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Himachal Pradesh High Court · body

2014 DIGILAW 1812 (HP)

Raju v. State of Himachal Pradesh

2014-12-05

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT : Rajiv Sharma, J. 1. This appeal is instituted against the judgment dated 21.5.2011 rendered by the Special Judge, Mandi in Sessions Trial No. 16 of 2010, whereby the appellant-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 convicted and sentenced to undergo rigorous imprisonment for a period of 15 years and to pay a fine of Rs. 1,50,000/- and in default of payment of fine, he was further ordered to undergo simple imprisonment for a period of two years. 2. Case of the prosecution, in a nutshell, is that PW-10 Girdhari Lal, Inspector Madan Lal, HHC Ram Lal and HHC Ranvir were present at Naresh Chowk Sundernagar on 23.12.2009 in official vehicle. The vehicle was being driven by Constable Rakesh Kumar. Punjab Roadways bus bearing registration No. PB-12K-4306 came from Manali side. It was going towards Chandigarh. It was signalled to stop. There were 20 passengers in the bus. The person occupying seat No.36 became perplex on seeing the police. He revealed his name as Raju. He was holding a black colour bag in his lap. Witnesses Subhash Chand and Hoshiar Singh were associated. Police party gave its search to the accused. Inspector Madan Lal told the accused that he has a legal right to be searched before Magistrate or gazetted officer. Accused consented to be searched by the police. Memo Ex.PW-1/A was prepared. Search of the accused was undertaken. Cannabis was found kept in two packets inside the bag. Ticket Ex.PW-10/A was also recovered from the accused. It was attested by the conductor. Constable Rakesh Kumar was sent to bring weight and scales. He brought the same. On weighing the contraband was found to be 5 kg 500 grams. The bag was sealed in a parcel with ten impressions of seal =N. NCB-1 from Ex.PW-12/C was filled in triplicate. Sample seal was taken on separate pieces of cloths and one such seal is Ex.PW-11/B. Seal impression was also taken on NCB-1 form. The Seal was handed over to Subhash after use. Seizure memo Ex.PW-1/C was prepared. Rukka Ex.PW-12/A was prepared. It was sent to Police Station through Constable Rakesh Kumar for registration of case. It was handed over to Durga Dass. He recorded FIR Ex.PW-5/A. The contraband was sent to F.S.L., Junga. The Seal was handed over to Subhash after use. Seizure memo Ex.PW-1/C was prepared. Rukka Ex.PW-12/A was prepared. It was sent to Police Station through Constable Rakesh Kumar for registration of case. It was handed over to Durga Dass. He recorded FIR Ex.PW-5/A. The contraband was sent to F.S.L., Junga. The report of F.S.L. Ex.PW-11/A was received. 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 14 witnesses in all to prove its case against the accused. Statement of accused under Section 313 Cr.P.C. was recorded. He has denied the case of the prosecution in entirety. Learned trial Court convicted and sentenced the accused, as noticed hereinabove. 4. Ms. Charu Gupta, learned counsel for the accused has vehemently argued that the prosecution has failed to prove its case against the accused. 5. Mr. Ramesh Thakur, learned Assistant Advocate General 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 meticulously. 7. PW-1 Subhash Sharma has deposed that on 23.12.2009, he was travelling in the Punjab Roadways bus bearing registration No.PB-12-4306 from Manali to Sundernagar. He was occupying the last seat of the bus. When the bus reached at Naresh Chowk at about 12 noon, police boarded the bus. The person, who was occupying seat No.36, got frightened on seeing the police. He could not identify him in the court. Police made inquiry from him. He revealed his identity. A bag of black colour was lying beneath the seat of that person. Police inquired from him whether he wanted to be searched by the police or by some higher officer. He consented to be searched by the police vide memo Ex.PW-1/A. Police and witnesses gave their search to the accused. Search of accused was conducted. Two packets were recovered from the bag which was lying beneath his seat. Passengers stated that they were in hurry. Packets were checked before sending the bus. The packets were found to be containing black colour substance. The accused and bag were taken out of the bus. The substance was weighed. On weighing it was found to be 5 kg 500 grams. It was put in the bag from which it was recovered. Bag was sealed in a parcel with seal =N'. The packets were found to be containing black colour substance. The accused and bag were taken out of the bus. The substance was weighed. On weighing it was found to be 5 kg 500 grams. It was put in the bag from which it was recovered. Bag was sealed in a parcel with seal =N'. The bus ticket was recovered from the accused. Memo was prepared. It was signed by him, Hoshiar Singh, Girdhari Lal and accused. Sample seal Ex.PW-1/D was prepared. The seal was handed over to him after its use. He identified his signatures on Ex.PW-1/E and Ex.PW-1/F. He has reiterated in his examination-in-chief that accused was sitting alone on seat No.36. In his cross-examination, he has deposed that he alone got down at Sundernagar. Three police officials boarded the bus from the front door and three from the rear door. Hoshiar Singh was sitting in his shop. Police had not made inquiry from any person prior to arrival at seat No.36. The bag was kept in the aisle adjacent to seat No.36. Police had not made any inquiry about the ownership of the bag. Other luggage was also lying in the aisle. The search was conducted inside the bus by the S.H.O. Other police officials were also inside the bus. 8. PW-2 Hoshiar Singh has deposed that he was associated by the police on 23.12.2009 as a witness. He was called inside the bus. He went inside the bus. Accused was occupying seat No. 36. He was perplexed. He was holding a black colour bag in his lap. Police made inquiry from him. He revealed his identity. Bag was checked. It was found to be containing two yellow colour packets. Packets were opened. These were found to be containing charas Ex.P-5. Accused was also found in possession of ticket. Charas was weighed. It was 5 kg 500 grams. The bag was put in a cloth and the parcel was sealed with 10 seal of seal =N'. Sample seal was taken separately on a piece of cloth and one such impression was Ex.PW-1/D. In his cross-examination, he has deposed that 5-6 police officials were on the spot. Two police officials remained outside and four went inside the bus. He was not aware about the name of the persons from whom inquiry was made by the police inside the bus. Two police officials remained outside and four went inside the bus. He was not aware about the name of the persons from whom inquiry was made by the police inside the bus. He was not aware whether an inquiry was made from the passengers or not. He was present in his shop outside the bus. Police called him. Police had already seized the bag by that time and had discovered what was lying inside the bag. The investigation was conducted outside his shop. Police had not read over and explained his statement to him. He put his signatures on the asking of the police at the places mentioned. 9. PW-3 Rakesh Kumar has deposed that constable Rakesh Kumar came to him and demanded weights and scale on 23.12.2009 at about 12-12.30 P.M. 10. Statement of PW-4 Constable Hari Singh is formal in nature. 11. PW-5 HC Durga Dass has deposed that rukka mark =C' was written by SI/SHO Madan Lal. It was sent to Police Station through Constable Rakesh Kumar. He recorded FIR Ex.PW-5/A. One parcel sealed with ten impressions of seal =N', sample seal, NCB-1 form were deposited with him by SI/SHO Madan Lal on the same day. He made entry in the register of Malkhana at Sr. No. 113. He handed over the articles to constable Beas Dev on 24.12.2009 vide RC No.166/09 with a direction to carry the same to F.S.L. Junga. RC is Ex.PW-5/C. 12. Statements of PW-6 Raj Kumar and PW-7 HC Ram Lal are formal in nature. 13. PW-8 Constable Beas Dev has deposed that on 24.12.2009 MHC Durga Dass handed over to him one parcel sealed with ten impressions of seal =N', NCB-1 form, sample seal =N' and other documents with a direction to carry the same to F.S.L. Junga vide RC No. 116/09. He deposited the articles at F.S.L. Junga in safe condition. 14. Statement of PW-9 Meera is formal in nature. 15. PW-10 Girdhari Lal has deposed the manner in which police party boarded the bus and the accused was apprehended, sampling and seizure process was completed on the spot and the rukka was prepared. It was sent to Police Station through Constable Rakesh Kumar. In his cross-examination, he has deposed that he and SHO Madan boarded the bus. He did not remember whether seat No.36 was in row of two seats or three seats. It was sent to Police Station through Constable Rakesh Kumar. In his cross-examination, he has deposed that he and SHO Madan boarded the bus. He did not remember whether seat No.36 was in row of two seats or three seats. They went directly to the accused as he got frightened. SHO Madan made inquiry from the accused. 16. Statement of PW-11 SHO Trilok Chand is formal in nature. 17. PW-12 Inspector Madan Lal has deposed the manner in which accused was apprehended from the bus, his consent was obtained, sampling and seizure process was completed on the spot, charas was weighed, rukka Ex.PW-12/E was prepared and handed over to constable Rakesh Kumar with a direction to carry it to the Police Station for registration of FIR. Rakesh Kumar brought the case file to the spot. The case property was handed over to MHC. He prepared the special report. In his cross-examination, he has deposed that he checked many vehicles prior to the checking of bus, but he did not remember the details. All the police officials were checking the passengers. He did not remember which police official had checked which passenger. He checked the accused. When he was checking the accused, other police officials were checking other passengers. He did not remember which seat was occupied by Subhash. He did not remember whether he was occupying seat in the row of two seats or three seats. 18. PW-13 Constable Rakesh Kumar has taken the rukka to Police Station and brought the file back. In his cross-examination, he has deposed that all the police officials boarded the bus. SHO and HC Girdhari boarded the bus from the front door and other police officials boarded the bus from the rear door. He was in the middle. He checked 2-3 passengers. The accused was occupying the row of three seats. He was alone. He did not remember the number of seats occupied by witnesses Subhash and Hoshiar Singh. 19. PW-14 Mohan Singh was the conductor of the bus. He has deposed that accused was occupying seat No.36. He had kept a bag in his lap. The bag was checked. It contained two yellow colour polythene bags. In his cross-examination, he has deposed that he was occupying seat No.1 when police stopped the bus. 2-3 police officials entered inside the bus. He has deposed that accused was occupying seat No.36. He had kept a bag in his lap. The bag was checked. It contained two yellow colour polythene bags. In his cross-examination, he has deposed that he was occupying seat No.1 when police stopped the bus. 2-3 police officials entered inside the bus. Two persons boarded the bus from front door and one boarded the bus from rear door. No other persons boarded the bus. All the passengers were checked. All the police officials were checking the passengers together. 20. According to PW-1 Subhash Sharma, accused was occupying seat No.36. A hand bag of black colour was lying under the seat of that person. He has denied the suggestion that accused was holding the bag in his lap. In his cross-examination by the defence counsel, he has deposed that the bag was kept in the aisle adjacent to seat No.36. Police has not made any inquiry about the ownership of the bag. PW-2 Hoshiar Singh has deposed that accused was holding a black colour bag in his lap. PW-10 Girdhari Lal has deposed that accused was occupying seat No. 36. He was holding a black colour bag in his lap. PW-13 Rakesh Kumar has deposed that accused had kept the bag in his lap. PW-14 has deposed that accused was occupying seat No.36. He had kept a bag in his lap. There is variance in the statements of PW-1 Subhash Sharma vis-à-vis official witnesses. According to PW-1 Subhash Sharma, the bag was lying under the seat. He has also deposed that the bag was kept in the aisle adjacent to seat No.36 and the police had not made any inquiry about the ownership of the bag. Other luggage was also lying in the aisle and the police had not made inquiry about the ownership of the luggage. PW-2 Hoshiar Singh was not aware about the names of the persons from whom the inquiry was made by the police inside the bus. He was not aware whether any inquiry was made from the passengers or not. According to PW-12 Madan Lal all the police officials were checking other passengers. However, he did not remember, which police official has checked which passenger. When he was checking the accused, other police officials were checking other passengers. He did not remember which seat was occupied by PW-1 Subhash Sharma. According to PW-12 Madan Lal all the police officials were checking other passengers. However, he did not remember, which police official has checked which passenger. When he was checking the accused, other police officials were checking other passengers. He did not remember which seat was occupied by PW-1 Subhash Sharma. PW-13 Rakesh Kumar has deposed that he has not made inquiry about the names and addresses checked by him. They were not having any luggage. He did not remember the number of seat occupied by PW-1 Subhash Sharma. According to PW-1 Subhash Sharma, six officials had boarded the bus. Three police officials boarded the bus from the front door and three boarded the bus from the rear door. PW-2 Hoshiar Singh has deposed that two police officials remained outside and four went inside the bus. PW-12 Madan Lal has deposed that all the police officials boarded the bus. PW-10 Girdhari Lal has deposed that he and SHO Madan boarded the bus. PW-13 Rakesh Kumar has admitted that SHO and HC Girdhari boarded the bus from the front door and the others police personnel boarded the bus from the rear door. There is contradiction in the statements of these witnesses how many police personnel had boarded the bus. Police has not examined any other passenger sitting in the bus near seat No.36. PW-1 Subhash Sharma was occupying the last seat. In his cross-examination, PW-1 Subhash Sharma, as noticed above, has deposed that the bag was lying under the seat and in his cross-examination; he has deposed that the bag was in the aisle adjacent to seat No.36. It was necessary for the police to make inquiry from other passengers with regard to bag lying in the aisle or under the seat. Contraband lying under the seat or in the aisle could belong to other passengers also. 21. There is overwhelming evidence on record to point out that all the police personnel had straightway gone to seat No.36. The explanation given by the prosecution is that the moment they entered the bus, person occupying seat No.36 got perplexed. There were 20 passengers sitting in the bus. The police could only reach seat No.36 straightway if it had a prior knowledge that person occupying seat No.36 was carrying contraband. The explanation given by the prosecution is that the moment they entered the bus, person occupying seat No.36 got perplexed. There were 20 passengers sitting in the bus. The police could only reach seat No.36 straightway if it had a prior knowledge that person occupying seat No.36 was carrying contraband. If the police had the prior information that a person occupying seat No.36 was carrying contraband, compliance of section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 was mandatory. Admittedly, section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 has not been complied with. [See: Karnail Singh vs. State of Haryana, (2009) 8 SCC 539 and Sukhdev Singh vs. State of Haryana, (2013) 2 SCC 212 ]. Thus, the prosecution has failed to prove the recovery of contraband from the exclusive and conscious possession of the accused. 22. Consequently, in view of analysis and discussion made hereinabove, the prosecution has failed to prove the case for offence under section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 beyond reasonable doubt against the accused. 23. Accordingly, the appeal is allowed. Judgment of conviction and sentence dated 21.5.2011 rendered in Sessions Trial No. 16 of 2010 is set aside. Accused is acquitted of the charge framed against him by giving him benefit of doubt. Fine amount, if already deposited, be refunded to the accused. Since the accused is in jail, he be released forthwith, if not required in any other case. 23. The Registry is directed to prepare the release warrant of accused and send the same to the Superintendent of Jail concerned in conformity with this judgment forthwith.