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2012 DIGILAW 638 (HP)

State of Himachal Pradesh v. Sunil Kumar

2012-09-26

DEEPAK GUPTA, RAJIV SHARMA

body2012
JUDGMENT Rajiv Sharma, J. State has come in appeal against the judgment, dated 17.12.2003 of the learned Sessions Judge, Chamba, Division Chamba, H.P., rendered in Sessions Case No. 13 of 2003, whereby respondent, who was charged with and tried for offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, has been acquitted. 2. Case of the prosecution, in a nutshell, is that on 28.11.2002, ASI Mukesh Kumar (PW-15) alongwith HHC Krishan Chand and Constable Khubi Nand, was present at Traffic Check Post, Tunuhatti. At about 2:30 p.m., HRTC Bus No. HP 48-4504 enroute Chamba to Manali was stopped at the barrier. Constable Khubi Nand entered the bus from the front door to check the passengers, whereas ASI Mukesh Kumar and Constable Krishan Chand entered the bus through the rear door of the bus. While checking the passengers, they reached at seat No. 32 of the bus. They found one person sitting on it. After seeing the police, he got perplexed. He was questioned by ASI Mukesh Kumar. The passenger told his name as Sunil Kumar. ASI Mukesh Kumar presumed that the accused was carrying something suspicious in his bag. He got his bag checked and found that it contained charas in the shape of sticks. He called the Conductor Anand Kumar, checked his tickets, which were issued by the Conductor for travelling from Chamba to Pathankot. The accused alongwith his bag containing charas was brought down from the bus by ASI Mukesh Kumar in the presence of Anand Kumar, Conductor and Rajinder Kumar, who was selling aam pappers in the bus. One Karnail Singh was also standing outside the bus. The accused alongwith his bag was made to sit in the police Ghumti near the barrier under the supervision of ASI Mukesh Kumar and Constable Krishan Chand. ASI Mukesh Kumar prepared a rukka Ex. PW-15/A, which was sent to the Police Station, Dalhousie, on the basis of which, F.I.R. was registered. ASI Onkar Singh, Incharge Police Post Bakloh came at the traffic Check Post Tunuhatti alongwith Constable Madan Singh and HHC Ishar Dutt. ASI Mukesh Kumar handed over the accused and bag alongwith charas to ASI Onkar Singh. On weighment, the charas was found to be 3 kgs.850 grams. Two samples of 25 grams each were taken and sealed separately with seal bearing impression ‘OS’. The bulk parcel was also sealed with the same seal. ASI Mukesh Kumar handed over the accused and bag alongwith charas to ASI Onkar Singh. On weighment, the charas was found to be 3 kgs.850 grams. Two samples of 25 grams each were taken and sealed separately with seal bearing impression ‘OS’. The bulk parcel was also sealed with the same seal. The recovery memo was prepared. The seal after use was handed over to Rajinder Kumar witness. Thereafter, the samples were resealed at the Police Station and one of which was sent to Chemical Examiner, Kandaghat. According to the report for the Chemical Examiner, Ex. PW-11/A, the contents of the sample were found to be of charas. Thereafter, the investigation was completed and the challan was put up against the accused. 3. The prosecution examined a number of witnesses. The accused were also examined under Section 313 of the Criminal Procedure Code. They pleaded innocence and claimed trial. The learned trial Court has acquitted the respondent on 17.12.2003. Hence, this appeal by the State. 4. We have heard the learned counsel for the parties and gone through the judgment and the records carefully. 5. PW-1, Anand Kumar has deposed that he alongwith Shashi Pal Singh, Driver (PW-2) were enroute Chamba to Manali. The bus reached at Tunnuhatti barrier at about 2:30 p.m. The bus was stopped at the barrier for its checking by the police in a routine manner. Then the police official boarded the bus. The accused was sitting on seat No. 32. He was ordered to get down by the police officials. After his checking, two, three other persons also got down from the bus, but he was not sure whether at the time of getting down from the bus, he was holding a bag with two strings and Tommy written on its upper portion. He was declared hostile. In his cross-examination, he deposed that the police official told him that something was recovered from the accused. But, nothing was recovered in his presence. 6. PW-2, Shri Shashi Pal, who was driving the bus No. HP-48-4504, was also declared hostile. He did not know whether accused was sitting on seat No. 32 with bag. In his cross-examination, he has denied the suggestion that the accused was holding a bag with two strings and Tommy written on it and on seeing the police official, he was perplexed. 7. He did not know whether accused was sitting on seat No. 32 with bag. In his cross-examination, he has denied the suggestion that the accused was holding a bag with two strings and Tommy written on it and on seeing the police official, he was perplexed. 7. PW-3, Karnail Singh has deposed that he was present in his Dhaba at 2:30 p.m. According to him, the accused was not ordered to get down from the bus in his presence nor any recovery was effected in his presence. He was also declared hostile. 8. PW-4, Shri Rajinder Kumar has deposed that on 28.11.2002, he was selling aam papper at Tunnuhatti barrier. He has also not seen the accused being brought down from the bus by the police. He was also declared hostile. In his cross-examination, he has denied the suggestion that the bag of the accused was searched and charas in the shape of sticks and balls was recovered from the possession of the accused and it weighed 3 kg. 850 grams. He has also denied that two samples of 25 grams each were separated from the recovered charas and sealed in a sealed parcel with seal impression ‘OS’. He has also denied that remaining charas 3 kg. 800 grams was also sealed in the same manner in a parcel with seal impression ‘OS’. He has also denied that seal after use was handed over to him. 9. PW-5, Mohinder Singh has only deposed that on 28.11.2002, a police official came to his shop and obtained from him the weight and scales of 2 kg., 1 kg., 500 grams, 200 grams, 100 grams and 50 grams. 10. PW-6, Shri Madan Singh has deposed that he has brought scales and weight of 2 kg., 1 kg., 500 grams, 200 grams, 100 grams and 50 grams from the shop of PW-5, Mohinder Singh. 11. PW-7, Khubi Nand has deposed that ASI Mukesh Kumar, HHC Krishan Chand boarded the bus from the back door and he boarded the bus from the rear side of bus and remained standing as a guard with the ammunition and arms. According to him, a person sitting on seat No. 32 was brought down from the bus alongwith a bag. In his cross-examination, he deposed that he did not enter inside the bus. ASI told him that the accused was sitting on seat No. 32. 12. According to him, a person sitting on seat No. 32 was brought down from the bus alongwith a bag. In his cross-examination, he deposed that he did not enter inside the bus. ASI told him that the accused was sitting on seat No. 32. 12. PW-10, Daya Singh has deposed that ASI Onkar Singh has handed over a parcel of the charas containing 3 kg. 800 grams, which was duly sealed with seal impression ‘OS” and two other parcel containing 25 grams charas each sealed with seal ‘OS’ and four specimen seal impression which were on the cloth, seal impression was ‘OS’, three N.C.B. forms to the then SHO Joginder Singh at Police Station, Dalhousie, who re-resealed all parcels with re-seal ‘A’ and also took the impression on the specimen cloth Ex. PW-10/A and thereafter handed over the case property to M.H.C., Police Station, Dalhousie vide memo Ex. PW-10/B. 13. PW-11, Paras Ram has deposed that ASI/SHO Joginder Singh deposited the case property consisting one bulk sealed parcel and two sealed sample parcel duly sealed with seal impressions ‘OS’ and ‘A’. He entered the same in malkhana register No. 19. The specimen seal was also deposited with him. Out of two sealed sample parcels, one sealed sample parcel was sent to C.T.L., Kandaghat on 03.12.2002 vide R.C. No. 149/2002 through Constable Aslam Mohd. No. 302. 14. PW-12, Ashlam Mohd. has deposed that Paras Ram, M.H.C. has given him one sealed sample duly sealed with three seals of ‘OS’ and two seals of ‘A’ alongwith specimen seals and one docket vide R.C. No. 149/2002 on 03.12.2002. He took the sealed samples and other articles to C.T.L., Kandaghat. He deposited the same at C.T.L., Kandaghat on 04.12.2002 and returned the R.C. to M.H.C. on his return. According to him, so long the sealed samples remained with him, none had tampered with them. 15. PW-15, Mukesh Kumar has deposed that he alongwith Constable Khubi Nand were present at the barrier in order to check the vehicles. At about 2:30 p.m., one HRTC bus No. HP-48-4504 came at the barrier, which was stopped for routine checking of the luggage of the passengers. Constable Khubi Nand boarded the bus from the front side door while he and Kishan Chand boarded the bus from the rear door. He started checking the luggage of the passengers of the bus. At about 2:30 p.m., one HRTC bus No. HP-48-4504 came at the barrier, which was stopped for routine checking of the luggage of the passengers. Constable Khubi Nand boarded the bus from the front side door while he and Kishan Chand boarded the bus from the rear door. He started checking the luggage of the passengers of the bus. When he reached at seat No. 32, the passenger sitting on it got perplexed. The passenger was holding a bag which was black in colour. He asked his name. The passenger disclosed his name as Suneel Kumar. He opened the bag of the accused and on opening the same, he found charas in the shape of sticks. Thereafter, he called its Conductor, Anand Kumar and got the bus tickets possessed by the accused checked. He ordered the accused to get down from the bus alongwith bag containing charas alongwith Conductor and one Rajinder Kumar, who was selling aam papper in the bus to the passengers. One Karnail Singh was also present there outside the bus. He wrote a rukka Ex. PW-15/A to SHO, Police Station Dalhousie and sent a copy of he same to Superintendent of Police, Chamba through Constable Manoj Kumar vide Ex. PW-13/A. ASI Onkar Singh, Incharge, Police Post Bakooh came to the spot. He handed over the accused Suneel Kumar alongwith bag containing charas. In his cross-examination, he has admitted that the accused was sitting on a seat with the capacity of three passengers. There were two other passengers sitting with the accused. He did not join these two passengers in the investigation nor he interrogated them. 16. PW-16, Onkar Singh has deposed that he reached the spot after receiving the information, he reached the spot. Accused Suneel Kumar was holding a bag in his hand which was containing charas. He joined the witnesses Karnail Singh and Rajinder Kumar, who were already there alongwith ASI Mukesh Kumar. He called for the weight and scales and took the weight of charas, which was found to be 3 kg. 850 grams. Out of the recovered charas, he took two samples of charas weighing 25 grams each for the purpose of analysis and sealed the sample parcels with his seal having impression ‘OS’. The remaining charas 3 kg. 800 grams, Ex. P-4, was put into the same bag of accused Ex. P-3 and was sealed with the same seal. 850 grams. Out of the recovered charas, he took two samples of charas weighing 25 grams each for the purpose of analysis and sealed the sample parcels with his seal having impression ‘OS’. The remaining charas 3 kg. 800 grams, Ex. P-4, was put into the same bag of accused Ex. P-3 and was sealed with the same seal. The specimen of seals were taken and specimen seal ‘OS’ is Ex. PW-16/A. The seal after use was handed over to witness Rajinder Kumar. A memo Ex. PW-16/B was also prepared by him. He read over the contents of Ex. PW-16/B to witness Rajinder Kumar and accused. The site plan was also prepared by him. He has also taken into possession tickets Ex. PW-1/A-1 to Ex. PW-1/A-3. The case property, i.e. bulk sealed parcel Ex. P-1 and two sample sealed parcels, out of which one is Ex. P-2, were produced before the Officiating S.H.O. Shri Joginder Singh on the same day, i.e., 28.11.2002 alongwith specimen seals and N.C.B. form Ex. PW-11/A duly filled in for the purpose of re-sealing the case property, who has re-sealed the case property with his own seal having impression ‘A’. In his cross-examination, he has admitted that he has not made any inquiries that who were co-passengers who were sitting with the accused person at the relevant time. He did not associate any other passenger during the course of investigation. According to him, the case property was not re-sealed in his presence. 17. The prosecution has not examined any co-passenger, who was sitting with the accused. It was necessary for the prosecution to examine the two passengers, who were sitting with the accused. Neither PW-1, Anand Kumar nor PW-2, Shashi Pal have supported the case of the prosecution. These two witnesses were declared hostile. According to PW-1, Anand Kumar, the police official did not search the bus in his presence. The police officials have told him that something has been recovered from the accused, but nothing was recovered in his presence. To the similar effect is the statement of PW-2, Shashi Pal. He did not know whether the accused was sitting at seat No. 32 with a bag in his possession. He has denied the suggestion that the accused was holding a bag with two strings with mark Tommy written on it and on seeing the police official, he was perplexed. To the similar effect is the statement of PW-2, Shashi Pal. He did not know whether the accused was sitting at seat No. 32 with a bag in his possession. He has denied the suggestion that the accused was holding a bag with two strings with mark Tommy written on it and on seeing the police official, he was perplexed. PW-3, Karnail Singh, the other independent witness was also declared hostile. According to him, the accused was not ordered to get down from the bus in his presence nor any recovery was effected in his presence. He has also denied the manner in which sampling was undertaken by the police. 18. PW-4, Rajinder Kumar, another independent witness was also declared hostile. According to him, he has not seen the accused being ordered by the police to get down from the bus. He has denied the suggestion that bag of the accused was searched and charas in the shape of sticks and balls was recovered from the possession of the accused. He has denied that two samples of 25 grams each were separated from the total recovered charas and sealed in a sealed parcel with seal impression ‘OS’. He has also denied that remaining charas, i.e., 3 kg. 800 grams was also sealed in the same manner in a parcel with seal impression ‘OS’. 19. The prosecution has not examined Shri Krishan Chand, who according to Mukesh Kumar (PW15) has entered the bus with him. He was a material witness, but he has been withheld by the prosecution. 20. Now, as far as PW-7, Khubi Nand, who has accompanied ASI Mukesh Kumar (PW-15) is concerned, he has stated that he did not enter inside the bus, but ASI told him that the accused was sitting on seat No. 32. In his examination-in-chief, he has stated that he boarded from the rear side of the bus and remained standing as a guard with ammunition and arms. PW-15, Mukesh Kumar has deposed that he alongwith HHC Kishan Chand and Constable Khubi Nand were present at the barrier. Constable Khubi Nand boarded the bus from the front side door while he and Kishan Chand boarded the bus from the rear door. There is variance in the statements of PW-7, Khubi Nand and PW-15, Mukesh Kumar. PW-15, Mukesh Kumar has deposed that he alongwith HHC Kishan Chand and Constable Khubi Nand were present at the barrier. Constable Khubi Nand boarded the bus from the front side door while he and Kishan Chand boarded the bus from the rear door. There is variance in the statements of PW-7, Khubi Nand and PW-15, Mukesh Kumar. According to PW-7, Khubi Nand, he entered the bus from the rear door and remained standing as a guard with ammunition and arms. 21. PW-15, Mukesh Kumar, in his cross-examination, as noticed above, has stated that the accused was sitting on a seat with the capacity of three passengers and two other persons were also sitting with the accused. But, he has not joined these two persons in the investigation nor interrogated them. 22. PW-16, Onkar Singh has also admitted that he has not made any efforts to examine co-passengers during investigation. There are inherent contradictions in the statements of the prosecution witnesses. The recovery of the charas itself is doubtful. The sampling procedure is also doubtful, since neither PW-3, Karnail Singh nor PW-4 Rajinder Kumar have supported the process of sampling. Moreover, neither PW-1, Anand Kumar nor PW-2, Shashi Pal, who were Conductor and Driver of the bus have supported the prosecution case. There is variance in the statements of PW-7, Khubi Nand and PW-15, Mukesh Kumar, the manner in which search was carried out. None of the independent witnesses have disclosed that the charas was recovered in their presence. 23. The learned trial Court after considering the entire evidence, has rightly acquitted the accused. We, therefore, find no merit in this appeal, which is accordingly dismissed. Bail bonds are discharged.