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Himachal Pradesh High Court · body

2013 DIGILAW 260 (HP)

Pawan Kumar v. State of Himachal Pradesh

2013-04-08

Dharam Chand Chaudhary, Surinder Singh

body2013
JUDGMENT Surinder Singh, J. Appellant feels aggrieved by the judgment of conviction passed by the learned Trial Court under section 18 [wrongly mentioned, it should have been Section 15] of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short “the Act” for allegedly keeping in his exclusive and conscious possession 60 kgs. of poppy husk/straw whereby he has been sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 10, 000/-. In default of payment of fine, to further undergo simple imprisonment for a period of one year. However, the benefit of Section 428 of the Code of Criminal Procedure to commute the sentence was also accorded. 2. In short, the prosecution case, as emerges from the evidence on record, can be stated thus. In the year 2006, PW 13 Sub Inspector Ramesh Kumar Rana was posted as Additional SHO, Police Station Indora. (ii) On 7.10.2006 he was heading a police patrol party which was in the area of “damtal’ and ‘channi’. (iii) Around 1.30 p.m. police met few more police personnel who were with ASI Arjun Dass. They were also included in the patrolling. (iv) In the meantime, S.I. Ramesh Kumar aforesaid received a secret information that accused was having charas or poppy husk in his possession kept in his house. Finding the information definite, he deputed PW2 constable Shiv Dev Singh to call two independent witnesses from the vicinity vide Ext. PW1/A. (v) The secret information received by the said police officer was jotted down on a piece of paper Ext. PW5/A to comply with the provision of sub-Section 2 of Section 42 of the Act and sent it to Sub-Divisional Police Officer, Nurpur through PW5 constable Pramodh Singh. (vi) Constable Shiv Dev Singh brought two local witnesses, namely, PW1 Ved Parkash, and PW3 Pappy Dhariwal. They were included in the raiding party. Measures and scale were also brought from PW7 Ram Swarup. Ruka Ext. PW4/A was sent to the police station for registration of the FIR through PW4 Shiv Dev Singh. Thereafter raiding party proceeded to the spot. (vii) The police party aforesaid along with the independent witnesses reached the house of the accused where they found the accused present and informed him the purpose of their visit in writing Ext. PW1/B. The accused did not object to it. Thereafter raiding party proceeded to the spot. (vii) The police party aforesaid along with the independent witnesses reached the house of the accused where they found the accused present and informed him the purpose of their visit in writing Ext. PW1/B. The accused did not object to it. (viii) Before conducting the search, the raiding party rendered themselves to be searched by the accused in the presence of Smt. Lilo Devi Panch and Tilak Raj (not examined) residents of the same village but no incriminating article was found in their possession. To this effect memo Ext. PW1/C was also prepared. (ix) Thereafter the search of the house of the accused was conducted but no incriminating article was found. Then they proceeded towards the cow-shed and noticed a cow tethered in the said shed which was removed and thereafter they carried out the search of the cow-shed. During the search, they discovered two drums buried beneath the floor of the cow-shed. On checking each of the drums, they recovered 64 polythene packets weighing 60 kgs. The police took its photographs. (x) All the 64 packets were mixed together; thereafter Investigating Officer separated two samples of 100 grams each from the recovered stuff. The sample parcels were separately sealed with seal impression producing the impression of English letter ‘K’ and the sample parcels were marked ‘B’ and ‘B1’. Remaining bulk was also sealed with the same seal in the jute bags procured from the house of the accused. The seal after its use was handed over to PW1 Ved Parkash and case property was taken into possession vide memo Ext. PW1/E in presence of the witnesses. The sample of seal was taken on a piece of cloth Ext. PW1/D. NCB forms in triplicate were filled in. The facsimile of seal was also affixed on each of the forms aforesaid. One of the NCB forms is Ext. PW13/A. (xi) The police also prepared the sketch plan Ext. PW13/B of the place of alleged recovery. (xii) The accused was arrested and grounds of arrest were informed to him in writing Ext. PW1/F. 3. On reaching the police Station, PW13 S. I. Ramesh Kumar handed over the case property along with NCB forms and sample of seals to PW14 Inspector/SHO Ambiya Ram for the purpose of resealing. PW13/B of the place of alleged recovery. (xii) The accused was arrested and grounds of arrest were informed to him in writing Ext. PW1/F. 3. On reaching the police Station, PW13 S. I. Ramesh Kumar handed over the case property along with NCB forms and sample of seals to PW14 Inspector/SHO Ambiya Ram for the purpose of resealing. After checking the seals intact, he re-sealed each of the parcels with seal impression ‘A’ and filled in the relevant column of NCB forms. The impression of such seal was also affixed on the NCB forms and also on a piece of cloth Ext. PW1/D. 4. Thereafter the case property was handed over to MHC PW11 MHC Rajinder Singh for its safe custody in the malkhana regarding which he made its entry in the relevant Register, abstract of which is Ext. PW11/A. 5. On 19.10.2006 MHC aforesaid deputed PW12 Ranjit Singh to take one of the sample parcels to CFSL, Chandigarh vide RC 113/21 (Ext. PW11/B). 6. On 21.10.2006 constable Ranjit Singh informed the MHC aforesaid that case property was returned on the verbal directions that it was not accompanying NCB forms in triplicate. Thereafter having made the necessary compliance on 31.10.2006, he again deputed the said constable to Chandigarh against the same road certificate, to deposit the sample parcel along with police docket for its analysis. 7. On 1.11.2006 sample parcel was received in the Laboratory. He got the receipt Ext. PW11/C on the RC and handed over on his return to police station to the MHC aforesaid. 8. On the receipt of the result of the examination Ext. PW14/B and completing investigation the case was presented in the Court for the trial of the accused. 9. It is pertinent to note that the charge against the accused, in the instant case, should have been under Section 15 of the Act not under Section 18 of the Act because Section 18 deals with possession of the opium poppy and opium and not poppy husk however, charge so framed contains the substance of the allegations by which no prejudice is caused to the accused. However, he had denied such allegations. 10. The prosecution examined its witnesses and accused was also examined under Section 313 of the Code of Criminal Procedure. He denied the recovery and possession of the poppy husk from the cow-shed specifically. However, he had denied such allegations. 10. The prosecution examined its witnesses and accused was also examined under Section 313 of the Code of Criminal Procedure. He denied the recovery and possession of the poppy husk from the cow-shed specifically. He also examined defence witness Kuldeep Kumar to prove the house in question was owned and possessed by several other family members. To prove it, he proved entry of Pariwar Register Ext. DW1/A. 11. The learned trial Court while relying upon the statements of the prosecution witnesses rejected the defence taken, convicted and sentenced the accused as aforesaid, hence the present appeal. 12. Shri Anup Chitkara, learned counsel for the accused vehemently argued that prosecution has failed to prove the possession of the accused over the cow-shed by cogent and reliable evidence and further that the prosecution could not prove that sample so sent was a representative sample of the alleged quantity recovered. It is also ventilated that the link evidence in the instant case is not complete and prosecution evidence does not inspire confidence even regarding the entrustment of seal to the independent witness rather the evidence on record shows that it remained with the police. 13. On the other hand, Shri D.C. Pathik, learned Additional Advocate General supported the impugned judgment of conviction and sentence and also took us through the cross-examination of PW15 Arjun Dasss wherein a suggestion was given on behalf of the accused that about 150 persons had gathered at the time of the alleged recovery from the cow-shed of the accused. Further, he referred to the copy of pariwar register Ext. DW1/A to show that house in question belongs to the accused. 14. At the very outset, we would like to say that as per the prosecution case, the recovery was from the cow-shed and not from the house and there is no dispute that the house in question from where no recovery was effected, was in joint possession with other adult family members. 15. In this case we are concerned with the recovery of the alleged contraband from the cowshed and whether prosecution has been able to prove its actual and conscious possession of the accused or not. 16. To prove the possession of the cow-shed, prosecution has examined PW8 Tarviz Singh Patwari. 15. In this case we are concerned with the recovery of the alleged contraband from the cowshed and whether prosecution has been able to prove its actual and conscious possession of the accused or not. 16. To prove the possession of the cow-shed, prosecution has examined PW8 Tarviz Singh Patwari. During the investigation he handed over the revenue papers qua khasra No. 28 to the Investigating Officer but significantly he stated that he didn’t visit the site of the alleged recovery. Therefore, it is not understood as to how the accused stands connected and the police came to know that cow-shed in question was on khasra No. 28. Even the independent witnesses did not whisper a single word that the cow-shed in question was in possession of the accused. The prosecution has failed to examine any person of the locality though available to prove that cow-shed in question belonged to the accused. Further, the very document Ext. PW1/C which was prepared before conducting the search of the house shows that one Smt. Lilo Devi and Tilak Raj both were present on the spot. There is also no statement on record under Section 161 of the Code of Criminal Procedure of these witnesses and it is not known as to why their statements were not recorded by the Investigating Officer qua this fact. They could have best witnesses to say about possession of the cow-shed. Therefore, in our considered opinion, on the basis of the evidence discussed above, prosecution has miserably failed to prove actual and conscious possession of the accused with respect to the place of alleged recovery. 17. Also we find major discrepancy in the instant case as report of analysis could also not be connected with the alleged sample sent for analysis for the reason that on 19.10.2006 one of the sample parcel was entrusted to Ranjit Singh for its deposit to CFSL Chandigarh but on the verbal objection it is alleged to have been returned that it did not accompany NCB forms in triplicate. Therefore, it was incumbent upon the MHC as well as on the part of the Constable handling the sample to deposit it in the malkhana on his return, thereafter it should have been sent again after removing objection through the road certificate for its analysis. Therefore, it was incumbent upon the MHC as well as on the part of the Constable handling the sample to deposit it in the malkhana on his return, thereafter it should have been sent again after removing objection through the road certificate for its analysis. But the perusal of abstract of the malkhana does not show even withdrawal of the sample parcel on 19.10.2006 for its analysis to the Laboratory what to talk of its redeposit which was essentially required because sample parcel was again taken on 31.10.2006 for analysis to CFSL Chandigarh. It is not known or revealed it remained for 10 days. 18. Further, reference can also be made to the Statement of PW11 Rajinder Singh. In cross-examination, he stated that he filled in the NCB forms and then handed over the said form for affixing seals on the NCB forms to S. I. Ramesh Kumar and SHO Ambiya Ram. If this statement is taken true, then it can safely be concluded that seal ‘K’ which was used by the Investigating Officer on the day of the alleged recovery was never handed over to the independent witness PW1 Shri Ved Parkash which goes contrary to the prosecution case. If that being so, then possibility of tampering of the said sample cannot be ruled out as the another seal by which the case property was re-sealed by SHO Ambiya Ram also remained with him. 19. We also find in the prosecution story, right from its inception that the sample parcels were marked as ‘B’ and ‘B’ even till its deposit in malkhana and sent as it is for analysis vide RC Ext.PW11/B, remained the same. But when received in the laboratory on 1.11.2006, no such mark was there in the sample parcel. Thus, the very identity of the sample is in question and remained a mystery. 20. For the foregoing reasons, we are of the considered opinion that prosecution has not been able to prove the case against the accused in accordance with law. Therefore, the judgment of conviction and sentences deserves to be set aside and is accordingly set aside. The accused is acquitted by giving him benefit of doubt. The fine amount, if any deposited, be refunded to the accused. 21. Since the accused is in jail, he be released forthwith if not required in any other case. 22. Therefore, the judgment of conviction and sentences deserves to be set aside and is accordingly set aside. The accused is acquitted by giving him benefit of doubt. The fine amount, if any deposited, be refunded to the accused. 21. Since the accused is in jail, he be released forthwith if not required in any other case. 22. The Registry is directed to prepare the release warrant of the accused and send to the Superintendent of the Jail concerned in conformity with this judgment forthwith to do the needful. 23. The matter stands disposed of. Send down the records.