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Himachal Pradesh High Court · body

2014 DIGILAW 1242 (HP)

Hira Lal v. State of H. P.

2014-09-11

RAJIV SHARMA, SURESHWAR THAKUR

body2014
Judgment Rajiv Sharma, J. This appeal is instituted against the judgment dated 17.5.2011 and consequent order dated 19.5.2011, rendered by the learned Special Judge-II, Solan, in Sessions Trial No. 11-S/7 of 2010, whereby the appellant-accused (hereinafter referred to as accused) who was charged with and tried for offence under Sections 18 & 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, has been convicted and sentenced to undergo rigorous imprisonment for ten years and to pay fine of rupees one lac and in default of payment of fine he was ordered to suffer imprisonment for one year under Section 20 of the ND & PS, Act. The period of detention undergone by the accused during the investigation and trial of the case was ordered to be set off under Section 428 Cr.P.C. However, he was acquitted under Section 18 of the ND & PS, Act. 2. The case of the prosecution, in a nut shell, is that on 3rd /4th January, 2010, PW-12 HC Krishan Chand, PW-4 HHC Avtaar Singh, HHG Himmat Singh, HHG Rikhi Ram and HHG Sanjeev Kumar were on ‘naka’ duty on National Highway 22 in front of the Police Station, Dharampur. The police stopped a bus bearing registration No. HP-25A-0704, enroute from Reckong Peo to Delhi at about 12:15 AM. It was checked. The Police party got the luggage of the passengers checked. PW-1, Malkiat Singh was driver and PW-11, Jitender Kumar was conductor of the bus. They were associated for search of luggage of the passengers. When the police party reached near the seat No. 34, the accused became perplexed. The accused was carrying a black coloured bag on his lap, having a sticker of ‘Crocodile’ printed on it. The bag of the accused was checked in the presence of PW-11, Jitender Kumar, conductor of the bus and PW-9, Ravi Sharma, the occupant of seat No. 36. The bag was found containing a packet wrapped with adhesive tape and newspaper. It was opened in the presence of witnesses and found containing charas in the shape of balls and sticks. Another packet duly wrapped with adhesive tape was also recovered from the possession of the accused. On checking, it was found containing opium. The contraband was identified on the basis of taste and smell, vide memo Ext. It was opened in the presence of witnesses and found containing charas in the shape of balls and sticks. Another packet duly wrapped with adhesive tape was also recovered from the possession of the accused. On checking, it was found containing opium. The contraband was identified on the basis of taste and smell, vide memo Ext. PW-9/B. The accused alongwith the contraband and witnesses was taken to the courtyard of the Police Station for further proceedings, since there was no sufficient light in the bus. PW-4, HHC Avtaar Singh was deputed to bring weights and scale. The charas weighed 5 kg 500 gms and opium was weighed to be 200 gms. The charas and opium were sealed in two separate cloth parcels, with ten and eight impressions of seal ‘X’, respectively. The NCB form was filled up. The seal after its use was entrusted to PW-9, Ravi Sharma. 3. ‘Rukka’ Ext. PW-4/A, was prepared and sent to the Police Station through PW-4, HHC Avtaar Singh. The accused was arrested. The contraband alongwith the NCB form and seal were handed over to PW-8, SHO Jagdish Chand. He resealed the parcels with seal ‘R’ and issued certificate Ext. PW-8/B. The sample of seal ‘R’ was drawn on separate piece of cloth Ext. PW- 8/C. PW-8 SHO Jagdish chand, also filled column Nos. 9 to 11 of the NCB form and impression of seal ‘R’ was taken on it. These were handed over to PW-6, HC Parveen Kumar. PW-6, HC Parveen Kumar recorded the daily diary No. 6(A) in the computer, copy of which is Ext. PW-6/D. He issued certificate Ext. PW-6/E. Special report was also prepared. It was produced before the Addl. Superintendent of Police, Solan. The samples were sent to FSL, Junga. The FSL report is Ext. PW-8/E. The samples were found to be containing charas and opium. On completion of the investigation, challan was put up after completing all the codal formalities. 4. The prosecution has examined as many as 12 witnesses to prove its case. The accused was also examined under Section 313 Cr.P.C. The accused has denied having committed any offence. According to him, nothing was recovered from him and he was falsely implicated. He denied that he was sitting on seat No. 34 of the bus and the bag belonged to him. The learned trial Court convicted the accused, as noticed hereinabove. 5. Mr. According to him, nothing was recovered from him and he was falsely implicated. He denied that he was sitting on seat No. 34 of the bus and the bag belonged to him. The learned trial Court convicted the accused, as noticed hereinabove. 5. Mr. Lakshay Thakur, Advocate, appearing on behalf of the accused has vehemently argued that the prosecution has failed to prove its case against the accused. On the other hand, Mr. Ramesh Thakur, Asstt. AG, has supported the judgment of the learned trial Court dated 17.5.2011 and consequent order dated 19.5.2011. 6. We have heard learned counsel for both the sides and gone through the records of the case carefully. 7. PW-1, Malkiat Singh deposed that he alongwith Jitender was on duty with bus No. HP 25A-0704 enroute from Reckong Peo to Delhi. When the bus was stopped at Dharampur at about 12-12:30 AM, the accused was taken to the Police Station. Thereafter, he left the bus and was called by the police in the Police Station. The police disclosed him and other witnesses that some illegal material has been recovered from the accused. In his presence, nothing was recovered. He was declared hostile. He was cross-examined by the learned Public Prosecutor. He did not know as to whether the accused was sitting on seat No. 34 of the bus. Volunteered that, he might be sitting on the back portion of the bus. He did not know if the accused was scared at the time of checking of the bus by the police. After the police asked the passengers to get their luggage checked, every passenger was in hurry to get their bags from the racks. He denied the suggestion that the bag of the accused, when searched, contained something wrapped in paper. Volunteered that, the bag was searched in the Police Station and it contained something wrapped in a newspaper having adhesive tape on it. He denied that both the packets were opened and checked inside the bus in his presence and those were found containing charas and opium. He admitted that the accused was taken to Police Station compound. He also admitted that the charas and opium was weighed by the police inside the Police Station in the main room. The charas and opium were sealed in separate cloth parcel. He admitted that the accused was taken to Police Station compound. He also admitted that the charas and opium was weighed by the police inside the Police Station in the main room. The charas and opium were sealed in separate cloth parcel. He did not know the impression of the seal used by the police though seal was affixed on parcels in his presence. In his cross-examination by the learned Advocate appearing on behalf of the accused, he admitted that there were racks to keep luggage inside the bus on both sides. The racks were fixed from the driver side to the last seat. He admitted that the passengers used to keep their luggage in racks and if the racks are full then in the gallery. One cannot tell the ownership of the bag kept in the racks. He could not tell that all the bags were kept in the racks only. He deposed that these could be on gallery also. He also admitted that all the passengers were standing in the bus when the police was checking the bags. The bag was not opened and searched in the bus and taken by the police from bus to some place and then taken to the police station. He admitted that the bag was opened in the Police Station for the first time. 8. PW-2, Jai Ram deposed that he was going to Delhi in the HRTC bus. He was sitting on the last seat. The bus was stopped by the police in front of the Police Station, Dharampur. It was checked by the police. The bag was taken by the police from the rack and all the passengers were taken to police station by the police. One bag was recovered by the police containing charas. He had seen the charas in the police station which was weighed in his presence. He was also declared hostile. He was cross-examined by the Public Prosecutor. He denied that he was sitting on seat No. 33. Volunteered that, he was sitting on the last bench, opposite to the conductor seat. He did not know if the accused was sitting with him on that date. The police entered the bus and directed the passengers to get their luggage checked up. He was carrying a bag. His bag was lying on the rack. Volunteered that, he was sitting on the last bench, opposite to the conductor seat. He did not know if the accused was sitting with him on that date. The police entered the bus and directed the passengers to get their luggage checked up. He was carrying a bag. His bag was lying on the rack. He denied the suggestion that the charas and opium were weighed in his presence. Volunteered that the police was weighing the same but he did not bother. In his cross-examination by the learned Advocate appearing on behalf of the accused, he admitted that there were racks on both sides of the bus and luggage were kept by the passengers on it. He also admitted that the ownership could not have been ascertained since these bags were so many in number. 9. PW-3, HC Yadav Chand is a formal witness. 10. PW-4, HHC Avtaar Singh deposed the manner in which the bus was checked at 12:15 AM. According to him, HC Krishan Chand and Himmat Singh entered the bus for its checking from front window and he alongwith Rikhi Ram entered the bus from the rear window. All the passengers were asked to get their luggage checked. The accused was found sitting on seat No. 34. The witness Ravi Kumar was sitting on seat No. 36. The accused had kept a bag by the side of the seat. He was holding it from its handle at that time. The accused alongwith the bag was taken to the Police Station. The bag was searched. It contained charas and opium. He was directed to bring weights and scale. He brought the same from the Punjabi Dhaba, Sanwara. The charas on weighing was found to be 5 kg 500 gms and opium was found to be 200 gms. ‘Rukka’ Ext. PW-4/A, was handed over to MHC. In his cross-examination, he deposed that the accused alongwith the bag was taken to the Police Station and the bag was opened there. No memo was prepared in the bus and no other written proceedings were conducted inside the bus. The signature of the conductor and driver were taken in the police station in the room of I.O. Krishan Chand. 11. PW-5 L.C. Pratima Devi is a formal witness. 12. PW-6, H.C. Parveen Kumar deposed that on 4.1.2010, ‘rukka’ Ext. No memo was prepared in the bus and no other written proceedings were conducted inside the bus. The signature of the conductor and driver were taken in the police station in the room of I.O. Krishan Chand. 11. PW-5 L.C. Pratima Devi is a formal witness. 12. PW-6, H.C. Parveen Kumar deposed that on 4.1.2010, ‘rukka’ Ext. PW-4/A was prepared and signed by HC Krishan Chand and received by HHC Avtaar Singh. Thereafter, FIR Ext. PW-4/B was recorded in the Police Station. The case property i.e. parcel sealed with 10 impressions of seal ‘R’ stated to be containing 5.5 kg charas and another parcel sealed with 10 impressions of seal ‘R’ stated to be containing 200 gms opium alongwith sample of seal “X’ and ‘R’, NCB forms in triplicate, copies of recovery memo was deposited by Inspector Jagdish, SHO Dharampur. He made the entries in the Malkhana register. In his cross-examination, he deposed that re-sealing was not done in his presence and in his room. The case property was handed over to the S.H.O. at 5:50 AM. The NCB forms were also received with the case property. 13. PW-7, HHC Jaswant Singh has taken the samples containing charas and opium alongwith copies of FIR, recovery memo, NCB forms and docket to FSL, Junga vide R.C. No. 1/10 and deposited the same at the FSL, Junga. 14. PW-8, Inspector Jagdish Chand deposed that at about 5:30 AM on 4.1.2010, HC Kishan Chand handed over to him two parcels duly sealed with 10 & 8 impressions of seal ‘X’ stated to be containing 5.5. kg charas and 200 gms opium, respectively, alongwith sample of seal ‘X’ and NCB forms. Daily diary report Ext. PW-6/D was prepared. He resealed both the parcels with seal ‘R’ having 10 impressions on each and issued certificate Ext. PW- 8/B. He also took sample of seal ‘R’ drawn on separate cloth piece. NCB forms were duly filled in. Both the parcels alongwith sample of seal ‘X’ and ‘R’, NCB forms, copy of seizure memo were handed over to MHC for safe custody. He also prepared the special report Ext. PW-3/A. 15. PW-9, Ravi Sharma deposed that on 3.1.2010 he was travelling from Shimla to Panipat. He did not remember the registration number of the bus. He proceeded from Shimla at 10:00 PM. He also prepared the special report Ext. PW-3/A. 15. PW-9, Ravi Sharma deposed that on 3.1.2010 he was travelling from Shimla to Panipat. He did not remember the registration number of the bus. He proceeded from Shimla at 10:00 PM. Since he was not well versed with the places in Himachal Pradesh, he was told that the bus was stopped on a police ‘naka’ near Kasauli. Luggage of all the passengers was checked. He was told that something illegal has been recovered from the passenger. He was declared hostile and cross-examined by the learned Public Prosecutor. In his cross-examination, he testified that the police told him that illegal article was recovered from the accused. He was not aware as to what was recovered from the accused. He did not know about the seat occupied by the accused. Somebody else was also sitting beside him. He did not know that the accused was sitting on seat No. 34. He was not aware that the accused was carrying a black coloured bag on his lap. He denied that the bag was checked by the police in his presence. He also denied that the charas in the shape of sticks and balls was found in the packets. He also denied that another small packet was opened in his presence by the police and found containing opium. He denied that all the proceedings were conducted in the bus. However, towards the end of his cross-examination by the learned Public Prosecutor, he admitted that the parcel was sealed in his presence. In his cross-examination, by the learned Advocate appearing on behalf of the accused, he deposed that his signatures were obtained on the documents without explaining the contents. The documents were prepared in his presence but his signatures were obtained without explaining their contents. He was not aware what was written on the documents, against which his signatures were obtained. 16. PW-10, Lokinder Chauhan is a formal witness. 17. PW-11, Jitender Kumar was conductor of the bus. He has not supported the case of the prosecution. He was declared hostile and cross-examined by the learned Public Prosecutor. He deposed that the accused boarded the bus at bus stand Shimla and purchased ticket for Delhi. The ticket was purchased from ticket counter at bus stand Shimla. He checked the ticket of the accused who was sitting on the last seat. He was declared hostile and cross-examined by the learned Public Prosecutor. He deposed that the accused boarded the bus at bus stand Shimla and purchased ticket for Delhi. The ticket was purchased from ticket counter at bus stand Shimla. He checked the ticket of the accused who was sitting on the last seat. The accused was sitting on seat No. 36 or 37. He did not know whether the accused was sitting on seat No. 34 or not. The accused was not carrying any bag. He did not know if the accused was carrying black coloured bag or not. When the bus was stopped at ‘Naka’, the police officials directed the passenger to get their luggage searched by the police. He denied the suggestion that luggage of all the passengers was searched by the police in his presence. He did not know if the accused was scared to see the police. He denied the suggestion that the bag of the accused was searched in his presence and a packet of newspaper wrapped with adhesive tape was recovered from the bag. He also denied the suggestion that the above packet was opened in his presence and was containing charas in the shape of balls and sticks. He also denied that he alongwith the driver of the bus were associated in the search of the bus. He admitted that passenger named Ravi Sharma occupying seat No. 36, was also associated in the investigation and he signed memo Ext. PW-9/B at point ‘A’. He also admitted that accused also signed the memo at point ‘C’ in his presence. He admitted that a small packet wrapped with adhesive tape was also recovered from the bag. He has denied that the bag was also opened in his presence and charas was recovered in the shape of balls and sticks. However, he has admitted signatures on Ext. PW-9/B at point ‘B’. He admitted that charas and opium were sealed in separate cloth parcel. He has signed both the parcels. In his cross-examination by the learned Advocate appearing on behalf of the accused, he admitted that the luggage of passengers was lying over the racks. 18. PW-12, HC Krishan Chand deposed the manner in which the bus was intercepted, the search was carried out and the accused was nabbed. The charas was weighed. It was sealed strictly as per the procedure. He filled in the NCB forms. 18. PW-12, HC Krishan Chand deposed the manner in which the bus was intercepted, the search was carried out and the accused was nabbed. The charas was weighed. It was sealed strictly as per the procedure. He filled in the NCB forms. He also prepared the spot map Ext. PW-12/A. He recorded the statements of the witnesses. In his cross-examination, he admitted that the personal search of the accused was made in the Police Station. The ticket of the bus was recovered from the accused, however, the same was not produced on the case file. The seat number of the accused was written on the ticket. The ticket was recovered during personal search of the accused but has not been produced on the case file. Volunteered that, it was in the police file. He could not produce the same in the Court. The bag was opened in the bus. According to him, the statements of witnesses were written in the compound of the Police Station. No proceedings were conducted in the I.O. room. The re-sealing was done by the S.H.O. He handed over the parcel and other documents to the S.H.O. in the Police Station. The driver, conductor and other witnesses had not gone inside the Police Station. They went back from the Police Station compound. They put their signatures in the Police Station compound on all the documents. He admitted that in Ext. PW- 9/C, it is not stated that the bag was kept by the accused on his lap in the bus. 19. PW-1, Malkiat Singh has not supported the case of the prosecution in its entirety. He was declared hostile. According to him, nothing was recovered in his presence. He denied the suggestion that when the bag of the accused was searched in the bus, it contained something wrapped in paper having adhesive tape wrapped on it. Volunteered that the packet was searched in the Police Station and it contained something wrapped in a newspaper having adhesive tape on it. He denied that another packet was also recovered from the accused in the bus. Volunteered that, the packet was also recovered in the Police Station. He also denied that both the packets were opened and checked inside the bus, in his presence and those were found containing charas and opium. He denied that another packet was also recovered from the accused in the bus. Volunteered that, the packet was also recovered in the Police Station. He also denied that both the packets were opened and checked inside the bus, in his presence and those were found containing charas and opium. PW-4, HHC Avtaar Singh also deposed that the accused alongwith the bag was taken to the Police Station and the bag was opened there. However, PW-12 Krishan Chand deposed that the bag was opened in the bus and the packet containing charas was also opened in the bus. There are major contradictions as to whether the bag was opened in the bus or at the Police Station. In his cross-examination, PW-1 Malkiat Singh deposed that the bag was not opened and searched in the bus. It was taken by the police to some place and then taken to the Police Station. He reiterated that the bag was opened in Police Station for the first time. The proceedings were conducted by the police inside the room at the Police Station. PW- 12, Krishan Chand deposed that the driver, conductor and other witnesses had not gone inside the Police Station. They went back from the Police Station compound. They put their signatures in the Police Station compound on all the documents. According to PW-4 HHC Avtaar Singh also, the signatures of the conductor and driver were taken in the Police Station in the room of the I.O. Krishan Chand (PW-12). PW-4, HHC Avtaar Singh also deposed that the entire proceedings, were undertaken in the room of the I.O., except lodging of the F.I.R., which was done in the room of the MHC. Thus, there is a variance in the statements whether the proceedings or the documents were prepared inside the compound of the Police Station or inside the room of the I.O. 20. According to PW-2, Jai Ram the bag was taken by the police from the rack and all the passengers were taken to the Police Station by the police. PW-1 Malkiat Singh also deposed that there were racks to keep luggage in the bus on the both sides. He also admitted that one could not tell the ownership of the bags kept on the racks. As per the statement of PW-4 HHC Avtaar Singh, the accused was sitting on seat No. 34. 21. PW-1 Malkiat Singh also deposed that there were racks to keep luggage in the bus on the both sides. He also admitted that one could not tell the ownership of the bags kept on the racks. As per the statement of PW-4 HHC Avtaar Singh, the accused was sitting on seat No. 34. 21. PW-9, Ravi Sharma was also travelling on 3.1.2010 from Shimla to Panipat in the same bus. He was declared hostile and cross-examined by the learned Public Prosecutor. He deposed that the police had told him that the illegal article was recovered from the accused. He did not know if the accused was sitting on seat No. 34. He did not know the number of seat occupied by the accused. He also deposed that his signatures were obtained on the document without explaining the contents. 22. PW-12, Krishan Chand testified in his cross-examination that a ticket of the bus was recovered from the accused, however, the same was not produced on the case file. The seat number of the accused was written on the ticket. The ticket was recovered during the personal search of the accused but has not been produced on the case file. Volunteered that, it was in the police file. He could not produce the same in the Court. Thus, the prosecution has failed to prove that the accused was sitting on seat No. 34 and the contraband was recovered from his exclusive and conscious possession. PW-12, Krishan Chand has also admitted that there is no mention of the fact in Ext. PW-9/C, search and seizure memo, that the accused was having bag on his lap in the bus. It has come in the statement of the witnesses that the luggage was lying on the racks. 23. There are major contradictions in the statements of the witnesses. The learned trial Court has not correctly appreciated the evidence on record. It has come to the wrong conclusion that there are only minor contradictions in the prosecution case. The independent witnesses have not at all supported the case of the prosecution. The statements of the official witnesses are also inconsistent. 24. The prosecution has failed to prove that the contraband was recovered from the exclusive and conscious possession of the accused. It has come to the wrong conclusion that there are only minor contradictions in the prosecution case. The independent witnesses have not at all supported the case of the prosecution. The statements of the official witnesses are also inconsistent. 24. The prosecution has failed to prove that the contraband was recovered from the exclusive and conscious possession of the accused. Thus, the prosecution has failed to prove the case against the accused beyond reasonable doubt for the commission of offence under Section 20 of the N.D.P.S., Act. 25. Accordingly, in view of the analysis and discussion made hereinabove, the appeal is allowed. Judgment of conviction and sentence dated 17.5.2011 and consequent order dated 19.5.2011, rendered by the Special Judge-II, Solan, in Sessions Trial No. 11-S/7 of 2010, is set aside. Accused is acquitted of the charges framed against him. 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. 26. 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.