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2013 DIGILAW 299 (HP)

STATE OF H. P. v. VINOD KUMAR

2013-04-11

DHARAM CHAND CHAUDHARY, SURINDER SINGH

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JUDGEMENT SURINDER SINGH, J. 1. THE respondents including Ramesh, who had died during the pendency of this appeal, were put on trial for the offences punishable under Section 18 of the Narcotics Drugs Psychotropic Substances Act, 1985 in short the 'Act' read with Section 34 of the Indian Penal Code, for keeping in their house 810 Grams Brown Sugar, 430 Grams of white powder (caffin). At the end of the trial, they were acquitted. 2. FEELING aggrieved by the impugned judgment of acquittal, the State has challenged the same in the present appeal. Mr. D.C. Pathik, learned Additional Advocate General argued that learned trial Court did not give much reliance to the reliable evidence of the prosecution and further that possession of the respondents-accused persons stand proved on record. Further, the statements of PW-1 Constable Baldev Singh, PW-2 Babu Ram, an independent witness, PW-15 Jasbir Singh, the Investigating Officer are enough to convert the acquittal into conviction. 3. ON the other hand, S/Sh. Rakesh Chandel and Chaman Negi, learned counsel forcefully argued that findings recorded by the learned trial Court are borne out from the record, therefore, no interference is called for. 4. WE have examined the rival contentions of the parties and have carefully reappraised the evidence on record. On going through the statement of PW-15 SI Jasbir Singh, it transpires that there was a prior information about the alleged incident, for which the compliance of Section 42(2) of the Act is mandatory. Though an attempt was made by the prosecution to prove the same by the statements of PW-15 S.I. Jasbir Singh, PW-6 Sunil Kumar and PW-10 Subhash Chand, but there is only oral assertion not supportable by any other cogent evidence. Such a document alleged to have been prepared and sent to the officer superior has not been placed and proved on record. Since alleged recovery was from the house, regarding which there was a prior information, therefore, non-compliance of Section 42(2) of the Act is fatal to the prosecution case, which vitiates the trial. Further, the information was received from ' PW-1 Constable Baldev Singh about dealing with the alleged contraband by the respondents in their house. To this effect, his statement under Section 161 of the Code of Criminal Procedure was recorded, which ultimately culminated into FIR in the present case. Further, the information was received from ' PW-1 Constable Baldev Singh about dealing with the alleged contraband by the respondents in their house. To this effect, his statement under Section 161 of the Code of Criminal Procedure was recorded, which ultimately culminated into FIR in the present case. The Investigating Officer had recorded the aforesaid statement of PW-1 and associated PW-2 Babu Ram, an independent witness, in the raiding party and they visited the spot. According to PW-2 Babu Ram, all the respondents herein were found in their house and respondent Inderjit Singh was smoking smack with a file paper. The consent memo Ext. PW2/A for the search of the house was prepared and they recovered the aforesaid quantity of the alleged contraband. From one of the rooms, match boxes, small weighing scale and weights of 10 and 20 Grams were recovered. The entire quantity after weighing was taken into possession along with the scale and measures and sealed with seal impression 'A'. Seizure memo Ext. PW2/C to this effect was prepared. After personal search of the accused persons, they were arrested and apprised of the grounds of arrest. This is what PW-15 SI Jasbir Singh had also stated, but in addition, he has stated that two samples each 20 gms. each were taken, marked as A-1, A-2, B-1, B-2, C-1, C-2, D-1, D-2, E-1 and E-2 samples were taken from the recovered stuff. 5. THE cross-examination of PW-2 needs attention. He admitted that in the house, from where the alleged recovery was affected, a 'Bhandara (langar)' was going on, which was being attended by 22-25 persons. The said building was having two rooms on the 1st floor and two rooms in the upper storey, which was connected through a stair-case and the room from where the alleged recovery was affected was not having window panes, grills and door. Even there were no belongings pertaining to the accused persons in the said room. He also stated that all the accused persons were present, when they visited the room. When confronted with his statement under Section 161 Cr. P.C, the above facts did not find mentioned therein. He also stated that police did not enquire or investigate about the occupation/luggage, or by whom it was inhabited. He has further stated that there was no kitchen item in the upper room, from where the alleged recovery was affected. When confronted with his statement under Section 161 Cr. P.C, the above facts did not find mentioned therein. He also stated that police did not enquire or investigate about the occupation/luggage, or by whom it was inhabited. He has further stated that there was no kitchen item in the upper room, from where the alleged recovery was affected. He also could not say that who had organized 'Bhandara', whether it was Mukund Lal or Roshan Lal. The upper storey was absolutely open and one could freely reach and roam through the stair case in the upper storey. Further, according to him he did not know the accused persons except Vinod Kumar prior to the alleged incident. He specifically stated that bag with the alleged contraband was not recovered from any of the accused persons. 6. FURTHER, the seal after its use remained with the police and it was not entrusted to him or any independent witness. This fact has been admitted by PW-4 Mukund Lal. He also stated that house in question was in his possession, however, he had rented out two rooms of the upper storey to Vinod Kumar, respondent. To this effect, no rent deed or receipt was produced. However, he further stated that the house remained in his possession, which was open having no locks and rooms were open and vacant/empty. Therefore, from his statement the easy accessibility to the rooms in question other persons cannot be ruled out. Even the accused alleged to have taken smack. No medical examination was got conducted. Pw-5 Sardev Singh had made the statement about the rooms in question and handed over the revenue papers to the Investigating Agency. Contrary to this, the Investigating Officer has disputed this fact that two rooms were not having window panes or grills. He also stated in his cross-examination that house of Mukund Lal was open and there was only one room on the ground level. They entered through the said room, but they did not find anything nor any accused person was present. On the backside of the said room, there was a stair-case, which led to the upper portion of the house having two rooms and a balcony. He also denied the fact of any 'Bhandara' (Langar), which was going on at the said place. 7. On the backside of the said room, there was a stair-case, which led to the upper portion of the house having two rooms and a balcony. He also denied the fact of any 'Bhandara' (Langar), which was going on at the said place. 7. ON careful scrutiny of the above evidence, we do not find any cogent and reliable evidence with respect to the actual and conscious possession of the rooms in question to connect the respondents with the alleged recovery. AS already stated above, the place was easily accessible to all and a 'Bhandara (Langar)' was going on the ground floor and many persons had gathered. None of the witnesses has stated that the belongings lying in the room, if any, were of the accused persons, in order to link them with the alleged recovery. 8. FURTHER, the seal, which is alleged to have been used on the alleged recovered items, remained with the police. It was neither handed over to PW-2 Babu Ram nor to the Pradhan Roshan Lal. The NCR forms did not contain the seal impression by which the case property was sealed nor there is any evidence of sending the seal sample to Laboratory makes the case of the prosecution all the more doubtful. The learned trial Court had taken note of the above facts, in its judgment and the findings of acquittal, in our considered opinion are borne out from the record, which require no interference. The appeal sans merits and is dismissed. The respondents are discharged of their bail bonds entered upon by them at any stage during the proceeding of this case. Send down the records.