Research › Search › Judgment

Himachal Pradesh High Court · body

2004 DIGILAW 342 (HP)

JAGAT SINGH ALIAS JAGGA v. STATE OF H. P.

2004-12-21

M.R.VERMA

body2004
JUDGMENT M.R. Verma, J.: The appellant-accused (hereinafter referred to as the accused) has preferred the present appeal against the judgment dated 29.9.2004 passed by the learned Sessions Judge, f Bilaspur, whereby the accused has been convicted under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) and sentenced to undergo rigorous imprisonment for five years and fine of Rs. 50,000/- and in default of payment of fine to undergo further rigorous imprisonment for one year. 2. Brief facts leading to the present appeal are as follows: On 19.8.2003, Police Inspector Shiv Ram (PW-12) alongwith ASI Jeet Ram, HCs Nanak Chand, Jasbir Singh, Rakesh Kumar and constables Razzaq Mohammed, Ram Singh, Brij Lal and Daulat Ram, was present on patrol duty in village Majari. He received secret information that the accused was in possession of huge quantity of opium inside and outside his house and also sufficient sale proceeds in the form of currency notes and in case his house was searched opium and currency notes could be recovered. As per chance, Jarnail Singh (PW-2) and Kuldeep Singh (PW-1) met PW-12 who informed them of the information and joined them in the investigation. Information Ext. PA under Section 42(2) of the NDPS Act was sent to the Deputy Superintendent of Police, Bilaspur and the raiding party proceeded to the house of the accused. When the raiding party reached there accused was sitting in his courtyard. He was apprehended and was informed of the information by PW-12 and was given the option of search in the "presence of a Gazetted Officer or a Magistrate or by PW-12 and the accused consented for the search of his house and outer portions by PW-12 vide Memo. Ext. PB. On personal search of the accused noting” incriminating was recovered from him. On search of his residential premises one polythene bag containing. 400 grams of opium was recovered from the kitchen-room and from the adjoining room weights and measures of 1 kg., 500 grams, 100 grams, 50 grams, 20 grams, 10 grams and polythene bags were recovered. In the same room a big trunk was lying in which currency notes worth Rs. 2,22,100/- were recovered. On further search oh the slab of the bathroom of the house one more polythene packet containing 630 grams of opium was found. In the same room a big trunk was lying in which currency notes worth Rs. 2,22,100/- were recovered. On further search oh the slab of the bathroom of the house one more polythene packet containing 630 grams of opium was found. Samples were taken from each of the recovered opium and the samples and bulk opium and the recovered currency notes were made into parcels and sealed with seal NT and the recovered opium and currency notes were seized by the police vide Memo. Ext. PD. Ruka Ext. PH was accordingly sent by PW-12 to the Police Station for the registration of a case on the basis of which formal FIR Ext. PK was recorded at Police Station, Kot Kehloor. During investigation, the accused made disclosure statement Ext. P1 about 3 kgs. opium having been kept concealed beyond the road in the bushes. On the basis of said disclosure statement one polythene bag containing 3 kgs. of opium was recovered. After separating the samples, the bulk opium and the samples were separately sealed with seal NT and seized by the Investigating Officer vide memo. Ext.PF. The samples were sent to the laboratory for analysis and all the three samples were found to be of opium vide reports Ext.PX and PY of the Chemical Examiner, H.P.C.T.L, Kandaghat. On being satisfied of the commission of the crime by the accused a charge-sheet was submitted against him and he was tried by the learned Sessions Judge, Bilaspur, on a charge under Section 18 of the NDPS Act. 3. To prove the charge against the accused, prosecution examined as many as 13 witnesses. Statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, wherein he denied the prosecution evidence and claimed that he had been falsely implicated in the case, accused led evidence. in his defence and filed three certificates issued by the Punjab National Bank regarding certain loan transactions between him and the Bank. 4. On consideration of the material on record, the trial court held that the accused was proved to be in possession of 1030 grams of opium recovered from within his residential premises but did not believe the prosecution version regarding recovery of 3 kgs. opium at the instance of the accused and finally convicted and sentenced the accused as aforesaid. 5. Feeling aggrieved, the accused has preferred the present appeal. 6. opium at the instance of the accused and finally convicted and sentenced the accused as aforesaid. 5. Feeling aggrieved, the accused has preferred the present appeal. 6. I have heard the learned Counsel for the accused and the learned Additional Advocate General for the respondent-State and have also gone through the records. 7. Be it stated at the very outset that the State has not questioned the findings of the trial Court that making of the disclosure statement by the accused with consequential recovery of 3 kgs. of opium was not proved resulting in lesser punishment to the accused in any form. Therefore, such findings has become final. 8. The learned Counsel for the accused has assailed the impugned conviction on the following grounds: (1) That there is no cogent and reliable evidence on record to prove that 1030 grams of opium was recovered from the conscious possession of the accused; and (2) that there is no link evidence to connect the allegedly recovered opium and the samples sent for analysis. Grouhd No. 1 9. It was contended by the learned Counsel for the accused that PW-1 and PW-2 were joined by PW-12 in the raiding party to witness the process of search, however, none of these witnesses have supported the prosecution version about the alleged recovery. Thus, the independent witnesses having not supported the prosecution version, the statements of the police officials, namely PW-12 and PW-13, being not signatory to any of the Memos, regarding search and seizure could not be relied upon to convict the accused. 10. On the other hand, the learned Additional Advocate General contended that statements of PW-12 and PW-13, which are trustworthy and confidence inspiring, cannot be disbelieved simply because they are police officials. The quantity of the recovered opium is such, that it could not have been procured and planted by the police -officials, only to implicate the accused, therefore, in view of the evidence-of PW-12 and PW-13 and the independent witnesses admitting their presence on the spot and lending partial corroboration to the prosecution version, the trial Court has rightly convicted the accused. 11. It may be pointed out at the very outset that the two independent witnesses PW-1 and PW-2 even according to the version in Ruka Ext. 11. It may be pointed out at the very outset that the two independent witnesses PW-1 and PW-2 even according to the version in Ruka Ext. PH had met the police on the spot as per chance and their presence was not especially secured by calling them from their residence or any other place to associate them in the raiding party as witnesses. PW-1 admittedly is Vice President of a Gram Panchayat, therefore, it can also not be readily assumed that he will not speak the truth unless shown to be interested in the accused. A perusal of the statements of these two independent witnesses reveals that they have not supported the prosecution version regarding search, recovery and seizure of the opium. There is nothing in their cross-examination to suggest that for any reason whatsoever they are not speaking the truth. Therefore, no help can be taken from the statements of these witnesses to hold that the opium was recovered from the possession of the accused. 12. No doubt, there is no proposition of law that evidence of the police officials should not be accepted. It is only a rule of prudence that their statements must be read with caution and if found cogent, reliable and confidence inspiring, their evidence must be accepted but in case their conduct while discharging their duties is found shrouded by suspicious circumstances and their statements do not inspire confidence, their evidence cannot be relied upon to convict an accused person. 13. PW-12, the Investigating Officer, though by and large supports the prosecution version except referring to the allegedly recovery opium as charas at few places in his examination-in-chief. However, a perusal of the record reveals that his conduct in carrying out the investigation cannot be said above board. It is, not in dispute that the accused is not the sole occupant of the house which was searched and his wife and mother are also residing in the same house. PW-12 apparently has not said or done anything to rule out the involvement of the said co-occupants in the alleged commission of the offence though it was for the prosecution and basically for PW-12 to rule out the doubt that the aforesaid occupants might have kept the alleged opium within the premises. 14. PW-12 apparently has not said or done anything to rule out the involvement of the said co-occupants in the alleged commission of the offence though it was for the prosecution and basically for PW-12 to rule out the doubt that the aforesaid occupants might have kept the alleged opium within the premises. 14. As already stated, his version about the alleged disclosure statement of the accused and \he alleged consequential recovery had been disbelieved by the trial Court and such findings have not been called in question by the State. 15. PW-12 claims that he prepared the information Ext.PA regarding receipt of the secret information and sent it to the Deputy Superintendent of Police, Bilaspur, though Constable Daulat Ram. Constable Daulat Ram (PW-5) claims to have taken ExtPA to Bilaspur and handed over the same to HC Vijay Kumar (PW-7). PW-7 claims to have received this report at about 1145 a.m. and having put it before the Dy.S.P. at 12.05 p.m. and after having seen the information it was returned to him by the Dy.S.P. This version is totally belied by the material on record. Ext.PA is mentioned to have been sent to the Dy.S.P. through Daulat Ram vide Ruka Ext.PH drawn up at 11.15 a.m. after completion of the search of the house, therefore, could not have been delivered to PW-7 at 11.45 a.m. 16. According to ASI Deep Ram (PW-13) who claims to be present during the entire process of the investigation, this report Ext.PA was handed over to Constable Daulat Ram on the spot but he was not immediately sent to Bilaspur. On the contrary, he also went to the house of the accused. It means that constable Daulat Ram (PW-4) was present on the spot at the time of the search. PW-4 admits that Dy.S.P. was present on the spot when he started from there to deliver the information Ext.PA to him. Statement of PW-4 regarding presence of the Dy.S.P. on the spot finds corroboration from the statement of PW-1 who has stated that when he reached on the spot Dy.S.P. was already present there. If the Dy.S.P. was present on the spot it is not known as to why the information meant for him was not handed over to him on the spot where he was present and why it was taken to his office and handed over to his reader. 17. If the Dy.S.P. was present on the spot it is not known as to why the information meant for him was not handed over to him on the spot where he was present and why it was taken to his office and handed over to his reader. 17. It may also be noticed that constable Ram Singh (PW-5) has also come forward with the version that he started from the spot at 4 p.m. alongwith the information to be given to the Dy.S.P. and handed over the same to HC Vijay Kumar at Bilaspur at 7 p.m. 18. Evidently, the statements of PW-4 and PW-5 are contradictory of each other and, thus, the evidence led by the prosecution that the information Ext.PA was sent to the Dy.S.P. by PW-12 as claimed is self-contradictory and self-destroying and appears to have been concocted to show that provisions of Section 42 of the NDPS Act were complied with. This not only reveals unfairness in the investigation having adverse bearing on the credibility of the evidence of PW-12 but also reveals that the provisions of Section 42 of the NDPS Act were not complied with. Therefore, evidence of PW-12 is not confidence inspiring and trustworthy. 19. PW-13 has been examined to corroborate the statement of PW-12. PW-13 admittedly is not a signatory of any of the documents prepared by the Investigating Officer regarding search seizure, disclosure statement or the alleged consequential recovery. As admitted by him in his cross-examination he is not aware as to who reduced the secret information into writing, and who prepared the site plan or what was written therein. He could not give the description of the surroundings of the places of alleged recoveries. Above all, his name does not figure in the list of prosecution witnesses filed with the chargesheet. There is no dispute that the Investigating Officer had not recorded his statement under Section 16, Cr.P.C. nor copy or substance of the statement he was expected to make was ever furnished to the accused. For the reasons stated therein above the statement of PW^13 is also not reliable and confidence inspiring. 20. The above discussion leads to the conclusion that there is no t cogent and reliable evidence to prove that the accused was in 1 possession of the opium as concluded by the trial Court. Ground No. 2: 21. For the reasons stated therein above the statement of PW^13 is also not reliable and confidence inspiring. 20. The above discussion leads to the conclusion that there is no t cogent and reliable evidence to prove that the accused was in 1 possession of the opium as concluded by the trial Court. Ground No. 2: 21. It was contended by the learned Counsel for the accused that there is no link evidence to connect the alleged opium and the samples sent for analysis, therefore, the case of the prosecution must fail and the accused deserves to be acquitted. 22. On the other hand, the learned Additional Advocate General contended that there is evidence on record that samples in safe custody were sent to the Chemical Examiner and he found them to be those of opium, therefore, it cannot be urged by the accused that there is no link evidence to connect the samples with the case property. 23. To prove that the sample analysed in the Laboratory was that of the bulk case property, the prosecution has to prove that after sealing the samples and the bulk case property specimen of impression of the seal used for sealing the samples and bulk case property was separately taken, was sent to the Laboratory with the samples of the seized contraband and till so sent remained in safe custody and on comparison in the Laboratory tallied with the seal impressions on the sample packets. 24. As per the prosecution case disclosed in the charge-sheet, PW-12 had taken the specimen impressions of the seal used for sealing with the bulk opium and the samples thereof which remained intact in the transmission from one place to another and untampered with and tallied with the samples sent to the Chemical Examiner for test. However, there is no evidence on the record in this regard. A perusal of the statement of PW-12 reveals that he has nowhere stated that he had ever taken the specimen seal impression of the seal used for sealing the bulk case property and the samples nor he has stated that he had ever deposited the seal impression of the seal used for sealing the case property anywhere in safe custody. None of the independent witnesses has stated that specimen impression of the seal used for sealing the case property/samples was ever taken by the Investigating Officer. 25. None of the independent witnesses has stated that specimen impression of the seal used for sealing the case property/samples was ever taken by the Investigating Officer. 25. PW-11, Manoj Kumar, has stated that on 19.8.2003, PW-12 had handed over five parcels sealed with seal N1 and four samples sealed with seal N to him, which he resealed with his seal H and handed over to MHC Rajeshwar Singh. He has also not stated that alongwith the case property and NCB form or specimen of seal impression(s) was ever handed over to him by PW-12. In the facts and circumstances of the case, six samples ought to have been handed over to PW-11 by PW-12 whereas PW-11 states about receipt of only four samples and no explanation is forthcoming as to what happened to the remaining two sealed sample parcels. It is not in the evidence of PW-11 that he ever took the specimen seal impressions of seal H allegedly used by him for resealing the aforesaid packets handed over to him by PW-12 or any specimen seal impression whatsoever was handed over by him alongwith the samples to MHC Rajeshwar Singh. 26. HC Rajeshwar Singh (PW-9) states that PW-12 had deposited with him the case property pertaining to the case sealed with seals N and H, out of which he handed over three Pulindas to Constable Kartar Singh for depositing in CTL, Kandaghat and that during the period the parcels remained in his custody none tampered with them. In the cross-examination, he admits that he is not in a position to state as to how many parcels of case property were handed over to him. Further he has not stated anything about having received the specimen seal impressions of the seals N and H used by PW-12 and PW-11 for sealing and resealing the case property and the samples nor he states anything about having received the NCB forms. It is also not stated by him that any specimen seal impression or NCB form was handed over by him to Constable Kartar Singh who took three Pulindas to CTL, Kandaghat. 27. It is also not stated by him that any specimen seal impression or NCB form was handed over by him to Constable Kartar Singh who took three Pulindas to CTL, Kandaghat. 27. Constable Kartar Singh (PW-8) also, states only about handing over of three parcels to him by PW-9 which he handed over in the Laboratory on 22.8.2003., He has also not stated anything about having received alongwith the aforesaid three parcels any specimen seal impression or the NCB form separately for being handed over in the Laboratory. 28. The NCB forms produced by the prosecution in evidence alongwith report of the Chemical Examiner, CTL, Kandaghat, are Exts. PX and PY. No doubt, both the reports contain the certificate about the receipt of the samples and the certificates that the seals thereof were not broken and tallied with the specimen impression of seal but these certificates are not handwritten or even typed but seals containing these certificates have been affixed on the reports. Evidently, a stereotyped act without even classifying whether the comparison was of the inner seals or the outer seals and how the specimen impression of seal was available to the Chemical Examiner whereas in the receipt certificate there is no mention that any specimen seal impression(s) of any seal was ever received in the Laboratory. One of the facsimile of seal fixed to Ext.PX is apparently not legible and, thus, incapable of being compared with any other seal impression. Further there is no explanation to explain the existence of FIR number and the facsimile of seal used by PW-11 to reseal the case property in the NCB form whereas it is claimed that forms had been prepared on the spot at the time of the alleged seizure of the opium when the FIR was yet to be registered and the case property at that time was not resealed. There is no other evidence to show that the samples sent for Chemical Analysis were those of the recovered/bulk case property. 29. In view of the above discussion, it is clear that there is no link evidence to prove that the samples tested in the Laboratory were those of the recovered/bulk case property. 30. In view of the conclusions herein arrived, it is held that the prosecution had failed to prove the charge against the accused, therefore, the impugned conviction and sentence cannot be sustained. 31. 30. In view of the conclusions herein arrived, it is held that the prosecution had failed to prove the charge against the accused, therefore, the impugned conviction and sentence cannot be sustained. 31. As a result, this appeal is allowed. The impugned conviction and sentence are set aside and the accused is acquitted of the charge against him. The accused, who is presently in the Jail undergoing sentence of imprisonment imposed on him by the trial Court, be set at liberty forthwith unless required to be detained under any other process of law. Fine, if recovered, be refunded to the accused.