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2004 DIGILAW 302 (HP)

RAMLAL v. STATE OF H. P.

2004-11-01

DEEPAK GUPTA, LOKESHWAR SINGH PANTA

body2004
JUDGMENT Deepak Gupta, J.: This appeal under Section 374 of the Code of Criminal procedure is directed against the judgment of the learned Sessions Judge, Kullu in Sessions trial No. 12/2002, whereby he has convicted the appellants (hereinafter called the Accused1) for an offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) and sentenced them to undergo rigorous imprisonment for a period of 10 years each and to pay a fine of Rs. 1 lac each. In default of payment of fine the accused have been directed to suffer imprisonment for six months. 2. Briefly stated the prosecution story is that on 7.11.2001 PW-9 ASI Parma Nand, In Charge of Police Post Patlikuhal along with PW-5 HC Lai Singh, PW-6 Ishwar Dass, constable Om Parkash and PW-7 Constable Hoshiar Singh left the police Post at about 7.30 p.m. for patrolling duty and Nakabandi at Patlikuhal Pagan road. At about 8.30 p.m. they saw two persons coming from Pagan side towards Patlikuhal. On seeing the police party, the said persons got frightened and therefore, PW-9 ASI Parma Nand got suspicious. He stopped the accused and enquired their names. At that time accused Ram Lai was carrying a white coloured bag and accused Prem Chand was carrying a black coloured bag (Pithu) on his back. PW-9 ASI Parma Nand suspected that they may be carrying some contraband. He therefore, gave an option to the accused of being searched before a Magistrate or gazetted officer or the police party. The accused vide separate memos Ex. PW5/A and PW5/B consented to be searched by the police party. PW-9 thereafter gave his personal search to PW-5 HC Lal Chand except for identity card nothing was found on his person. 3. Thereafter the white bag being carried by Ram Lai accused was searched. Inside this bag there was a polythene packet in which there was charas in the shape of chapatis and sticks wrapped in polythene paper. The charas was weighed and found to be 2 kgs. Two samples of 25 grams each were taken and packed in cloth packets sealed with seal ‘T’. The remaining charas along with polythene packet and paper was sealed in a separate pack also sealed with seal T. The charas recovered from accused Ram Lal aJong with samples were taken into possession vide memo Ex. Two samples of 25 grams each were taken and packed in cloth packets sealed with seal ‘T’. The remaining charas along with polythene packet and paper was sealed in a separate pack also sealed with seal T. The charas recovered from accused Ram Lal aJong with samples were taken into possession vide memo Ex. PW5/D. Thereafter the Pithu carried by Prem Chand was searched. In this there was a polythene packet containing charas in the shape of chapatis and sticks wrapped in polythene paper. On weighment the charas was found to be 3 kgs. Two samples of 25 grams each were taken out packed in separate cloth packets and sealed with seal T. The remaining charas along with polythene packet and paper was sealed in a separate packet also sealed with seal ‘T. The sample seal impression Ex. PW9/A was retained separately and NCB forms were filled in triplicate. The seal was entrusted to PW-5 HC Lai Singh. Charas and sample packets pertaining to accused Prem Chand were taken into possession vide memo Ex. PW5/E. 4. Both the accused were informed about the offence committed and the punishment provided vide memos Ex. PW5/F and PW5/G. PW-9 ASI Parma Nand thereafter prepared Ruqa Ex. PW-9/B on the spot itself about the recovery of charas from the accused. This was sent through PW-6 constable Ishwar Dass to Police Station, Manali. On the basis of this Ruqa, FIR No. 213 of 2001 Ex. PW-4/A was registered in Police Station Manali on 7.11.2001 by PW-4 Inspector Roshan Lai. On the next day i.e. 8.11.2001 at 6 a.m. the case property was produced by PW-9 ASI Parma Nand before PW-4 Inspector Roshan Lai along with the CNB forms. PW-4 resealed the case property with seal bearing impression H1 and also affixed seal impression on NCB forms and retained the specimen seal impression Ex. PW4/C. PW-4 thereafter deposited the entire case property along with the documents with PW-2 MHC Khem Chand, who took the property in possession and made entry in Mai Khana Register, copy of which is Ex. PW2/A. On 9.11.2001 PW-2 sent two samples to CTL Kandaghat through PW-1 Constable Pawan Kumar vide RC No. 152/2001, copy of which is Ex. PW2/B. PW-1 Pawan Kumar deposited the parcels with CIL Kandaghat and returned the RC along with receipt of CTL Kandaghat to PW-2 Khem Chand. 5. PW2/A. On 9.11.2001 PW-2 sent two samples to CTL Kandaghat through PW-1 Constable Pawan Kumar vide RC No. 152/2001, copy of which is Ex. PW2/B. PW-1 Pawan Kumar deposited the parcels with CIL Kandaghat and returned the RC along with receipt of CTL Kandaghat to PW-2 Khem Chand. 5. PW-9 AS I Parma Nand also prepared special report of the case, copy of which is Ex. PW3/A which was sent by him through LHC Hoshiar Singh to the Deputy Superintendent of Police Headquarter Kullu. PW-3 Constable Kashmi Ram, Reader to the Dy. Superintendent of Police received the special report on 8.11.2001. After receipt of the Chemical Analysis Report Ex. PW4/D certifying both the samples to be of charas PW-4 Inspector Roshan Lai prepared and presented the challan before the trial Court. 6. Both the accused were charged for committing offence under Section 20 of the NDPS Act. They pleaded not guilty to the charge and claimed trial. The prosecution examined nine witnesses in support of the case. Thereafter the statements of the accused were recorded under Section 313 Cr.P.C. Their case is of total denial. The accused did not lead any evidence in defence. 7. We have heard Shri Anup Chitkara, learned Counsel for the accused and Shri Som Dutt Vasudeva, and learned Additional Advocate General for-the State. Shri Chitkara has challenged the judgment of the learned trial Court on following three grounds: 1. That the police did not associate independent non-official witnesses despite their being opportunity, and as such, the search and seizure is rendered doubtful, if not illegal. 2. That there were two separate case properties for which four samples were taken and were sealed with seal T and re-sealed with seal H1. There is no legal evidence on record to identify these samples with any particular accused and there is possibility that both the samples belonged to one accused. 3. That the facts disclose two separate offences and two separate information. Therefore, two separate FIRs should have been lodged and as such prejudice has been caused to the accused by lodging single FIR and therefore they are entitled to be acquitted. Contention No. 1 8. 3. That the facts disclose two separate offences and two separate information. Therefore, two separate FIRs should have been lodged and as such prejudice has been caused to the accused by lodging single FIR and therefore they are entitled to be acquitted. Contention No. 1 8. The first contention of Shri Anup Chitkara, learned Counsel for the accused is, that even as per the prosecution, the accused were apprehended on 9.11.2001 at about 8.30 p.m. In cross-examination PW-5 HC Lai Singh has admitted that from Patlikuhal Chowki Fish Farm lies towards Pagan at a distance of about 200 meters. He also admits that there is dense population from the chowk upto the Fish Farm as the employees of the Fish Farm have their residences in the farm complex. It is also admitted by him that Kali Basti is located on the side of the National Highway and was visible from the spot. He has further stated that Pagan road passes through various villages, but the Investigating Officer had not sent for any witnesses. The witness volunteered that it was winter and that the persons go to bed early and Kali Basti is far away from the spot. PW-6 Constable Ishwar pass in his cross-examination has stated that the place where the accused were apprehended is 300 meters from Patlikuhal Chowk. He has also stated that Kali Basti may be about 300 to 400 meters from the spot. PW-9 ASI Parma Nand has also admitted that the place of occurrence is about 300 to 400 meters from Patlikuhal Chowk. He has also admitted that he did not send for witnesses. 9. It is by now well settled that mere non-association of independent witnesses cannot lead to the conclusion that the prosecution case is false. The testimony of police officials associated in the investigation cannot be discarded merely on the ground that they are official witnesses. However, it is also true that as a rule of caution while appreciating their evidence, this court should be more cautious and careful if non-official independent witnesses are not associated. In• the present case the police party could have easily associated independent witness. As per the prosecution version, the accused were apprehended suddenly. There was no need to comply with Section 50 of the NDPS Act. The police party went through the motions of complying with the requirements of this provision. In• the present case the police party could have easily associated independent witness. As per the prosecution version, the accused were apprehended suddenly. There was no need to comply with Section 50 of the NDPS Act. The police party went through the motions of complying with the requirements of this provision. The preparation of the consent memos Ex. PW5/A, Ex. PW5/B, the search by PW-9 and the preparation of Search Memo Ex. PW5/C itself would have taken atleast fifteen minutes. Admittedly there was dense population within a distance of 300 meters. Therefore, the police had ample opportunity to associate independent witnesses. 10. Mr. Chitkara, learned Counsel in support of his contention has relied upon cases Kingett Fdward Christopher v. State of H.P., 1996(1) Shim.LC. 422, Nainu Ram v. State of H.P. and Naresh Kumar and another v. State of H.P., Latest HLJ 2002 (H.P.)(DB) 820, Sandeep Kumar v. State of H.P., 2002(2) Shim.L.C. 224, State of H.P. v. Vinod Kumar, 2003(1) S.L.J. 174 and Rajesh Basniyat v. State of HP., Latest HLJ 2004 (HP) 875. 11. We need not refer to all these judgments in detail. The view of this Court has been succinctly laid down in Rajesh Rasniyat case (supra) where this Court has held as follows :- "(9) The failure to join independent witness can be attributable to various reasons like reluctance of the people to be witnesses in the cases, non-availability of witnesses in case of a chance recovery. Therefore, effect of the non-joining the independent witnesses has to be examined in view of the circumstances of each and every case. In case the omission to join independent witnesses is not deliberate and mala fide but because of circumstances beyond control the lapse will have least effect on the prosecution case. In any case, the court will have to be more careful and cautious in appreciating the evidence. The omission to join independent witnesses ipso facto will not be fatal to the case of prosecution, xxxxxxxxx 13. There is no rule of law to support the contention that testimony of police officials associated in the investigation or investigated the case should not be acted upon or believed. The police officials are as competent witnesses as any other witnesses. The omission to join independent witnesses ipso facto will not be fatal to the case of prosecution, xxxxxxxxx 13. There is no rule of law to support the contention that testimony of police officials associated in the investigation or investigated the case should not be acted upon or believed. The police officials are as competent witnesses as any other witnesses. It is a rule of caution that while appreciating their evidence the court has to be more cautious and careful and will look into other corroboratory circumstances if any not assess their evidence. In case such evidence is corroborated by other corroborative evidence and inspires confidence, there is no reason to discredit an official witness simply because he is official witness." 12. We are in respectful agreement with said judgment. In our, view the mere non-association of independent witnesses cannot lead I to the conclusion that the entire seizure and recovery is illegal but we shall definitely have to appreciate the evidence of the prosecution with much more care and caution. Contention No. 2 13. The second contention of the learned Counsel is that at the place of occurrence two samples each were taken out from the contraband allegedly carried out by the two accused and the samples were seals with seal T on the spot. They were identified and there is no evidence on record to show that there was anything on the samples to identify the samples and link them with each one of the accused. He further submits that there is possibility that both the samples belonging to one accused were sent for analysis to the Chemical Examiner. There is no way of linking the sample to any one accused and therefore both the accused have to be given the benefit of doubt. 14. In support of his contention, Mr. Chitkara learned Counsel for the accused has drawn our attention to the fact that in none of the documents prepared on the spot i.e. Seizure Memo Ex. PW5/D, Seizure Memo Ex. PW5/E, Ruqa Ex. PW9/B there is any mention of any identification mark on the samples linking the samples with each of the accused. Similarly, there is no such mention in FIR Ex. PW4/A; special report Ext. PW3/A and NCB Forms Ex. PW4/D. He states that to cover up this lapse the prosecution has tried to improve its case during the course of trial. PW9/B there is any mention of any identification mark on the samples linking the samples with each of the accused. Similarly, there is no such mention in FIR Ex. PW4/A; special report Ext. PW3/A and NCB Forms Ex. PW4/D. He states that to cover up this lapse the prosecution has tried to improve its case during the course of trial. PW-5 HC Lal Singh has stated in his examination-in-chief that the packets of charas and samples were signed by him and Om Parkash and accused also signed the same. PW-9 ASI Parma Nand has stated that the packets were got signed from Ram Lal accused. There is contradiction between the two statements. Whereas PW5 Lai Sing states, that accused (obviously meaning both) had singed the samples, the Investigating Officer PW-9 only mentions about accused Ram Lal having signed the sample. This is the entire evidence to link the samples with the accused. 15. We are not convinced that the prosecution has been able to link the samples with each of the accused. Admittedly, four packets of samples were prepared on the spot. They were all sealed with seal T. From the documents prepared on the spot there is nothing to show that there was any identification on the samples to link them with any particular accused. The documents i.e. Seizure Memos Ex. PW5/D, Ex. PW5/E, Ruqa Ex. PW2/B, FIR Ex. PW4/A and special report Ex. PW3/A which were prepared on the spot clearly, mention that there seizure memos have been signed by the witnesses and the accused. But there is nothing in these documents to show that the samples were also signed by the witnesses or both or any one of the accused. The statements of PW5 and PW-9 that the accused to Ram Lai had signed the samples does not inspire confidence and in this behalf reference may be made to the trial Court proceedings while recording the statement of PW-5 wherein the remaining two packets of the samples and the two large packets containing balance charas were produced and opened before the trial Court. The trial Court has not made any observation that the sealed samples Ex. P4 and Ex. P-8 bore the signatures of the accused. 16. The trial Court has not made any observation that the sealed samples Ex. P4 and Ex. P-8 bore the signatures of the accused. 16. PW-1 Inspector Roshan Lal has stated that ASI Parma Nand had deposited four sealed samples and two sealed packets sealed with seal T. He had resealed the same with his seal bearing impression H. He is silent as to any special identification mark or signatures on the samples to link each of the four samples with any one of the accused. PW-2 states that PW-4 had deposited the six sealed parcels i.e. four samples and two packets with him which were sealed with seal T and H along with NCB forms in triplicate. He is also totally silent with regard to any signatures on the samples nor does he mention as to which sample belonged to which accused. He proved the copy of Malkhana register Ex. PW2/A and copy of Road Certificate Ex. PW2/B (wrongly mentioned as PW2/A in the judgment of the trial Court) after producing the originals. In the Malkhana register also there is the following entry with regard to the samples; (3) Four Nos. of samples of charas which are sealed with 3 seal of T and H containing 25 gram each along with form NCB-1 triplicate, samples of seal T or H. Though this entry makes mention about the identifying the seals, there is no mention of any signatures. Similarly in Road Certificate Ex. PW2/B there is following entry : "(1) Case FIR No. 213/01 dated 7.11.2001 under Section 20 NDPS Act two samples of charas containing 25 gram each sealed with 3 seal of T and 3 seal of H along with sample of seal T, H, copies of FIR seizure memo, Form NCB...." Again there is no mention of any signatures of other identification marks on the sample. 17. Another circumstance which creates doubt about the linking of samples with each one of the accused is that by the same RC another sample bearing seal T and A has been sent to the CTL Kandaghat which relates to FIR No. 214/01 dated 9.11.2001 under Section 20 of the NDPS Act whereas the present case relates to FIR No. 213/01 recorded on 7.11.2001. Why the samples were not handed over the transmission on 8.11.2001 has not been explained! Why the samples were not handed over the transmission on 8.11.2001 has not been explained! It has also not been explained why two separate road certificates were not prepared for samples relating to different cases. A result of the report of the Chemical Examiner Ex. PW4/D also reveals that there are no special identification marks to show that the two samples analysed related to both or any one accused. 18. We are fortified in taking this view by a judgment of this Cpurt in case Hira Giri @ Hardev Giri v. State of H.P., 2003(2) Shim.L.C. 350. Para 41 of the said judgment is extracted hereunder:- "41. The prosecution, however, has failed to prove that out of the two samples which were got analysed, one was the sample drawn from the charas found in bold box and the other was drawn from the charas found in the polythene bags kept under the drivers seat of the jeep. It is case of the prosecution that two samples were drawn from each of the charas recovered from Ext. P-4 and charas found in two polythene bags, kept under the drivers seat in the jeep. Four samples, so drawn, were marked S-1 to S-4. There is, however, not even an iota of evidence to prove as to which two samples out of the samples marked S-1 to S-4 were drawn from each-volume of the charas so recovered. Further, there is no evidence to prove that one of the two samples sent for analysis was drawn from the charas found in Ext. P-4 and the other was drawn from the charas recovered from under the drivers seat of the jeep. Therefore, the possibility that both the samples sent for chemical analysis, were, those drawn only from the charas Ext. P-4 or from the Yiaras found Vept. underneath the drivers seat of the jeep. In these circumstances what can be concluded is that the samples sent to analysis were undoubtedly of the charas recovered from the possession of the accused but for want of any evidence whatsoever, we are not in a position to hold that each of the two samples analysed in the Laboratory was representative of each volume of the charas recovered by the police from Ext. P-4 and from under the seat of the driver but one or both of them was/were of at least one bulk of the charas so recovered from the possession of the accused 19. In view of the above evidence and the law cited above we are of the opinion that the prosecution has miserably failed to show that two samples sent to CTL, Kandaghat related to both the accused. There is sufficient doubt that both the samples might have related to one of the accused. 20. It is not possible to link the samples either with accused Ram Lal or with accused Prem Chand. Therefore, the benefit has to be given to both the accused. Since the very analysis and linking of the samples doubtful both the accused are entitled to be acquitted. Therefore their conviction cannot be upheld and the same is liable to be set aside. Contention No. 3 21. In view of our findings on contentions No. 1 and 2, it is not necessary to decide the third contention raised by the learned Counsel for the accused. 22. As a result this appeal is allowed and the conviction of each of the accused and the sentences awarded to each of the accused are set aside and they are acquitted of the charges against them. The accused persons are presently in jail undergoing the sentences of imprisonment awarded to them. They be set at liberty forthwith unless required to be detained under any process of law. Fine, if recovered, be refounded to the concerned accused. 23. The case property be disposed of in accordance with the order of the trial Court.