Research › Search › Judgment

Himachal Pradesh High Court · body

2009 DIGILAW 706 (HP)

State of H. P. v. Ivano Dalbo Ivano

2009-08-10

DEEPAK GUPTA, SURINDER SINGH

body2009
JUDGMENT SURINDER SINGH,J : The state has made the challenge to the acquittal of the respondent, passed by the learned Special Judge (Fast Tract) Kullu, in Sessions trial No.30 of 2007, decided on 12.11.2007 under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985, in short ‘the Act’ for allegedly found in possession of 250 grams of “Charas” in his bag Ex.P3 while traveling in a HRTC bus. 2. The factual matrix of the case can be stated thus. On 19.12.2006, HC Bhagat Ram was present at the forest check post Bajaura alongwith HC Harbans Singh, HC Narayan Singh and C. Sanjay Kumar, in connection with the patrol duty and naka-bandi. Around 6.45 p.m., HRTC bus bearing registration No.HP34-5117 came from Kullu side, which was at its way to Delhi. HC Bhagat Ram Signaled and its driver stopped the bus. HC Bhagat Ram alongwith the police party entered inside the bus to check the luggage of the passengers. He found the respondent occupying seat No.8 of the bus with a bag clinched in his legs. The respondent, on demand handed over the bag Ex.P3 to the said head constable. On checking the bag, it was found containing one pair each of woolen socks and gloves and a cap alongwith one small torch in one portion. When HC Bhagat Ram opened its outer pocket, he recovered “Charas” kept in a polythene envelope. The identity of the respondent was asked. He disclosed his name and address. He was an Itallian National. He also handed over his Pass-port to the police, which was found valid. 3. HC Bhagat Ram tired to associate the independent witnesses out of the passengers of the bus, but they refused to become the witness, thus, he associated the other two Head Constables namely, PW1-HC Harbans Singh and HC Narayan Singh (not examined) as witness. The respondent was alighted from the bus and taken to the forest check post nearby. 4. The recovered stuff was weighed and it was found to be 250 grams. HC Bhagat Ram drew two samples of 25 grams from it and each of the sample parcels were sealed separately and the remaining “Charas” was also sealed separately with same seal producing English letter ‘A’. The sample of seal was also taken on a piece of cloth Ex.PN. 5. HC Bhagat Ram drew two samples of 25 grams from it and each of the sample parcels were sealed separately and the remaining “Charas” was also sealed separately with same seal producing English letter ‘A’. The sample of seal was also taken on a piece of cloth Ex.PN. 5. NCB forms, in triplicate were filled in and the case property was taken into possession vide seizure memo Ex.PB. Seal after its use was handed over to PW1 HC Harbans Singh. 6. The respondent was arrested and apprised of the grounds of his arrest. A Ruqa was also sent for the registration of the case, through Constable Sanjay Kumar. 7. The case property alongwith the accused were produced before PW6 SI Joginder Singh. He resealed all the three parcels with his own seal producing the English letter ‘T’ and deposited it with PW7 MHC Rup Singh, in police station Kullu. 8. The special report of arrest and seizure was allegedly sent to the Officer superior within a stipulated time. 9. On 21.12.2006, MHC Rup Singh handed over one sample parcel to Constable Tarsem Lal (PW11) alongwith the police docket vide RC No.358/06 to deposit the same in CFSL Chandigarh for its examination, but according to the case of the prosecution the sample was not received because NCB forms did not contain the official stamp of the MHC. On return, he deposited the aforesaid documents back to the MHC after informing him about the objection raised. Thereafter on 25.12.2006, after removing the objection, the sample was sent to the CFSL Chandigarh by MHC Rup Singh through HHC Jai Krishan (PW10) vide RC No.365/06, which was deposited by him on 26.12.2006. 10. After receipt of the report of the analysis Ex.PV, the challan was presented in the court for the trial of the respondent. 11. The respondent was charge-sheeted for the offence aforesaid, to which he pleaded not guilty and claimed trial. 12. The prosecution examined its witnesses to prove the charge against the respondent. The respondent was also examined under Section 313 of the Code of Criminal Procedure. He denied the circumstances, which were put and found attendant against him. He took the stand that the bag in question was lying unclaimed in the bus. He being a foreigner the suspicion fall upon him. He was made to alight from the bus. The respondent was also examined under Section 313 of the Code of Criminal Procedure. He denied the circumstances, which were put and found attendant against him. He took the stand that the bag in question was lying unclaimed in the bus. He being a foreigner the suspicion fall upon him. He was made to alight from the bus. The recovery of the “Charas” is denied and alleged false implication. According to him, his money and camera were taken by HC Bhagat Ram and he had made a complaint against him to the Superintendent of Police, Kullu. 13. At the end of trial, the respondent was acquitted, precisely on the grounds that there are material contradictions in the statements of the prosecution witnesses. Further in view of the allegations which stood proved against the Investigating Officer, his statement also did not inspire confidence and the story with respect to non-receipt of the sample sent on 21.12.2006 to CFSL, Chandigarh, as propounded by the prosecution did not get any strength either from any documents placed on record by the prosecution to prove its case or from any independent service. 14. We have heard the learned counsel for the parties and have carefully reappraised the evidence on record. 15. Admittedly, the respondent was a passenger in the bus alongwith some other passengers. While checking the luggage of the respondent, the police intended to associate them as independent witnesses to witness the search, but as per the prosecution case, they showed their reluctance. We find that there is nothing on record to show that the police had made an attempt to associate any passenger as a witness by giving his name and address, neither any written order or Hukumnama requiring his attendance as per the provisions of Section 160 of the Code of Criminal Procedure was given to anyone nor any action was initiated for its defiance. Further, if the passengers of the bus had refused to become a witness, then the police could have joined the driver or even conductor of the bus as witnesses to search and recovery but no explanation has been offered for it. 16. Further, if the passengers of the bus had refused to become a witness, then the police could have joined the driver or even conductor of the bus as witnesses to search and recovery but no explanation has been offered for it. 16. Although in the facts and circumstances of the case, it was not necessary or mandatory to join the two independent witnesses by the police at the time of the search and seizure, but in the instant case, in view of the allegations and stand taken by the respondent, it would had been better had there been independent witness to lend strength to the prosecution case. But in absence of it the facts are required to be approached and appreciated very closely and cautiously to rule out any possibility of false implication, more particularly, when PW3 HC Bhagat Ram has admitted in his cross-examination that he was placed under suspension by S.P. Kullu and the investigation of this case was assigned to another Investigating Officer on 20.12.2006 itself on the complaint of the accused gives an inkling that said police officer did not conduct himself fairly while investigating the case. He (PW3) further admitted that in this case, a departmental inquiry was initiated against him and he was held guilty thus imposed the penalty of forfeiture of two years service. 17. Against this background, his conduct assumes importance to find out whether in fact the alleged recovery of contraband was effected from the respondent in accordance with law and the link evidence in complete to hold that the recovered stuff is “Charas”. 18. On the scrutiny of evidence, we find the recovery evidence contradictory and the link evidence missing. 19. PW3 HC Bhagat Ram stated that after the recovery he produced the accused and case property before PW6 SI Joginder Singh, the then SHO, Police Station Kullu on the same day at about 11.30 p.m. alongwith the sample of seal ‘A’ and NCB forms in triplicate. All the parcels were having the seal impression of ‘A’. PW6 stated that he resealed the case property with his own seal impression ‘T’. All the parcels were having the seal impression of ‘A’. PW6 stated that he resealed the case property with his own seal impression ‘T’. Its seal impression was separately taken on a piece of cloth Ex.PN, thereafter he filled in columns No.9 to 11 of the NCB forms in triplicate (Ex.PO) and handed over the three parcels, sample of seals and NCB forms and connected documents to PW7 MHC Rup Singh at 11.50 p.m. 20. PW7 MHC Rup Singh corroborated his version and further according to him he made the necessary entry in the Malkhana register against serial No.445 and he proved the extract of this register, Ex.PP to be correct as per the original record. 21. MHC Rup Singh aforesaid stated that on 21.12.2006 he had handed over one sample parcel alongwith FIR, seizure memo and other concerned documents to Constable Tarsem Lal (PW11) vide RC No.358/06 (Ex.PR) with a direction to deposit it in CFSL Chandigarh. Constable Tarsem Lal stated that the NCB forms in triplicate were not bearing the stamp of MHC, therefore, the case property was not accepted in the Laboratory and he returned it back and deposited these aforesaid articles and the sample parcel with MHC Rup Singh in Police Station Kullu. But the statements of both the witnesses MHC Rup Singh and Constable Tarsem Lal did not find corroboration from the road certificate (Ex.PR) aforesaid as there is no endorsement or objection put by the said Laboratory on the Road Certificate as stated by them. Further the perusal of the extract of the Malkhana register Ex.PP also does not make any reference with respect to the re-depositing of the case property in the Malkhana, as stated by these witnesses. 22. We find that the so-called objection which is stated by Constable Tarsem Lal having been raised in Laboratory appears to be totally incorrect because under the endorsement signed by the MHC the stamp and date was affixed and is clearly visible. Further the said sample was stated to have been again entrusted to PW10 HHC Jai Krishan on 25.12.2006 by MHC Rup Singh for its examination, to CFSL Chandigarh vide RCNo.365/06 (Ex.PQ), but it is neither explained nor understood, where and with whom this sample remained w.e.f. 21.12.2006 till 25.12.2006, remains an unsolved mystery. Thus, we find material variations in the statements of witnesses on this aspect of the case. 23. Thus, we find material variations in the statements of witnesses on this aspect of the case. 23. It is important that the deposit and upkeep of the property in the Malkhana is of a fundamental importance. There has to be an indication from the statements of witnesses from which it can be inferred that the property was not tampered with during this time, and it cannot be explained satisfactorily by the destination to which it ultimately goes for analysis. 24. It is also incumbent upon the prosecution to prove that the alleged contraband was recovered from the possession of the accused and from the time of recovery, till the sample is analyzed in the Laboratory the link evidence must be complete. 25. In the instant case, there is a breach in the link as there is no evidence on record to show as to where the sample was kept w.e.f. 21.12.2006 till 25.12.2006 when it was allegedly re-entrusted for its examination to PW10 HHC Jai Krishan. At least this fact is not borne out from the extract of relevant photocopy of the entry in Malkhana, that it was re-deposited in the Malkhana and further the alleged objection with respect to the stamp of the MHC is also found to be incorrect. 26. Not only this, the sample of seal by which the case property was sealed on the spot was entrusted to PW1 Harbans Singh. The original seal was not produced during the trial of the case. It remained throughout with him. This fact assumes importance that this police official is also of the same police station and before its resealing by the SHO Joginder Singh, the case property could have also been tampered with, more particularly in view of the above allegations against the Investigating Officer. 27. Though, the non-inclusion of the independent witnesses in the aforesaid facts are not essential as already stated above, but it assumes importance against the background of the case when the Investigating Officer was changed immediately on the next day on the allegations made by the accused. At least the investigating officer could have included the driver and conductor of the bus who were easily available to the police as witnesses of the search and recovery to inspire confidence in the prosecution case. Their non-inclusion also cast a doubt on the probity of the prosecution case. 28. At least the investigating officer could have included the driver and conductor of the bus who were easily available to the police as witnesses of the search and recovery to inspire confidence in the prosecution case. Their non-inclusion also cast a doubt on the probity of the prosecution case. 28. The witnesses of the recovery PW1 HC Harbans Singh and PW2 C. Sanjay Kumar both have materially contradicted each other as rightly noticed by the learned trial court in its judgment, inasmuch as after checking of the passengers of the bus accused was checked at the last of all as stated by PW2 Sanjay Kumar and thereafter he was made to alight from the bus, whereas, PW1 Harbans Singh stated that he alongwith HC Bhagat Ram, C. Sanjay Kumar and Narayan Singh entered into the bus for checking the passengers and seeing the respondent clinching the bag in his legs, it was checked and it was found containing the “Charas” as aforesaid. Both the stories are poles-apart making the recovery of the substance doubtful. 29. Further HC Narayan Singh, who was stated to have sent to call for, the independent witnesses, was also not examined. Initially the case of the prosecution has been that on checking of the bag in question the accused was alighted from the bus when no passenger was ready to become witness HC Naryan Singh was sent to get the independent witness from outside. The recovery of the contraband was made on the search of the bag in the forest check post where the sample process was completed, but this also goes against the recovery memo and the site plan which show that the recovery of “Charas” was made on the search which was conducted in the bus itself. 30. Further Nagesh Kumar, Conductor of the aforesaid bus although was not cited as a search witness, yet he was examined by the prosecution as PW4. Of course he stated that a bag was found by the police but according to him it was lying in the rack of the bus above seats No.8,9,12 and 13. The passengers were questioned by the police about the ownership of the bag, but nobody came forward to own it and one foreigner occupying seat No.8 was alighted from the bus on the basis of suspicion. The bag was found containing the “Charas”. The passengers were questioned by the police about the ownership of the bag, but nobody came forward to own it and one foreigner occupying seat No.8 was alighted from the bus on the basis of suspicion. The bag was found containing the “Charas”. Though the witness was declared hostile, but his version remained consistent to the defence raised. 31. Therefore, on the scrutiny of the aforesaid evidence, we are of the considered opinion that the recovery of the alleged contraband from the possession of the respondent could not be proved by the prosecution in accordance with law. The link evidence is not complete. The defence version stand probablised and the prosecution story is shrouded by suspicion wanting for the explanation on the vital points to which it failed miserably. 32. For the foregoing reasons, we are constrained to hold that there are no valid grounds to convert the acquittal passed by the learned trial court into conviction as it is based on the evidence on the record. As such, the appeal merits dismissal and it is accordingly dismissed. 33. The order passed by the learned trial court with respect to case property stands affirmed, however, the Pass-port taken into possession by the police be released to the respondent forthwith, if not already released. 34. The respondent is hereby discharged of his bail bonds entered upon by him during the proceedings of this case. 35. Send down the records.