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Himachal Pradesh High Court · body

2014 DIGILAW 1573 (HP)

State of Himachal Pradesh v. Siri Ram

2014-11-04

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT : Rajiv Sharma, J. 1. The State has come up in appeal against the judgment rendered by the learned Sessions Judge, Solan, H.P. in case No. 6- S/7 of 2007 dated 19.2.2008, whereby the respondent-accused (hereinafter referred to as the accused) who was charged with and tried for offence under Section 20 (b)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985, was acquitted. 2. The case of the prosecution, in a nut shell, is that on 17.1.2007, Deep Ram S.I/S.H.O. Police Station, Kasauli along-with other police officials had come to Bhoguri. At about 6:00 PM, they were present at Bhoguri Chowk. The accused was also there. The accused, on seeing the police party tried to run away. He was apprehended. He disclosed his name. The S.H.O. then sent Constable Jaswant Singh to call for the independent witnesses. He brought Chint Ram and Ram Dass and in their presence, the packet which the accused was carrying in his hand was checked. It was found to be containing charas. The same was weighed. It weighed 400 gms. He took two samples of 25 gms each out of the recovered substance and put in two cigarette packets and sealed in two cloth parcels. The identification memo was prepared and NCB forms were filled in. The bulk substance was taken into possession in the presence of the independent witnesses. 'Rukka' was prepared by the S.H.O. and sent to the Police Station through Constable Jaswant Singh, on the basis of which FIR was registered. The spot map was prepared. The contraband was sent to FSL. The challan was put up after completing all the codal formalities. 3. The prosecution has examined as many as 11 witnesses to prove its case. The accused was also examined under Section 313 Cr.P.C to which he pleaded not guilty. He denied the allegations of charas recovery from him. He examined DW-1 Ram Lal as defence witness. The learned Trial Court acquitted the accused, as stated here-in-above. Hence, the present appeal at the instance of the State. 4. Mr. Ashok Chaudhary, Addl. Advocate General, has vehemently argued that the prosecution has proved its case against the accused. On the other hand, Mr. Raj Kumar Negi, Advocate, has supported the judgment dated 19.2.2008, of the learned Sessions Judge, Solan. 5. We have heard learned counsel for the parties and gone through the records of the case meticulously. 6. 4. Mr. Ashok Chaudhary, Addl. Advocate General, has vehemently argued that the prosecution has proved its case against the accused. On the other hand, Mr. Raj Kumar Negi, Advocate, has supported the judgment dated 19.2.2008, of the learned Sessions Judge, Solan. 5. We have heard learned counsel for the parties and gone through the records of the case meticulously. 6. PW-1, ASI Ram Asra, deposed that on 17.1.2007 he was accompanying S.H.O. Deep Ram, P.S. Kasauli along-with other police officials. Accused was found standing at Bhaugari Chowk at 6:00 PM. He tired to run away. He was apprehended. He disclosed his name. Two independent witnesses were brought namely, Chint Ram and Ram Dass by Constable Jaswant Singh. S.H.O. checked the packet which was being carried by the accused. It contained black substance. It was found to be charas. It weighed 400 gms. Two samples of 25 gms each were taken from it. The remaining charas was sealed along-with the packets in separate cloth parcels. All the parcels were sealed with seal 'T'. The sample parcel was Ext. P-1 and bulk parcel was Ext. P-2. The NCB forms were also filled in. In his cross-examination, he admitted that there was one shop of Tarun Gupta at the Chowk. The school from the Chowk was about 70 meters. The house of Amar Lal was at a distance of 25-30 meters. He also admitted that besides Bhaugri Chowk, they also went to Banalgi and Bandh, which comes on the way. 7. PW-2 Tarun Gupta, deposed that the police officials had taken weights and scale from him. 8. PW-3 Chint Ram, deposed that he was called to Bhaugari chowk. The accused was with the police. His search was effected and a substance in the form of wicks was recovered from him. It was weighed. It weighed 400 gms. The sampling process was completed. The substance was taken into possession vide seizure memo Ext. PW-1/B. It was signed by him and Ram Dass as well as the accused. In his cross-examination, he specifically deposed that the police did not recover the packet from the accused in his presence and when he reached the spot, the packet was lying on the ground which was stated to have been recovered from the accused. His signatures were also obtained on the spot. 9. PW-4 Constable Jaswant Singh, deposed that he was sent by S.H.O. to bring independent witnesses. His signatures were also obtained on the spot. 9. PW-4 Constable Jaswant Singh, deposed that he was sent by S.H.O. to bring independent witnesses. He called Chint Ram and Ram Dass to the spot. After their arrival, checking of the accused was done. The bag which the accused was carrying was examined. It was found to be containing charas in the form of wicks. It was weighed. It weighed 400 gms. 'Rukka' was handed over to MHC by him. Then he returned to the spot. In his cross-examination, he admitted that there were shops on both sides near the spot. He did not know there is also a bus stop but there was School and Panchayat Ghar. No person except the accused had run away on seeing them. No person was called from the shop or School. He returned to the spot with the witnesses in half an hour time. He did not remember as to who brought the weights and scale. 10. PW-5 HC Ved Parkash, deposed that on 18.1.2007, S.H.O. Deep Ram deposited one parcel containing 350 gms of charas sealed with four seal impressions 'T'. NCB forms, sample impressions of seal used were entered by him in the Malkhana register at Sr. No. 255. He sent one sample parcel, NCB form, copy of seizure memo, copy of FIR and sample impression to CFSL, Chandigarh through Constable HHC Jai Kishan vide RC No. 1/07. He also proved the copy of the Malkhana register Ext. PW-5/A. He admitted in his cross-examination that there is no entry in the Malkhana register about deposit of NCB form. According to him, there were two sample seal impressions, one with the sample and another with the bulk parcel. Only one sample impression was sent to CFSL, Chandigarh. He also admitted that he did not enter the sample and documents received by separate entry. He made endorsement against the original entry. 11. Statements of PW-6 HC Yoginder Dutt, PW-7 ASI Gita Ram, PW-8 Bharat Ram and PW-9 Constable Madan Kishore are formal in nature. 12. PW-10 Dr. Sidharth Vats, has examined ASI Ram Asra and HHC Ramesh Chand. He issued MLCs Ext. PW-10/A and Ext. PW-10/B. 13. PW-11 SI Deep Ram, has carried out the investigation of the case. He deposed the manner in which the accused was apprehended, sampling and seizure process was completed. 12. PW-10 Dr. Sidharth Vats, has examined ASI Ram Asra and HHC Ramesh Chand. He issued MLCs Ext. PW-10/A and Ext. PW-10/B. 13. PW-11 SI Deep Ram, has carried out the investigation of the case. He deposed the manner in which the accused was apprehended, sampling and seizure process was completed. According to him, in the presence of the police officials and independent witnesses, the accused was questioned. The bag in his hand was searched in the presence of police personnel and independent witnesses. The charas was taken into possession vide memo Ext. PW-1/B. FIR was registered on the basis of 'Rukka' Ext. PW-11/B. In his cross-examination, he admitted that the School, Shop, Panchayat Ghar and house of Amar Nath was near the place from where the accused was apprehended. The accused had also sustained injuries. The bag was having polythene packet. It contained nothing but charas. 14. The independent witness PW-3 Chint Ram has not supported the case of the prosecution. In his cross-examination, he specifically deposed that the police did not recover the packet from the accused in his presence and when he reached the spot, the packet was lying on the ground which was stated to have been recovered from the accused. According to PW-1 ASI Ram Asra and PW-11 Deep Ram, the accused on seeing the police tried to run away. He jumped down. He was apprehended. He was carrying charas in his hands. It is not believable that accused who had run away after seeing the police would carry contraband in his hand. His first natural reaction would have been to throw away the contraband. 15. The prosecution has associated PW-3 Chint Ram and one Ram Dass as independent witnesses during the investigation. Ram Dass has not been produced by the police. According to PW-1 Ram Asra, the S.H.O. had sent Constable Jaswant Singh to bring independent witnesses. He brought Chint Ram (PW-3) and one Ram Dass and in their presence S.H.O. checked the packet which was carried in his hands. It has come in the statement of PW-4 Constable Jaswant Singh that there were shops besides School near the spot and no person was called from the shops or School. He returned with the witnesses after about half an hour. PW-11 SHO Deep Ram, has also admitted that there was School, shops and Panchayat Ghar near the place where the accused was apprehended. He returned with the witnesses after about half an hour. PW-11 SHO Deep Ram, has also admitted that there was School, shops and Panchayat Ghar near the place where the accused was apprehended. When the independent witnesses were readily available from the shop as well as the School, there was no occasion to bring two independent witnesses from a far off place. 16. PW-4 Constable Jaswant Singh came back with independent witnesses after half an hour. According to him also after their arrival, checking of the accused was done and the packet was examined. However, as noticed by us here-in-above, PW-3 Chint Ram has deposed that the police did not recover the packet from the accused in his presence. There is no entry in the malkhana register about the deposit of NCB forms as per the statement of PW-5 Ved Parkash. 17. The prosecution has failed to prove that the contraband was recovered from the exclusive and conscious possession of the accused. The learned trial Court has correctly appreciated the evidence on record and acquitted the accused. There is no justification for us to interfere with the well reasoned judgment passed by the learned trial Court. 18. Accordingly, there is no merit in this appeal, the same is dismissed. Appeal dismissed.