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Himachal Pradesh High Court · body

2014 DIGILAW 1422 (HP)

State of Himachal Pradesh v. Brijesh Tiwari

2014-10-14

RAJIV SHARMA, SURESHWAR THAKUR

body2014
Judgment Rajiv Sharma, J. This appeal is instituted against the judgment dated 24.12.2007 rendered by the Special Judge (Additional Sessions Judge), Mandi in Sessions Trial No. 12 of 2007 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 Substance Act, 1985 has been acquitted. 2. Case of the prosecution, in a nutshell, is that on 16.1.2007, police party headed by ASI Shiv Chand alongwith HHC Birbal Singh, Constable Pankaj Kumar, Constable Bhup Singh, HHG Yub Raj and HHG Chet Ram was present at Zero Chowk, Bali Chowki. At 11.30 A.M., the police party saw the accused coming on foot from Banjar side. Accused got frightened and returned back. He was intercepted. On inquiry by Shiv Chand, accused disclosed his name and address. Two local persons Pardeep Sharma and Sanjeev Kumar were associated by the police. Personal search of the accused was conducted. Bag Ex.P-2 was recovered from the possession of the accused. It was wrapped by the accused with his waist under his garments. It contained charas in the shape of marbles. It weighed 1 kg 250 grams. ASI Shiv Chand drew two samples of charas of 25 grams each out of the recovered charas. He sealed the samples in two separate parcels. The remaining charas was packed and sealed with seal having impression ‘A’. NCB form was filled in. Rukka was sent through Constable Bhup Singh to Police Station, but in order to register the FIR against the accused. The sample was sent to C.F.S.L. Chandigarh. 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 ten 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. 4. Mr. Parmod Thakur, learned Additional Advocate General has vehemently argued that the prosecution has proved its case against the accused. 5. Mr. G.R. Palsra has supported the judgment passed by the trial Court. 6. We have heard the learned counsel for the parties and have gone through the record carefully. 7. PW-1 Constable Pankaj Kumar has deposed that on 16.1.2007 at about 11.30 A.M. accused came on foot from Banjar side. 5. Mr. G.R. Palsra has supported the judgment passed by the trial Court. 6. We have heard the learned counsel for the parties and have gone through the record carefully. 7. PW-1 Constable Pankaj Kumar has deposed that on 16.1.2007 at about 11.30 A.M. accused came on foot from Banjar side. He saw the police party. He tried to run away. He was over powered. Pardeep Sharma and Sanjeev Kumar were associated, who were already present at Zero Point. ASI gave his personal search. Personal search of the accused was conducted. One cloth bag was recovered from below his garments. It was tied with his waist. On checking the bag, it was found containing charas in the shape of marble. It weighed 1 kg 250 grams. ASI separated two samples of 25 grams each out of the recovered charas and the samples were packed in separate parcel and sealed with seal impression ‘A’. The remaining charas was also packed in separate parcel and sealed with seal impression ‘A’. Two sample parcels were marked as A-1 and A-2. ASI filled in NCB form in triplicate. Recovery memo was also prepared on 17.1.2007. ASI Shiv Chand handed over to him one special report in an envelope. He took the same to the office of Additional Superintendent of Police, Mandi and handed over the same to the Additional Superintendent of Police, Rajesh Dharmani in his office at 11.25 A.M. In his cross-examination, he has deposed that they left the Police Post in the morning at 9.00 A.M. for Nakkabandi. He was at Police Post at 8.00 A.M. and ASI Shiv Chand was also there. The report was recorded in the daily diary at 9.00 A.M. about their departure. According to him, bag Ex.P-2 was tied and stitched by the accused with his waist below his garments. The I.O. was carrying traditional scale with him in the I.O. kit. 8. PW-2 Pardeep Kumar was declared hostile. He has not supported the case of prosecution. 9. PW-3 HC Parkash Chand has deposed that on 16.1.2007, Inspector/SHO Pritam Chand deposited with him case property of the case. He has proved Malkhana register Ex.PW-3/A. He sent one parcel containing sample charas and docket vide RC No.12/2007 through Constable Param Dev No.127 to C.F.S.L. Chandigarh. He has not supported the case of prosecution. 9. PW-3 HC Parkash Chand has deposed that on 16.1.2007, Inspector/SHO Pritam Chand deposited with him case property of the case. He has proved Malkhana register Ex.PW-3/A. He sent one parcel containing sample charas and docket vide RC No.12/2007 through Constable Param Dev No.127 to C.F.S.L. Chandigarh. In his cross-examination he has admitted that the case property was deposited with him on 16.1.2007 at 8.00 P.M. by the S.H.O. He has not mentioned date and time of deposit of the case property with him in Malkhana register Ex.PW- 3/A. 10. PW-4 Constable Param Dev has deposed that on 29.1.2007, MHC Parkash Chand handed over to him one sealed parcel containing sample charas, copy of search and seizure form, copy of FIR, copy of NCB form and specimen seal impression vide RC No.12/2007. He took the articles to the office of Chemical Examiner, C.F.S.L. Chandigarh. 11. PW-5 Constable Bhup Singh has deposed the manner in which the accused was apprehended and sampling and seizure process was completed at Bali Chowki. According to him, they left Police Post at 5.30 A.M. to lay Nakabandi on the spot. They were already informed during the previous evening to join duty at 5.30 A.M. They remained at Zero point till 11.30 A.M. Thereafter, he was sent with Rukka to Police Station. He returned to the spot from the Police Station at 3.30 P.M. 12. Statement of PW-6 HC Pal Singh is formal in nature. 13. PW-7 SI Managat Ram has deposed that on 16.1.2007 Constable Bhup Singh brought one Rukka mark ‘X’ sent by ASI Shiv Chand. On the basis of mark ‘X’ FIR Ex.PW-7/A was recorded. 14. PW-8 Pritam Chand has deposed that on 16.1.2007, ASI Shiv Chand handed over to him one big parcel and two small parcels sealed with seal impression ‘A’ which were stated to be contained charas. He resealed all the three parcels with his own seal having impression ‘T’. ASI Shiv Chand handed over to him NCB form in triplicate. He had also taken specimen seal impression ‘T’ vide Ex.PW-8/A. He embossed seal impression ‘T’ on NCB form Ex.PW-8/B. He deposited the case property, i.e. three sealed parcels, NCB form, specimen seal impression with the MHC of Police Station, Aut. 15. Statement of PW-9 LHC Narpat Ram is formal in nature. 16. He had also taken specimen seal impression ‘T’ vide Ex.PW-8/A. He embossed seal impression ‘T’ on NCB form Ex.PW-8/B. He deposited the case property, i.e. three sealed parcels, NCB form, specimen seal impression with the MHC of Police Station, Aut. 15. Statement of PW-9 LHC Narpat Ram is formal in nature. 16. PW-10 ASI Shiv Chand has deposed the manner in which the accused was apprehended and sealing and seizure process was completed. He conducted the personal search of the accused and on checking a bag like cloth wrapped on his waist was found. In his cross-examination, he has deposed that they had proceeded on foot at 5.30 A.M. from the Police Post. There were several persons at about 11.30 A.M. at Zero Point, Bali Chowki. Rukka was written by him at 1.00 P.M. and the same was sent immediately after writing to the Police Station. He has prepared the Rukka. The case file was brought by Constable Bhup Singh to the spot at about 2.30 P.M. The photographs were developed at Mandi. 17. PW-1 Constable Pankaj Kumar has deposed that they left the Police Post in the morning for Nakkabandi at 9.00 A.M. PW-5 Constable Bhup Singh has deposed that they left at 5.30 A.M. PW-10 ASI Shiv Chand has deposed that they proceeded from Police Post, Bali Chowki at 5.30 A.M. on Nakkabandi duty. Thus, there is variance in the statements of PW-1 Pankaj Kumar, PW-5 Bhup Singh and PW-10 Shiv Chand about the time of departure from the Police Post for laying Nakkabandi. PW-5 Bhup Singh has deposed that he took the Rukka to the Police Station at 11.40 A.M. and came back at 3.30 P.M. PW-10 Shiv Chand has deposed that he has written Rukka at 1.00 P.M. and the same was sent through PW-5 Bhup Singh. Case file was brought by Bhup Singh to the Police Post at 2.30 P.M. According to the prosecution, accused was intercepted and apprehended with contraband at 11.30 A.M. However, as per the contents of NCB-1 form, charas was seized on 16.1.2007 at 4.30 A.M. at Zero Chowk Bali Chowki. There is no consistency in the statements of PW-1 Pankaj Kumar nor PW-5 Bhup Singh nor PW-10 Shiv Chand. 18. According to the prosecution case, a bag like cloth was concealed by the accused below his garment. There is no consistency in the statements of PW-1 Pankaj Kumar nor PW-5 Bhup Singh nor PW-10 Shiv Chand. 18. According to the prosecution case, a bag like cloth was concealed by the accused below his garment. It was wrapped with his waist below his apparel as per the statements of PW-1 Pankaj Kumar, PW-5 Bhup Singh and PW-10 Shiv Chand. The police has not complied with the mandatory provisions of section 50 of the Narcotic Drug and Psychotropic Substances Act, 1985. The prosecution has failed to prove that contraband was recovered from the exclusive and conscious possession of the accused. 19. 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. 20. Consequently, the appeal is dismissed.