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2012 DIGILAW 1045 (HP)

Gurbachan Singh v. State of Himachal Pradesh

2012-12-27

SURINDER SINGH

body2012
JUDGMENT Surinder Singh, J (Oral) : The appellant has laid a challenge to his conviction and sentence passed by the learned Sessions Judge in Case No.8-NL/7 of 2005/ 2003 on 17.3.2006 for the offence punishable under Section 15(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short “the Act” for allegedly keeping in his possession 15½ Kgs. of Powdered “Poppy Husk” alleged to have been kept concealed beneath the cot in the room and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.15,000/- and in default of payment of fine, to further undergo rigorous imprisonment for one year. 2. In brief, the prosecution story can be stated thus. PW12 Shri Atul Fulzale IPS was on probation and was posted as SHO in Police Station, Nalagarh. On 26.5.2003, at about 4.30 p.m., PW12 aforesaid received a secret information that the appellant to be referred as “the accused” hereinafter and his servant Paras Ram were dealing in the contraband like “Poppy Straw” which is locally known as “Bhuki”. On receipt of this information, he entered this information in daily-diary and sent its report to the Dy. Superintendent of Police Nalagarh in writing, copy whereof is Ext.PW6/A through Constable Kamal Chand. Thereafter, he alongwith Inspector Vijay, ASI Deva Nand, ASI Dharam Dass, Constable Gurmail Singh and Lady Constable Saroj proceeded to village Nangal, formed a raiding party including PW1 Ram Lal and PW2 Baggu Ram as independent witnesses. Thereafter, they proceeded to the house of accused Gurbachan Singh and found him alongwith co-accused Paras Ram standing outside his house. On seeing the police party, though they tried to escape, but they were immediately apprehended. Both of them were informed verbally as well as in writing about the purpose of their visit and to exercise their legal right whether they would like their house to be searched in the presence of the Gazetted Officer or the Magistrate or the Police Party itself. They opted to search the house by the police party and to this effect, they made endorsements Exts.PW12/A and B on the option so given. Police party subjected themselves to be searched by the accused persons, but nothing incriminating material was found and to this effect, a memo Ext.PW1/A was prepared, which was signed by the independent witnesses. They opted to search the house by the police party and to this effect, they made endorsements Exts.PW12/A and B on the option so given. Police party subjected themselves to be searched by the accused persons, but nothing incriminating material was found and to this effect, a memo Ext.PW1/A was prepared, which was signed by the independent witnesses. (ii) Thereafter the police party conducted the search of the house of the accused Gurbachan Singh and recovered two gunny bags which were kept concealed under the cot. On opening them, it was found containing Powdered “Poppy Straw” and in one of the bags steel tumbler was also found. The weighing scale and weights were arranged. One of the gunny bags was found containing 8.5 Kgs and another 7 Kgs stuff. Two samples each of 50 grams from each of the bags were drawn and sealed with seal impression “R”. The remaining bulk was sealed in the same gunny bags from where samples were taken. The impression of the seal was separately taken on a piece of cloth Ext.PW5/A and seal after its use was handed over to PW2 Baggu Ram vide receipt Ext.PW12/E. (iii) The gunny bags alongwith sample parcels were taken into possession vide memo Ext.PW12/F in the presence of the independent witnesses. (iv) A Ruqa Ext.PW10/A was prepared and sent through Constable Gurmail Singh for registration of the FIR on the basis of which FIR Ext.PW10/B was formally registered. (v) PW12 Atul Fulzale aforesaid prepared the site plan Ext.PW12/G of the place of recovery and also filled in the NCB forms in triplicate, one of which is Ext.PW12/H. (vi) The case property was handed over to PW8 MHC Ranjeet Singh for its deposit in Malkahana. On 27.5.2003, two parcels Mark S1 and S2 were sent to CTL Kandaghat, for its analysis through PW4 HHC Kamal Chand vide R.C. No.51/2003. On its deposit, he obtained the receipt and handed over back to the MHC aforesaid. (vii) An application Ext.PW12/I was also moved to the Sub-Divisional Judicial Magistrate Nalagarh for certifying the inventory, under Section 52-A of the Act. On 31.5.2003, he issued certificate to this effect. (viii) On analysis, as per report Ext.PW12/M, the Chemical Examiner was of the opinion that both the exhibits contained the contents of Poppy Husk. 3. (vii) An application Ext.PW12/I was also moved to the Sub-Divisional Judicial Magistrate Nalagarh for certifying the inventory, under Section 52-A of the Act. On 31.5.2003, he issued certificate to this effect. (viii) On analysis, as per report Ext.PW12/M, the Chemical Examiner was of the opinion that both the exhibits contained the contents of Poppy Husk. 3. After completing investigation, the challan was presented in the court for the trial of the accused and his co-accused Paras Ram. 4. Both the accused persons were accordingly charge-sheeted for the offence aforesaid, to which they pleaded not guilty and claimed trial. To prove its case, prosecution examined its witnesses and the accused were also examined under Section 313 of the Code of Criminal Procedure. The circumstances which were found attendant upon them were put to which they denied and pleaded innocence. Though the accused persons were allowed to lead the evidence in defence, but no witness was examined by them. At the end of trial, the accused Paras Ram was acquitted, whereas, accused Gurbachan Singh was convicted and sentenced as aforesaid. Hence, the present appeal by him. 5. Miss Soma Thakur, learned counsel appearing for the accused vehemently argued that the prosecution has failed to prove the case against the accused in accordance with law. The link evidence is not complete. There are material contradictions and embellishment in the statements of the prosecution witnesses making prosecution story doubtful. The independent witnesses did not support the case of the prosecution, as such declared hostile and further that the report of the Chemical Examiner could not be linked with the alleged stuff and these facts were ignored altogether from consideration by the learned trial Court which caused prejudice to the accused. 6. Contra, Shri P.M. Negi, learned Deputy Advocate General supported the impugned judgment of conviction and sentence. He also led me through the evidence on record and submitted that the link evidence is complete and the Chemical Examiner had opined that the contents so sent for examination were of “Poppy Husk”. 7. I have given my thoughtful consideration to the rival contentions of the parties and have carefully scanned the evidence on record. In my opinion, the judgment of conviction and sentence suffers from wrong appreciation of the prosecution evidence causing prejudice to the accused. 8. 7. I have given my thoughtful consideration to the rival contentions of the parties and have carefully scanned the evidence on record. In my opinion, the judgment of conviction and sentence suffers from wrong appreciation of the prosecution evidence causing prejudice to the accused. 8. PW12 Atul Fulzale, SHO, though corroborated the prosecution story in extenso and stated that the recovery of two gunny bags containing powdered Popy Husk was recovered from beneath the cot from the room of the accused and two samples of 50 grams from each of the gunny bags were separated and marked as S1 & S4 and the case property was taken into possession vide seizure memo after sealing with seal impression “R” as stated above and then deposited with PW8 MHC Ranjeet Singh on the same day, but surprisingly, PW8 MHC aforesaid testified that the gunny bags Ext.P1 and P2 alongwith sample parcels S1 and S4 were deposited with him on 19.5.2002 which shakes the very foundation of the prosecution case. His statement cannot be accepted as correct because the alleged recovery was effected on 26.5.2003, then how the case property could have been deposited with him on 19.5.2002 i.e. prior to its recovery. His statement has not been challenged by the learned Public Prosecutor nor the extract of the Malkhana register against which the case property was deposited with MHC, was produced and proved. Further, the sad state of affairs did not end here. Two sample parcels S1 and S2 were taken for analysis by PW4 HHC Kamal Chand vide RC No.51/2003 as stated by PW8 MHC Ranjeet Singh and PW4 C. Kamal Chand. It is not clarified that the sample parcels S1 and S2 which were sent for analysis pertain to which of the gunny bags and further copy of the RC has not been placed and proved on record to substantiate the fact that the sample parcels were also taken by C. Kamal Chand alongwith NCB forms. Pertinently, PW8 MHC Ranjeet Singh did not say anything about the deposit of NCB forms or sample of seal in the Malkhana alongwith case property and the PW4 HHC Kamal Chand who is alleged to have taken the sample parcels for analysis has also not stated any where that he had taken the sample parcels alongwith NCB forms or the sample of seal. Interestingly, these two samples parcels deposited with the Laboratory are not S-1 and S-2, but as per the report Ext.PW12/M, one sample parcel was marked as S-1 and another S-3. 9. Further there is only a lithographic impression certifying that the seals on the samples had tallied with the specimen impression of the seal so sent which appears to be done in mechanical manner in absence of the proof that the sample parcels were taken by the constable alongwith sample seals. Presumably, if the case property was received alongwith NCB forms, one of which is Ext.PW12/H, it should also contain the facsimile of seal but even against the relevant column (Column No.9) the facsimile of seal was also not appended. There is only a hand written English letter “R”, therefore, neither the NCB forms containing the facsimile of the seal nor the sample of seal are proved to have been taken alongwith sample parcels. In that event, it is not understood with which seal the sample parcels was compared by the Chemical Examiner. 10. Also, I find that on 31.5.2003, on the application Ext.PW12/I filed by the SHO before the Sub-Divisional Judicial Magistrate for certifying the inventory, a certificate has been issued. Its Column No.3 clearly states of production of two sample parcels of 50 grams each which were marked as S-2 and S-4 (“4” not very clear). If S-2 sample parcel was produced before the Magistrate on 31.5.2003, then the statement of MHC and the Constable Kamal Chand aforesaid that samples S-1 and S-2 were taken for analysis is totally false. 11. Therefore, in the aforesaid circumstances, I find material contradictions and embellishments in the statements of the official witnesses, whereas the independent witnesses were declared hostile by the prosecution as they did not support its case as projected by them. 12. Further, I also find that the report of analysis in the instant case does not conform to the definition of “opium poppy” / ”poppy straw” under the Act. 13. Section 2 (xviii) of the Act “Poppy straw” means all parts (except the seeds) of the opium poppy after harvesting whether in their original form or cut, crushed or powdered and whether or not juice has been extracted therefrom. 13. Section 2 (xviii) of the Act “Poppy straw” means all parts (except the seeds) of the opium poppy after harvesting whether in their original form or cut, crushed or powdered and whether or not juice has been extracted therefrom. As per Section (xvii) “Opium poppy” means-(a) The plant of the species papaver somniferum L; and (b) The plant of any other species of papaver from which opium or any phenanthrene alkaloid call be extracted and which the Central Government may, be notification in the Official Gazette, declare to be opium poppy for the purposes of this Act; 14. From the two definitions of poppy straw as reproduced hereinabove, it is clear that to understand the meaning of “poppy straw” it is essential to refer to the meaning of “opium poppy” “poppy straw” when read with the definition, “opium poppy” means (a) all parts (except seeds) of the plant of the species of papaver somniferm-L or a plant of any other species of papaver from which the opium or any other phenanthrene alkaloid can be extracted and which the Central Government by notification in the Official Gazette has declared to be opium poppy for the purposes of this Act. 15. In the instant case, only qualitative test was undertaken by the chemical examiner on the basis of the presence of meconic acid and morphine opined the sample to be that of “poppy husk”. His report does not indicate that the stuff examined consists of the parts of either of the plant of species of papaver from which opium or any phenanthrene alkaloid can be extracted and which the Central Government by notification in the Official Gazette, had declared it to be opium poppy for the purposes of this Act. If it is so, report of the chemical examiner Ext. PW12/M that the stuff contains the contents of “poppy husk” which term is similar to the term “poppy straw” cannot be used as enough evidence to hold that the stuff recovered from the accused which was analyzed by the chemical examiner was those of poppy straw, as held by the Division Bench of this Court in Rajiv Kumar @ Guglu v. State of H.P. 2008 (1) Shim.LC 168 . 16. 16. For the reasons aforesaid, in my opinion the prosecution could not prove its case against the accused in accordance with law and the accused is held entitled for acquittal by giving him benefit of doubt. As such the appeal is allowed and the conviction and sentence passed against the accused, for the offence aforesaid is hereby set-aside. The fine amount, if any deposited shall be refunded to him. 17. Accused is discharged of his bail bonds entered upon by him at any time during the proceedings of this case.