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Himachal Pradesh High Court · body

2012 DIGILAW 462 (HP)

Ved Parkash v. State Of H. P.

2012-08-28

SURINDER SINGH

body2012
JUDGMENT : Surinder Singh, J. In the present appeal, the judgment of conviction and sentence passed by the learned trial Court in Sessions Trial No. 1 of 2011 has been challenged by the appellant for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 in short "the Act, whereby the appellant, hereinafter referred to as the accused has been ordered to undergo rigorous imprisonment for a period of 3 years and to pay a fine of Rs. 30,000/- and in default of payment of fine to further undergo simple imprisonment for a period 6 months for allegedly keeping in his possession 372 grams of charas in the recovered stuff of 1.500 kilograms. 2. The prosecution story unfolded against the accused can be stated thus. On 2.11.2010 at about 5 p.m. PW9 ASI Ram Lal of police station Banjar was heading police patrol party consisting of PW7 H.H.C. Hem Raj, HHC Mohar Singh and Home Guard Hem Raj. While on their way to new bus stand Banjar, accused was noticed sitting on a bench holding a bag in his hand. He, on seeing police, tried to escape towards the office of HRTC but police getting suspicious, apprehended him. PW1 Kartar Kaushal and PW8 Jawahar Lal were included independent witnesses who happened to be present there. The identity of the accused was ascertained. On checking his bag it contained a yellow bag (Ext. P4) inside. It was having ball shaped 1.500 kilograms stuff (Ext. P5). The entire stuff was re-packed in the same manner and made into a parcel and separate parcel of bag was also made. Both these parcels were sealed with seal impression "T" at six places. Its sample was also taken on a separate piece of cloth Ext. PW1/B. NCB forms in triplicate were also filled-in on the spot, one of which is Ext. PW2/A. Facsimile of the seal was put on the forms aforesaid and the case property was taken into possession vide memo Ext. PW1/A, copy whereof was given to the accused free of cost. 3. Ruka Ext. PW6/A was prepared by the Investigating Officer which was sent through PW7 HHC Hem Raj to the police station for registration of the case, which culminated into FIR Ext. PW6/B. The Investigating Officer PW9 ASI Ram Lal prepared the site plan Ext. PW9/B. 4. PW1/A, copy whereof was given to the accused free of cost. 3. Ruka Ext. PW6/A was prepared by the Investigating Officer which was sent through PW7 HHC Hem Raj to the police station for registration of the case, which culminated into FIR Ext. PW6/B. The Investigating Officer PW9 ASI Ram Lal prepared the site plan Ext. PW9/B. 4. The accused was arrested and the grounds of arrest were informed to him. The case property and the accused were produced before PW6 S.I. Surender Pathak. Accused was put in judicial lock-up and the case property aforesaid were re-sealed with seal impression "N" at four places by him. Its impression was also taken on a separate piece of cloth Ext. PW6/D. He also filled-in NCB forms, one of which is Ext. PW2/A. The seizure memo, copy of FIR, NCB forms, samples of seals and the case property were deposited by him with MHC PW2 Shesh Raj on the same day. Its entry was made by him in the Malkhana Register. 5. Next day, i.e., on 3.11.2010, he handed over the parcel Ext. P2 along with seizure memo, copy of FIR, NCB forms in triplicate, sample of seals and police docket to PW3 HHC Neel Chand for its deposit in the laboratory for examination to which he deposited it in forensic science laboratory, Junga, and obtained receipt on the RC, to which he deposited with MHC aforesaid. 6. As per report Ext. PW6/F, recovered stuff was found to be extract of cannabis and the sample of charas containing 24.83% weight in weight resin of cannabis an offensive matter which falls within the definition of charas, which came out to be 372 grams for which he was charge sheeted, tried and convicted by the learned trial Court which has been challenged in this appeal. 7. Shri N.K. Tomar, learned counsel for the accused vehemently argued that there are material discrepancies in the statements of the official witnesses whereas the independent witnesses have turned hostile. Further, the report of analysis stands not connected with the alleged recovery, therefore, the accused deserves to be acquitted. On the other hand, Shri P.M. Negi, learned Deputy Advocate General supported the impugned judgment of conviction and sentence, which according to him, is based on evidence on record. 8. Further, the report of analysis stands not connected with the alleged recovery, therefore, the accused deserves to be acquitted. On the other hand, Shri P.M. Negi, learned Deputy Advocate General supported the impugned judgment of conviction and sentence, which according to him, is based on evidence on record. 8. I have critically examined the evidence led by the prosecution to bring home the guilt of the accused and find that it lacks probity. 9. PW9 ASI Ram Lal, who was heading police patrol party, stated that he got suspicious when, on seeing the police, accused had tried to escape thus he was apprehended at a short distance and joined PW1 Kartar Kaushal and PW8 Jawahar Lal as independent witnesses. He also kept PW7 HHC Hem Raj, police official as a witness, who was already with him and checked his bag Ext. P4 in their presence. It contained charas Ext. P5. He specifically stated that the whole stuff was sealed by making a parcel, with seal impression "T" at six places and the bag (rucksack) was separately sealed in parcel Ext. P2 with equal number of same seals. Thereafter he filled-in NCB forms and also prepared the seizure memo. The seal after its use was handed over to PW1 Kartar Kaushal. The proceedings were allegedly photographed. These are Ext. PW9/A-1 to A-3 and ruka was sent for registration of the case. He produced the recovered stuff for re-sealing to the SI/SHO Surender Pathak to which he re-sealed with seal impression "N" and this is what Surender Pathak has stated. The said parcels were deposited with PW 2 MHC Shesh Raj which was sent for examination vide RC Ext. PW2/C to the forensic science laboratory through HHC Neel Chand. 10. The perusal of statement of PW3 Neel Chand reveals that MHC had handed over him one parcel containing 1.500 kilograms of charas sealed with six seals of impression "T" and re-sealed with four seals of "R", whereas the seal samples use of "T" and "N". If the sample was containing four seals of "R" then this parcel does not belong to the case in hand. 11. Further, this witness stated that thereafter he deposited the case property on 4.11.2010 in the forensic science laboratory but the report of the forensic science laboratory Ext. If the sample was containing four seals of "R" then this parcel does not belong to the case in hand. 11. Further, this witness stated that thereafter he deposited the case property on 4.11.2010 in the forensic science laboratory but the report of the forensic science laboratory Ext. PW6/F reveals that it was received on 3.11.2010 which could not have been possible as in the statement of said Shri Neel Chand he testified that MHC police Station Banjar had handed over him the said parcel for its analysis on 3.11.2011 at 12.00 noon and traveled to Junga by night bus service. Thereafter it could not have been deposited in the laboratory on 3.11.2010. The presumption is attached to the chemical report Ext. PW6/F under Section 293 of the Code of Criminal Procedure with respect to every factual contents mentioned therein. If there crept any clerical or typographical mistake in the date and the seal impression, as stated by PW3, then why the similar mistake was committed in the forensic science laboratory and both these mistakes which have gone to the root of the case could have been clarified during the examination of witnesses. The prosecution has relied upon the statements of both these witnesses which are quite in-consistent and are poles apart from each other causing dent in the prosecution case. 12. It is also noted that even copy of the RC Ext. PW2/D does not contain receipt of the laboratory. There is also no other document showing receipt of the case property on a different date as mentioned in the report of analysis. The NCB form Ext. PW2/A bears the signatures of the chemical examiner with date as 15.11.2010. 13. Also, the independent witnesses PW Kartar Kaushal and PW8 Jawahar Lal had turned hostile as they did not support the prosecution case qua the recovery and handing over the seal to Kartar Chand by the police. 14. Further, I find that the case property, in this case was exhibited during the trial in the statement of PW6 SI/SHO Surender Pathak and only opened when PW7 HHC Hem Raj was examined. As per observations of the Court, the seals were found in tact without mentioning which and how many seals it contained. Whether the seals put by the investigating Officer were found in tact or that it also contained the seals of the forensic science laboratory, where it was examined. As per observations of the Court, the seals were found in tact without mentioning which and how many seals it contained. Whether the seals put by the investigating Officer were found in tact or that it also contained the seals of the forensic science laboratory, where it was examined. Merely that the seals were found in tact would not be sufficient and connect the case property with the report Ext. PW6/F, more specifically when there is no evidence that it was received back in the police station after its examination in the above fact situation as alleged. The receipt of the case property has also not been indicated by any oral or documentary evidence. 15. Further, there are other material contradictions in the statements of official witnesses. PW9 ASI Ram Lal Investigating Officer stated that he had prepared all the documents on the spot whereas Ext. PW1/D was prepared by HHC Hem Raj aforesaid. But HHC Hem Raj denies this fact. According to him, he only prepared Ext. P1 and Ext. P2 to which the Investigating Officer stated having prepared by him. 16. Since the punishment in such type of cases is very stringent, therefore, the prosecution is obliged to lead cogent, consistent and reliable evidence worth inspiring confidence and the guilty person does not escape. 17. In view of the above material contradictions more specifically when the independent witnesses have turned hostile and there are glaring material inconsistencies in the statements of the official witnesses, the case cannot be said to have been proved in accordance with law. Thus the accused deserves to be given the benefit of reasonable doubt. Accordingly the appeal is allowed and the judgment of conviction and sentence is hereby set aside. The accused is acquitted by giving him the benefit of doubt. 18. The accused is undergoing sentence, he be released forthwith if not required in any other case. The Registry of this Court to issue the release warrants of the accused to the Superintendent Jail concerned forthwith, in conformity with this judgment. 19. Record of the learned trial Court be returned with the copy of this judgment.