Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 1206 (HP)

Naresh Kumar v. Narcotics Control Bureau

2014-09-06

RAJIV SHARMA, SURESHWAR THAKUR

body2014
Judgment Sureshwar Thakur, J. The instant appeal, is, directed by the appellant/accused, against the impugned judgment rendered on 8.11.2004, by the learned Sessions Judge, Solan, H.P in Sessions trial No. 5-S/7 of 2004, whereby, the learned trial Court convicted and sentenced the accused/appellant to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1,00,000/- and in default of payment of fine to undergo rigorous imprisonment for a further period of two years, for the commission of offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act). 2. Brief facts of the case are that on 12.1.2004 Shri Ravi Kant Pawar, Intelligence Officer Narcotics Control Bureau, Chandigarh, the complainant, received an information that Narcotic drugs were being smuggled from Shimla side towards Chandigarh via National Highway No.22. This information was reduced into writing by the complainant and thereafter, he submitted the same to his superior official Shri O.P. Sharma, Superintendent, who, directed him to arrange a Naka near Timber Trail, falling within the jurisdiction of Police Station, Parwanoo. The complainant formed a raiding party in which Shri P.K. Sharma, an Intelligence Officer and some sepoys and other officials of the Bureau were included. Shri O.P. Sharma, Superintendent also joined the party as a Supervisory Officer. The party reached Police Station, Parwanoo and requisitioned two uniformed constables from the SHO, Police Station, Parwanoo, which were made available to them. The party along with the constables laid a Naka near Timber Trail around 11.00 p.m. A bus bearing registration No. HP-10-0308 which was on his way from Rohru to Delhi, reached the site of Naka. The bus was got stopped. The driver and the conductor of the bus were informed that the checking of the passengers and their luggage was to be done to detect transportation of any Narcotic drug or Psychotropic substance. Thereafter, in the presence of the driver and conductor of the bus, checking of the passengers and their luggage was done. Accused Naresh Kumar was occupying seat No.24. A bag was kept on that very seat between him and that side of the bus on which there was a window. When asked as to who was the owner of the bag, the accused claimed that that it belonged to him. He was asked as to what was there in the bag. Accused Naresh Kumar was occupying seat No.24. A bag was kept on that very seat between him and that side of the bus on which there was a window. When asked as to who was the owner of the bag, the accused claimed that that it belonged to him. He was asked as to what was there in the bag. He said that only his wearing apparels were there in the bag. He was then asked to open the bag. He got unnerved. On being asked again to open the bag, he unzipped it. It contained a plastic bag in which there was some dark brownish stuff which smelt like charas. The accused was made to get down the bus. After he deboarded the bus, he was told that it was intended to search his person as also his bag and that he had a right to be searched in the presence of Magistrate or gazetted officer and if he so desired search in the presence of a gazetted Officer or a Magistrate could be arranged. The accused informed the complainant that he had full faith in him and his party and that the search could be conducted on the spot. Thereafter the bag was searched in the presence of Shri O.P. Sharma, Supervisory Officer and a plastic bag containing charas, which weighed 2.250 kgs., was recovered. Shri P.K. Sharma, another intelligence Officer conducted a test on the spot by means of some chemical and declared that the stuff was charas. Accused on further questioning told that he was carrying the charas to Chandigarh where it was to be delivered to one Shri Anant Ram of Karsog, for whom he was carrying the same. The accused was, therefore, taken to Chandigarh by that very bus and made to sit on a bench at the bus stand, while bureau people and the police constables of Police Station, Parwanoo, kept themselves at some distance to keep surveillance, both upon the accused and the man for whom the accused was allegedly carrying the stuff. When nobody turned up to collect the stuff from the accused, even after a wait for about more than one hour, the party along with the accused started back for Parwanoo. When nobody turned up to collect the stuff from the accused, even after a wait for about more than one hour, the party along with the accused started back for Parwanoo. They went to the police station, Parwanoo where two samples, each weighing 25 grams, were separated from the recovered stuff and the bulk and the samples were made up into three separate parcels and those parcels/packets were sealed. The said parcels were deposited with Shri O.P. Sharma, supervisory officer, who is also Incharge of the Malkhana. Said Shri O.P. Sharma sent one of the two samples to Central Laboratory for analysis and report. The Analyst reported that contents of the sample to be of charas. A written report of search and the seizure was sent by Shri O.P. Sharma to his superior officer, the next following day. 3. On conclusion of the investigation, into the offence, allegedly committed by the accused, report under Section 173 of the Code of Criminal Procedure was prepared and filed in the Court. 4. Accused was charged for his having committed an offence punishable under Section 20 of the ND & PS Act by the learned trial Court to which he pleaded not guilty and claimed trial. 5. In order to prove its case, the prosecution examined seven witnesses. On closure of prosecution evidence, the statement of accused, under Section 313 of the Code of Criminal Procedure was recorded in which he pleaded innocence and chose to lead evidence in defence. The accused examined two defence witnesses. 6. On appraisal of the evidence on record, the learned trial Court, returned findings of conviction against the accused/appellant. 7. The accused/appellant is aggrieved by the judgment of conviction recorded by the learned trial Court. The learned defence counsel has concertedly and vigorously contended that the findings of conviction recorded by the learned trial Court are not based on a proper appreciation of the evidence on record, rather, they are sequelled by gross mis-appreciation of the material on record. Hence, he contends that the findings of conviction be reversed by this Court in the exercise of its appellate jurisdiction and be replaced by findings of acquittal. 8. Hence, he contends that the findings of conviction be reversed by this Court in the exercise of its appellate jurisdiction and be replaced by findings of acquittal. 8. On the other hand, the learned counsel appearing for the Narcotics Control Bureau has with considerable force and vigour, contended that the findings of conviction recorded by the Court below are based on a mature and balanced appreciation of evidence on record and do not necessitate interference, rather merit vindication. 9. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record. 10. The first witness, who, stepped into the witness box in proof of the prosecution case is PW-1, Constable Ram Lal. He deposes that Ex.PA and Ex.PB are the copies of report No.22, dated 13.1.2004 and report No.36, dated 12.1.2004 respectively entered in the Rojnamcha by him. 11. PW-2 Shri Devender Kumar deposes that he has brought the requisitioned register of FIR Ex.PC which is the copy of FIR No.408/2002. 12. PW-3 is Shri P. K. Sharma, Intelligence Officer, Narcotic Control Bureau, Chandigarh, who in his deposition has deposed a version which is in square tandem with the genesis of the prosecution version as referred to hereinabove. In his cross-examination, he deposes that they left the spot for Chandigarh around 12 in the night and that they reached at Chandigarh around 1.15 a.m. He deposes that they started back from Chandigarh around 2.15 A.M. However, he again stated that they started back from Chandigarh around 1.45 a.m. The driver and conductor of the bus have also been deposed by this witness to have returned with them to Parwanoo. The conductor of the bus arranged to send the passengers of his bus to Delhi in another bus. 13. PW-4 Raj Kumar is the conductor of the bus. Since, he during his examination-in-chief having not supported the prosecution version, he was declared hostile and was requested by the learned Public Prosecutor to be cross-examined, on his request having come to be acceded to, he was cross-examined by the learned Public Prosecutor but no incriminating material against the accused could be elicited from his cross-examination. 14. Since, he during his examination-in-chief having not supported the prosecution version, he was declared hostile and was requested by the learned Public Prosecutor to be cross-examined, on his request having come to be acceded to, he was cross-examined by the learned Public Prosecutor but no incriminating material against the accused could be elicited from his cross-examination. 14. PW-5, Ravi Kant Pawar, Intelligence Officer, Narcotic Control Bureau, Chandigarh, who in his deposition has deposed a version which is in square tandem with the genesis of the prosecution version as referred to hereinabove, as also, in corroboration to the testimony of PW-3. In his cross-examination he deposes that the information was given to him at 5 or 5.15 P.M. on 12.1.2014. He deposes that they reached police station Parwanoo around 9.15 p.m. He further deposes that two police officials namely HHC Shrawan Kumar and Constable Pawan Kumar were provided to them and they stayed at police station for 10-15 minutes. He deposes that his signatures were not obtained in the rojnamcha regarding the deputation of the two police officials. He deposes that the police where they organized Nakka was almost within the radius of 10 kilometers from the police station. He deposes that the driver and conductor of the bus were with him when he was checking the luggage of the passengers. He further deposes that they also sat by the side of the accused on the same bench on which he was made to sit and others were moving around. He deposes that they reached Parwanoo around 2 a.m. and remained in Police Station Parwanoo till next day upto 4 p.m. He further deposes that independent witnesses left the police station around 9 or 10 a.m. after the Panchnama was prepared and their statements under Section 67 of the Narcotic Drugs and Psychotropic Substances Act had been recorded. He has denied the suggestion that the accused was not traveling in the bus in question. 15. PW-6 Shri O.P. Sharma, Superintendent, The Narcotics Control Bureau, Chandigarh deposes on receipt of the information, he directed Shri R.K. Pawar to organize a Naka and the information was conveyed in writing vide Ex.PJ/1 by making writing at the foot of the aforesaid information. 15. PW-6 Shri O.P. Sharma, Superintendent, The Narcotics Control Bureau, Chandigarh deposes on receipt of the information, he directed Shri R.K. Pawar to organize a Naka and the information was conveyed in writing vide Ex.PJ/1 by making writing at the foot of the aforesaid information. He further deposes that a team was constituted by the Investigating Officer and the Nakka was laid near timber trail and he was supervising the Nakka arrangement and the checking of the buses by the team. He continues to depose that after the accused was arrested, information was given to him in writing by the said Intelligence Officer about his arrest. He deposes that after the recovery of the charas from the accused, the Naka party went to Chandigarh as the accused had disclosed that the charas was to be handed over to one Anant Ram at Chandigarh. He further deposes that at the bus stand the accused was seated on a bench and they waited for the said person for about one hour and nobody turned up, as such, they came to police station Parwanoo where in a room entire proceeding were conducted. He deposes that the recovered stuff along with the samples and other case property was handed over to him in sealed parcels/packets. He continue to depose that he kept that property in the godown being the Incharge of that Godown and receipt, Ex. PT to this effect was issued to the Investigating Officer Shri Ravi Kant Pawar after depositing the property in the Godown. He further deposes that on 14.1.2004, he informed his superior officer about the arrest and seizure in writing through communication Ex. PU and on the same date one of the two samples was sent to the Checmial Examiner, Central Revenue Control Laboratory, New Delhi vide letter Ex. PV. In cross-examination, he deposes that Intelligence Officer Shri R.K. Pawar went to Police Station, Parwanoo before they went to the spot where Nakka was arranged. He further deposes that no statement of any witness was recorded by the Investigating Officer in his presence. He deposes that he had not gone inside the bus for checking purpose. He further deposes that when they returned to Parwanoo, all the officials of their Bureau, two constables from Parwanoo police station, the accused and the driver and conductor of the bus were with him in his vehicle. He deposes that he had not gone inside the bus for checking purpose. He further deposes that when they returned to Parwanoo, all the officials of their Bureau, two constables from Parwanoo police station, the accused and the driver and conductor of the bus were with him in his vehicle. He has denied the suggestion that no recovery was effected from the accused and that he has been falsely implicated. 16. PW-7 Hayat Singh tender in evidence his affidavit Ex. PX in which he has stated that on 14.1.2014, he was handed over one parcel sealed with four seals of Narcotics Control Bureau-06 along with letter No. 1904 and two copies of Test Memo by PW-6 Shri O.P. Sharma which he was handed over to the Assistant Chemical Examiner Shri P.K. Aggarwal vide receipt dated 15.1.2004 by him. 17. A keen and incisive reading with circumspection of the prosecution evidence divulges the fact of officials of Narcotics Control Bureau, Chandigarh having laid a naka on 12.1.2004 in pursuance to theirs having received prior information about the transportation of narcotic drugs from Shimla to Parwanoo side by buses, taxies and cars. In pursuance to the Naka being laid, the accused, while traveling in HRTC Bus bearing registration No. HP 10-0308, coming from Shimla side, on its being stopped was found occupying seat No. 24 in the bus aforesaid. He purportedly admitted the ownership of the bag kept by him between the side of the bus and place of his sitting. In sequel to the completion of codal formalities, the NCB team searched the bag and charas weighing 2 Kg 250 grams was recovered therefrom. He purportedly admitted the ownership of the bag kept by him between the side of the bus and place of his sitting. In sequel to the completion of codal formalities, the NCB team searched the bag and charas weighing 2 Kg 250 grams was recovered therefrom. However a reading of the testimonies of the official witnesses does not underscore the fact of the NCB team having at the site of occurrence in quick spontaneity to and in dire immediacy to the search of the bag purportedly owned by the accused wherefrom charas weighing 2kg 250 grams was recovered having either homogeneously mixed the bulk charas for extracting therefrom samples for being sent for examination to FSL nor also, despite the fact that Police Station Parwanoo has been deposed by PW-5 to be within a radius of 10 Kms from the site of occurrence was intimated initially, at the time of nabbing of the accused while his purportedly carrying in the bag purportedly owned by him the quantity of contraband aforesaid, besides the factum of association of two officials of Police Station, Parwanoo, namely HHC Sharwan Kumar and C Pawan Kumar by the NCB team initially at the stage when contraband was recovered from the exclusive and conscious possession of the accused in the manner alleged has also not been proven by adduction of apposite evidence comprised in apposite entries in the apposite record. Consequently, then when rather it is imminently elucidated from a reading of testimonies of the official witnesses that they after the contraband was recovered from the purported and exclusive possession of the accused, alongwith the accused as well as the purported eye witnesses all travelled to Chandigarh from Parwanoo, for nabbing the person to whom the contraband was to be delivered by the accused, yet the person to whom the consignment was to be delivered not surfacing to receive the consignment that hence, the NCB team accompanied by the accused and the purported eye witnesses returned to the Police Station, Parwanoo, hence, the entire proceedings relating to search, seizure and recovery having been carried out in police Station, Parwanoo. The significant fact which surges forth is of as a matter of fact of proceedings relating to documentation as well as preparation of recovery memos as well proceedings relating to preparation of parcels and their sealing, besides recording of statements of the witnesses as also of preparation of Ex. PE, were initiated as well as completed in Police Station, Parwanoo and that too on return thereto of the NCB team alongwith the accused as well as the purported eye witnesses from Chandigarh. It is worthwhile that at the initial stage of the nabbing of the accused with his purportedly carrying charas in the manner alleged neither Police Station Parwanoo was intimated nor an FIR was lodged qua the occurrence with Police Station, Parwanoo nor also the NCB team deposited the case property as seized in the Malkhana of Police Station, Parwanoo. Rather it is extremely enigmatic and mysterious that they chose rather to proceed along with the accused as well as the purported eye witnesses for Chandigarh only for the purpose of nabbing the person to whom the consignment was to be delivered by the accused. The aforesaid purpose which drove the NCB team to travel to Chandigarh as also constrained as well as deterred them from completing the proceeding at the site of recovery, may be salutary, yet on the legal plane the non-completion of all the afore referred proceedings relating to search seizure and recovery of contraband allegedly recovered from the conscious and exclusive possession of the accused in the manner as alleged by the prosecution, at the site of occurrence per se ingrains with suspicion or renders vulnerable to skepticism the factum of the genesis of the prosecution version of seizure having come to be effected from the alleged exclusive and conscious possession of the accused at the purported site of occurrence. Moreover, for all the reasons which have been enunciated by this Court while bespeaking the fact of (a) non-adduction of apposite proof at the instance of NCB team of theirs having associated two police witnesses, namely HHC Sharwan Kumar and C. Pawan Kumar of Police Station Parwanoo, though purportedly associated in the purported proceedings, portrays that as a matter of fact, they were omitted to be associated by the NCB in the apposite proceedings at an apposite stage at the site of occurrence. Consequently, it appears that hence, their presence on the spot is concocted and invented by the prosecution, besides when if assumingly, they were then present, the non-recording of their statements by the Investigating Officer as also the omission to cite them as witnesses though purportedly present along with the apposite NCB team at the apposite stage constrains, an inference that the prosecution has intended to smother the truth qua the occurrence and that the factum of the purported association of two official witnesses of Police Station, Parwanoo has been marshalled to clothe legitimacy to the naka laid for the purpose of recovery of contraband by the NCB team or also to convey that Police Station, Parwanoo in proximity to the site of occurrence, was purportedly intimated qua the factum of Naka whereas it was not. On the drawing of the aforesaid inference, the concomitant conclusion is that the proceedings relating to search, seizure and recovery of contraband from the alleged, conscious and exclusive possession of the accused were neither initiated nor competed at the site of occurrence as alleged rather were completed else where (b) even though the prosecution witnesses or the official witnesses have deposed that as a matter of fact the entire proceedings relating to documentation as well as preparation of parcels and sealing thereof besides recording of statements of witnesses were undertaken in Police Station, Parwanoo. However, the said fact remains unsupported by credible evidence comprised in either the statements of police Officials, which, however, were never recorded nor they have been cited as witnesses. However, the said fact remains unsupported by credible evidence comprised in either the statements of police Officials, which, however, were never recorded nor they have been cited as witnesses. Omission on the part of the NCB team to either record the statements of any of the officials of Police Station, Parwanoo wherein the apposite proceedings were concluded or also to cite them as witnesses, sequels an inference that the aforesaid omissions were occasioned, as the prosecution case of the proceedings relating to documentation as well as preparation of parcels, sealing thereof beside recording of the statements of witnesses were neither commenced nor concluded at Police Station, Parwanoo rather were concluded else where (c) what accentuates and magnifies the aforesaid inference of the proceedings relating to documentation as well as preparation of parcels and sealing thereof having been concluded at a place other than the site of occurrence or at Police Station, Parwanoo, is the fact portrayed by the deposition of official witnesses of theirs having traveled from the site of occurrence to Chandigarh alongwith accused as well as the purported eye witnesses and returned therefrom to Parwanoo which version as propounded by the prosecution per se staggers in the face of the purported visit of the NCB team with the accused and the purported eye witnesses being prompted by the salutary object of nabbing of person to whom the consignment was to be delivered being highly enigmatic and being not acceptable on the legal plane, besides did not relieve the NCB team of its legally enjoined duty for the investigation being construed to be trustworthy and inspiring as well as impartisan of intimating Police Station, Parwanoo in proximity thereof or depositing the recovered stuff from the alleged conscious and exclusive possession of the accused with the MHC of Police Station, Parwanoo. It was sagacious for the NCB team to lend veracity to the genesis of the prosecution version of the contraband having been recovered at the site of the occurrence from the purported conscious and exclusive possession of the accused to, only after completion of the entire proceedings at the site of occurrence after soliciting the association of the police officials of Police Station, Parwanoo, proceed in the company of the accused to Chandigarh for nabbing the person to whom the consignment was to be delivered. However, theirs having throughout omitted to comply with their legally enjoined duties for imbuing truth to the genesis of the prosecution version, obviously, stains or taints the prosecution version. 18. For the foregoing reasons, the appeal is allowed and the judgment of the learned trial Court is set-aside. Accused/appellant is acquitted of the offences charged. He be set at liberty forthwith, if not required in any other case. Fine amount, if any, deposited by the accused/appellant, be refunded to him. Records be sent back.