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Himachal Pradesh High Court · body

2014 DIGILAW 1075 (HP)

Dhani Ram v. State of H. P.

2014-08-12

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT : - Rajiv Sharma, J. Since common question of law and facts 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 23.2.2013/25.2.2013, rendered by the learned Sessions Judge, Shimla, in Sessions Trial No. 14-S/7 of 2012, whereby the appellants-accused (hereinafter referred to as accused) who were charged with and tried for offences under Sections 20, 29 & 61 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (hereinafter referred to as the ND & PS Act) were convicted and sentenced to undergo rigorous imprisonment for ten years each and to pay a fine of rupees one lac each and in default of payment of fine they were further ordered to undergo rigorous imprisonment for two years each under Section 20 and under Section 29 of the Act, they were sentenced to undergo rigorous imprisonment for ten years each and fine to the tune of rupees one lac each and in default of payment of fine they were further ordered to undergo rigorous imprisonment of two years each. 3. The case of the prosecution, in a nut shell, is that on 17.3.2012, vide Daily Diary rapat No. 9 at 7:30 PM, PW-1 S.I. Krishan Chand alongwith SI Mahashinder Singh, ASI Subhash Kumar, HC Balvir Singh, HHG Pardeep Kumar and Ved Parkash left from Police Station in a government vehicle No. HP07-B-0324, Bolero Camper alongwith Constable Brij Lal driver. They were also carrying electronic scale. The patrolling party reached at about 3:15 PM on National Highway near Chanog Ghat, Sandhu in forest area. Two persons were standing and talking to each other. The vehicle was stopped. SI Mehashinder Singh PW-7 inquired from them as to what were they doing at the isolated place. They deposed that they were waiting for the bus. There was no bus stop at that place. On seeing the police party, the accused felt perplexed and tried to run away towards the forest. They were apprehended. They disclosed their names. Thereafter personal search of the accused Dhani Ram was undertaken. He gave option under Section 50 of the ND & PS Act. The accused Dhani Ram opted to give his personal search in the presence of witnesses. On this memo Ext. PW-1/A was prepared and signed by the accused Dhani Ram, SI Krishan Chand and ASI Subhash Chand. Thereafter personal search of the accused Dhani Ram was undertaken. He gave option under Section 50 of the ND & PS Act. The accused Dhani Ram opted to give his personal search in the presence of witnesses. On this memo Ext. PW-1/A was prepared and signed by the accused Dhani Ram, SI Krishan Chand and ASI Subhash Chand. SI Mahashinder Singh also gave his personal search. PW-7 SI Mehashinder Singh carried out the personal search of the accused Dhani Ram who was wearing sweater and shirt inside which, on the abdomen, accused had affixed one envelope with the help of cello tape. The contraband was recovered. He opened the same. The white colored envelope containing black colored substance in the shape of wicks was recovered which was found to be charas. It weighed 1.500 gms. He put the charas in a cloth parcel alongwith tape and packet. The cloth parcel was sealed with seal impression A, six in numbers. Sample of seal was taken on separate piece of cloth which is Ext. PW-1/C. The parcel seal was marked as mark P-1. Memo of search seizure Ext. PW-1/D was prepared on the spot. NCB form in triplicate was filled on the spot. He filled columns 1 & 8 of the forms. Thereafter he gave option under Section 50 of the ND & PS Act to accused Shyam Singh. Accused Shyam Singh gave his option to be searched by PW-7 SI Mehashinder Singh. PW-7 SI Mehashinder Singh gave his personal search to the accused. Thereafter, the search of the accused Shyam Singh was undertaken. One envelope affixed on the abdomen with the help of cello tape was recovered. It was opened. It carried black colored substance which was found to be charas. It was weighed with the help of electronic scale. It weighed 1.500 gms. Thereafter, search and sampling process was completed. The case property was taken into possession vide memo of search and seizure Ext. PW-1/H. ‘Ruka’ was sent to the Police Station, on the basis of which FIR was registered. A special report was also prepared vide memo Ext. PW-4/A. The sample was sent to FSL Junga. 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 8 witnesses. A special report was also prepared vide memo Ext. PW-4/A. The sample was sent to FSL Junga. 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 8 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 and sentenced both the accused, as noticed hereinabove. 5. We have heard learned counsel for both the sides and gone through the records of the case carefully. 6. PW-1 SI Krishan Chand has testified that he alongwith SI Mehashinder Singh, ASI Subhash Kumar, HC Balvir Singh, HHG Pardeep Kumar and Ved Parkash proceeded in a government vehicle bearing No. HP 07B-0324 with driver Constable Brij Lal alongwith electronic scale on patrol duty towards Theog, Chella Sainj side. They departed from the Police Station at about 7:30 PM. On 18.3.2012, while patrolling from Chella, Bagi, Narkanda side, they reached near Chanog Ghat at place called Sandhu at about 3:15 PM. In between Sandhu and Chanog Ghat on NH 22 when they were going on the National Highway in forest area, they reached near a place called Meel Pathar (Mile Stone), on which 177 Ambala was written and two persons were found standing there. PW-7 SI Mehashinder Singh got down from the vehicle and inquired from the accused as to what were they doing at an isolated place. The accused tried to run away. They were apprehended. The accused disclosed their names as Dhani Ram and Shyam Singh. On getting suspicious, PW-7 SI Mehashinder Singh tried to associate independent witnesses. Since it was isolated and forest area, no body was available to be associated. He alongwith ASI Subhash Chand were associated as witnesses by SI Mehashinder Singh. He obtained the consent from the accused under Section 50 of the ND & PS Act. Accused were searched. Contraband was recovered from their body. It was weighed with the help of electronic scale. It weighed 1.500 gms each. The sampling and seizure process was completed on the spot. PW-1 Sh. Krishan Chand, in his cross examination has admitted that they inspected many vehicles on 17.3.2012. They had arranged for ‘naka’ near Chaila one kilometer towards Sainj side. Contraband was recovered from their body. It was weighed with the help of electronic scale. It weighed 1.500 gms each. The sampling and seizure process was completed on the spot. PW-1 Sh. Krishan Chand, in his cross examination has admitted that they inspected many vehicles on 17.3.2012. They had arranged for ‘naka’ near Chaila one kilometer towards Sainj side. They reached at Sainj bifurcation i.e. at the site of ‘naka’ at 10:00 PM. He also admitted that the spot is a National Highway and vehicles used to ply on the same. He could not narrate the exact distance between Theog and Janog Ghat but stated that it might be one kilometer. Distance between spot and Janog Ghat was one kilometer. He admitted that Janog Ghat is thickly populated area. He was not aware that there is a place for truck parking between Janog Ghat and mile stone and also there is a truck union office. 7. PW-2 ASI Subhash Kumar has also deposed the manner in which the accused were nabbed. The consent memo was prepared and the accused were searched by PW-7 SI Mehashinder Singh. According to PW-2 Subhash Kumar, PW-7 SI Mehashinder Singh has tried to associate independent witnesses but none was present. The charas was weighed with the help of electronic scale. In his cross-examination, he deposed that Theog and Janog Ghat is ¼ km. He also admitted that there are shops between Janog Ghat and bus stand. The distance between Janog Ghat and spot is between ¾ km. He also admitted that there is a bazaar in Janog Ghat. The court complex is situated on a link road about 1 Km from Janog Ghat. He also admitted that the spot where the accused were nabbed was on a National Highway. According to him, once or twice, they tried to stop the vehicles which were passing on the road but the same were not stopped. No action was taken against the person who did not stop the vehicle. 8. PW-3 HC Balvir Singh also deposed the manner in which the accused were nabbed. The consent memo was prepared. The search and seizure memos were also prepared. According to him, independent witnesses were tried to be associated but none was available at that time. The I.O. prepared the ‘ruka’ Ext. 8. PW-3 HC Balvir Singh also deposed the manner in which the accused were nabbed. The consent memo was prepared. The search and seizure memos were also prepared. According to him, independent witnesses were tried to be associated but none was available at that time. The I.O. prepared the ‘ruka’ Ext. PW-7/C on the spot and handed over to him alongwith copies of seizure memos two in number, sample seals two in number and also handed over NCB forms. He carried the same to the Police Station Bharari and handed over the ‘ruka’ alongwith case property and seals, on the basis of which FIR No. 5 of 2012 was registered. He handed over the case file to PW-7 SI Mehashinder Singh at about 8:15 PM in his office. He admitted in his cross-examination that it took about 15 minutes to reach at bus stand Theog from the spot and at about 5:30 PM, he boarded the bus. 9. PW-4 HC Pardeep Kumar, deposed that on 19.3.2012, at about 11:00 AM, Sh. Vijay Kumar handed over special report of this case under Section 57 of the ND & PS Act, which was submitted by SI Mehashinder Singh. Copy of special report is Ext. PW-4/A. 10. PW-5 HC Parkash Chand deposed that he has registered FIR in computer maintained at Police Station CID Bharari. He prepared file of this case and handed over the same to HC Balbir Singh to be handed over to SI Mehashinder Singh. At about 8:15 PM, on the same day, Inspector Tenzin Sashani handed over two sealed parcels, which were marked as P-1 and P-2 sealed with seal impression A, six in number. Parcels were resealed with seal impression R, six in number on each parcels and in those parcels 1500 gms charas was stated to be parceled alongwith sample seals of A & R, two sets of NCB forms in triplicate, copy of recovery memos and reseal certificate. He made entry of the aforesaid documents and parcels in the malkhana register. He filled in column No. 12 of the NCB forms and signed the same. He forwarded the sealed parcels alongwith sealed parcels and samples of seal A and R, two sets of NCB forms in triplicate, copies of seizure memos two in number, copy of reseal certificate, copy of FIR and docket vide R.C. No. 18/12 through Constable Joginder Singh to Forensic Science Laboratory Junga. He forwarded the sealed parcels alongwith sealed parcels and samples of seal A and R, two sets of NCB forms in triplicate, copies of seizure memos two in number, copy of reseal certificate, copy of FIR and docket vide R.C. No. 18/12 through Constable Joginder Singh to Forensic Science Laboratory Junga. 11. PW-6 Constable Joginder Singh deposed that he was posted as Constable/motorcycle rider in Police Station State CID Bharari since 2010. On 19.3.2012, MHC Parkash Chand handed over to him two sealed parcels which were marked as P-1 and P-2, sealed with seal impressions of A and R six in numbers each alongwith sample seals A and R, two sets of NCB forms in triplicate, copy of recovery memos, copy of FIR, copy of resealing certificate, docket vide RC No. 18/12 dated 19.3.2012. He carried the same to FSL Junga. 12. PW-7 SI Mehashinder Singh has also deposed the manner in which the accused were nabbed. Their consent was obtained under Section 50 of the ND & PS Act. He prepared ‘ruka’ Ext. PW-7/C. He also filled in two sets of NCB forms in triplicate. He also prepared special report. He denied the suggestion in his cross-examination that Janog Ghat was thickly populated market. Volunteered that there are some shops. According to him, there were no residential houses in Janog ghat. He has not seen any residential houses there. He deposed that he tried to associate independent witnesses but place was isolated and no independent person was present there. He admitted that at Janog Ghat there is a bifurcation leading to Judicial Complex at Theog. He denied that police station and judicial complex are at a nearby distance. 13. PW-8 SHO Tenzin Sashni, stated that he remained posted as SHO at Police Station State CID Bharari w.e.f. August 2010 to August 2012. On 18.3.2012 at about 7:15 PM, HC Balbir Singh produced ‘ruka’ and case property which were marked as Ext. P-1 and P-2 containing 1500 gms of charas each. He resealed the samples and deposited the sealed parcels, sample seals, triplicate forms, copy of memos and sample of seal impression R with MHC Parkash Chand at about 8:15 PM. 14. It has come in the statement of PW-1 Krishan Chand that the spot where the ‘naka’ was laid was on National Highway. The vehicles used to ply. He resealed the samples and deposited the sealed parcels, sample seals, triplicate forms, copy of memos and sample of seal impression R with MHC Parkash Chand at about 8:15 PM. 14. It has come in the statement of PW-1 Krishan Chand that the spot where the ‘naka’ was laid was on National Highway. The vehicles used to ply. According to him, though he could not narrate the exact distance between Theog and Janog Ghat but it could be 1 km. The distance between the spot and Janog Ghat was 1 km. He admitted that Janog Ghat is thickly populated area. PW-2 also deposed that SI Mehashinder Singh had tried to associate independent witnesses but none was present. In his cross-examination, he has admitted that there are shops between the bus stand and Janog Ghat. He also admitted that there is a bazaar in Janog Ghat. According to him, they have signaled drivers of the vehicles to stop the vehicles but the drivers did not stop. It cannot be believed that when police officials signal drivers to stop the vehicles, they won’t stop the vehicles. He has also deposed that no action was taken against such drivers but despite the signal, the drivers did not stop the vehicles. PW-3 also deposed that independent witnesses were tried to be associate but none was available. In his cross-examination, he deposed that it took about 15 minutes to him to reach the spot from Bus stand Theog and at about 5:30 PM, he boarded the bus. PW-7 SI Mehashinder Singh in his examination-in-chief deposed that he had tried to associate independent witnesses but the place was isolated and thus, no independent witnesses could be associated. What emerges from the statement of witnesses is that the place where the ‘naka’ was laid down, it was in the vicinity of thickly populated place. There was market/bazaar. The police could easily associate independent witnesses, being available. It is of utmost importance that the independent witnesses are associated during the search and seizure of the contraband. It is settled law that the statements of the police officials available at the spot if inspires confidence and is natural can be accepted. However, in the present case, PW-1 SI Krishan Chand, PW-2 ASI Subhash Chand, PW-3 HC Balvir Singh, PW-4 HC Pardeep Kumar, PW-5 HC Parkash Chand, PW-6 Const. It is settled law that the statements of the police officials available at the spot if inspires confidence and is natural can be accepted. However, in the present case, PW-1 SI Krishan Chand, PW-2 ASI Subhash Chand, PW-3 HC Balvir Singh, PW-4 HC Pardeep Kumar, PW-5 HC Parkash Chand, PW-6 Const. Joginder Singh, PW-7 SI Mehashinder Singh, have made only bald statements that independent witnesses though tried to be associated but were not available. It is not the case of any of the witness that any particular police official was sent to get independent witnesses. In case some sincere efforts had been made by the police, the independent witnesses could have been associated during the course of search and seizure. The place where the ‘naka’ was laid down, is a National Highway. It is a busy National Highway and many vehicles passes through it. We have already noticed hereinabove that though PW-2 ASI Subhash Chand made a statement that they had tried to signal the vehicles to stop but they did not stop. His statement cannot be believed. The police has failed to associate independent witnesses either from the vicinity or from the place where the ‘naka’ was laid down or by associating the passengers and drivers of the vehicles passing thereby. The place where the ‘naka’ was laid cannot be treated to be an isolated place. It casts a serious doubt on the version of the prosecution story. 15. Accordingly, in view of the analysis and discussion made hereinabove, the appeals are allowed. Judgment of conviction and sentence dated 23.2.2013/25.2.2013 rendered by learned Sessions Judge, Shimla, in Sessions Trial No. 14-S/7 of 2012 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. 16. 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.