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Himachal Pradesh High Court · body

2012 DIGILAW 355 (HP)

Bunni Lal v. State Of Himachal Pradesh

2012-06-25

SURINDER SINGH

body2012
JUDGMENT : Surinder Singh, J. The appellant felt aggrieved by the judgment passed by the learned trial Court in Sessions trial No. 17-S/7 of 2010 decided on 29.11.2010 whereby he was convicted for the offence punishable u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 in short 'the Act', for allegedly keeping in his possession 314 grams resin of cannabis plant in the total recovered stuff of 880 grams and sentenced to undergo imprisonment for a period two years and to pay a fine of Rs. 30,000/- and in default of payment of fine, to further undergo imprisonment for two months. The period of detention undergone during the investigation and trial was ordered to be set-off as per provisions of Section 428 of the Code of Criminal Procedure. In nutshell, the prosecution case has been that on 9.6.2010, PW12 S.I. Heera Devi was heading a policy party. They were on patrolling in the area of Dhobighat (Solan). Their departure was duly recorded in the daily diary Ext. PW2/A. On the way, they included PW10 Sunil Kumar and PW11 Sanjiv Kumar, local residents and proceeded ahead. In the meantime, they noticed the appellant, hereinafter referred to as 'the accused' coming from the opposite side. He was concealing something under his left armpit which was in the shape of a diary. On seeing the aforesaid police party, he get scared. PW12 aforesaid called him but instead he tried to escape and while doing so, he threw the hidden substance in a nullah, which was found wrapped in the yellow colour diary shaped packet. The accused was apprehended and on checking the recovered stuff, it was found to be 880 grams which was emanating smell of charas. The whole stuff was sealed in a cloth parcel with seal impression 'H' at ten places and taken into possession vide seizure memo Ext. PW10/D in the presence of the witnesses. NCB forms in triplicate were filled in. The police arrested the accused and the grounds of arrest were informed him vide memo Ext. PW12/B. Site plan Ext. PW12/A of the place of alleged recovery was also prepared. The statements of the witnesses were recorded u/s 161 of the Code of Criminal Procedure. Ruka was sent for the registration of the FIR through PW3 Constable Nanak Chand. The case property and seals both were produced before PW7 Inspector/SHO Raj Kumar. PW12/B. Site plan Ext. PW12/A of the place of alleged recovery was also prepared. The statements of the witnesses were recorded u/s 161 of the Code of Criminal Procedure. Ruka was sent for the registration of the FIR through PW3 Constable Nanak Chand. The case property and seals both were produced before PW7 Inspector/SHO Raj Kumar. The case property was resealed with seal impression 'T'. The facsimile of the seal was also taken on the NCB forms aforesaid. He issued re-sealing certificate Ext. PW6/D. 2. Thereafter, the case property along with sample of seals were deposited with MHC Narinder Parkash, who made its entry in the Malkhana Register. 3. On 11.6.2010, the parcel was sent for analysis through PW4 Constable Sanjay Kumar vide RC No. 36 of 2010 which was deposited on the same day. After getting its receipt on the RC, it was deposited with the MHC aforesaid. 4. On examination, inter alia, quantity of resin of cannabis was found 35.59%. In the opinion of the Assistant Chemical Examiner, the exhibit was the extract of cannabis and sample of charas, The report is Ext PW12/E. 5. On completing investigation, challan was presented in the Court for the trial of the accused. He was accordingly chargesheeted for the offences aforesaid to which he denied. At the end of trial, he was convicted and sentenced as aforesaid. 6. In defence the accused disputed the prosecution case and alleged false implication in the case. However, when called upon to enter into his defence, no evidence in defence was led by the accused. 7. Shri O.C. Sharma, learned Counsel appearing for the accused vehemently argued that the recovery of the alleged parcel was not proved from the accused and further that Investigating Officer in her cross examination stated having drawn three samples from the recovered stuff which were deposited in the malkhana and then sent for analysis, is contrary to the initial story as propounded which also strengthen the case of the defence. Further that the NCB forms which were allegedly prepared on the spot containing FIR number in the same hand establishes the fact that these were not filled-up on the spot especially when there is nothing on record to show even in the statement of PW3 Nanak Chand aforesaid that after registration of the case, the case file was handed over to the Investigating Officer. Rather, according to the learned Counsel, there is no evidence to this effect as to what had happened after ruka was received in the police station for the registration of the FIR. 8. Contra Shri P.M. Negi, learned Deputy Advocate General while supporting the impugned judgment of conviction and sentence submitted that the moment, on seeing the police, accused had thrown the stuff into the nullah to which he was having, is enough to attribute culpable state of mind of the accused indicating his actual and conscious possession of contraband. He also pointed out that in the examination-in-chief of the Investigating Officer, she clearly stated about the making of one parcel of the recovered stuff and in cross-examination though she stated having drawn three samples from the recovered stuff is wrong also in view of the statement of PW3 who was accompanying her. In so far as mentioning of the FIR in the NCB forms is concerned, that discrepancy was not put to the Investigating Officer to elicit explanation from her. Therefore, these arguments deserve to be rejected outright. 9. I have considered the rival contentions of the parties and have carefully reappraised the evidence on record. 10. As has been seen right from the very beginning, the case of the prosecution is that the stuff which was kept concealed under his armpit by the accused was thrown by him in the nullah. The accused was apprehended, his identity was asked and the stuff which was thrown in the nullah was taken into possession which was emanating smell of charas. It was weighed and made into one parcel which was duly sealed with seal impression 'H' in the presence of independent witnesses PW10 Sunil Kumar and PW11 Sanjiv Kumar. Both these independent witnesses were declared hostile as they did not support the prosecution version. They were subjected to lengthy cross-examination by the learned Public Prosecutor and even confronted with their statement u/s 161 of the Code of Criminal Procedure but both of them adhered to their statements that they were called by the police in the police station and police procured their signatures on various documents but no charas was recovered from the possession of the accused in their presence. 11. Now in view of this, we are left only with the statements of the official witnesses. PW3 Constable Nanak Chand was accompanying PW12 Inspector Heera Devi Investigating Officer. 11. Now in view of this, we are left only with the statements of the official witnesses. PW3 Constable Nanak Chand was accompanying PW12 Inspector Heera Devi Investigating Officer. Though Constable Nanak Chand stated having made one parcel of the recovered stuff, it was sealed on the spot in the presence of the witnesses and to this extent Inspector Heera Devi aforesaid also corroborates this fact in examination-in-chief. But significantly she introduced another story and shattered the entire prosecution case in cross-examination. She stated that she drew 'three' samples of the recovered stuff and all the 'three' samples were separately sealed. Not only this, she further stated that those samples were deposited in the 'malkhana' and were sent for its examination to FSL Tunga. She further qualified that samples so sent for examination were received back after examination by the FSL Laboratory. But she expressed her ignorance qua quantity of charas drawn as samples. She even denied the suggestion that no samples were drawn and sent for the chemical analysis, as stated by her. Whereas MHC categorically stated having deposited only one sample parcel with him which was sent to FSL Junga. Therefore, PW12 aforesaid has totally and materially contradicted the prosecution story giving rise to a doubt to the probity of the prosecution case. This statement made by her in cross examination was not disputed even by the learned Public Prosecutor. It was incumbent upon the learned Public Prosecutor to seek permission of the Court for her re-examination as per provisions of Section 138 of the Code of Criminal Procedure to elicit clarification of the new facts disclosed but it was not done. Therefore, the statement of the Investigating Officer which remained undisputed earns score in favour of the accused by making the whole prosecution case a suspect. 12. Further, the mentioning of FIR number in the NCB forms with the same ink in one go against the aforesaid background facts also causes a dent in the prosecution case more specifically when PW3 Nanak Chand who had taken the ruka to the police station did not return back or handed over the case file to the Investigating Officer so as to enable him to know and mention the FIR number in the aforesaid document. 13. 13. Therefore, the cumulative effect of the entire discussion is that the accused deserves to be acquitted by giving him the benefit of doubt as he could not be linked with the recovered stuff. Therefore, the appeal is allowed and the impugned judgment of conviction and sentence is hereby set aside. The sentence of the appellant was suspended vide order dated 14.1.2011 but he failed to deposit the fine amount and did not execute the bond of recognizance as such non-bailable warrants were ordered to be issued against him. Thus, in view of the acquittal of the accused NBW, if already issued, be recalled unexecuted. The appeal stands disposed of. Send down the record forthwith.