Research › Search › Judgment

Himachal Pradesh High Court · body

2013 DIGILAW 402 (HP)

State of Himachal Pradesh v. Pyare Lal

2013-05-07

SURINDER SINGH, V.K.SHARMA

body2013
JUDGMENT Surinder Singh, J. (oral) The Trial Court acquitted the respondent (hereinafter to be referred as ’accused’) for the offence under Section 18-61-85 of the NDPS Act (in short, ‘Act’) for allegedly possessing 500 grams of ‘opium’. 2.Heard and gone through the record of the case. 3. Precisely, the facts giving rise to the present appeal can be stated thus. On 24.2.2006, PW-9, ASI Tapender Singh was heading a police patrol party. At around 9.30 P.M., they reached at Bus stand Baddi, where he received a secret information that the accused, who was a handicapped person, was selling opium to the customers near truck union, Kalyanpur. Finding this information credible, he associated Sh. Vinod Kumar (PW-2) and Sh. Kulwinder Singh (not examined) as independent witnesses and formed a raiding party. The said police officer also recorded reasons of belief on a piece of paper and sent through Constable Narinder Singh to SDPO (Parwanoo) for information. The raiding party proceeded towards Kalwaynpur and on reaching near Lakhu dhaba, they found the accused standing on the road side selling opium puriyas (small packets) to the customers. The time was around 10.30 P.M. The accused on seeing the police tried to escape, but he was apprehended. His identity was asked to which he disclosed. 4.PW-9 ASI Tapender Singh suspected that the accused possessed some contraband and gave him an option in writing, apprising his right to be searched before the Magistrate or some Gazetted Officer. The accused consented to be searched by the police party present there. To this effect, he made an endorsement on memo Ext.PW-9/A. Police party, as well as the independent witnesses gave their search to the accused, but nothing incriminating was recovered, as such the memo Ext.PW.1 /A was prepared. Thereafter, ASI Tapender Singh conducted the personal search of the accused and recovered a transparent polythene envelope from right side pant pocket having eleven ‘Puriyas’ (small packets) of opium. The recovered stuff was found to be 500 grams on its weighment. Out of the recovered stuff, he separated two samples of 25 grams each for chemical analysis and kept in two cloth parcels and sealed with seal impression ‘J’. The remaining bulk was also sealed with the same seal in a cloth parcel. The sample parcels were marked as ‘A’ and ‘A1’ and bulk as ‘A2’. Out of the recovered stuff, he separated two samples of 25 grams each for chemical analysis and kept in two cloth parcels and sealed with seal impression ‘J’. The remaining bulk was also sealed with the same seal in a cloth parcel. The sample parcels were marked as ‘A’ and ‘A1’ and bulk as ‘A2’. 5.The case property was taken into possession, vidememo Ext.PW-9/C, which was signed by Vinod Kumar and Kulwinder, as independent witnesses. Its copy was given free of cost to the accused. The sample of seal Ext.PW-9/D was separately taken on a piece of cloth and the seal after its use was handed over to witness Vinod Kumar, vide memo Ext.PW-9/E. Ruka Ext.PW-9/F was prepared and sent for registration of the case, on the basis of which FIR Ext.PW-9/G was registered. Site plan of the alleged recovery Ext.PW-9/H was prepared by the police. The statements of witnesses were also recorded. Special report Ext.PW-7/A was prepared with respect to search and seizure and sent to the Officer superior for information. The case property was produced before PW-1 0, who was acting as SHO. He re-packed and re-sealed each of the packets in separate cloth parcels with seal impression ‘C’. These sample parcels were marked as ‘S.1’ and ‘S.2’ and remaining bulk as ‘S’. He also took the sample of seal used by him and handed over the case property to MHC to keep it in Malkhana and issued the certificate Ext.PW-10/A with respect to the re-sealing. MHC Inder Lal deposited the case property in the Malkhana and one of the sample parcel was sent on 25.2.2006 for chemical analysis through PW.5 constable Girdhari Lal, vide RC Ext.PW-4/B. As per report Ext.PW-9/K, the Chemical Examiner was of the opinion that the sample contains the contents of opium. 6. After completing investigation, challan was presented in the Court for trial of the accused. He was accordingly charge-sheeted for the offence punishable under Section 18-61-85 of the Act, to which he pleaded not guilty and claimed trial. 7.To prove its case prosecution examined its witnesses and the accused was also examined under Section 313 of the Code of Criminal Procedure. He denied all the circumstances, which were found attended upon him. In defence, no evidence was led by him. 8. 7.To prove its case prosecution examined its witnesses and the accused was also examined under Section 313 of the Code of Criminal Procedure. He denied all the circumstances, which were found attended upon him. In defence, no evidence was led by him. 8. At the end of the trial, the accused was acquitted on the ground that one of the independent witness, who was examined in the Court did not support the case of the prosecution and further that NCB form was neither prepared on the spot, nor deposited with the case property in the Malkhana. Further that there has been contradiction in the statement of the Investigating Officer (PW-9) that he had prepared this NCB form on the spot at the time of recovery, whereas MHC stated that it was filled in by him on the next day i.e. 2 5.2.2006 at the behest of the Investigating officer. 9. During the pendency of the appeal, the State has also filed an application under Section 391 read with Sections 91 and 482 of the Code of Criminal Procedure for additional evidence i.e. for chemical examination of the remaining case property, as the report of the CTL, Kandaghat was discrepant in material particulars, which is also being considered. 10. The State felt aggrieved by the impugned judgment of acquittal, as such has filed the present appeal against the accused. 11. Mr. Ramesh Thakur, learned Assistant Advocate General has vehemently argued that the learned trial court has not appreciated the evidence of the prosecution in right perspective and further that there has been a compliance of Section 50 of the Act. In accordance with law, the accused stands fully connected with the alleged recovery of contraband and his acquittal was uncalled for. It is further submitted that remaining case property was required to be sent for chemical analysis in order to obviate any discrepancy, which has crept in the report of the chemical analysis issued by the CTL, Kandaghat. 12. To the contrary, Mr. It is further submitted that remaining case property was required to be sent for chemical analysis in order to obviate any discrepancy, which has crept in the report of the chemical analysis issued by the CTL, Kandaghat. 12. To the contrary, Mr. Anuj Nag, Advocate, learned counsel for the accused, supported the impugned judgment of acquittal and further ventilated that the case property, after a lapse of about six years and that too once opened during the trial before the learned trial court when the evidence was being led by the prosecution, might not be now in the same condition as at the time it was sealed on the spot and no fruitful purpose would be solved by its re-testing. 13.We have considered the rival contentions on behalf of the learned counsel for the parties and reappraised the evidence on record. 14.First of all we will take up the application for re-testing moved by the appellant-State. As a matter of fact, the Act itself does not permit any re-sampling or re-testing of the samples. The Hon’ble Apex Court in Thana Singh vs. Central Bureau of Narcotics (2013) 2 Supreme Court Cases 590, observed that there has been a trend to the contrary; the Courts have been consistently obliging to applications for re-testing and re-sampling. These applications add to delays as they are often received at advanced stages of trials after significant elapse of time. The NDPS Courts seem to be permitting re-testing nonetheless by taking resort to either some High Court judgments or perhaps to Sections 79 and 80 of the Act, which permit application of the Customs Act, 1962 and the Drugs and Cosmetics Act, 1940. While examining in the light of Section 52 of the Act and keeping in view the array of factors discussed in the judgment, the Hon’ble Supreme Court directed that after completion of necessary tests by the laboratories concerned, results of the same must be furnished to all the parties concerned with the matter. Any requests as to re-testing/re sampling shall not be entertained under the Act as a matter of course. These may, however, be permitted, in extremely exceptional circumstances, for cogent reasons to be recorded by the Presiding Judge. An application in such rare cases must be made within a period of fifteen days of the receipt of the test report; no applications for re-testing/re-sampling shall be entertained thereafter. These may, however, be permitted, in extremely exceptional circumstances, for cogent reasons to be recorded by the Presiding Judge. An application in such rare cases must be made within a period of fifteen days of the receipt of the test report; no applications for re-testing/re-sampling shall be entertained thereafter. However, in the absence of any compelling circumstances, any form of re-testing/re-sampling is strictly prohibited under the NDPS Act. 15. Examining the present case in the context of the judgment aforesaid, we do not find any justification in sending the sample, as well as the bulk for re-testing after such a long time in absence of any compelling circumstances. Accordingly, the application is dismissed. 16. Insofar as the merit of the present case is concerned, we find that while giving an option to the accused by the Investigating Officer, to comply the provisions of Section 50 of the Act, the accused must be apprised of his legal right to be searched either before the Magistrate or any Gazetted Officer mentioned in Section 42 of the Act, such a right cannot be restricted only to be searched before the gazetted police officer, which has so been done in the instant case, which is in contravention of the spirit of the aforesaid provision of the Act. In the catena of judgments flowing from the judgment passed by the Constitution Bench of Supreme Court in Vijaysinh Chandubha Jadeja vs. State of Gujrat, (2011) 1 Supreme Court Cases 609, till date, the law is reiterated that if the accused has been tried on the allegations that the recovery has been made on his personal search and there has been non-compliance of Section 50 of the Act, it vitiates the trial. 17. Further we have also noted material contradictions in the statement of the Investigating Officer. He stated that he had filled in the NCB form Ext.PW-9/K on the spot on 24.2.2006, but on the NCB form we do not find that the said Investigating Officer had ever done so. This form has been shown to have been prepared on the next day of the alleged recovery i.e. on 25.2.2006, as per the date below the signatures of the MHC for SHO of the police station, to which he admitted in his cross examination. This form has been shown to have been prepared on the next day of the alleged recovery i.e. on 25.2.2006, as per the date below the signatures of the MHC for SHO of the police station, to which he admitted in his cross examination. Further when the case property was deposited in the Malkhana, this form was not in existence, nor it is stated to have been taken along with the case property, as per the RC. It is a material discrepancy in the present case. Against the aforesaid background, there is no explanation offered by the prosecution as to why the NCB form was not filled in on the spot on 24.2.2006 and that too by the Investigating Officer. This makes the prosecution case all the more doubtful. 18. Further the independent witness PW.2 Vinod Kumar has not supported the case of the prosecution and he even denied having been entrusted by seal by the police officer. It is also pertinent to note that this witness himself was an accused under the NDPS Act for possessing opium, though acquitted later by the Court of Sessions, as stated by him in cross examination. Since he happens to be under the control and pressure of police because of his own case under the Act, he cannot be said to be an independent witness. Whereas another witness, Kulwinder Singh was not examined despite repeated opportunities. 19.Still we find another defect in the case of the prosecution. According to PW-4, MHC Inder Lal, the case property was handed over to him by PW-1 Constable Harvinder Kumar and this fact has also been recorded in the statement of said PW-1 in the Court. As a matter of fact, Constable Harvinder Kumar had taken Ruka Ext.PW-9/F from the spot to the police station for registration of the case, but there is no reference in the Ruka that he had also taken the case property along with the Ruka for its deposit with the MHC. 20.Further the case property was allegedly re-sealed by PW-10 ASI Ysuf Ali, it was thereafter deposited in the Malkhana on the same day. 20.Further the case property was allegedly re-sealed by PW-10 ASI Ysuf Ali, it was thereafter deposited in the Malkhana on the same day. But on 25.2.2006, the record reveals that an application was moved by the Incharge, Police Station to the Judicial Magistrate Under Section 52A of the Act for certifying the condition of the samples and remaining bulk and the Magistrate issued the certificate Ext.PW-10/D. Whereas in the register of the Malkhana, abstract Ext.PW-4/A, dated 24.2.2006, there is no entry therein regarding withdrawal and redeposit before and after its production before the Court. 21. Further, we also find that the report of analysis Ext.PW-9/L is not in conformity with the judgment passed by this Court in the State of Himachal Pradesh vs. Des Raj, 2013(1) Shim. LC 261 (DB), wherein the same type of report was in question and it was held to be not sufficient to convict the accused on the basis of two tests meconic acid and morphine, if found present. In the present case also it has not been stated that the stuff recovered was the product of the papaver somniferum plant and in any case a coagulated juice thereof to fall under any of the categories defined under the Act. 22.For aforesaid reasons, we do not find any force in the present appeal filed by the State. Hence, the same is dismissed. 23. The bail bonds entered upon by the accused during the proceedings of the case are hereby discharged.