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Himachal Pradesh High Court · body

2014 DIGILAW 1483 (HP)

State of H. P. v. Puran Chand

2014-10-20

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT Rajiv Sharma, J. The State has come up in appeal against the judgment dated 6.12.2007 rendered by the learned Addl. Sessions Judge, Fast Track Court, Dharamshala, in Sessions Case No. 26- B/VII/07, Sessions Trial No. 30/07, whereby the respondents accused (hereinafter referred to as accused) who were charged with and tried for offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, were acquitted. 2. The case of the prosecution, in a nut shell, is that on 11.8.2007, the accused were travelling in a Maruti Van bearing No. HP-01-M-0518. It was driven by Ranu Ram and co-accused Puran Chand was sitting on the front seat. When the vehicle crossed Kangra-Mandi boundary check post and reached at a distance of half kilometer towards Baijnath, it was signaled to be stopped by the police party headed by ASI Partap Singh. ‘Naka’ was laid on the spot. Accused Ranu Ram did not stop the Van. He dashed the vehicle with a stone at a distance of 50 mts. from the place of occurrence towards Baijnath. The police immediately swung into action. It was found that near the hand break of the Van, in between both the seats of the driver and co-accused, a bag was found. It was checked. It contained 3.700 kg charas in the shape of sticks. The police, after conducting search of the bag took two samples of 25 gms. each from the charas. The samples and the bulk of charas were packed and sealed in cloth parcels. The police also filled in the NCB forms in triplicate. The accused were arrested. The case property was deposited with the MHC who made entry in the register and thereafter one of the samples was sent for chemical analysis to FSL Junga. The report was received and thereafter, the challan was put up after completing all the codal formalities. 3. The prosecution has examined as many as 8 witnesses. The accused were also examined under Section 313 Cr.P.C. The accused have denied having committed any offence. Their defence was of complete denial. The learned trial Court acquitted both the accused, as noticed hereinabove. Hence, this appeal, at the instance of the State. 4. Mr. Ashok Chaudhary, learned Addl. Advocate, General has vehemently argued that the prosecution has proved its case against the accused. Mr. G.R.Palsra and Mr. Their defence was of complete denial. The learned trial Court acquitted both the accused, as noticed hereinabove. Hence, this appeal, at the instance of the State. 4. Mr. Ashok Chaudhary, learned Addl. Advocate, General has vehemently argued that the prosecution has proved its case against the accused. Mr. G.R.Palsra and Mr. N.S.Chandel, Advocates appearing for the respective accused have supported the judgment dated 6.12.2007 of the learned trial Court. 5. We have heard learned counsel for both the sides and gone through the records of the case carefully. 6. PW-1 HC Puni Chand deposed that on 11.8.2007, he alongwith other police officials accompanied ASI Partap Singh, HC Ajeet Kumar etc. on patrol. They intercepted Maruti Van which was coming from Mandi side. The vehicle was signaled to stop but the same dashed against a stone at a distance of 50 meters. The vehicle was taken into possession. On enquiry, the accused Ranu was found to be the driver of the vehicle. Puran Chand was travelling in that vehicle while sitting on the front seat. The search of the vehicle was conducted. It was a deserted place. Near the hand brake, one bag containing charas was found. It was weighed. It weighed 3.700 kgs. Two samples of 25 gms each were drawn out. The samples as well as the remaining bulk of charas were packed and sealed with seal ‘P’ at three places each in cloth parcel. Impression of seal ‘P’ were taken on two cloth pieces vide Ext. P-1 and P-2 and the same were taken into possession vide seizure memo Ext. PW-1/A. Seal after its use was handed over to Constable Ajit Kumar. NCB forms in triplicate were filled in. The codal formalities were completed and ‘rukka’ was sent through HC Sampuran Singh to the Police Station. In his cross-examination, he deposed that barrier in between Mandi and Kangra was at village Ghatta, half kilometer away from where the accused were apprehended. They were on the Baijnath side. He admitted that there is a Forest Barrier and the forest officials remain on duty throughout day and night. Volunteered that, the barrier was 1 km. away from where they apprehended the accused. The ‘naka’ was laid at about 5:00 PM. 7. They were on the Baijnath side. He admitted that there is a Forest Barrier and the forest officials remain on duty throughout day and night. Volunteered that, the barrier was 1 km. away from where they apprehended the accused. The ‘naka’ was laid at about 5:00 PM. 7. PW-2 HC Sampuran Singh, also deposed the manner in which the accused have been apprehended and charas was recovered from the Van and samples were taken in accordance with law. He has taken the ‘rukka’ Ext. PW-2/B to the Police Station. The vehicle was taken into possession alongwith charas vide seizure memo Ext. PW-1/A. The FIR was registered vide Ext. PW-2/C. In his cross-examination, he deposed that the boundary of Kangra and Mandi is near village Ghatta. He was not aware that at that place there was forest check post. He left the spot at 7:30 PM. 8. PW-3 Const. Surinder Kumar, is a formal witness. 9. PW-4 Ravinder Kumar, deposed that his mother Smt. Dawarka Devi is the owner of Maruti Van No. HP-01-0518. 10. PW-5 HC Subhash Chand deposed that on 13.8.2007, Constable Surinder Kumar brought a sealed envelope containing special report Ext. PW-3/A. It was put by him before the Superintendent of Police. 11. PW-6 Const. Suresh Kumar, deposed that on 13.8.2007 vide R.C. No. 82/21, MHC handed over one sealed parcel and one NCB form and he deposited the same at FSL. 12. PW-7 ASI Partap Singh, also deposed the manner in which the Maruti Van was intercepted on 11.8.2007 and charas was recovered from it. The search and seizure processes were completed on the spot and ‘rukka’ was sent through HC Sampooran Singh vide Ext. PW-2/B. FIR Ext. PW-2/C was registered. He prepared the site plan of the spot Ext. PW-7/B. He also prepared the arrest memos and handed over the case property to MHC alongwith NCB forms and impression of seal. Special report was sent on 13.8.2007 through Constable Surinder to the Superintendent of Police. On 14.8.2007, Ravinder produced RC Ext. PW-4/A and E.C. Ext. PW-4/B vide seizure memo Ext. PW- 4/C. He recorded the statement of the witnesses. In his cross-examination, he deposed that Ghatta Chowki is at a distance of 1 km. from the place of occurrence. Ghatta village falls in Tehsil Jogindernagar. 13. PW-8 MHC Suresh Kumar, deposed that HC Sampuran Singh has brought ‘rukka’ Ext. PW-4/A and E.C. Ext. PW-4/B vide seizure memo Ext. PW- 4/C. He recorded the statement of the witnesses. In his cross-examination, he deposed that Ghatta Chowki is at a distance of 1 km. from the place of occurrence. Ghatta village falls in Tehsil Jogindernagar. 13. PW-8 MHC Suresh Kumar, deposed that HC Sampuran Singh has brought ‘rukka’ Ext. PW-2/B written by ASI Partap Singh to the Police Station. He recorded FIR Ext. PW-2/C. The file was sent to the spot. ASI-officiating SHO Partap Singh, handed over three parcels Ext. P-3 and P-6 and third sample was sent by him to FSL, Junga on 13.8.2007 vide R.C. No. 82/21 through Constable Suresh Kumar alongwith one copy of NCB form and one seal impression of seal ‘P’. He has made entry in Rapat Roznamcha Ext. PW-8/C. The entry made is correct as per the original. The parcels of samples and bulk of charas Ext. P-5 were deposited by officiating SHO/ASI with him. He had made entry in the ‘Malkhana Register’ at Sr. No. 57/07 alongwith NCB forms in triplicate and impressions of seal Ext. P-1 and P-2. The photocopy of ‘Malkhana Register’ is Ext. PW-4/D. 14. According to the learned trial Court, the prosecution has not examined the independent witnesses. The forest checkpost, as per the statements of PW-1 Puni Chand and PW-2 HC Sampuran Singh, was at a distance of half kilometer from the spot from where the vehicle was intercepted. PW-7 ASI Partap Singh has also deposed that Ghatta Chowki is at a distance of 1 km. from the place of occurrence. According to PW-1 Puni Chand, the spot was deserted. ‘Naka’ was laid at about 5:00 PM. No vehicle had reached on the spot nor impounded by them during ‘Naka’. Normally, the police should associate the independent witnesses at the time of arrest, seizure and when the samples are drawn. However, in the instant case, the independent witnesses were not available. The statements of official witnesses can be taken into consideration if the same are reliable and inspire confidence. 15. PW-7 ASI Partap Singh was officiating SHO, PS Baijnath. He has sealed the samples and bulk of charas on the spot. He has filled in the NCB forms in triplicate. The seal impression is ‘P’. Since the SHO himself has seized the contraband, there was no requirement of re-sealing the same. 15. PW-7 ASI Partap Singh was officiating SHO, PS Baijnath. He has sealed the samples and bulk of charas on the spot. He has filled in the NCB forms in triplicate. The seal impression is ‘P’. Since the SHO himself has seized the contraband, there was no requirement of re-sealing the same. He was only required to hand it over to the Police Station through MHC. PW-7 ASI Partap Singh has handed over the case property to MHC Suresh Kumar (PW-8). He has entered the same in ‘Malkhana Register’. The samples were sent to FSL Junga through Constable Suresh Kumar (PW-6). He deposited the same at FSL Junga. According to the FSL report, the contraband was found to be charas. The ‘rukka’ was prepared on the spot by PW-7 ASI Partap Singh. He handed over the same to PW-2 HC Sampuran Singh. He has taken it to the Police Station on the basis of which, FIR Ext. PW-2/C was registered. 16. Mr. G.R.Palsra and Mr. N.S.Chandel, Advocates for the respective accused have vehemently argued that the prosecution has failed to prove the ownership of the vehicle. The vehicle was owned by one Smt. Dawarka Devi. In order to prove the case against the accused under Section 20 of the Act, it was not necessary to prove the ownership of the vehicle as argued by both the Advocates. PW-4 Ravinder Kumar is the son of Dawarka Devi. He has admitted that the vehicle belongs to Dawarka Devi. The accused were found in exclusive and conscious possession of the charas. It was recovered from the van. It was lying between the driver and the co-accused near the hand brake. 17. Mr. N.S.Chandel, Advocate, has also argued that the vehicle has met with an accident but no independent witness has been cited by the prosecution to establish the accident. It was not at all necessary for the prosecution to cite an independent witness to prove that the accident has taken place. PW-1 Puni Chand and PW-2 Sampuran Singh have categorically deposed that the vehicle was signaled to stop by PW-7 ASI Partap Singh, however, the driver tried to take away the vehicle and the vehicle met with an accident 50 metres ahead. 18. The learned trial Court has gravely erred in relying upon non-compliance of Sections 42 and 50 of the Act by the prosecution. 18. The learned trial Court has gravely erred in relying upon non-compliance of Sections 42 and 50 of the Act by the prosecution. Neither Section 42 nor Section 50 of the Act was attracted in the present case. It was a case of chance recovery at “Naka”. The charas has been recovered from the vehicle and not from the person of the accused. 19. Accordingly, the judgment of the learned trial Court dated 6.12.2007 is set aside. The accused are convicted under Section 20 of the ND & PS Act, for possessing 3.700 kg. charas. The accused be heard on quantum of sentence on 3.11.2014.