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Himachal Pradesh High Court · body

2013 DIGILAW 297 (HP)

State of H. P. v. Parminder Singh alias Pinku

2013-04-11

Dharam Chand Chaudhary, Surinder Singh

body2013
JUDGMENT Surinder Singh, J. The respondent (hereinafter referred to as the ‘accused’) was charge-sheeted and acquitted for the offence punishable under Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (in short the ‘Act’) for allegedly keeping in possession 120 grams of Opium. 2. Heard and gone through the record. 3. In short, the prosecution story can be stated thus. On 16.2.2007, PW-1 Som Parkash Chandel was posted as Assistant Superintendent Model Central Jail, Kanda. One Yuvraj was a Jail inmate. Sh. Vijay Kumar, Jail Warder was on duty. Around about 1.40 P.M. on the same day, the accused had come to meet Yuvraj aforesaid. To this effect, PW-1 was informed by the Jail Warder Sh. Vijay Kumar. PW-1 came to the main gate and inquired from the accused, the purpose of meeting with convict Yuvraj. The accused told him that he was to hand over some articles to Yuvraj. The Jail Superintendent (PW-1) asked about the contents thereof, on which the accused got perplexed. On getting suspicious, he informed Police Station, Boileauganj telephonically. Around 2.30 P.M., the police party arrived at the spot headed by PW-11 SI Chaman Lal, Addl. SHO. He gave an option to comply with the provisions of Section 50 of the Act to the accused in writing, Ext.PW-1/A. The accused consented to be searched by the police party, to this effect, he made endorsement on the consent memo. Thereafter, PW-11 aforesaid is alleged to have conducted the search of the accused in the presence of Jail Warder Vijay Kumar and one Som Parkash. During the trial, both were not examined by the prosecution. (ii) Further, as per the prosecution case, the accused was wearing white pant, jean and on personal search, police recovered 12 packets of blackish brown colour material i.e. Opium from the right pocket of the pant worn by the accused. The accused told the Investigating Officer that he had come to meet convict Yuvraj in the Jail but was stopped by the Jail staff on the gate. (iii) It is alleged that the independent witnesses were not available at the spot, despite attempt made by C. Dev Raj, but he had arranged the scale and weights. The recovered stuff was weighed, it came out to be 120 grams. Out of which, two samples of 10 grams each were separated and sealed with seal impression ‘T’. (iii) It is alleged that the independent witnesses were not available at the spot, despite attempt made by C. Dev Raj, but he had arranged the scale and weights. The recovered stuff was weighed, it came out to be 120 grams. Out of which, two samples of 10 grams each were separated and sealed with seal impression ‘T’. The remaining Opium was also sealed with the same seal. The sample of seal impression was also taken on a piece of cloth Ext.PW-1/C. Each parcel was signed by Som Parkash and Vijay Kumar aforesaid. (iv) Specimen of the seal impression was also taken on the NCRB/NCB forms in triplicate, which was alleged to have been filled in at the spot and the seal after use was handed over to Som Parkash vide memo Ext.PW-1/D. (v) The case property was taken into possession vide seizure memo Ext.PW-1/E. The articles recovered from the accused were taken into possession vide memo Ext.PW-1/G. (vi) Rukka, Ext.PW-4/A was sent through C. Dev Raj for registration of the case. The police also prepared site plan, Ext.PW-11/A. The accused was arrested and the grounds of arrest were informed to him in writing vide arrest memo Ext.PW- 1/F. 4. On reaching Police Station, PW-11 SI Chaman Lal at about 8.45 P.M. produced the case property before PW-8 SHO K.D. Sharma, along with NCRB/NCB forms and sample of seal. He is alleged to have resealed all the three packets with seal impression ‘E’. Columns of the NCRB/NCB forms were filled-in by him. Facsimile of the seal was also affixed on the NCRB/NCB forms, one of which is Ext.PW-8/C. He also took the sample of seal used by him on a separate piece of cloth, Ext.PW-8/D and returned the case property to SI Chaman Lal with NCRB/NCB forms for keeping the same in to Malkhana in safe custody. 5. PW-9 MHC Tulsi Dass received the case property around 10 P.M. along with sample of seal and NCRB/NCB forms etc. In this regard, memo Ext.PW-8/E was prepared and the relevant entry was made in the Malkhana register, extracts whereof are Ext.PW-9/A and Ext.PW-9/B. 6. 5. PW-9 MHC Tulsi Dass received the case property around 10 P.M. along with sample of seal and NCRB/NCB forms etc. In this regard, memo Ext.PW-8/E was prepared and the relevant entry was made in the Malkhana register, extracts whereof are Ext.PW-9/A and Ext.PW-9/B. 6. On 19.2.2007, one of the sample parcels was forwarded for its analysis to FSL, Junga vide RC No. 31/07 dated 19.2.2007, Ext.PW-9/C along with sample of seal to which C. Islam Mohammad, PW-6 deposited on 20.2.2007 in the Laboratory and obtained receipt on the Road Certificate and handed it over to MHC on his return. The Investigating Officer had recorded the statements of the witnesses. On examining the sample parcel, report of Chemical Examination, was obtained and in the opinion of the Examiner, the sample so sent was Opium, which contained 2.92% morphine W.W. 7. After completing the investigation, the challan was presented in the Court for trial of the accused. The case of the accused was denial simplicitor. According to him, though he visited Jail to meet the Jail inmate, but after search, he was allowed to go inside. On personal search, nothing was recovered from him. Later on, he was taken to Police Station, Boileauganj, where he was forced to sign some papers and he alleged false implication. No evidence in defence was led. At the end, the accused was acquitted. 8. We have reassessed/reappraised the evidence on record but we do not see any reason to convert the acquittal into conviction for the reasons mentioned hereinafter. 9. Firstly, it was a case of personal search of the accused. Though an option in terms of Section 50 of the Act is stated to have been given in writing, Ext.PW-1/A, but this fact was not substantiated by the Investigating Officer or the other witnesses when examined in the Court that the accused was apprised of his right to be searched before the Gazetted Officer or the Magistrate. The exercise of option, as a matter of right, is sine qua non, as held by the Supreme Court in Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609 , which has been reiterated in the recent judgment Suresh and others v. State of Madhya Pradesh, (2013) 1 SCC 550 , failing which the whole trial vitiates if based upon the personal search. 10. 10. We also find that the case property was stated to have been deposited in Malkhana on 16.2.2007 as per entry in the Malkhana Register, Ext.PW-9/A. Though there is tampering with respect to the date and FIR number but what is pertinent to note is that one of the sample parcels was drawn on 19.2.2007 and sent for examination to FSL, Junga through C. Islam Mohammad vide RC No.31/07, which was handed over vide Road Certificate (Ext.PW-9/C) also substantiate this fact and it was deposited on 20.2.2007 at Junga within the Shimla town itself but there is no explanation where the sample parcel was kept for the night. But, however, the story did not end here. It has added further misery to the prosecution case, as the NCRB/NCB form (Ext.PW-8/C), which is alleged to have been filled-in on the same day at the spot by the Investigating Officer, has shown drawl and dispatch of the sample on 17.2.2007 and the Investigating Officer, SI K.D. Sharma, had signed it on 17.2.2007 itself, whereas the drawl of the sample from Malkhana is 19.2.2007. If the sample parcel was drawn on 17.2.2007 from Malkhana, where it remained till its dispatch on 19.2.2007 remained obscure. 11. Further, the prosecution evidence reveals that the seal used at the spot, was handed over to PW-1 Som Parkash Chandel, which fact has also been stated by the Investigating Officer. But if the NCRB/NCB form was filled-in on 17.2.2007 by the Resealing Officer i.e. PW-8 K.D. Sharma, Inspector SHO in the Police Station, then in that event the facsimile of seal ‘T’ should not have been with him and later affixed against column No.7 with his seal ‘T’. 12. It has also come in the statements of prosecution witnesses that there were shops outside the Jail Complex where the witnesses were easily available but none of the independent witnesses were included at the time of personal search of the accused by the police. Even for that matter, the Jail Warder Vijay Kumar was not examined who happened to be present at the relevant time. 13. Even for that matter, the Jail Warder Vijay Kumar was not examined who happened to be present at the relevant time. 13. Thus, in the above circumstances, the very manner of drawl of the sample and sending it for analysis to the Forensic Science Laboratory creates a grave suspicion and the other evidence qua recovery from the accused, as discussed above, for which there is no plausible and reliable evidence adduced on record, make the prosecution case a suspect. 14. Therefore, there are no grounds to convert the acquittal into conviction, as such, the appeal filed by the State is without any merit and is dismissed. 15. The respondent is discharged of his bail bonds entered upon by him at any time during the proceedings of this case.