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Himachal Pradesh High Court · body

2012 DIGILAW 696 (HP)

Mathura alias Rekha v. State of Himachal Pradesh

2012-10-09

SURINDER SINGH

body2012
Judgment Surinder Singh, J. 1. In the present appeal, the conviction and sentence passed by the learned trial Court has been challenged by the convict-appellant, hereinafter referred to as ‘the accused’ for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short ‘the Act’ for allegedly keeping in her possession 380 grams of ‘Charas’ in the recovered quantity of 1.200 kilograms stuff. 2. Briefly, the case of the prosecution can be stated thus. On 28.9.2010, at about 4.30 p.m, PW-11 the then Sub Inspector/SHO Om Prakash alongwith police party consisting of PW-5 Lady Constable Harsh Lata, PW-6 S.I. Om Chand, ASI Rajiv and ASI Lal Chand were on traffic checking. To this effect, departure report was recorded in daily diary Ext. PW-5/A. (ii) Near the gate of Police Station, Manali, the said police party had started traffic checking. Around 5.05 p.m, a bus bearing registration No. DL 1PB 9056 enroute to Delhi, came from Manali Bus Stand. It was stopped. PW-1 Gurpreet Singh was on the steering wheel. PW-2 Basu Dev was the Conductor. All the members of the police party entered inside the bus and started checking passengers alongwith their luggage. In that process, they found the accused occupying seat No. 28. On seeing police, she was got perplexed and disturbed. Her activities aroused suspicion. On this, PW-11 S.I. Om Prakash suspected that she might be having some contraband in her possession. He inquired about her identity. She disclosed her name as Rekha @ Mathura. Thereafter, he asked about the particulars of the driver and conductor of the bus from them. Both of them were included as the witnesses to the search operation. An option was given to the accused in terms of Section 50 of the Act to be searched before the Gazetted Officer or before the Magistrate in writing Ext. PW-6/A in the presence of the driver and the conductor, named above. She opted to be searched by the police party consisting of Lady Constable PW-5 Harsh Lata to whom she rendered herself to the personal search, but no incriminating article was found from her possession. To this effect, memo Ext. PW-5/B was executed. (iii) Thereafter, the accused was inquired about her personal belongings, but she did not disclose anything. She opted to be searched by the police party consisting of Lady Constable PW-5 Harsh Lata to whom she rendered herself to the personal search, but no incriminating article was found from her possession. To this effect, memo Ext. PW-5/B was executed. (iii) Thereafter, the accused was inquired about her personal belongings, but she did not disclose anything. However, PW-2 Basu Dev, the conductor is alleged to have told the police that she was having luggage, i.e. a box in the dickey of the bus. (iii) Then the dickey of the bus was opened in the presence of the accused and the witnesses, aforesaid. PW-2 Basu Dev took out 10 kilograms of apple box, upon which the words “Himachal Apples” were found printed and digit “28+1” with a black sketch-pen. The apple box was closed with a “Khakhi” cello tap. The cello tap was removed and the apple box was opened which contained apples and below the apples, black brown coloured substance in the form of wicks and ‘chapaties’ was found. (iv) The recovered articles were taken to the police station nearby and the substance so found algonwith with sample was cursorily examined in the I.O. room. The black brown stuff was found to be that of ‘Charas’. On weighing on the electronic machine, it came out to be 1.200 kilograms. The apples were 7 kilograms which were put in a separate bag and sealed with seal impression “T”. NCB forms were filled in triplicate, one of which is Ext. PW-3/F. The recovered stuff was wrapped in the same polythene paper. It was sealed in the apple box by making a parcel in a cloth and sealed at 9 places with the same seal. The specimen seal was taken on a piece of cloth Ext. PW-6/C. After its use, the seal was handed over to PW-1 Gurpreet Singh. (v) The case property was taken into possession vide seizure memo Ext. PW-6/B in the presence of the witnesses, who had appended their signatures thereon. (vi) Rukka Ext. PW-11/A was prepared and handed over to PW-5 Lady Constable Harsh Lata for the registration of FIR. (viii) The statements of the witnesses were recorded. (ix) The accused was arrested. The grounds of arrest were informed to the accused in writing vide memo Ext. PW-6/B in the presence of the witnesses, who had appended their signatures thereon. (vi) Rukka Ext. PW-11/A was prepared and handed over to PW-5 Lady Constable Harsh Lata for the registration of FIR. (viii) The statements of the witnesses were recorded. (ix) The accused was arrested. The grounds of arrest were informed to the accused in writing vide memo Ext. PW-6/D. (x)The case property was deposited in the ‘Malkhana’ with PW-3 MHC Sher Singh alongwith the apples, entry whereof was made in the ‘Malkhana’ register, the abstract whereof is Ext. PW-3/C. (xi) The special report of arrest and seizure was sent within the statutory period to the official superior. (xii) On 29.9.2010, the case property i.e. the ‘Charas’ sealed in the apple box Ext. P-1 was sent through PW-4 Constable Man Chand for its deposit alongwith NCB form in FSL Junga, to which he deposited it on 30.9.2010 and obtained its receipt on R.C. Ext. PW-3/E to this effect. (xiii) On examination of the said report, the Assistant Director and Assistant Chemical Examiner, NDPS Division, State Forensic Science Laboratory, Junga opined it to be the extract of cannabis and sample of ‘Charas’. The report is Ext. PA. 3. After completing the investigation, challan was presented in the Court for trial of the accused. She was accordingly charge-sheeted for the offence aforesaid, to which she pleaded not guilty and claimed trial. 4. To prove its case, the prosecution examined its witnesses. Pertinently, the driver and conductor of the bus aforesaid turned hostile to the prosecution. On appreciating the evidence on record, the learned trial Court, while relying upon the statements of the official witnesses, convicted and sentenced the accused, as aforesaid, which has been assailed in the present appeal. 5. Shri Anoop Chitkara, the learned Counsel for the accused duly assisted by Shri Shivendra Singh, Advocate forcefully argued that there is no connecting evidence to sustain the conviction of the accused. He led me through the evidence on record to impress upon his point. 6. On the other hand, Shri P.M. Negi, learned Deputy Advocate General relied upon the statement of PW-7 Shri Sureshwar Katoch, who had issued bus ticket to the accused to prove that the accused was travelling in the said bus, occupying seat No. 28 and the writing of the figures “28+1” on the apple box with a black sketch-pen connects her with the case properly. It is also argued that the link evidence in the instant case is complete and the chemical examiner report stands connected with the recovered stuff. Therefore, no interference is called for. 7. I have given my thoughtful consideration to the rival contentions of the parties and have carefully scanned as well as re-appraised the evidence on record in its entirety. 8. The prosecution has been able to successfully prove that the accused was travelling in the bus in question at the relevant time and was occupying seat No. 28. For that, the bus ticket issued by PW-7 Sureshwar Katoch, refers to her name as well as the seat number. Though, she denied that she is not named Rekha, but is Mathura, will not make any difference when she was found travelling in the bus on ticket Ext. PW-7/A. The passenger-list Ext. PW-8/B also contains her name at serial number 28 and it is also proved that when the personal search of the accused was conducted, at that time nothing incriminating was found in her possession, but for the bus ticket. On inquiry by the Investigating Officer, she did not disclose about her belongings/luggage to which she was carrying. 9. The case of the prosecution hinges upon the statement of PW-2 Basu Dev, the bus conductor, who had disclosed to the police that she was carrying an apple-box which was kept by her in the dickey of the bus and the said box is alleged to have been pointed out by the conductor and taken out, on which figure “28+1” was found written with a black sign-pen which contained contraband. To prove its version, the independent witnesses, i.e. the bus driver PW-1 Gurpreet Singh and PW-2 Basu Dev, the conductor, both were examined. But both of them have turned hostile to the prosecution as they did not support this version. It is also important to note that when the learned Public Prosecutor cross-examined PW-1 Gurpreet Singh, he was not confronted with the statement under Section 161 of the Code of Criminal Procedure, whereas it was so done qua PW-2 Basu Dev. But he categorically denied having made such a statement. Even, the seal which was alleged to have been used on the spot and handed over to PW-1 Gurpreet Singh, as per the case of the prosecution, was not produced and Gurpreet Singh also denied handing over it to him. But he categorically denied having made such a statement. Even, the seal which was alleged to have been used on the spot and handed over to PW-1 Gurpreet Singh, as per the case of the prosecution, was not produced and Gurpreet Singh also denied handing over it to him. There is nothing on record to show that as to who had written “28+1” on the apple box Ext. P-1. The prosecution intends to connect the accused with this figure as she was occupying seat No. 28 having one item against it. When the prosecution has failed to prove by reliable evidence that it was the accused and accused alone who had kept the apple box in question into the dickey, in my considered opinion, she cannot be linked with the alleged offensive contraband. 10. The learned Deputy Advocate General also pointed out to the order passed by the learned Chief Judicial Magistrate on 29.9.2010, whereby the apples were ordered to be released to the accused and according to him, if the accused did not own it, why she had accepted it. 11. The perusal of the record reveals that an application was moved by the S.I/SHO for release of the apples to the accused. Neither any reply nor any objection was called for, from the accused. Virtually, this application was decided ex-parte and it was thereafter, the SHO had handed over the apples to her without any notice to her that it was her property which was being released. She is an illiterate villager who could only sign. Therefore, this part of the evidence is also not enough to fasten the guilt and conviction of the accused. 12. Apart from the above, there is nothing on record which can prove the case against the accused beyond any reasonable doubt. 13. The learned trial Court did not take notice of the above facts in the prosecution case which led into the conviction of the accused. 13. For the reasons above mentioned, in my opinion, the recovery of the alleged contraband cannot be said to have been proved from the possession of the accused in accordance with law. As such, the judgment of conviction and sentence is hereby set aside and the accused is acquitted by giving her benefit of doubt. Accordingly, the appeal is allowed. 14. The accused is undergoing the sentence. As such, the judgment of conviction and sentence is hereby set aside and the accused is acquitted by giving her benefit of doubt. Accordingly, the appeal is allowed. 14. The accused is undergoing the sentence. She be released forthwith, if not required in any other case. She is discharged of her bail bonds. The Registry is hereby directed to send release warrants to the Superintendent of Jail concerned in conformity with this judgment. 15. The fine amount, if any already deposited, be refunded to the accused. 16. Send down the records.