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Himachal Pradesh High Court · body

2014 DIGILAW 1072 (HP)

Lal Kishore v. State of H. P.

2014-08-11

RAJIV SHARMA, SURESHWAR THAKUR

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JUDGMENT : - Rajiv Sharma, J. Since common question of law is involved in these appeals, therefore, these were taken up together for being disposed of by a common judgment. 2. These appeals are instituted against the judgment dated 28.12.2011, rendered by the learned Special Judge, Chamba, in Sessions Trial No. 09 of 2011, whereby the appellants-accused (hereinafter referred to as accused) were charged with and tried for offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, have been convicted and sentenced to undergo rigorous imprisonment for ten years and to pay fine of rupees one lac each and in default of payment of fine they were ordered to undergo simple imprisonment for six months. 3. The case of the prosecution, in a nut shell, is that on 13.1.2011, ASI Onkar Chand (PW-11) alongwith Constables Suresh Kumar and Ramesh Kumar left the Police Station for patrolling towards Dalhousie, Banikhet, Nanikhud, Ktori Bangla in official vehicle. While on patrolling duty at about 3:00 AM, when their vehicle reached near Keru-tha-Pahar, both the accused were found walking on the road towards Katori Bangla. They got perplexed after seeing the police party. Accused Anil Kumar was carrying a bag on his back. On being suspected, they were apprised of their legal right to be searched before the Magistrate or Gazetted Officer, as per memo Ext. PW-1/A. They consented to be searched by the police vide memo Ext. PW-1/A. The bag carried by accused Anil Kumar was searched from which a tape recorder was recovered. It was opened and a blue colored bag containing contraband weighing 3 kg 800 gms was recovered. Thereafter, the recovered contraband was put in the same blue bag and the bag was kept in the same tape recorder and tape recorder was put in the same bag and the bag was sealed in white plain cloth with five seals of Seal O. NCB forms in triplicate were filled in and the impression of seal O was taken therefrom. The charas was taken into possession vide memo Ext. PW-1/C. PW-11 prepared the ‘ruka’ Ext. PW-11/A. It was sent for registration of case at Police Station Dalhousie. Spot map Ext. PW-11/B was also prepared. The charas was taken into possession vide memo Ext. PW-1/C. PW-11 prepared the ‘ruka’ Ext. PW-11/A. It was sent for registration of case at Police Station Dalhousie. Spot map Ext. PW-11/B was also prepared. The case property was handed over by PW-11 ASI Onkar Chand to of seal B in the presence of HHC Amreek Singh (PW-3) and thereafter took the impression of seal B on NCB form. The case property was handed over to MHC PW-8 Arun Kumar. He sent the same to FSL Junga along with the sample seals and NCB forms docket. Special report was also prepared. The investigation was completed. On receipt of the report of the FSL, challan was put up after completing all the codal formalities. 4. The prosecution has examined as many as 11 witnesses. The accused were also examined under Section 313 Cr.P.C. The accused have denied having committed any offence. Their defence was of complete denial. The learned trial Court convicted both the accused, as noticed hereinabove. 5. Mr. Satyen Vaidya and Mr. Lakshay Thakur, Advocates, appearing on behalf of the respective accused have vehemently argued that the prosecution has failed to prove its case against the accused. On the other hand, Sh. Parmod Thakur, Addl. AG, has supported the judgment of the learned trial Court dated 28.12.2011. 6. We have heard learned counsel for both the sides and gone through the records of the case carefully. 7. PW-1 Suresh Kumar deposed that on 12.1.2011, he along with ASI Onkar Singh, HC Jugal Kishor, Constable Yog Raj and Constable Ramesh Kumar left the police station for patrolling at 8:15 AM towards Tunuhatti in the official vehicle. At 3:00 AM, while returning from Katori, when they reached 3 Kms away from Tunuhatti, at Keru Pahar, two persons namely, Anil Kumar and Lal Kishor, after seeing the police vehicle started running towards Katori Bangla side. Anil Kumar was carrying a bag. On suspicion, they were detained. They were apprised of their legal right to get themselves searched in the presence of Gazetted Officer or Magistrate or the Police. They expressed their desire to be searched by the police and accordingly consent memo was prepared. The personal search of Lal Kishore was conducted. However, nothing was recovered from him. Thereafter, the bag carried by Anil Kumar was searched by ASI Onkar Singh. There was tape recorder in the said bag. They expressed their desire to be searched by the police and accordingly consent memo was prepared. The personal search of Lal Kishore was conducted. However, nothing was recovered from him. Thereafter, the bag carried by Anil Kumar was searched by ASI Onkar Singh. There was tape recorder in the said bag. After opening the tape recorder, a blue color bag was found inside the tape recorder. On opening the blue bag, charas was found and weighed. It weighed 3 kg and 800 gms. The recovered charas was taken into possession vide seizure memo Ext. PW-1/C. NCB forms were filled in by the IO at the spot. Sample of seal was separately taken on plain cloth. He has admitted in his cross-examination that they have checked 3-4 vehicles. Few vehicles came from Chamba and few came from Dalhousie side. No bus had come from Pathankot to Chamba. From Katori Bangla, Keru Pahar is about 3-4 kms. He also admitted that during the night, the reflection of head lights of the vehicle can be seen from the distance and where the accused were spotted, the road was straight. 8. PW-2 Constable Yog Raj, also deposed the manner in which the accused were spotted. The contraband was recovered and sealed. In his cross-examination, he admitted that one bus was plying between Chamba and Dehradun. He did not know that bus enroute from Chamba to Dehradun halt at Dunera. 9. PW-3 HHC Amrik Singh, deposed that on 13.1.2011 at 12:30 AM, ASI Onkar Chand handed over a ‘polinda’ which was sealed with five seals of seal O. Thereafter, SI Biswas re-sealed it. 10. PW-4 Vinod Kumar deposed that MHC Arun Kumar handed over the case file of the case for being delivered to ASI Onkar Chand and he delivered the same to ASI Onkar Chand on the spot. 11. PW-5 Yugal Kishor, deposed that on 13.1.2011, ‘ruka’ mark A was handed over to him for registration of the case. The same was handed over by him to MHC Arun Kumar. 12. PW-6 Rajesh Kumar deposed that on 13.1.2011, Constable Yugal Kishor delivered to him a copy of ‘ruka’ in the office. He placed the same before the Addl. S.P. 13. PW-7 Constable Om Parkash, deposed that on 14.1.2011 at about 12:35 PM, ASI Onkar Chand handed over to him the special report for being delivered to SP Chamba. 14. 12. PW-6 Rajesh Kumar deposed that on 13.1.2011, Constable Yugal Kishor delivered to him a copy of ‘ruka’ in the office. He placed the same before the Addl. S.P. 13. PW-7 Constable Om Parkash, deposed that on 14.1.2011 at about 12:35 PM, ASI Onkar Chand handed over to him the special report for being delivered to SP Chamba. 14. PW-8 MHC Arun Kumar, deposed that he was posted as MHC at Police Station Dalhousie. SI Biswas Kumar deposited with him one sealed parcel containing 3 kg and 800 gms charas. It was sealed with 5 seals of seal impression O and two seals of seal impression B along with sample seals O and B, NCB-1 forms in triplicate and jamatalashi articles of accused Anil Kumar and Lal Kishore on the same date. On 13.1.2011 at 4:30 PM, he sent sealed parcel to FSL Junga alongwith sample seals, NCB forms, deposited the same at FSL on 15.1.2011 and handed over the receipt to him on 18.1.2011 at 7:50 PM. 15. PW-9 Biswas Kumar deposed that he was posted as Addl. SHO at PS Dalhousie. On 13.1.2011 at about 6:00 in the morning Constable Yugal Kishore brought one ‘ruka’ written by ASI Onkar Singh. The ‘ruka’ was mark A, on the basis of which FIR No. 4 of 2011 dated 13.1.2011 was registered against the accused. On the same day, at about 12:30 PM, ASI Onkar Chand handed over to him one sealed packet sealed with five seals of seal O, three sample seals, NCB forms and the same were re-sealed by him in the presence of HHC Amrik Singh with two seals of seal B. The specimen of seal B was separately taken on plain cloth. 16. PW-10 Govind Ram deposed that the case was investigated by ASI Onkar Chand, who after completion of the investigation and receipt of FSL report Ext. PA, handed over the file to him for preparation of the challan. 17. PW-11 ASI Onkar Chand has deposed the manner in which the accused were spotted and the contraband was recovered from the possession of accused Anil Kumar. He deposed that the accused were apprised of their legal right of search before the Magistrate or Gazetted Officer. The accused gave their consent to be searched on the spot by the Police. ‘Ruka’ was sent to Police Station Dalhousie through Constable Jugal Kishore. He deposed that the accused were apprised of their legal right of search before the Magistrate or Gazetted Officer. The accused gave their consent to be searched on the spot by the Police. ‘Ruka’ was sent to Police Station Dalhousie through Constable Jugal Kishore. Spot map was prepared vide memo Ext. PW-11/B. The case file was brought to him at the spot by Constable Vinod Kumar. He filled in column No. 1 of the NCB form. He handed over the case property alongwith the sample seal, NCB forms and accused to SI Biswas Kumar. He re-sealed the case property and prepared memo Ext. PW-3/B. He took specimen of seal Ext. PW-3/A with which he resealed the case property and thereafter he deposited the case property with MHC Arun Kumar. Special report was prepared and signed. In his cross-examination, he admitted that all the vehicles coming from Chamba to Pathankot passes through Keru Pahar. Similarly, the buses coming from Pathankot to Chamba passes through the same way. He admitted that they remained at Keru Pahar from 3:00 AM to 10:00 AM. After interval, the buses were passing through the road near Keru Pahar. The first bus passed through Keru Pahar at 5:30 AM. However, the light vehicles had been passing through the Keru Pahar. He tried to stop 1-2 vehicles by giving signal, but they did not stop as they were light vehicles. There is Dhaba at about 2 Kms away from Keru Pahar. He had sent one Constable for bringing independent witnesses but he came back with the explanation that there is no inhabitation, as such, no independent witness was associated. Driver Yog Raj was sent for bringing the independent witnesses. He has recorded the statement of Constable Yog Raj under Section 161 Cr.P.C., but he has not stated in it that he was sent to bring independent witnesses. 18. The prosecution has not examined any independent witness during search and seizure of the contraband. Accused were spotted at about 3:00 AM. According to PW-1 Suresh Kumar, they checked 3-4 vehicles. Few vehicles were coming from Chamba and few from Dalhousie side. No bus had come from Pathankot to Chamba, as such, the same was not checked. The distance from Katori Bangla to Keru Pahar is 3-4 Kms. PW-2 Constable Yog Raj, has also deposed that one bus was plying between Chamba and Dehradun. Few vehicles were coming from Chamba and few from Dalhousie side. No bus had come from Pathankot to Chamba, as such, the same was not checked. The distance from Katori Bangla to Keru Pahar is 3-4 Kms. PW-2 Constable Yog Raj, has also deposed that one bus was plying between Chamba and Dehradun. PW-11 Onkar Chand has categorically admitted that all the vehicles coming from Chamba to Pathankot passes through Keru Pahar. Similarly, buses coming from Pathankot to Chamba passes through the same way. They remained at Keru Pahar from 3:00 AM to 10:00 AM. The buses were passing through the road near Keru Pahar. The first bus passed through Keru Pahar at 5:30 AM. However, the light vehicles had been passing through the Keru Pahar. He tried to stop 1-2 vehicles by giving signal, but they did not stop as they were light vehicles. There is a Dhaba at about 2 kms away from Keru Pahar. It is evident from the statements of PW-1 Suresh Kumar, PW-2 Constable Yog Raj and PW-11 Onkar Chand that they were checking the traffic. The road was very busy. The statement of PW-11 Onkar Chand that he tried to stop 1-2 vehicle by giving signal and vehicles did not stop does not inspire any confidence. It is not believable that when a police officer gives signal to driver of vehicle to stop, the driver won’t stop it. The police could also associate independent witnesses by associating the passengers who were travelling in the vehicles on a busy road. 19. PW-11 Onkar Chand has deposed that he has sent one Constable Yog Raj for bringing independent witnesses but he came back with the explanation that no such independent witness was available. PW-2 Constable Yog Raj has not deposed that he was ever sent by ASI Onkar Chand to find out independent witnesses. Infact, ASI Onkar Chand has recorded statement of Constable Yog Raj under Section 161 Cr.P.C. However, he has not stated in his statement that he was sent to bring independent witnesses. It is true that the official witnesses can be relied upon. However, in the instant case, police has not at all tried to associate independent witnesses. Infact, ASI Onkar Chand has recorded statement of Constable Yog Raj under Section 161 Cr.P.C. However, he has not stated in his statement that he was sent to bring independent witnesses. It is true that the official witnesses can be relied upon. However, in the instant case, police has not at all tried to associate independent witnesses. The version of the police that independent witnesses were not available on the spot cannot be believed in view of the fact that the accused were found walking on the busy road and there was a lot of traffic on that road. The prosecution has failed to connect accused Lal Kishore with the alleged recovery of contraband. The prosecution has not explained at all in what manner conspiracy was hatched between the two accused. The prosecution has also failed to prove any common design by the accused. 20. According to PW-8 Arun Kumar, he sent the sealed parcel to FSL Junga along with sample seals, NCB forms, docket, FIR and seizure memo through Constable Suresh Kumar vide RC No. 6/11 dated 13.1.2011. PW-1 Suresh Kumar has not deposed that he has taken the contraband to FSL Junga. In his cross-examination PW-8 has only deposed that it was for Suresh Kumar to explain as to whether case property was deposited by him at FSL Junga or not. It also casts a serious doubt on the version of the prosecution story. 21. Accordingly, in view of the analysis and discussion made hereinabove, the appeals are allowed. Judgment of conviction and sentence dated 28.12.2011 rendered by Special Judge, Chamba, in Sessions Trial No. 09 of 2011 is set aside. Accused are acquitted of the charges framed against them. Fine amount, if any, already deposited by the accused is ordered to be refunded to them. Since the accused are in jail, they be released forthwith, if not required in any other case. 22. The Registry is directed to prepare the release warrants of the accused and send the same to the Superintendent of Jail concerned in conformity with this judgment forthwith.