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2013 DIGILAW 1611 (PNJ)

Ashok Kumar v. State of Haryana

2013-12-05

JITENDRA CHAUHAN

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Judgment Jitendra Chauhan, J. This appeal is directed against the judgment and order dated 28.1.2004, passed by the Court of learned Additional Sessions Judge, Sirsa, vide which, the appellant was convicted and sentenced to undergo rigorous imprisonment for a period of eight years and to pay a fine of Rs.80,000/- and in default thereof, to further undergo rigorous imprisonment for a period of two years, under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity ‘the Act’). 2. The facts necessary for adjudication of the matter as narrated in para no.2 of the impugned judgment are as under: “On 7.10.2001, Budh Singh, Sub-Inspector/SHO, Police Station Kalanwali, alongwith some police officials, was present at Rori Road in the area of Kalanwali. Accused was seen coming towards that side riding a scooter. Upon seeing the police party, accused turned back his scooter. He was chased by the police. Thereupon accused left his scooter on the road and fled away from the spot. Accused could not be apprehended. However, accused was identified by complainant Budh Singh and by Gopi Chand, ASI, at the spot as Ashok Kumar. A gunny bag containing 41 Kgs. of poppy straw was found tied to the rear seat of the scooter left behind by the accused. Two samples weighing 100 grams each were removed from the said bags. Samples as well as the bulk of poppy straw were seized vide recovery memorandum Ex.PE after being duly sealed. Scooter in question was also seized. Requisition site plan was prepared at the spot. FIR was got registered by sending a ruqa to police station, Kalanwali. Case property and samples were deposited in police Malkhana of Police Station Kalanwali. Statements of witnesses were recorded under Section 161 of Code of Criminal Procedure. Accused was arrested.” 3. After completion of the investigation, the challan was presented in the Court. The accused was charged under Section 15 of the Act, to which, he did not plead guilty and claimed trial. 4. In order to substantiate the charges, the prosecution has examined the following witnesses: PW1, Madan Lal, MHC, had tendered his affidavit in evidence as Ex.PA, wherein he stated that on the basis of ruqa Ex.PB, he recorded formal FIR Ex.PB/1. In cross-examination, he deposed that case property and sample were deposited with him by the Investigating Officer. 4. In order to substantiate the charges, the prosecution has examined the following witnesses: PW1, Madan Lal, MHC, had tendered his affidavit in evidence as Ex.PA, wherein he stated that on the basis of ruqa Ex.PB, he recorded formal FIR Ex.PB/1. In cross-examination, he deposed that case property and sample were deposited with him by the Investigating Officer. PW2, Constable Dharampal, had tendered his affidavit in evidence as Ex.PC, wherein he stated that MHC Madan Lal handed over samples parcels, which was deposited with FSL, Madhumab by him on 11.10.2001 and receipt was handed over to MHC. PW3, Rajpal, Scooter Mechanic, had deposed that the scooter in question was sold through him to Shishpal by Jaspal. PW4, Jaspal, the owner of the scooter, deposed that he sold the scooter to Shishpal son of Banarasi for a consideration of Rs.6,000/-. The transaction was made through Rajpal. PW5, ASI Satyawan, had deposed that the case was partly investigated by him. He took into possession RC Ex.P1 from Jaspal and recorded the statements of Rajpal and Jaspal. PW6, ASI Gopi Chand, member of the police party, corroborated the statement of complainant Budh Singh. PW7, SI Budh Singh, complainant, was posted as SHO, Police Station Kalanwali. He identified the accused as Ashok Kumar. He deposed that the recovery was effected from two bags weighing 41 Kgs. of poppy straw. He prepared the report under Section 57 of NDPS. 5. When examined under Section 313 of the Code of Criminal Procedure, the accused-appellant denied all the incriminating circumstances appearing against him in the prosecution evidence and pleaded false implication. In defence, he examined DW1 Malkiat Singh and closed his evidence. 6. The learned trial Court after observing that prosecution had successfully proved that the appellant was in possession of poppy husk, which was fully established from the statement of the PWs, and therefore, the accused appellant was convicted and sentenced as noticed at the outset. 7. Feeling dissatisfied with the same, the accused-appellant preferred the present appeal, which was admitted on 16.1.2006. 8. 7. Feeling dissatisfied with the same, the accused-appellant preferred the present appeal, which was admitted on 16.1.2006. 8. Learned counsel for the appellant contends that the appellant was not apprehended on the spot; he was identified by the police officials, who were the members of the police party; independent witness Nachhatar Singh was not examined; in his statement under Section 313 Cr.P.C. no question was put to the accused appellant, with regard to his being in conscious possession of the contrabands. 9. The learned State counsel submits that the prosecution has fully proved its case beyond reasonable doubt. PW7, Budh Singh, Sub Inspector has stated that accused Ashok Kumar was seen on a Chetak Scooter from the side of Kalanwali, who on seeing the police party, turned back his scooter. After he was chased, the accused left the scooter on the road and fled away. The gunny bag containing poppy husk was recovered. He further submits that the statement of this witness is fully corroborated by PW6 ASI Gopi Chand, who was a member of the police party. 10. I have heard the learned counsel for the parties and perused the record carefully. 11. The argument of the learned counsel for the appellant that the appellant was not known to any member of the police party earlier and had no social relation with anybody appears to be well founded. The identification of the absconded accused is doubtful as SI Budh Singh, PW7, stated in cross-examination that the accused was not a Sarpanch, Lamberdar or Panch of the village. There is not a whisper in the statement of this witness that as to how he i.e. PW7, or any of the member of the police party knew the accused-appellant earlier. In the absence of any test identification parade, which was not done in this case, it is not believable that the present accused appellant is the same person, who ran away from the spot after abandoning the scooter on the road, especially when, the scooter is not in his name. The absconded person did not leave any kind of proof at the spot, which could connect the present appellant with the recovery of the contraband on the spot. The police party consisting of six members was present at the place of recovery with the Govt. jeep, when they allegedly noticed the accused from a distance of 100 yards. The absconded person did not leave any kind of proof at the spot, which could connect the present appellant with the recovery of the contraband on the spot. The police party consisting of six members was present at the place of recovery with the Govt. jeep, when they allegedly noticed the accused from a distance of 100 yards. It is not believable that a scooterist would be able to go scot free in the presence of six able bodied members of the police party that too present with the jeep. The prosecution appears to be doubtful on this count. 12. The next contention of the appellant that the scooter is not connected with the appellant finds force. PW3, Rajpal is the agent through which, the scooter in question was sold by PW4, Jaspal Singh to Shishpal Singh s/o Banarsi Dass. The registration certificate Ex.P1, produced by the prosecution also does not prove the ownership of the scooter of the accused appellant. The vendee Shishpal Singh was neither associated in the investigation, nor he was examined as PW. PW4, Jaspal Singh, who sold the scooter to Shishpal, has not named the accused in his statement to be the purchaser or custodian of the scooter. Affidavit Mark 'A' sworn by Jaspal Singh goes to prove that the custody of the scooter in question was handed over to the purchaser Shishpal on 15.5.2001, while the recovery was effected on 7.10.2001. There is not even an iota of evidence on record that on a particular date and time of the recovery i.e. 7.10.2001, the scooter in question was in possession of the present accused-appellant. 13. The independent witness namely Nachhatar Singh was joined in the police party, but he was not examined in court. It was necessary for the prosecution to produce this independent witness and the other officials of the police to lend support to the prosecution story. This also creates dent in the prosecution story. 14. The last submission of the appellant that no question was put regarding conscious possession of the contraband in the statement of the accused under Section 313 Cr.P.C., which has caused prejudice to the accused-appellant. This Court has read the statement of accused Ashok Kumar recorded on 10.12.2003, under Section 313 Cr.P.C. recorded by the trial Court, but it is found that the question about the conscious possession of the contraband was not put to the accused. This Court has read the statement of accused Ashok Kumar recorded on 10.12.2003, under Section 313 Cr.P.C. recorded by the trial Court, but it is found that the question about the conscious possession of the contraband was not put to the accused. Recording of statement under Section 313 Cr.P.C. is neither a ritual nor formality, but it is a statement where every incriminating evidence is put to explain. This question is very relevant. Keeping in view the above discussion, and the fact that he FIR was registered on 7.10.2001, and the appellant has suffered a protracted trial, at this stage, this Court does not feel the necessity to reexamine the accused-appellant under Section 313 Cr.PC. 15. Keeping in view the above discussion, this Court is of the view that the prosecution has failed to prove its case against the accused-appellant beyond reasonable doubt. Resultantly, this appeal is allowed, judgment of conviction and order of sentence dated 28.1.2004 passed by learned Additional Sessions Judge, Sirsa are set aside and the accused appellant is acquitted of the charge framed against him by giving him the benefit of doubt.