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2005 DIGILAW 456 (HP)

SONU v. STATE OF H. P.

2005-12-02

SURJIT SINGH

body2005
JUDGEMENT Surjit Singh, J.: Appellant Sonu has preferred this appeal against the judgment, dated 15.7.2005, of the learned Additional Sessions Judge, whereby he has been convicted of an offence, under Section 20(B) of the Narcotic Drugs & Psychotropic Substances Act, 1985 and sentenced to undergo rigorous imprisonment for a period of four years and to pay fine of Rs.30,000/- and in default of payment of fine, to undergo simple imprisonment for a further period of one year. 2. A report under Section 173 of the Code of Criminal Procedure was filed against the appellant, alleging that on 16.2.2003 around 2.00 p.m., when H.C. Palam Singh (PW-7) was present near a place called Chanju Nullah, the appellant appeared with a rucksack (Pithu) on his back and on seeing the police, tried to run away. He was over-powered. The conduct of the appellant aroused suspicion of the said Head Constable and the constables, accompanying him. The Head Constable told the appellant that it was suspected that he was carrying some narcotic drug or psychotropic substance and so he intended to search his person. He informed him that he had a right to be searched in the presence of a Magistrate or a Gazetted Officer of certain Departments and in case he so desired, he could be taken to the nearest Magistrate or some Gazetted Officer of the specified Departments so that search was conducted in the presence of such Magistrate or the Gazetted Officer. The appellant allegedly opted for being searched on the spot. Thereafter the Head Constable got his person searched from the witnesses, namely, PW-1 Jamal Deen and one Tek Chand who happened to reach the spot. Nothing incriminating was found during the course of the search of the person of the head Constable. After that, personal search of the appellant was carried out. From his bag a plastic bag containing Charas was recovered, which had been kept under a blanket. On being weighed, Charas was found to be 650 grams, out of which two samples of 20 grams each were separated. The samples and the bulk Charas were sealed in separate parcels. A written report of the matter was prepared and sent to the Police Station for formal registration of the case. Search and seizure memo was prepared. The appellant was arrested and was apprised of the grounds of his arrest, in writing. The samples and the bulk Charas were sealed in separate parcels. A written report of the matter was prepared and sent to the Police Station for formal registration of the case. Search and seizure memo was prepared. The appellant was arrested and was apprised of the grounds of his arrest, in writing. The case property was deposited with the Station House Officer, who affixed his own seal on the parcels containing the samples and the bulk Charas. One sample parcels was sent to the Chemical Examiner, who reported that the contents of the parcel were of Charas. On completion of the investigation, report was filed against the appellant. 3. The learned Additional Sessions Judge charged the appellant with an offence, under Section 20 (B) of the Narcotic Drugs & Psychotropic Substances Act and on his pleading not guilty, put him on trial. On the conclusion of the trial, the learned trial Court held him guilty of the said offence and convicted and sentence him as aforesaid. 4. Appellants plea that is that he is innocent and has been falsely implicated. His further contention is that the evidence led by the prosecution is full of contradictions, discrepancies and infirmities, which make the case highly doubtful. 5. I have heard the learned counsel for the appellant as also the learned Additional Advocate General for the respondent-State and perused the record. 6. It may be stated at the very outset that though it is alleged by the prosecution that two independent witnesses were associated at the time of the search of the person of the appellant, the witnesses so associated are in fact not independent as both of them are special Police Officers, attached with the very Police Station to which the case pertains. The fact is admitted by PW-1 Jamal Deen, one of the so-called independent witnesses. The other witness was not examined. 7. There are a large number of contradictions in the testimony of the witnesses of the alleged search and seizure of Charas, which when seen in the light of the fact that the so-called independent witnesses are in fact connected with the functioning of the police, made the prosecution version highly doubtful, PW-1 Jamal Deen has stated that he and Tek Chand saw the appellant running away and the police officials chasing him and after the appellant was over-powered, he went to the spot. No other witness says that the appellant had run away, on seeing the police. Even in the earliest version, which was sent to the Police Station for the registration of the case, i.e. report Ext.PW-4/A, it is not mentioned that the appellant ran away on seeing the police. The only thing recorded in this report is that on seeing the police, he got perplexed and turned around in an attempt to run away. 8. H.C. Palam Sinoh, while in the witness box as PW-7, also did not say that the appellant ran away or even tried to run away. He simply stated that he turned around on seeing the police and was over-powered immediately. PW-3 Sandeep Kumar, constable, who was allegedly accompanying PW-7 Palam Singh, also nowhere says that the appellant ran away or tried to run away. 9. Further, PW-1 Jamal Deen says that before the search of the person of the appellant was conducted, he got his person searched from the Head Constable. No other witness says that the personal search of his witness was also conducted. On the contrary, other witnesses, namely PW-7 Palam Singh, PW-3 Sandeep Kumar and PW-4 Santosh Kumar, another police official, accompanying PW-7 Palam Singh, say that before searching the person of the appellant, HC Palam Singh got himself search from the witnesses. 10. PW-1 Jamal Deen says that the colour of the rucksack was blue, but in the search and seizure memo Ext. PA as also the report Ext. PW-4/A, the colour of the bag is mentioned green and blue. 11. Again, in the earliest version as also the search and seizure memo, it is very specifically mentioned that a polythene bag, containing Charas was found in the bag under a blanket, but while in the witness box, the witnesses have stated that the Charas was found wrapped in the blanket. No explanation for this contradiction has been offered. 12. Also, there is contradiction with respect to the side from which the appellant allegedly appeared on the spot. According to PW-7 Palam Singh as also the report, which he sent to the Police Station for registration of the case Ext. PW-4/A, the appellant came from Chanju Nullah side and was going towards Chamba, but PW-4 LHC Santosh Kumar has stated that the appellant came from Chamba side, in other words, from a side just opposite the side testified by PW-7 Palam Singh. PW-4/A, the appellant came from Chanju Nullah side and was going towards Chamba, but PW-4 LHC Santosh Kumar has stated that the appellant came from Chamba side, in other words, from a side just opposite the side testified by PW-7 Palam Singh. 13. According to PW-7 Palam Singh, he affixed ten impressions of the seal, which read letter P of English alphabet and that SHO Amar Singh (PW-9), to whom he produced the case property, also affixed his seal, which produced the impression of English letter H on all the three parcels, i.e. two containing samples and one containing the bulk Charas. PW-9 Inspector Amar Singh, S.H.O. stated that he affixed his own seal, which produced the impression of English letter H on all the three parcels. This witness prepared a memo of such re-sealing, which is Ext. PW-7/D. According to this memo, he affixed four impressions of his seal on the parcel containing bulk Charas. That means the parcel containing bulk Charas was supposed to have fourteen seal impressions, i.e. ten affixed by HC Palam Singh (PW-7) and four affixed by PW-9 Amar Singh, but as per observation of the trial Court, recorded during the course of the examination of PW-7, the parcel Court, recorded during the course of the examination of PW-7, the parcel containing the bulk Charas, Ext. P-1 had only ten seal impressions, meaning thereby that the Charas that was produced in the Court, was not the same as was allegedly recovered from the appellant. 14. There is yet another flaw in the prosecution evidence. According to PW-7 HC Palam Singh and other witnesses of the alleged search and seizure, the appellant appeared on the spot at 2.00 p.m. and thereafter he was apprised of his right to be searched before a Magistrate or a Gazetted Officer and memo of such apprising was also prepared. Thereafter PW-7 got his own person searched from the so-called independent witnesses and memo of such search was also prepared. It was thereafter that the personal search of the appellant was conducted. The preparation of these two memos and the performance of the two acts mentioned in these memos can legitimately be presumed to have consumed at least forty minutes. That means, the search was supposed to have been conducted around 2.40 p.m., but in the search and seizure memo , Ext. The preparation of these two memos and the performance of the two acts mentioned in these memos can legitimately be presumed to have consumed at least forty minutes. That means, the search was supposed to have been conducted around 2.40 p.m., but in the search and seizure memo , Ext. PA, as also in the report was sent to the Police Station for the registration of the case Ext. PW-4/A, the timing of the search of the person of the appellant is recorded as 2.00 p.m. itself. This fact suggests that at-least incorrect record of the two facts mentioned in these two memos has been prepared. The reason for preparation of such incorrect record is anybodys gues. 15. For the foregoing reason, the appeal is accepted. The judgment of the trial Court is set aside and the appellant is acquitted. He being in custody, is ordered to be released forthwith, if not required in any other case.