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2005 DIGILAW 151 (HP)

SACHIN SHARMA v. STATE OF H. P.

2005-05-23

LOKESHWAR SINGH PANTA, SURJIT SINGH

body2005
JUDGMJBNT Surjit Singh, J.—Appellant Sachin Sharma feels aggrieved by the judgment dated 2.11.2002 of learned Sessions Judge, Kullu, whereby he has been convicted of an offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs. 1,00,000/-, and in default of payment of fine, to undergo imprisonment for a further period of six months. Therefore, he has preferred this appeal. 2. The case of the prosecution, as it emerges from the record of trial Court, may be summed up thus. On 19.2.2002, ASI Rattan Lai (PW-6), Incharge Police Post, Sainj, falling within the jurisdiction of Police Station Banjar, went towards village Trehra, in connection with routine patrolling in the company of HHC Hem Raj, HHC Hari Chand and HHG Chaman Lai. Around 8.30 a.m., the said ASI Rattan Lai and police officials accompanied him spotted the appellant coming from the side of Sainj. He was carrying an executive bag. On seeing the police, he got nervous. That aroused the suspicion of the police people. ASI Rattan Lai asked the appellant his name and other particulars and also told him that he suspected that he (the appellant) was carrying some contraband and so it was intended the search of his person and if he so desired, search of his person could be arranged in the presence of a Magistrate or some Gazetted Officer. This intimation was given to the appellant verbally as well in writing through memo Ext. PW5/A. The appellant told the ASI that he had no objection in the search of his person by the police people present on the spot and he also gave his consent, in writing. That writing is Ext. PW5/A-l. Thereafter, the executive bag, which the appellant was carrying was searched. It was found to contain Charas which on being weighed was found to be 1.200 Kilograms. Two samples each weighing 25 grams were drawn from the stuff recovered and the samples and bulk were made up into three separate parcels and the parcels were sealed with a seal which produced the impression of letter H of English Alphabet. NCB forms, in triplicate, were also filled in on the spot and seizure memo Ext. PW5/C was drawn up. NCB forms, in triplicate, were also filled in on the spot and seizure memo Ext. PW5/C was drawn up. Signatures of the appellant and the police officials accompanying the ASI Rattan Lai, who were associated as witnesses, were also obtained on the said memo. The appellant was arrested and the grounds of arrest were intimated to him, in writing, through memo Ext.PW5/D as also verbally. The Investigating Officer then drew up a report of the search and seizure and the circumstances leading to such search and sent the same to Police Station, Banjar, through HC Hem Raj, for formal registration of the case. Case was formally registered, vide FIR No. 23/2002 dated 19.2.2002, copy Ext.PW7/A. The case property, alongwith the two representative samples drawn on the spot, was produced before PW 7 S.I. Balwant Singh Station House Officer, Police Station, Banjar, on the same day. The Station House Officer affixed his own seal on the parcel containing the bulk Charas as also the parcels containing samples. The seal used by him produced the impression of English letter B. The three parcels along with NCB forms and specimen impressions of the seals were then deposited with MHC of Police Station, Banjar. The said MHC sent one of the two parcels, containing the samples, to the CTL, Kandaghat on the next following day, that is on 20.2.2002, through C. Sunil Kumar (PW-2) alongwith NCB forms and specimen seal impressions etc. 3. On 22.4.2002, an application was moved by Sh. Balwant Singh PW 7, SHO, Banjar, to the Chief Judicial Magistrate, Lahaul & Spiti at Kullu, under Section 52-A(2) of the Narcotic Drugs and Psychotropic Substances Act, with the prayer that photographs of the seized Charas be allowed to be taken in his (Chief Judicial Magistrates) presence and those photographs alongwith the inventory of the seized Charas be certified to be correct. On 1.5.2002, the learned Chief Judicial Magistrate, Lahaul & Spiti passed an order, copy Ex. PW 7/G, on that application and issued certificate Ex. PW 7/F. According to the said order and the certificate the case property had been produced by Sh. Narain Singh, Head Constable Incharge Malkhana, Police Station, Sadar, Kullu, alongwith two parcels containing samples. 4. On 1.5.2002, the learned Chief Judicial Magistrate, Lahaul & Spiti passed an order, copy Ex. PW 7/G, on that application and issued certificate Ex. PW 7/F. According to the said order and the certificate the case property had been produced by Sh. Narain Singh, Head Constable Incharge Malkhana, Police Station, Sadar, Kullu, alongwith two parcels containing samples. 4. The Chemical Examiner, CTL, Kandaghat, to whom one of the samples drawn from the recovered Charas on the spot, had been sent for analysis, opined that the contents of the sample were of Charas. On the receipt of the said report, the Station House Officer, drew up a report, under Section 173, Code of Criminal Procedure, and filed the same in the Court of learned Sessions Judge, Kullu. 5. After complying with the requirement of Section 207, Code of Criminal Procedure, the learned Sessions Judge, Kullu charged the appellant with the offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act and on his pleading not guilty put him on trial. On the conclusion of the trial the learned Sessions Judge found the appellant guilty of the offence, under Section 20 of the Act and convicted and sentenced him, as aforesaid. 6. In the grounds of appeal it is stated that though the prosecution has tried to show that this was a case of chance recovery, the evidence of on record suggests that the police people had prior information of the alleged offence and if that is so the case is bad and rather vitiated, on account of non-compliance of the provision of Section 42 of the Narcotic Drugs and Psychotropic Substances Act which is mandatory provision. It is also alleged that provision of Section 50 of the Act had not been complied with in letter and spirit and that only the papers regarding the compliance of the said provision had been prepared. It is alleged that independent witnesses were also not associated at the time of the search of the person of the appellant and this has materially prejudiced the appellant. It is also alleged that the recovered stuff does not stand connected with the report of the Chemical Examiner. 7. During the course of hearing of the appeal, learned defence Counsel (Sh. Anup Chitkara) confined himself only to a few of the grounds, which are as follows:— (a) The report of the Chemical Examiner Ex. It is also alleged that the recovered stuff does not stand connected with the report of the Chemical Examiner. 7. During the course of hearing of the appeal, learned defence Counsel (Sh. Anup Chitkara) confined himself only to a few of the grounds, which are as follows:— (a) The report of the Chemical Examiner Ex. PW 6/E, does not stand connected with the recovered stuff, i.e., Charas; and (b) The evidence regarding recovery of Charas from the appellant, is not believable. 8. Admittedly the case property, i.e. the parcel containing the bulk Charas was not produced in the Court. The case property itself was the primary evidence to substantiate the charge of recovery of Charas from the appellant. There is an alternative to the production of case property. Section 52-A of the Narcotic Drugs and Psychotropic Substances Act, which has been incorporated vide Act 2 of 1989 provides vide sub-section (4) that where a Magistrate has certified the inventory, or the photographs of the stuff or any list of sample drawn in the presence of the Magistrate to be correct, the same is to be treated as primary evidence in respect of the offence. No doubt the prosecution has produced a certificate (Ex. PW 7/F) issued by the learned Chief Judicial Magistrate, Lahaul & Spiti alongwith the zimini order Ex. PW 7/J passed by the said Chief Judicial Magistrate on the application under Section 52-A of the Narcotic Drugs and Psychotropic Substances Act, whereby it has been certified that a representative sample had been drawn from a sealed parcel bearing seal impression H and B containing 1.175 kilograms Charas and two other parcels containing 25 grams Charas each, but the certificate and the order do not stand connected with the case property of this case. 9. The property, which had allegedly been recovered from the appellant, had been sealed by two officers, namely Investigating Officer ASI Rattan Singh PW 6 with his seal which produced the impression of letter H of English alphabetic and by PW 7 S.I. Sh. 9. The property, which had allegedly been recovered from the appellant, had been sealed by two officers, namely Investigating Officer ASI Rattan Singh PW 6 with his seal which produced the impression of letter H of English alphabetic and by PW 7 S.I. Sh. Jaswant Singh, Station House Officer, with his own seal which produced the impression of English letter B. Rattan Singh PW 6 has stated that total weight of Charas was 1.200 Kilograms and that he drew two samples each weighing 25 grams and then made up the bulk Charas and the two samples into three parcels and sealed the said parcels with his aforesaid seal. PW 7 Balwant Singh, S.H.O. has stated that Rattan Singh PW 6 produced before him three parcels, bearing seal impression H and that he affixed his own seal that produced impression of English letter B and deposited those parcels with the Moharrar Head Constable, Police Station, Banjar. Moharrar Head Constable, Banjar Sh. Mohan Singh H.C. has stated that three parcels bearing seal impressions H and B were deposited with him by the S.H.O. along with NCB forms and specimen impressions of the seal on 19.2.2002 and that out of the two sample parcels, he sent one parcel to the Chemical Examiner, CTL, Kandaghat through constable Sunil Kumar PW 2. His testimony regarding dispatch of one part of the samples is corroborated by PW 2 Sunil Kumar as also by the report of Chemical Examiner Ex. PW 6/E per which the samples had been received on 21.2.2002 through constable Sunil Kumar. 10. Now after the dispatch of one of the two samples parcels to the Chemical Examiner, CTL, Kandaghat on 20.2.2002 there remained with Moharrar Head Constable, Banjar only two parcels, one containing bulk Charas and the other a sample. Moharrar Head Constable Mohan Lai PW 4 has nowhere stated that he had sent these two parcels to Moharrar Head Constable, Police Station, Sadar, Kullu at any point of time, though he did tender Photostat copy of some entry from Malkhana register in which it is mentioned that on 7.3.2002 the case property had been sent to Police Station, Sadar, Kullu. This entry is not authenticated by anybody, because apparently it does not bear the signature of the Station House Officer or Moharrar Head Constable Incharge of the Malkhana nor has PW 4 Mohan Lai stated so. This entry is not authenticated by anybody, because apparently it does not bear the signature of the Station House Officer or Moharrar Head Constable Incharge of the Malkhana nor has PW 4 Mohan Lai stated so. In any case, as already noticed, PW 4 Moharrar Head Constable Mohan Lai did not say that the two parcels which were left with him after the dispatch of one of the sample parcels to the Laboratory had been sent to the Police Station, Sadar Kullu. No witness from Police Station, Sadar Kullu, has either been examined to show that the remaining two parcels had been received in the Malkhana of Police Station, Sadar Kullu from the Malkhana of Police Station, Banjar. But the property that was produced before the learned Chief Judicial Magistrate, Lahaul & Spiti in connection with the proceedings of application under Section 52-A of the Narcotic Drugs and Psychotropic Substances Act, and from which a representative sample was drawn, was produced by Head Constable Narain Singh Incharge, Malkhana, Police Station, Sadar Kullu. This apart, Ext. PW 7/D the application under Section 52-A, which was submitted to the Chief Judicial Magistrate, Lahaul & Spiti, at Kullu reads that the stuff in respect of which certification was applied for pertained to case F.I.R. No. 23 of 2002 of Police Station, Sadar Kullu, whereas the appellant is involved in case No. 23/ 2002 of Police Station, Banjar. Thus it is quite doubtful that the property which was produced before the learned Chief Judicial Magistrate, Lahaul & Spiti for the purpose of certification under Section 52-A (2) was the same as was allegedly recovered from the appellant. 11. Not only this the zimini order Ex. PW 7/G recorded by the learned Chief Judicial Magistrate suggests that three parcels, one containing 1.175 kilograms Charas and two containing 25 grams Charas each were produced before him. This order is dated 1.5.2002. It is not understood how three parcels, one containing 1.175 kilograms Charas and two containing 25 grams Charas each could have been produced before the learned Chief Judicial Magistrate, when only two parcels one containing the bulk Charas and the two containing samples were left with the Incharge MalkhSna, Police Station, Banjar after one sample parcel had been dispatched on 20.2.2002 to CTL, Kandaghat, as testified by PW 4 HC Mohan Lai and PW 2 constable Sunil Kumar. Further more the weight of the bulk stuff was supposed to be one 1.150 kilograms, after the drawl of two samples, each weighing 25 grams, because the total weight of the recovered stuff was 1.200 kilograms per testimony of PW 5 Hem Raj and PW 6 Rattan Lai ASI, but the stuff in the parcel containing the bulk weighed 1.175 kilograms, per order Ex. PW 7/G and certificate Ex. PW 7/F of learned Chief Judicial Magistrate, Lahaul & Spiti. These facts also suggest that the stuff, which was produced before the Chief Judicial Magistrate, Lahaul & Spiti and to which the certificate Ex. PW 7/F, intended to be used as primary evidence in lieu of the recovered stuff, by invoking the provision of sub-section (4) of Section 52-A, of the Narcotic Drugs and Psychotropic Substances Act pertains was not the same which was allegedly recovered from the appellant. 12. The stuff having not been produced and the certificate Ex. PW 7/F having not been established to pertain to the stuff that was allegedly recovered from the appellant, as demonstrated hereinabove, there cannot be any escape from the finding that the primary evidence of the case, i.e. the recovered stuff, has been withheld. In the absence of the primary evidence, it cannot be said that any stuff much-less Charas was recovered from the appellant. In our considered view this fact alone is sufficient to let-off the appellant. 13. As regards ground (b), the learned defence Counsel half-heartedly argued that there were some contradictions in the depositions of PW 5 Hem Raj Head Constable and PW 6 Rattan Singh ASI regarding search and seizure. The only contradiction which he pointed out pertains to the vehicle, by which the two witnesses and other police officials went to village Trhera on the relevant date, while PW 5 Hem Raj says that they went by a maruti van, PW 6 Rattan Lai says that they went by a jeep. This contradiction in no way affects the evidence regarding search and seizure as it pertains to a minor aspect of the matter and is therefore of little significance. 14. It was also argued that no independent witnesses had been associated. This contradiction in no way affects the evidence regarding search and seizure as it pertains to a minor aspect of the matter and is therefore of little significance. 14. It was also argued that no independent witnesses had been associated. When questioned whether there was any statutory requirement for association of independent witnesses in the facts and circumstances of the case, the learned defence Counsel very candidly conceded that no statutory provision regarding association of independent witness was attracted. We may observe that in the present case, it was not the requirement of any statutory law, to associate independent witnesses in the course of search of the bag of the appellant. The police officials did not have any prior information. Also they did not search the person of the appellant. Therefore, Section 50 of the Narcotic Drugs and Psychotropic Substances Act was not applicable. Section 100 of the Code of Criminal Procedure was also not attracted to the facts and circumstances of the case. Section 100 of the Code of Criminal Procedure is the verbatim reproduction of Section 102 and Section 103 of the old Criminal Procedure Code, i.e. the Code of 1898. From a bare reading of sub-section (4) of Section 100 of the Code of Criminal Procedure, it is clear that the provision is applicable where any place liable to search or inspection [under sub-section (1)] or any person in or about such place who is reasonably suspected of concealing about his person any article for which search should be made, [under Section (3)] is to be searched. In the present case, the police did not intend to search any place nor was the appellant present in or about anyplace intended to be searched and, therefore, the police officials were not supposed to have associated any independent and respectable persons of the area in the course of the search, as per requirement of sub-section (4) of Section 100 of the Code of Criminal Procedure. In this view of the matter, we find support from a judgment of the Honble Supreme Court in the case of Sunder Singh v. State of U.P. [AIR 1956 SC 411], wherein it has been held that Section 103 of the Code of Criminal Procedure, 1898 (corresponding to sub-sections (4) to (8) of Section 100 of the Code of Criminal Procedure, 1973) is not attracted where no place or a person in or about such place is intended to be searched. The facts of the case were that in a murder case the accused was noticed wearing a blood stained shoe by the Investigating Officer, while conducting the investigation of that case on the spot. Though he associated two witnesses, but they were not respectable inhabitants of the locality. A contention was raised that on account of non-association of the respectable persons of the locality, provisions of Section 103 of the Code of Criminal Procedure had been given a go by. The contention was repelled with the observations that Section 103 applies when a search is to be made of a place. It was also held that the provision does not apply to the search of a person. 15. In view of our finding that the primary evidence, i.e. the case property having been withheld and the alternative primary evidence, i.e. the certificate of the learned Chief Judicial Magistrate, Lahaul & Spiti Ex. PW 7/G having not been connected with the allegedly recovered stuff, we hold that the case of the prosecution does not stand established beyond reasonable doubt. Consequently, the appeal is accepted and the judgment of the trial Court convicting the appellant of the offence, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act and sentencing him to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/- and in default of payment of fine to undergo imprisonment for a further period of six months, is set aside. The appellant being in custody, is ordered to be set free at once if not required in any other case. Appeal allowed.