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Himachal Pradesh High Court · body

2014 DIGILAW 1266 (HP)

State of Himachal Pradesh v. Mehboob Khan

2014-09-15

RAJIV SHARMA, SURESHWAR THAKUR

body2014
Judgment : Per Justice Rajiv Sharma, Judge. This appeal is instituted against the judgment dated 11.10.2002 rendered by the Sessions Judge, Chamba Division, Chamba in Sessions Trial No. 8 of 2002 whereby the respondent-accused (hereinafter referred to as the “accused” for convenience sake), who was charged with and tried for offence punishable under section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 has been acquitted. 2. Case of the prosecution, in a nutshell, is that on 30.10.2001 at about 8.00 A.M. at Mahu Nullah bridge within the jurisdiction of Police Station, Killar, accused was found in conscious possession of 2 kgs 350 grams of charas. Police investigated the case and the challan was put up in the court after completing all the codal formalities. 3. Prosecution examined as many as seven witnesses in all to prove its case against the accused. Statement of accused under Section 313 Cr.P.C. was recorded. He denied the case of the prosecution in entirety. Learned trial Court acquitted the accused. Hence, the present appeal. 4. Mr. Ashok Chaudhary, learned Additional Advocate General has vehemently argued that the prosecution has proved its case against the accused. 5. Mr. Praneet Gupta, learned counsel for the accused, has supported the judgment rendered by the trial court. 6. We have heard the learned counsel for the parties and have gone through the record carefully. 7. PW-1 Devi Saran has deposed that police was present in Mahu Nullah in connection with investigation of theft case. He was also present. One person was coming from Killar side. He was carrying a bag. On seeing the police party, he got perplexed. He was caught hold of by the police. Police asked the accused what was being carried in the bag. Accused told that there is nothing in the bag. Police searched the bag. Charas was found in the shape of Golas and Batties. It weighed 2 kgs 350 grams. Two samples of 20 grams each were taken out separately for the purpose of analysis. Thereafter, remaining bulk Charas was sealed in the same manner in which it was recovered. The bag was also sealed alongwith two samples of Charas in separate parcels. He signed all the three parcels. Charas was taken into possession alongwith samples vide memo Ex.PA. The seal after use was given to him. The sample was retained by the police. Thereafter, remaining bulk Charas was sealed in the same manner in which it was recovered. The bag was also sealed alongwith two samples of Charas in separate parcels. He signed all the three parcels. Charas was taken into possession alongwith samples vide memo Ex.PA. The seal after use was given to him. The sample was retained by the police. In his cross-examination, he has deposed that the theft in his house took place on 29.10.2001 in the evening. His suitcase was stolen. It contained golden ornaments and also Rs. 5,000/-. The thief was caught by the police in the morning of 30.10.2001 at Mahu Nullah. He alongwith police remained standing in the Nullah during whole of the night. Name of thief was Roop Lal. When they saw accused coming from Killar side, thief Roop Lal was already with them. The stolen property was recovered. He reported the matter of theft on the night of 29.10.2001 at Police Station, Killar. He requested the police to lay Nakka at Mahu Nullah because that was the only path. They left Killar at about 9.00 P.M. on 29.10.2001 in police vehicle. Accused was found coming from Killar side at about 8.00 A.M. on 30.10.2001. Thief Roop Lal was apprehended by the police at about 4.00 A.M. on the intervening night of 29/30.10.2001. After 4.00 A.M., the police was completing the proceedings of theft case. They were standing on the road besides the bridge. Accused was seen by the police from a distance of about 50 feet. Accused was caught by Head Constable Tilak Singh, Suresh Kumar and Inspector. Thief Roop Lal was coming on foot when the accused was apprehended by the police. Roop Lal was sent to Police Station, Killar before 7.00 A.M. He was sent on foot to the Police Station. He did not know the names of police officials, who took Roop Lal to the Police Station. When the accused was apprehended, there were only four police officials. There was none else except these persons. Thereafter, the accused was taken to the Police Station. Weights and scale were brought by the two police officials. He has also deposed that village Thamoh is located at a distance of less than half KM from Mahu Nullah. Purthi Police Post was at a distance of about 30-35 KMs from Mahu Nullah. There was none else except these persons. Thereafter, the accused was taken to the Police Station. Weights and scale were brought by the two police officials. He has also deposed that village Thamoh is located at a distance of less than half KM from Mahu Nullah. Purthi Police Post was at a distance of about 30-35 KMs from Mahu Nullah. Police Station, Killar was located at a distance of 100 meters from the main road. Mahu Nullah was about 1 KM from Police Station, Killar. 8. PW-2 Tilak Singh has also deposed the manner in which accused was apprehended, search was carried and the sealing process was completed on the spot. He took rukka Ex.PE to the Deputy Superintendent of Police, on the basis of which formal FIR Ex.PF was registered. In his cross-examination, he has deposed that on 29.10.2001, accused under section 380 of the Indian Penal Code, was apprehended at about 6 – 6.30 A.M. Accused was seen by him at a distance of 100 meters from the spot. Accused started running away when he saw the police party. At the time of apprehension of accused, four police officials were present at Mahu Nullah. The weights and scale were brought by Head Constable Suresh Kumar. Mahu Nullah was situated at a distance of 10 minutes walk from Bazaar Killar. Accused was searched by Inspector Bikram Singh. 9. PW-3 R.G. Negi has deposed that on the evening of 30.10.2001, Inspector Bikram Singh produced one bulk parcel of Charas and two sealed samples of charas sealed with seal ‘M’ for the purpose of resealing the same. He resealed all the three parcels after putting new clothes on the bulk and two sample parcels. Thereafter, he affixed his own seal having impression ‘I’ on the bulk sealed parcel and two samples parcels. He also retained the sample of seal used by him on a separate cloth. The seal after use was retained by him. In his cross-examination, he has deposed that Mahu Nullah was located on motorable road. It took about five minutes to reach Police Station, Killar from Mahu Nullah by light vehicle. The case property was produced before him at about 4.00 P.M. 10. PW-4 Kuldeep Kumar has deposed that in the evening of 30.10.2001, Inspector Bikram Singh deposited three sealed parcels resealed with seal having impression ‘I’ alongwith specimen of seal Ex.PB and Ex.PJ. It took about five minutes to reach Police Station, Killar from Mahu Nullah by light vehicle. The case property was produced before him at about 4.00 P.M. 10. PW-4 Kuldeep Kumar has deposed that in the evening of 30.10.2001, Inspector Bikram Singh deposited three sealed parcels resealed with seal having impression ‘I’ alongwith specimen of seal Ex.PB and Ex.PJ. He entered the same in the Malkhana register. On 14.11.2001, one sample was handed over to HHC Tilak Singh vide RC No. 30/2001 for depositing the same in C.T.L. Kandaghat alongwith specimen of seal and docket etc. Tilak Singh after depositing the sealed sample of charas and specimen seal impression returned the RC to him. 11. PW-5 Bikram Singh has deposed the manner in which accused was apprehended on 30.10.2001 at about 8.00 A.M. and search and sampling process was completed on the spot. He prepared rukka. He sent rukka Ex.PE to Police Station to the Supervisory officer. The parcels were resealed by the Deputy Superintendent of Police. In his cross-examination, he has admitted that accused of theft case Roop Lal was apprehended by him at 4.00 A.M. on 30.10.2001 and was produced before the C.J.M. Kullu on 1.11.2001 for transit remand. After obtaining transit remand, he was produced before the Judicial Magistrate, Chamba on 2.11.2001. Rukka was sent by him to Police Station, Killar through Tilak Singh at about 8.15 A.M. They remained at the spot from 29.10.2001 night to 30.10.2001 at about 4.00 P.M. 12. Learned trial court has acquitted the accused for non-compliance of section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Since the contraband was recovered from the bag and not from the person of accused section 50 was not applicable. However, we have gone through the entire evidence to see whether the prosecution has proved its case against the accused. 13. PW-1 Devi Saran has deposed that accused Roop Lal was apprehended at 4.00 A.M. on the intervening night of 29/30.10.2001. Accused Roop Lal was sent to Police Station, Killar before 7.00 A.M. Accused was apprehended at 8.00 A.M. on 30.10.2001. According to PW-5 Bikram Singh, accused of theft case Roop Lal was apprehended at 4.00 A.M. on 30.10.2001. 13. PW-1 Devi Saran has deposed that accused Roop Lal was apprehended at 4.00 A.M. on the intervening night of 29/30.10.2001. Accused Roop Lal was sent to Police Station, Killar before 7.00 A.M. Accused was apprehended at 8.00 A.M. on 30.10.2001. According to PW-5 Bikram Singh, accused of theft case Roop Lal was apprehended at 4.00 A.M. on 30.10.2001. When accused Roop Lal was apprehended at 4.00 A.M. as per the version of PW-1 Devi Saran and PW-5 Bikram Singh, there was no occasion for the police to remain on the spot till 8.00 A.M. PW-1 Devi Saran, in his cross-examination, has deposed that weight and scales were brought by two police officials. PW-2 Tilak Singh has deposed that weights and scale were brought by Suresh Kumar. PW-7 Prem Lal has deposed that Suresh Kumar had come to his shop at 8.00 A.M. on 30th October. There is variance in the statements of PW-1 Devi Saran, PW-2 Tilak Singh and PW-7 Prem Lal. According to PW-1 Devi Saran two police officials had brought the weight and scales whereas PW-2 Tilak Singh and PW-7 Prem Lal have deposed that Suresh Kumar had gone to bring weights and scale. The fact of the matter is that constable Suresh Kumar has not been examined by the prosecution. PW-1 Devi Saran has lodged FIR under section 380 of the Indian Penal Code on 29.10.2001. The nakka was laid at the instance of PW-1 Devi Saran. He remained with the police throughout night. His valuables were stolen. He was rather victim. He cannot be termed as independent witness. The prosecution has not examined any independent witness other than PW-1 Devi Saran. According to PW-1 Devi Saran, village Thamoh was located at a distance of less than half kilometer from Mahu Nullah. As per statement of PW-2 Tilak Singh, Mahu Nullah was situated at a distance of 10 minutes walk from the main Bazaar. Vehicles used to ply on the road where the accused was allegedly apprehended. The weights and scale were brought from PW-7 Prem Lal on 30th October at 8.00 A.M. Thus, the Bazaar was opened and the independent witnesses were available and despite that independent witnesses were not associated during the investigation of the case. There is also over writing on Ex.PN. “12.11.2014” has been erased by applying white fluid and “30.10.2001” has been mentioned therein. There is also over writing on Ex.PN. “12.11.2014” has been erased by applying white fluid and “30.10.2001” has been mentioned therein. According to PW-1 Devi Saran, they left Killar at about 9.00 P.M. on 29.10.2001 and thief Roop Lal was apprehended at about 4.00 A.M. on the intervening night of 29/30.10.2001. The police officials remained on the spot between 3.00 P.M. to 4.00 P.M. He was also present. Court question was put to him, to which he replied that the police officials and he did not take tea and eatables etc. between 8.00 A.M. to 4.00 P.M. except water, which was available on the spot. PW-5 Bikram Singh has also deposed that the accused of theft case was arrested at 4.00 A.M. and produced before the Chief Judicial Magistrate, Kullu on 1.11.2001. Accused was arrested at 3.00 P.M. on 30.10.2001. They remained on the spot from 29.10.2001 night to 30.10.2001 at about 4.00 P.M. It is not believable that the police party which has left for Killar on 29.10.2001 at 9.00 P.M. would remain on the spot till 30.10.2001 upto 4.00 P.M. It also casts doubt on the version of the prosecution story. The prosecution has failed to prove that contraband was recovered from the exclusive and conscious possession of the accused. 14. Accordingly, in view of the analysis and discussion made hereinabove, the prosecution has failed to prove its case against the accused beyond reasonable doubt for offence under section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 15. Consequently, the appeal is dismissed.