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2014 DIGILAW 1479 (HP)

State of Himachal Pradesh v. Kuldeep Singh

2014-10-18

RAJIV SHARMA, SURESHWAR THAKUR

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JUDGMENT : Rajiv Sharma, J. This appeal is instituted against the judgment dated 24.1.2003 rendered by the Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr in NDPS Case No. 4 of 2002 whereby the respondents-accused (hereinafter referred to as the "accused" for convenience sake), who were charged with and tried for offence punishable under section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, have been acquitted. 2. Case of the prosecution, in a nutshell, is that on 8.3.2002 at about 5.00 A.M. ASI Hans Raj alongwith HC Bodh Raj, HHC Jia Lal and Constable Puran Chand was present in Nakka operation at place Bahu, Tehsil Ani. They went to place Bahu in a gipsy. At 5.00 A.M., indica car bearing registration No. HP-20-A-4328 came there. It was intercepted. Four persons were traveling in the car alongwith driver. Driver disclosed his name as Kuldeep. The person, who was sitting adjoining the driver seat, disclosed his name as Shyam Sunder. The person, who was sitting in the back seat of the car, disclosed his name as Pratap Singh and the other person sitting in the back seat disclosed his name Sampuran Singh. The driver and other co-accused were ordered to get down from the car. ASI gave his personal search to the driver of the car and memo Ex.PW-2/A to this effect was prepared. PW-7 ASI Hans Raj searched the car in the presence of Bodh Raj and Jia Lal. Charas was found from the dickey of the vehicle. The scale and weights were arranged. On weighing it was found to be 4 kg 250 grams. Two samples of 25 grams each were taken out for sample. These were packed in parcels. The remaining bulk of charas and sample of charas were sealed with seal impression 'X'. Each parcel was sealed with five seal impressions. NCB form was filled in. Sample of seal was separately taken on a piece of cloth Ex.PW-2/A. Seal after use was handed over to HHC Jia Lal. Recovery memo Ex.PW-2/B was prepared. Personal search of the accused was also undertaken. Rukka Ex.PW-7/A was sent to the Police Station. Special report was given to the Superintendent of Police, Ani vide Ex.PW-3/A. Police investigated the case and the challan was put up in the court after completing all the codal formalities. 3. Recovery memo Ex.PW-2/B was prepared. Personal search of the accused was also undertaken. Rukka Ex.PW-7/A was sent to the Police Station. Special report was given to the Superintendent of Police, Ani vide Ex.PW-3/A. 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. Statements of accused under Section 313 Cr.P.C. were recorded. They denied the case of the prosecution in entirety. Learned trial Court acquitted the accused. 4. Mr. Ashok Chaudhary, learned Additional Advocate General has vehemently argued that the prosecution has proved its case against the accused. 5. Mr. N.K. Thakur, learned Senior Advocate 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 Bhupal Singh has deposed that he was posted as a Driver to Deputy Superintendent of Police, Ani. On 8.3.2002 at about 5.00 A.M., he went in the gipsy to place Bahu alongwith ASI Hans Raj, Head Constable Bodh Raj, HHC Jia Lal and Constable Puran Chand. Nakka was laid. Tata Indica car came from the opposite side, i.e. Gugra side. It was stopped. The occupants of the car were ordered to come out. ASI searched the driver of the vehicle. Other co-accused were also searched. The car was checked. The dickey of the car was also checked. Charas was kept in the dickey. It weighed 4 kg 250 grams. Two samples of charas 25 grams each were taken out and were sealed with seal impression 'X' and the remaining charas was also sealed with seal impression 'X'. Seal after use was handed over to Jia Lal. Rukka was also sent to the Police Station. In his cross-examination, he has deposed that Gurga was situated at a distance of 2½ to 3 KMs from Ani. Shamshar was at a distance of 2 KM from Ani. According to him, no house was situated at the place of incident. The houses of Mohar Singh, Duni Chand and Blaso Devi were situated at a distance of 500 meters from the place of incident. He has also admitted in his cross-examination that he went to bring the scale and of weights at about 7-7.15 A.M. alongwith Puran Chand. The shopkeeper was called from his house. The houses of Mohar Singh, Duni Chand and Blaso Devi were situated at a distance of 500 meters from the place of incident. He has also admitted in his cross-examination that he went to bring the scale and of weights at about 7-7.15 A.M. alongwith Puran Chand. The shopkeeper was called from his house. He came back at the place of incident alongwith scale and weights at about 7.30 P.M. Charas was weighed in his presence. 8. PW-2 HHC Jia Lal has also deposed the manner in which the vehicle was intercepted and the charas 4 kg 250 grams was recovered and the sealing and seizure process was completed. In his cross-examination, he has deposed that the place where the charas was recovered was lonely. The houses were situated at a distance of about half kilometer. He has admitted that two houses have been shown in the photographs. He volunteered that no person resides in the houses shown in the photographs. Bahu was situated at a distance of 7 KMs from Ani. He has admitted that 4-5 houses were situated adjoining the road side at a distance of about 500 meters. No person was associated in the proceedings of the case. Puran Chand was sent to Police Station alongwith Rukka at about 7.30 A.M. He could not narrate the time when he reached the Police Station. 9. PW-3 Head Constable Jhabe Ram has deposed that the special report was received in the office on 8.3.2002 at 4.10 P.M. 10. PW-4 LHC Mast Ram has deposed that on 10.3.2002 one charas parcel duly sealed was handed over to him by MHC Rattan Chand. The parcel was sealed with seal impression 'X'. NCB form in triplicate was also given to him vide RC No. 29/2002 on 10.3.2002. He deposited the parcel alongwith documents in the office of chemical analysis, Kandaghat on 11.3.2002. 11. PW-5 SI Kaur Singh Guleria has prepared the challan. 12. PW-6 HC Rattan Chand has deposed that on 8.3.2002, Rukka was sent through Constable Puran Chand. He recorded the FIR Ex.PW-6/A. Case property was deposited in the Police Malkhana by ASI Hans Raj. Two parcels were also deposited in which sample of charas was kept 25 grams each which were sealed with seal impression 'X'. NCB form in triplicate was also deposited in the Malkahna alongwith seal impression. He entered the parcel and other articles in the Malkhana register. Two parcels were also deposited in which sample of charas was kept 25 grams each which were sealed with seal impression 'X'. NCB form in triplicate was also deposited in the Malkahna alongwith seal impression. He entered the parcel and other articles in the Malkhana register. On 10.3.2002, he sent the sample of charas to C.T.L. Kandaghat through Constable Mast Ram vide RC No. 29/2002 alongwith NCB triplicate form and sample of seal. 13. PW-7 ASI Hans Raj has also deposed the manner in which the car was intercepted on 8.3.2002 at about 5.00 A.M. He gave his personal search to the accused. Charas was recovered. On weighing it was found to be 4 kg 250 grams. The sealing and seizure process was completed on the spot. The rukka was sent to the Police Station. In his cross-examination, he has deposed that no house was available at Bahu. However, 5-7 houses were available at place Gugra. Gugra was situated at a distance of 500 meters from place Bahu. However, shops were available at Gugra. No house was visible from Bahu. Photographs placed on record were taken in the rest house. At about 5.15 A.M. PW-1 Constable Bhupal Singh was sent to bring the scale and weights. 14. Learned Sessions Judge has acquitted the accused for non-compliance of section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985. According to PW-7 ASI Hans Raj, there was no prior information about the contraband with the police. We are of the considered view that it was a chance recovery and section 42 of the Act was not attracted in the present case. It was not necessary for the police to make entry in the record that it was a chance recovery. However, fact of the matter is that prosecution has not examined any independent witness at the time of recovery and seizure of the contraband. According to PW-1 Bhupal Singh, the houses of Mohar Singh, Duni chand, Blaso Devi were situated at a distance of 500 meters from the place of incident. He went to bring scale and weights at about 7 - 7.15 A.M. alongwith Constable Puran Chand. The shopkeeper was called from his house. If the shopkeeper was called from his house to bring the scale and weights, he should have been associated as an independent witness at the time of recovery and seizure of contraband. He went to bring scale and weights at about 7 - 7.15 A.M. alongwith Constable Puran Chand. The shopkeeper was called from his house. If the shopkeeper was called from his house to bring the scale and weights, he should have been associated as an independent witness at the time of recovery and seizure of contraband. PW-2 HHC Jia Lal has also admitted in his cross-examination that two houses were shown in the photographs placed on record. He has volunteered that no person used to live in the houses. It is not believable that no persons were occupying those houses. If there were houses, they were bound to be occupied. He has also admitted in his cross-examination that no person was associated in the proceedings of the case. PW-7 ASI Hans Raj has also deposed that no house was available at place Bahu. However, 5-7 houses were available at place Gugra. The distance between Bahu and Gugra was only 500 meters. PW-7 ASI Hans Raj has also admitted that shops were available at Gugra. According to PW-7, PW-1 Bhupal Singh was sent to bring the scale and weight. According to PW-1 Bhupal Singh, he and Constable Puran Chand were sent to bring the scale and weights. Constable Puran Chand has not been examined by the prosecution. According to PW-1 Bhupal Singh and PW-7 ASI Hans Raj, rukka was sent to Police Station through Puran Chand. Puran Chand was material witness to prove that he had taken the rukka to Police Station from the spot and had brought the file back to the spot. 15. The prosecution has failed to prove that contraband was recovered from the exclusive and conscious possession of the accused. We need not interfere with the well reasoned judgment rendered by the trial court. 16. 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. 17. Consequently, the appeal is dismissed. Appeal dismissed.