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2013 DIGILAW 555 (UTT)

Mohd. Javed @ Sonu v. State of Uttarakhand

2013-08-27

ALOK SINGH

body2013
JUDGMENT : Alok Singh, J. Present appeal is filed assailing the judgment and order dated 11.10.2012, passed by Special Sessions Judge/Sessions Judge, Champawat in Special Sessions Trial No. 07 of 2011, whereby appellant was held guilty for the offence punishable under Sections 8/20 of N.D.P.S. Act and was sentenced to undergo rigorous imprisonment for a period of 07 years and to pay fine of Rs.50,000/- and in default, in making payment of fine, to undergo additional rigorous imprisonment for a period of one year. Brief facts of the present case, inter alia are that on 19.01.2011, SI Prabhat Kumar (PW1) along with SI Chandan Singh Kanyal (PW2), Constable Deepak Khanka, Constable Ganesh Bisht, Constable Mahendra Giri, left the thana vide Rapat No. 24 at 05:05 p.m. for patrolling and investigation purpose; when police party reached about 200 meters ahead to Fulara Gaon, appellant was seen coming; having seen the police party, appellant took u-turn; appellant was directed to stop, however, he started running; he was chased and apprehended at about 05:40 p.m. about 50 feet towards the Fulara Gaon; he disclosed his identity as Mohd. Javed alias Shanu S/o Mohd. Javed alias Shanu S/o Mohd. Mia, R/o. Ward No.1 House No. 23 Mohalla Gotia, Police Station Khatima; appellant disclosed to the police party that he was carrying 01 Kg Charas and was going to sell the same and started apologizing; thereafter, police party requested few members of the public to become independent public witness but none could agree to become individual witness; appellant was told about his legal right to be searched in the presence of Gazetted Officer or Magistrate; on this, he expressed his wish to be searched in the presence of Gazetted Officer; consent letter was obtained from the appellant; thereafter, Shri Dhani Ram, Deputy Superintendent of Police/Circle Officer, Champawat was informed and requested to come on the spot on his mobile phone number 9411036237; Shri Dhani Ram, Circle Officer reached on the spot within twenty minutes; thereafter members of the police party conducted search of each others and having satisfied that none of them was having contraband, personal search of the appellant was conducted in the presence of Shri Dhani Ram, Circle Officer; from the pocket of the pant, one polythene packet containing Charas was recovered; on being weight, Charas was found to be 01 Kg; appellant was asked to show license, however, he failed to show license; having informed the appellant that he had committed offence punishable under Sections 8/18/20 of N.D.P.S. Act, he was arrested. Contraband was kept in a packet under the seal and signature of PW1; sample seal of Arresting Officer was prepared on the spot; seizure memo, arrest memo were also prepared on the spot; thereafter appellant along with contraband so recovered along with concerned record were brought to the thana and thereafter, chik FIR was got registered. Investigation was handed over initially to PW5, SI Har Govind Sharma and thereafter to PW6, SI Jagat Singh Samant. Having investigated the matter, charge-sheet was submitted against the appellant. Learned trial court framed charges against the appellant for the offence punishable under Section 8/20 of N.D.P.S. Act. Appellant denied the charges and claimed trial. To prove the prosecution story, SI Prabhat Kumar (PW1), SI Chandan Singh Kanyal (PW2), Head Constable Jagdish Chand (PW3), Constable Vikram Singh (PW4), SI Har Govind Sharma (PW5) and SI Jagat Singh (PW6) were examined and thereafter statements of the appellant were also recorded under Section 313 of the Code of Criminal Procedure. Appellant denied the charges and claimed trial. To prove the prosecution story, SI Prabhat Kumar (PW1), SI Chandan Singh Kanyal (PW2), Head Constable Jagdish Chand (PW3), Constable Vikram Singh (PW4), SI Har Govind Sharma (PW5) and SI Jagat Singh (PW6) were examined and thereafter statements of the appellant were also recorded under Section 313 of the Code of Criminal Procedure. In his statement recorded under Section 313 of the Code of Criminal Procedure, appellant stated as under: I was working in my shop; meanwhile, Bhura Kabadi phoned me and told me that if his motorcycle had been repaired, same should be brought to him; I went to the shop of Bhura Kabadi; I found 3-4 people sitting in his shop; the moment, I handed over key of the motorcycle, 3-4 police personnel went in the shop of Bhura Kabadi and started conducting search therein; I and others were made to sit there; contraband was recovered from the shop of Bhura Kabadi; police took money from Bhura Kabadi; I and others sitting there were brought to the Kotwali; police demanded money from me and I told them since, I did no wrong, therefore, I would not pay money; police party took Rs.1,80,000/- from other two persons and he was falsely implicated in the present case. Personal search of the appellant was allegedly conducted in the presence of Shri Dhani Ram, Dy. S.P./Circle Officer, Champawat, however, for the reasons best known to the prosecution, Dhani Ram, Circle Officer was not produced in the witness box. There is no independent witness. In my considered opinion, Shri Dhani Ram, Circle Officer would have been better person to depose about personal search of the appellant and recovery of contraband. Therefore, adverse inference must be drawn against the prosecution. PW3 Head Constable Jagdish Chand, although had produced on the court’s record copy of the G.D. (Ext. A-11), however, during his cross-examination, he stated that entries of the malkhana register were not produced on the court’s record and only entry of G.D., Ext. A-11 was produced on record to show that contraband was deposited in the malkhana. He further stated that there was no entry to the effect that sample seal prepared on the spot by the Arresting Officer, was handed over to him and was deposited in malkhana. A-11 was produced on record to show that contraband was deposited in the malkhana. He further stated that there was no entry to the effect that sample seal prepared on the spot by the Arresting Officer, was handed over to him and was deposited in malkhana. PW3 Head Constable, further stated that had sample seal been handed over to him, he would have made entry in the malkhana register and in the G.D. as well. He further stated that there was absolutely no document on the court record to show the movement of the contraband in the present case, except entry of the G.D. dated 19.01.2011. He further stated that about the movement of the case property (contraband) entries were always made in the malkhana register, however, no such entries were available on the court’s record. Moreover, sample seal, so prepared on the spot by the Arresting Officer has not been produced on the court’s record. Hon’ble Apex Court in the matter of State of Rajasthan vs. Gurmail Singh, 2005 (3) SCC, 59 has held as under: We have perused the judgment of the High Court. Apart from other reasons recorded by the High Court, we find that the link evidence adduced by the prosecution was not at all satisfactory. In the first instance, though the seized articles are said to have been kept in the malkhana on 20.05.1995, the malkhana register was not produced to prove that it was so kept in the malkhana till it was taken over by PW6 on 05.06.1995. We further find that no sample of the seal was sent along with the sample to the Excise Laboratory, Jodhpur for the purpose of comparing with the seal appearing on the sample bottles. Therefore, there is no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband. These loopholes in the prosecution case have led the High Court to acquit the respond. In view of the dictum of Hon’ble Apex Court, very important link evidence in the shape of malkhana register as well as sample seal of the Arresting Officer, under whose seal and signature contraband was kept, should be produced in the evidence. In the absence of malkhana register and sample seal, reasonable doubt has cropped up about the genuineness of the prosecution story. In the absence of malkhana register and sample seal, reasonable doubt has cropped up about the genuineness of the prosecution story. In the considered opinion of this Court, in the absence of entries of malkhana register, sample seal and for non examination of Shri Dhani Ram, Circle Officer, prosecution story cannot be said to have been proved beyond reasonable doubt. Consequently, appeal is allowed. Impugned judgment and order dated 11.10.2012, passed by learned Special Sessions Judge, Champawat in Special Sessions Trial. No. 07 of 2011, is hereby set aside. Appellant is acquitted from the charges leveled against him. Appellant is in jail. Let appellant be released forthwith, if not wanted in any other case. Registry is directed to send a copy of this judgment to the court below along with lower court record for information and compliance.