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Himachal Pradesh High Court · body

2014 DIGILAW 1183 (HP)

Hari Singh v. State of H. P.

2014-09-03

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT Justice Rajiv Sharma, J. This appeal is instituted against the judgment dated 14.9.2011 and consequent order dated 15.9.2011, rendered by the learned Special Judge, Chamba, in Sessions Trial No. 15 of 2011, whereby the appellant-accused (hereinafter referred to as the accused) who was charged with and tried for offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, was convicted and sentenced to undergo rigorous imprisonment for ten years and a fine of Rs. One lac and in default of payment of fine, he was further ordered to undergo simple imprisonment for one year. The period already undergone by the accused in custody during the trial was ordered to be set off as per Section 428 Cr.P.C. 2. The case of the prosecution, in a nut shell, is that on 5.3.2011, at about 4:15 PM the accused carrying a Naswari colour (dharidar) bag on his right shoulder came from Sarol side. On seeing the police he turned back and started running. On being suspected that he was having narcotic substance in his bag, he was overpowered by ASI Kuldeep Singh, with the help of other police officials. In the meantime, Hanif Mohammad son of Sher Mohammad arrived at the spot and was associated in the investigation as an independent witness. In his presence as well as in the presence of the police officials, ASI Kuldeep Singh apprised the accused of his legal right to be searched before the Magistrate or the Gazetted Officer. He gave his option to be searched by the police. The bag was searched, from which a white coloured plastic envelope, containing charas was recovered. The charas was weighed. It weighed 1 kg and 800 gms. He put the recovered charas in the same envelope. The envelope was put in the bag and bag was parceled and sealed with ten seals of seal ‘K’. Specimen of seal ‘K’ was also taken on the cloth and facimal of seal on NCB forms. Seal ‘K’ was handed over to HC Raghubir Singh and parcel containing charas was taken into possession by ASI Kuldeep Singh. ‘Ruka’ was prepared and sent to the Police Station, Chamba through H.H.C. Karam Chand. The F.I.R. was registered against the accused. Special report was also sent to the Superintendent of Police, Chamba. He also prepared the site plan and recorded the statement of witnesses on the spot. ‘Ruka’ was prepared and sent to the Police Station, Chamba through H.H.C. Karam Chand. The F.I.R. was registered against the accused. Special report was also sent to the Superintendent of Police, Chamba. He also prepared the site plan and recorded the statement of witnesses on the spot. On reaching the Police Station, ASI Kuldeep Singh produced the case property before S.I. Piar Chand i.e. PW-8 for resealing. Resealing was done and deposited with the MHC. The same was sent to F.S.L. Junga, through Constable Krishan Kumar. The F.S.L. report was got prepared. The investigation was completed and challan was put up after completing all the codal formalities. 3. The prosecution has examined as many as 12 witnesses to prove its case. The accused was also examined under Section 313 Cr.P.C to which he pleaded not guilty. The learned Trial Court convicted and sentenced the accused, as stated hereinabove. Hence, the present appeal. 4. Mr. Pardeep K.Sharma, Advocate, appearing vice Mr. Anup Chitkara, Advocate, for the accused has vehemently argued that the prosecution has failed to prove its case against the accused. On the other hand, Mr. M.A. Khan, learned Addl. Advocate General, has supported the judgment of the learned Special Judge, Chamba, H.P. dated 14.9.2011 and consequent order dated 15.9.2011. 5. We have heard learned counsel for the parties and gone through the records of the case carefully. 6. PW-1, Haneef Mohammad deposed that he was doing the business of selling fried fish. He had no knowledge about the case. He was declared hostile. He denied that on 5.3.2011, the police officials met him at Parel bridge at 4:30 near the rain shelter. He denied that the police people apprehended one person alongwith a bag at a distance of about 40-50 meters from the rain shelter. He denied that the person disclosed his name as Hari Singh son of Sh. Chain Lal, resident of Sallain PO Sillagharat Pargana Gudial Tehsil and Distt. Chamba. He also denied that in the presence of H.C. Raghubir Singh, he was associated by the I.O. in the investigation of the case. He denied that the accused was apprised of his legal right to be searched before the Magistrate or Gazetted Officer in his presence. He also denied that the accused consented to be searched by the police present at the spot. He denied that the accused was apprised of his legal right to be searched before the Magistrate or Gazetted Officer in his presence. He also denied that the accused consented to be searched by the police present at the spot. He also denied that on checking of the bag, being carried by the accused, 1 kg 800 gms. charas was recovered. He also denied that the recovered charas was put in the same bag and the bag was parceled and sealed with ten seals of seal ‘K’ in his presence. He also denied that the specimen of seal was affixed on the NCB form in his presence and specimen of seal was taken separately on piece of cloth. He denied portion A to A of memo mark ‘A’. However, he has admitted that memo mark ‘B’ bears his signatures. He denied that memo mark B was prepared by the police after giving personal search by the police to the accused. He also admitted his signatures on mark ‘C’. He denied that the police had searched the bag in the possession of the accused in his presence and on search 1 kg 800 gms. Charas was recovered from it. He also denied that the recovered charas was taken into possession vide mark ‘C’. He denied portion A to A of memo mark ‘C’. He admitted his signatures on parcel Ext. P-1. He also admitted that the specimen of seal ‘K’ Ext. PW-1/B bears his signatures in red circle ‘A’. He denied that his statement was recorded by the police. He admitted his signatures on arrest memo mark ‘D’. He denied that in his presence vide mark ‘D’, the police informed the accused that charas has been recovered from him as such communicated the grounds of arrest. He was selling fried fish on road side at Ballu and police people used to come and due to this they have made him a witness. In his cross-examination by the learned Advocate, he admitted that he has signed the aforesaid papers in the Police Station. He also admitted that no proceedings were drawn by the police pertaining to this case. He also admitted that he had seen the accused in the Court for the first time. 7. In his cross-examination by the learned Advocate, he admitted that he has signed the aforesaid papers in the Police Station. He also admitted that no proceedings were drawn by the police pertaining to this case. He also admitted that he had seen the accused in the Court for the first time. 7. PW-2, H.C. Raghubir Singh testified that on 5.3.2011, he along with H.C. Karam Singh, Constable Kishan Singh and A.S.I. Kuldeep Singh, were on patrol duty at Parel bridge near rain shelter in official vehicle being driven by Constable Suresh. Rapat Ext. PW-2/A was recorded to this effect. At about 4:15 PM, from Sarol side, one person was found coming with a bag on his right shoulder. On seeing the police party, he got perplexed, turned back and tried to run. In the meantime, Hanif Mohammad son of Sher Mohammad, resident of Ballu, reached at the spot in his presence. The accused was overpowered at a distance of 40-50 meters from the rain shelter. The accused disclosed his name Hari Singh son of Chain Singh, resident of Sallain, Distt. Chamba. The accused was told about his right to be searched before the Magistrate or the Gazetted Officer. He consented to be searched by the police. The I.O. prepared the consent memo which is Ext. PW- 2/B. Thereafter, ASI gave his personal search as well as the search of his I.O. kit and memo to this effect Ext. PW-2/C was prepared. The bag carried by the accused was searched by the I.O. and on search of the bag, one plastic envelope was recovered containing black colored hard substance. On checking, it was found to be charas. Thereafter, I.O. weighed the charas alongwith the envelope. It was found to be 1 kg 800 gms. The charas was put in the same bag and the bag was parceled in a piece of cloth and sealed with ten seals of seal ‘K’. Sample of seal ‘K’ was taken separately on cloth piece which is Ext. PW-1/B. NCB forms in triplicate were filled in. Seal ‘K’ was also affixed on the NCB forms. The seal after use was handed over to him. The parcel containing recovered charas was taken into possession vide memo Ext. PW- 2/D. The I.O. prepared the ‘ruka’. He also prepared the site plan. PW-1/B. NCB forms in triplicate were filled in. Seal ‘K’ was also affixed on the NCB forms. The seal after use was handed over to him. The parcel containing recovered charas was taken into possession vide memo Ext. PW- 2/D. The I.O. prepared the ‘ruka’. He also prepared the site plan. In his cross-examination, he deposed that first of all, the accused was seen by the I.O. There was no prior information and at that time, they were checking the vehicles. He did not remember, which kind of vehicle was being checked by them at that time. The locality is far away from the spot. The entire proceedings of the spot were conducted in his presence. The rain shelter is at a distance of ten meters from the place where they were standing. In his cross-examination, he admitted that Chamba Pathankot road is a busy road. He admitted that many people used to wait for bus in the rain shelter. He also admitted that one path leads to Navodiya School. He also admitted that after school hours, the staff of the school used to come to the rain shelter and wait for the buses. As per the spot map, the accused has been shown to be apprehended near Kali Mata temple. Kali Mata temple is opposite to Chamba Pathankot road. He also admitted that from Kali Mata temple, the road touches Chamba-Kiyani road at Sarol. He admitted that the polytechnic is far away from Kali Mata temple. He admitted that the polytechnic and 4-5 shops fall in between Sarol and the place where the accused was apprehended. Many people were there but they were busy in drawing the proceedings. 8. PW-3, HHC Karam Singh also deposed the manner in which accused was apprehended and search was carried out. He also deposed the manner in which sealing process was completed. In his cross examination, he admitted that at the time of giving option, the accused, witness Hanif and 5 police officials were present at the spot. He admitted that from Mandir, there is passage leading to Navodaya School. He also admitted that the staff of Navodaya School used to come to Parel bridge for boarding the bus. At that time, it was 4.15 p.m., so they have not seen anybody there. He also admitted that the people used to remain standing at the rain shelter to get bus. 9. He also admitted that the staff of Navodaya School used to come to Parel bridge for boarding the bus. At that time, it was 4.15 p.m., so they have not seen anybody there. He also admitted that the people used to remain standing at the rain shelter to get bus. 9. PW-4, HHC Madan Singh deposed that on 5.3.2011 at about 9.05 PM A.S.I. Kuldeep Singh produced one sealed parcel sealed with 10 seals of seal ‘K’ containing 1 kg 800 gms charas alongwith NCB forms (triplicate) for resealing to S.I/S.H.O. Piar Chand. He resealed the parcel with three seals of seal ‘S’. He also took specimen of seal ‘S’ on a piece of cloth which is exhibit PW- 4/A. Reseal memo Ext. PW-4/B was prepared. Seal ‘S’ was affixed on NCB form and the seal after use was handed over to him. Thereafter, S.I Piar Chand deposited the case property with the MHC at 9.50 p.m. 10. PW-5, HC Joginder Singh deposed that Additional S.H.O. Piar Chand handed over to him one sealed parcel containing 1 kg 800 gms charas. The parcel was having 10 seals of seal ‘K’ and three seals of seal ‘S’. He also deposited with recovery memo, sample seal and NCB form in triplicate. He entered the same in the Malkhana register. 11. PW-6, Ramesh Chand deposed that on 6.3.2011, he was officiating as M.H.C. in Police Station Chamba. He sent one sealed parcel sealed with seals ‘K’ and ‘S’ alongwith sample seals, recovery memo, copy of FIR and NCB forms (triplicate) vide RC No. 33/2011 through constable Krishan Kumar to FSL Junga. The copy of R.C is Ext. PW-6/A. 12. PW-7, Subhash Chand has deposed about the special report sent to the Superintendent of Police, Chamba. 13. PW-8, S.I. Piar Chand deposed that A.S.I. Kuldeep Singh produced one sealed parcel sealed with 10 seals of seal ‘K’ alongwith sample seals, NCB forms (Triplicate) in the police station for resealing at 9.05 PM. He resealed the said parcel with three seals of seal ‘S’ in the presence of H.H.C. Madan and specimen of seal ‘S’ was taken on the reverse of seal ‘K’. NCB form was filled in and specimen of seal ‘S’ was taken. The specimen of seal ‘S’ is Ext. PW-4/A. He prepared reseal memo Ext. PW-4/B. NCB form is Ext. PW-8/A, column Nos. NCB form was filled in and specimen of seal ‘S’ was taken. The specimen of seal ‘S’ is Ext. PW-4/A. He prepared reseal memo Ext. PW-4/B. NCB form is Ext. PW-8/A, column Nos. 9, 10, 11 of the same were filled in by him. 14. PW-9, Gian Singh is a formal witness. 15. PW-10, Kishan Kumar deposed that on 6.3.2011, one sealed parcel sealed with ten seals of seal ‘K’ alongwith sample seal, NCB forms in triplicate, were handed over to him by M.H.C. Ramesh Chand vide R.C No. 33/11 for being delivered at F.S.L., Junga. He deposited the case property on 7.3.2011 at F.S.L., Junga with the concerned official. 16. PW-11, H.C. Devi Chand deposed that on 7.3.2011, M.H.C. Pawan Kumar handed over to him the special report of the case for being delivered at S.P. Office, Chamba. He delivered the same in the office. 17. PW-12, A.S.I. Kuldeep Singh, deposed the manner in which the accused was apprehended at about 4:15 PM. The search and sealing process was completed. He prepared the ‘ruka’ Ext. PW-12/A. He sent the same to Police Station through H.H.C. Karam Chand. Copy of ‘ruka’ was also sent to S.P. Chamba for information. On the basis of ‘ruka’, FIR Ext. PW-5/A was registered in the Police Station. He prepared the site plan and recorded the statement of witnesses. He returned to the Police Station at 9:05 PM and produced the accused and case property alongwith sample seal and NCB forms before the S.I. Piar Chand for resealing. He resealed the same and deposited with the M.H.C. In his cross-examination, he admitted that there was rain shelter on Chamba Pathankot road. He also admitted that Kali Mata Mandir is opposite to Chamba Pathankot road and in between the both, there is a bridge. He also admitted that they were checking the vehicles at Chamba Pathankot road. He also admitted that at one time, the vehicles can be checked at one place. He admitted that the path leads from Kali Mata temple to Navodiya school. He also admitted that from Kali Mata temple, a road leads to Sarol and touches Chamba Kiyani road. He denied that the Sarol Village is 200-250 meters from Kali Mata temple. Volunteered that, it is 500 meters from Kali Mata temple. 18. What emerges from the statements is that the accused was apprehended at 4:30 PM near Kali Mata Mandir. He also admitted that from Kali Mata temple, a road leads to Sarol and touches Chamba Kiyani road. He denied that the Sarol Village is 200-250 meters from Kali Mata temple. Volunteered that, it is 500 meters from Kali Mata temple. 18. What emerges from the statements is that the accused was apprehended at 4:30 PM near Kali Mata Mandir. Haneef Mohammad is an independent witness. However, Haneef Mohammad has not supported the case of the prosecution in entirety. He was declared hostile. PW-2, H.C. Raghubir Singh has admitted in his cross-examination that Chamba Pathankot road is a busy road. He also admitted that lot of people used to wait for the bus in the rain shelter. He also admitted that one path leads to Navodiya School. The entire staff of the School used to go to the rain shelter and wait for buses. He also admitted that as per the spot map, the accused has been shown to be apprehended near the Kali Mata temple. The Kali Mata temple is opposite to Chamba Pathankot road. He also admitted that from Kali Mata temple, the road touches Chamba-Kiyani road at Sarol. PW-3, H.H.C. Karam Singh also deposed that there was a Kali Mata Mandir. He also admitted that from the Mandir, there is a passage leading to the Navodiya school. The staff of Navodiya school used to come to Parel bridge for boarding the bus. He also admitted that people remain standing at rain shelter waiting for the buses. PW-12, A.S.I. Kuldeep Singh has also admitted in his cross-examination that when he saw the accused, he was checking the vehicles on Chamba Pathankot road. He admitted that there was a rain shelter on Chamba Pathankot road. He also admitted that kali Mata Mandir is opposite to Chamba Pathankot road and in between the both, there is a bridge. He also admitted that they were checking the vehicles on Chamba Pathankot road. He admitted that a path leads from Kali Mata temple to Navodiya school. He admitted that from Kali Mata temple, a road leads to Sarol and touches Chamba Kiyani road. He denied that Sarol village is 200-250 meters from Kali Mata temple. Volunteered that, it is 500 meters from Kali Mata temple. In his cross-examination, he deposed that approximately, 15-20 vehicles were checked by him. He admitted that from Kali Mata temple, a road leads to Sarol and touches Chamba Kiyani road. He denied that Sarol village is 200-250 meters from Kali Mata temple. Volunteered that, it is 500 meters from Kali Mata temple. In his cross-examination, he deposed that approximately, 15-20 vehicles were checked by him. No driver or occupants of the vehicles were associated in the investigation as they were not ready to become a witness. It is evident from the statements of PW-2 H.C. Raghubir Singh, PW-3 H.H.C. Karam Singh and PW-12 A.S.I. Kuldeep Singh that the police was checking the vehicles on a busy Chamba Pathankot road. The Kali Mata temple was also nearby. There was also a rain shelter near the spot when the accused was apprehended. The Navodiya School closed at 4:00 PM and the accused was apprehended at about 4:15 PM. It is not one of those cases where the accused has been apprehended at an isolated place. The police ought to have associated the independent witnesses at the time of apprehending the accused as also carrying out the search and sealing process. As per the statement of PW2, H.C. Raghubir Singh, after school hours, the entire staff of the school used to go to the rain shelter to take buses. PW-12 A.S.I. Kuldeep Singh has deposed that village Sarol was at a distance of 500 meters. Kali Mata Temple is opposite to Chamba Pathankot road and in between there is a bridge. He should have sent police officials to search for independent witnesses from nearby village. PW-12 A.S.I. Kuldeep Singh could easily associate any of the drivers or the occupants of the vehicles being checked by him on a Chamba Pathankot road. His explanation that the drivers or the occupants of the vehicles could not be associated cannot be believed. He should have issued notice to the persons, if they have refused to join the investigation. It is a settled law that the statements made by the official witnesses can be relied upon if they inspire confidence and are natural and consistent. However, in the instant case, the independent witness Haneef Mohammad has not supported the case of the prosecution. The police has not associated any independent witnesses, though readily available at the time when the accused was arrested from a busy place at 4.15 P.M. 19. We have also gone through the site plan Ext. However, in the instant case, the independent witness Haneef Mohammad has not supported the case of the prosecution. The police has not associated any independent witnesses, though readily available at the time when the accused was arrested from a busy place at 4.15 P.M. 19. We have also gone through the site plan Ext. PW- 12/B. It is clear from this map that the place where the accused was apprehended was a busy place. The police could have easily associated the independent witnesses. Since the independent witnesses though available have not been joined by the prosecution during the course of investigation, arrest and search of the accused becomes doubtful. 20. Accordingly, the appeal is allowed. Judgment of conviction and sentence dated 14.9.2011 and consequent order dated 15.9.2011, rendered by the learned Special Judge, Chamba, in Sessions trial No. 15 of 2011, is set aside. The accused is acquitted of the charge framed under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, by giving him benefit of doubt. Fine amount, if any, already deposited by the accused is ordered to be refunded to him. Since the accused is in jail, he be released forthwith, if not required in any other case. 21. The Registry is directed to prepare the release warrant of the accused and send the same to the Superintendent of Jail concerned, in conformity with this judgment forthwith.