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Himachal Pradesh High Court · body

2011 DIGILAW 1352 (HP)

State of H. P. v. Sandeep Kumar

2011-03-16

R.B.MISRA, SURINDER SINGH

body2011
JUDGMENT Surinder Singh, J. Respondents were acquitted by the learned trial Court for offences punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 in short ‘the Act’ for allegedly keeping in possession 415 grams of charas and also under Section 25 of the Indian Arms Act, 1959 as having found in possession 1.9’ sword in the Dickey of the vehicle in which they were traveling. 2. In short, prosecution story can be stated thus. On 11.3.2000, around 11.40 p.m. PW10 S.I./ Additional SHO Police Station Ghumarwin was heading a police patrol party. He received information that one Sandeep Kumar son of Ridku Ram accompanied by two other persons were traveling in a Maruti Van, bearing registration No. HP-23-3401. They were having charas in their possession. This information was jotted down by him in the shape of Ext. PB and was sent to PW6 Sub- Divisional Police Officer Ghumarwin. Thereafter he proceeded to village Kothi and put a naka and also associated with him one Ashwani Kumar resident of Ghumarwin (not examined). Around 12.15 a.m. the aforesaid Maruti Van reached there. It was stopped. Respondent Sandeep Kumar was on the steering wheel along with respondent Nand Kishor and Prashant sitting in the said Van. He informed the respondents in writing to exercise their option to be searched either before a Gazetted Officer or by a Magistrate. The respondents opted to be searched by the police party. To this effect memo Ext. PC was prepared on the spot. PW10 S.I. Rajesh Kumar rendered himself to be searched by the respondents but nothing incriminating was found in his possession. To this effect, memo Ext. PM was prepared. Thereafter he conducted the search of the vehicle in question and found one bag between the legs of respondents Prashant and Nand Kishore. On searching the bag, he discovered a polythene bag which contained charas in the forms of billets weighing 415 grams. Out of the recovered stuff, two samples of 25 grams each, were separated and sealed with seal impression ‘N’. The remaining bulk was also sealed with the same seal and the case property was taken into possession vide seizure memo Ext. PD. 3. Ruka Ext. PJ was sent to Police Station through constable Daulat Ram for registration of the case. He also filled in NCB forms in triplicate, one of which is Ext. PN. 4. The remaining bulk was also sealed with the same seal and the case property was taken into possession vide seizure memo Ext. PD. 3. Ruka Ext. PJ was sent to Police Station through constable Daulat Ram for registration of the case. He also filled in NCB forms in triplicate, one of which is Ext. PN. 4. PW10 S.I. Rajesh Kumar also conducted the search of the dickey of the Van and recovered a sword (Ext. P4). Its sketch was taken on a piece of paper Ext. PF. Thereafter it was taken into possession vide memo Ext. PE. The vehicle and the documents were also taken into possession vide memo Ext. PG. 5. During the investigation, police also took into possession driving license of Sandeep Kumar and an agreement of the Van, which reflected the name of mother of Prashant as its owner 6. A special report Ext. PA was prepared and sent to the S.D.P.O. by ASI Deep Ram. After registration of the case, PW9 ASI Deep Ram reached the spot and Rajesh Kumar (PW10) handed over the file for further investigation to him. 7. Case property was in the possession of S.I. Rajesh Kumar. He handed over the same to the SHO concerned, who re-sealed it with seal impression ‘R’. 8. Later, case property consisting of three parcels was handed over to PW7 MHC Vinod Kumar for its deposit in the Malkhana. 9. On 14.9.2000 one of the samples was handed over to PW4 LHC Prabh Dyal which was carried by him to the Laboratory vide R.C. No. 34/2000. On the receipt thereof, receipt was obtained on the RC and handed over back to the MHC. 10. The sample was analyzed in the CTL Kandaghat. The report is Ext. PQ. On its analysis, Chemical Examiner found cystholithic hair present in the sample parcel and the resin was found to be 31.40% and it was opined that the exhibit contained 11. After completing the investigation, case was presented in the court for the trial of the respondents. 12. Respondents were charge sheeted, tried and acquitted by the learned trial court on the ground that the police failed to associate two independent witnesses before search of the Maruti Van. Shri Ashwani Kumar who was associated, was not examined, there have been contradictions with respect to the sending of the special report Ext. 12. Respondents were charge sheeted, tried and acquitted by the learned trial court on the ground that the police failed to associate two independent witnesses before search of the Maruti Van. Shri Ashwani Kumar who was associated, was not examined, there have been contradictions with respect to the sending of the special report Ext. PB to the official superior and there are contradictions with respect to the recovery of the alleged contraband as per statement of the Investigating Officer and PW5 HC Mohinder Singh. Further, the ownership of the vehicle was not established and respondents were not informed about the grounds of arrest as envisaged under Section 52 of the Act. 13. The State felt aggrieved by the impugned judgment of acquittal as such filed the present appeal. 14. We have heard the learned counsel for the parties and have meticulously examined the evidence on record. 15. Although we find that neither the grounds of acquittal are very convincing nor compliance of Section 52 of the Act is fatal to the prosecution in absence of any prejudice having been shown by the respondents yet on the scrutiny of the record, we are of the opinion that the link evidence in the instant case is missing and the report of the public analyst could not be connected with the alleged recovered stuff. Further, there is absolutely no evidence that the so called ‘sword’ fell within the definition of the ‘arms’ under the Indian Arms Act and on the top of it, there is no sanction to prosecute by the District Magistrate which is required under the Arms Act. 16. PW10 S.I. Rajesh Kumar stated that after recovery of the alleged contraband and article on 11.3.2000 it was presented before the SHO Police Station Ghumarwin for the purpose of its re-sealing and during this period, the case property remained with him. It is not spelt out as to where he had kept the case property and it is also not understood why the case property was not deposited by him with the MHC of the said Police Station. With the same breath he stated and contradicted above version by saying that the case property was handed over by him to the MHC before arrival of the SHO. If the case property was deposited with the MHC before arrival of the SHO, its entry should have found mentioned in the Malkhana Register. With the same breath he stated and contradicted above version by saying that the case property was handed over by him to the MHC before arrival of the SHO. If the case property was deposited with the MHC before arrival of the SHO, its entry should have found mentioned in the Malkhana Register. Whereas PW7 MHC Vinod Kumar did not say anything about depositing the case property with him on 11.3.2000 rather he stated that on 14.3.2000 SHO Police Station Ghumarwin deposited the case property with him and not PW10 Rajesh Kumar, as stated by him. 17. Further there is no evidence on record that sample of seal, NCB forms, copy of FIR etc. were also deposited along with the case property in the Malkhana. Though he stated that the entries with respect to the deposit of the case property was made in the Malkhana Register at Sr. No. 312 but its abstract was not placed and proved on record in order to know what were the other documents/contents with the case property which were deposited in the Malkhana. 18. Also we take note of the statement of PW4 L.H.C. Prabh Dyal. One of the samples was entrusted on the same day, i.e. on 14.3.2000 to him for its deposit in CTL Kandaghat. He also did not make any reference about handing over the sample of seal and NCB forms etc. along with the sample parcel in the laboratory. He only stated having taken the envelop along with sample parcel. What were the contents in the envelop are not known. Even the copy of the RC has also not been placed and proved on record which could have thrown light that whether the sample of seal/NCB forms were taken by him along with the sample. 19. We also find that in the NCB forms against Sr. No. 8 in Ext. PN there is no facsimiles of the seals used by the I.O. and also by the SHO at the time of alleged re-sealing. Had these facsimiles been there, it was not necessary to send the sample seal separately and these facsimiles of seals used on the NCB forms could have been used by the Chemical Examiner to tally/compare it with the seal of sample parcel. Had these facsimiles been there, it was not necessary to send the sample seal separately and these facsimiles of seals used on the NCB forms could have been used by the Chemical Examiner to tally/compare it with the seal of sample parcel. Thus, the lithographic impression showing that the seal/seals on the sample tallied with the specimen impression of seal/seals sent separately appears to be affixed mechanically on the sample report. 20. For the foregoing reasons, in our considered opinion, report Ext. PQ of the Chemical analyst is not connected with the recovered stuff. Further, there is no evidence worth the name to conclude that Ext. P4 the alleged sword fell within the definition of “arms” under the Indian Arms Act in absence of the report of the Expert and for want of requisite sanction. 21. Therefore, the acquittal of the respondents cannot be interfered with. As such the appeal filed by the State sans merit and is accordingly dismissed. 22. Respondents are discharged of their bail bonds entered upon by them at any stage during the proceedings of this case.