Haryana). He was holding one golden and red coloured synthetic bag in his lap. He was suspected to be in possession of some narcotic substance. Thus, a written consent for his personal search was obtained from him. "Charas' in the shape of wicks duly wrapped in three white envelops was recovered from the aforesaid bag. The charas so recovered was weighed in the presence of below named witnesses after obtaining a weighing balance and the weights from Shri Mahant Ram, shopkeeper at Kainchi Mor, Barmana and the same was found to be 2 kgs and 750 gms. Out of the recovered charas two samples of ten grams each were taken out and put in two empty match boxes, wrapped into cloth parcels which were sealed with the seal mark Three seals were put on each of such parcels. Out of the recovered charas two samples of ten grams each were taken out and put in two empty match boxes, wrapped into cloth parcels which were sealed with the seal mark Three seals were put on each of such parcels. The remaining bulk of charas contained in three polthene bags was converted into a cloth parcel and sealed with eighteen seals of seal mark `K' Specimen of the seal used in sealing the parcels was separately taken on a piece of cloth and the seal after use was handed over to Manoj Kumar " 15. A bare reading of the above report Ex. PF shows that not only the search and Seizure is shown to have been carried out at the spot but the same is also shown to have been carried out in the bus itself. As per the endorsement made by PW7 on the report Ex.PF, the same is shown to have been recorded at the spot Such endorsement reads:- "Place: NH 21, Kainchi Mor, Barmana, at a distance of 200 metres towards North of the Police Station." 16. Similarly, in the special report Ext PN sent by PW7 to his immediate superior as required under Section 57 of the Act, the place of search and seizure has been detailed as was detailed in the report Ex PF. 17. However, during the course of evidence at the time of trial an altogether different on as to the place of search and seizure has been Introduced by showing 'hat since it was quite dark at the spot, the accused alongwith Hie bag and the two witnesses, namely, S/Shri Manoj Kumar and Balbir Singh. were taken to the police station and that the- search of the bag and recovery of charas there from m carried out at the Police Station itself PW7, in this regard, has deposed - "The accused present in the Court, whom identify the same person, was sitting on seat No.40 in that bus and on seeing me, he was frightened and on suspicion, took him out of the bus. He was carrying bag at that time. The bag was kept by him in his lap. The accused alongwith the bag was brought out of the bus. S/Shri Manoj Kumar and Balbir Singh, conductor of the bus and driver of the bus were associated as witnesses. He was carrying bag at that time. The bag was kept by him in his lap. The accused alongwith the bag was brought out of the bus. S/Shri Manoj Kumar and Balbir Singh, conductor of the bus and driver of the bus were associated as witnesses. Since it was dark at that place had taken the accused alongwith these witnesses and the bag to police station, Barmana which is at a distance of 200 yards from that place. Then made the accused aware of his right to the effect that he was entitled to be searched before a Magistrate or a gazetted officer if he did not want to be searched by me and the accused gave his written consent to the effect that he had no objection if he was searched by me. The notice of consent is Ex.PB and the written consent given by the accused is Ex. PB/1 which is in the hands of the accused and bears his signatures. Witnesses Manoj Kumar and Balbir Singh were present when Ex.PB and Ext.PB/1 were written and the accused had given consent in the presence of both these witnesses. Then searched the bag of the accused and found that there was charas in the form of sticks in three ploythene envelops. ASI Bhim Singh was sent for bringing weighing scales and weights and the charas was weighed which was found 2 kgs. 750 gms. Two samples each weighing 10 gms were taken from the charas and the same were empty match boxes and the samples were put in two inside cloth parcels which were sealed with seal `K'. The remaining charas was also put inside cloth parcel and the same was seal with sealed `K'. Seizure memo Ext. PA was prepared which was signed by the witnesses aforesaid and the accused " 18. PW 1 Manoj Kumar and PW 2 Balbir Singh have also deposed that the accused alongwith the bag was taken to the police station where search of the bag and seizure of the charas was carried out. 19. PW 2 Constables Mohinder Singh, another witness of the search and seizure has a different story to tell. He had contradicted PW1, PW2 and PW7 as to the place of search and seizure. 19. PW 2 Constables Mohinder Singh, another witness of the search and seizure has a different story to tell. He had contradicted PW1, PW2 and PW7 as to the place of search and seizure. He states:- "....One bus No. HP-12-4137 was checked at the said nakka at 9.35 P.M. We were six police officials who had entered inside the bus which was coming from Manali and was being driven to Delhi. Out of six, two were Desh Raj, SI, S.H.O. and ASI Bhim Singh and four constables that is myself, S/Shri Ranjit Singh, Kuldip Singh and Bhag Singh. We had checked each passenger including his luggage inside the bus. During checking, accused Yaseen whom identify today in the court, as the same person, was occupying seat No. 40 and one bag which he was carrying in his lap was searched and charas was found in the form of sticks inside the polythene envelops were kept inside the bag. Thereafter, the accused was taken out of the bus alongwith the bag. had then been sent to police station Barmana with the ruqa which is Ex.PF. The charas was not weighed in my presence. After delivery of ruqa, carried the case file to the spot." 20. Thus, according to PW 3 Constable Mohinder Singh, the bag alleged to be belonging to the accused was searched inside the bus and on recovery of charas therefrom, the accused was taken out of the bus alongwith the bag. PW3 has further categorically stated that he had carried the report (Rukka) Ex.PF from the spot to the police station and had returned to the spot alongwith the case the file. 21. PW 7 Sub Inspector Des Raj who has admitted that the search and seizure was carried out at the police station itself in his examination-in-chief contradicted himself by stating:- .......I had then recorded ruqa and had sent the same to P. S. Barmana through Constable Mohinder Singh for registration of the case. After delivery of the ruqa, he had brought case file to me." 22. After delivery of the ruqa, he had brought case file to me." 22. If the search and seizure was carried out at the police station and report (Rukka) Ex.PF was also recorded at the police station, the question of sending Ex.PF to the police station could never arise nor there could have been an occasion for PW3 constable Mohinder Singh to return to the spot alongwith file when PW7 Sub Inspector Des Raj was present in the police station itself. 23. On the basis of report (Rukka) Ex.PF formal F.I.R. Ex.PG was recordec by PW 14 Head Constable Prem Lal. The endorsement made by him on Ex.PG under the heading "police proceedings" reads: "On receipt of the ruqa, contents thereof have been reproduced word by word as per procedure. Five copies of his F.I.R. have been prepared at one stroke with the help of carbon papers and pencil and are being sent to higher authorities at the Head Office for their perusal. Entries concerning the occurrence have been made in the relevant registers as per procedure. The file index has been filled in and the case file has been sent per messenger constable to the SI/SHO Des Raj on the spot for conducting investigation" Emphasis supplied 24. The above endorsement made by PW4 Head Constable Prem Lal on the F.I.R Ex.PG shows that the investigation officer PW7 was not present in the police station but was present at the spot and that the search and seizure was earned out there, then the version recorded in the above endorsement regarding the case file having been sent to the spot by PW 4 stands falsified. 25. There is yet another significant aspect of the case. As per the prosecution story, PW7 alongwith Assistant Sub Inspector Bhim Singh, Heal Constable Shamsher Singh and four constables on 21.12.2000 had left the police station for laying a Nakka" at Kanchi Mor. Having intercepted the accused he had returned to the police station and carried out the search and seizure there PW4 Head Constable Prem Lal who was present at the police station and who is show to have recorded the F.I.R. Ex.PG has pleaded ignorance as to the time when PW7 had returned to the police station. He has deposed:- "I cannot say at what time SHO Des Raj had returned to the police station on the night of occurrence. He has deposed:- "I cannot say at what time SHO Des Raj had returned to the police station on the night of occurrence. I cannot tell if Des Raj S.l. had recorded report of his arrival on that night." If PW7 had returned to the police station and had carried out the seizure there, he must have recorded the necessary report in this regard in the daiy diary. However, no such report has been proved in evidence in the present case. In the absence of such report, an adverse inference has to be drawn against the prosecution. Besides, it cannot be believed that PW-4, who is alleged to be present in the police station and was then officiating as incharge of the police, was not aware about the return of PW7 to the Police station and the proceedings for search and seizure alleged to have been carried out by him in the police station itself. Contention No. (iii). 26. Bag Ex.P3 is alleged to have been recovered from the conscious possession of the accused. The circumstance that bag Ex.P3 was recovered from the conscious possession of the accused, has not been put to the accused in his statement recorded under Section 313, Code of Criminal Procedure. The circumstances put to the accused in the form of question No.3 is in the following terms: - "It is further in evidence against you that when the police conducted your checking you were carrying one bag which you had kept in your lap. What have you to say about this?" 27. It has no where been suggested or put to the accused that it was bag Ex.P3 which was recovered and found on his lap or that bag Ex.P3 belongs to him. On the failure of putting such circumstance to the accused, a prejudice has been caused to him and the circumstance that it was bag Ex.P3 which was recovered cannot be used against the accused. 28. In Ms. Shriki Ravit v. State of H.P. [2002 (2) Sim.L.C. 276] the bag alleged to be containing the charas was found lying and kept on the rear seat of a car in between the two accused therein. 28. In Ms. Shriki Ravit v. State of H.P. [2002 (2) Sim.L.C. 276] the bag alleged to be containing the charas was found lying and kept on the rear seat of a car in between the two accused therein. The circumstance that the two accused had kept the bag on the back seat in between them or that the same belonged to them or either of them was not put to the two accused in their statements recorded under Section 313, Code of Criminal Procedure. It was held by a Division Bench of this Court that the circumstance that charas was recovered from the bag could not be used against the two accused. 29. The above ratio applied to the facts of the present case on all fours. 30. For the foregoing reasons, we are satisfied that the prosecution has not been able to bring home the offence against the accused beyond reasonable doubt and as such the conviction and sentence imposed upon the accused by the learned Sessions Judge cannot be sustained. 31. Resultantly, the appeal is allowed. The conviction and sentence imposed upon the accused are set aside and he is acquitted of the offence under Section 20 of the Act. 32. The accused, who is presently lodged in jail undergoing sentence shall be set at liberty forthwith, if not required in any other case. The amount of fine, if already realised shall be refunded to the accused. Case property shall be dealt with as per orders/direction of the learned trial Court.