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Himachal Pradesh High Court · body

2014 DIGILAW 1873 (HP)

Mohan Singh v. State of H. P.

2014-12-11

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT : RAJIV SHARMA, J. 1. This appeal is directed against the judgment dated 29.10.2011 rendered by the Special Judge (II), Kinnaur at Rampur in RBT No. 60-AR/3 of 2011, 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 10 years and to pay a fine of Rs.1,00,000/- 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 on 23.3.2011 at 12.35 P.M., police party headed by PW-5 SI Gurbachan Singh comprising of ASI Rajinder Pal, PW-2 HC Ten Singh and PW-3 HHC Kashmi Ram left Police Station, Ani in official vehicle No. HP 34-A-3830 towards Taluna side. At about 1.30 P.M., when they were present at Taluna bifurcation, vehicle No. HP-01K- 6001 being driven by PW-1 Anuj Kumar came from Luhari side and stopped there. PW-1 Anuj Kumar started chatting with the police party. In the meanwhile, accused came from Taluna link road towards main Ani-Luhari road. On seeing the police party, he turned back and tried to flee. On suspicion, he was chased and over powered by the police. The place where the accused was apprehended was an isolated and secluded place. There was no habitation nearby. Therefore, SI Gurbachan Singh sent HHC Kashmi Ram in search of independent witnesses towards Haripur. He came back after ten minutes as he could not find any independent witnesses. SI Gurbachan Singh joined Anuj Kumar and HC Ten Singh as witnesses and in their presence; he informed the accused that it was intended to conduct his personal search as well as search of his bag. The accused opted to be searched by the police vide consent memo Ex.PW-2/A. Thereafter, SI Gurbachan Singh alongwith witnesses gave their personal search to the accused. No incriminating material was found from the witnesses. On checking of the accused one polythene envelope containing charas weighting 1 Kg. 930 grams was found, which was kept in the bag. The polythene envelope containing charas was put back into the same bag. It was made into parcel and sealed with seal impression =H'. NCB form Ex.PW-5/A in triplicate was updated. On checking of the accused one polythene envelope containing charas weighting 1 Kg. 930 grams was found, which was kept in the bag. The polythene envelope containing charas was put back into the same bag. It was made into parcel and sealed with seal impression =H'. NCB form Ex.PW-5/A in triplicate was updated. Sample of seal Ex.PW-2/C was drawn and the seal was handed over to PW-1 Anuj Kumar. Rukka Ex.PW-2/D was prepared. It was sent to the Police Station, FIR Ex.PW-3/B was registered. The case property was deposited in the Malkhana by the police. The contraband was sent to F.S.L., Junga. The report of F.S.L. Ex.PW-5/D 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 8 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. Mr. Suresh Kumar Thakur, learned counsel for the appellant has vehemently argued that the prosecution has failed to prove its case against the accused. 5. Mr. P.M. Negi, learned Deputy 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 Anuj has deposed that he was employed as a Driver in Taxi No. HP-01K-6001. He was plying this vehicle between Ani and Luhari. On 23.3.2011, he was going from Luhari to Ani. The police met him at Haripur and boarded his vehicle. They alighted from his vehicle at Ani. The police did not apprehend the accused in his presence near Taluna link road nor his search was conducted by the police in his presence. He was declared hostile. He was cross-examined by the learned Public Prosecutor. He has denied the suggestion that on 23.3.2011, police had joined him in raiding party. He has denied the suggestion that at 1.30 P.M. when the police patrolling party was present at Taluna link road, accused came from the side of Taluna road and on seeing the police party he turned back and tried to escape. He has also denied that accused was apprehended by the police by chasing him for about 30 meters. He has denied the suggestion that at 1.30 P.M. when the police patrolling party was present at Taluna link road, accused came from the side of Taluna road and on seeing the police party he turned back and tried to escape. He has also denied that accused was apprehended by the police by chasing him for about 30 meters. He has denied that when the accused was apprehended, he was scared and he had concealed one pink colour bag inside his jacket. He has denied that SI Gurbachan Singh sent HHC Kashmi Ram towards Haripur to bring local witnesses. However, he came back after ten minutes and told that no witness was available. He has also denied that SI Gurbachan Singh joined him and Ten Singh as witnesses and informed the accused orally as well as in writing that it was intended to conduct his personal search and search of the bag. He has also denied the suggestion that accused opted to be searched by the police on the spot. He has also denied the suggestion that he alongwith SI Gurbachan Singh and HC Ten Singh gave their personal search to the accused. He has also denied the suggestion that the bag of the accused was searched in which one polythene envelope was contained in which charas in the shape of balls was kept and it weighed 1 kg 930 grams. He has denied the sealing on the spot. He has also denied the suggestion that SI Gurbachan Singh prepared Rukka and sent the same to the Police Station through HHC Kashmi Ram. However, he has admitted consent memo mark =A' and seizure memo mark =C'. He has denied the suggestion that he has signed these documents admitting them to be correct. He did not go through the contents of these documents before signing the same. He has signed the documents at Police Station, Ani. When he put his signatures on mark =C' it was half written and the remaining portion of the document was blank. In his cross-examination by the learned defence counsel, he has admitted that Police Station, Ani is surrounded by many residential houses. He has also admitted that residential houses were situated at a distance of about 50 meters from Taluna bifurcation. The House of Pradhan, Gram Panchayat, Taluna was situated below the road near Taluna bifurcation. In his cross-examination by the learned defence counsel, he has admitted that Police Station, Ani is surrounded by many residential houses. He has also admitted that residential houses were situated at a distance of about 50 meters from Taluna bifurcation. The House of Pradhan, Gram Panchayat, Taluna was situated below the road near Taluna bifurcation. He has admitted that he has signed all the documents in the Police Station at one time. 8. PW-2 HC Ten Singh has testified that on 23.3.2011, he alongwith ASI Rajinder Pal, HHC Kashmi Ram and SI Gurbachan Singh was present at Taluna link road in connection with routine patrol duty and traffic checking duty. At about 1.30 P.M; vehicle No.HP-01K-6001 came from Luhari side which was being driven by Anuj. The vehicle was stopped. . Anuj started talking to them. In the meanwhile, accused came from Taluna side. He tried to run away. He was chased. He disclosed his identity. SI Gurbachan Singh sent HHC Kashmi Ram in search of local witnesses as the place where the accused was apprehended was an isolated and secluded place. However, HHC Kashmi Ram came back after ten minutes and told that no witness was available. SI Gurbachan Singh joined him and Anuj as witnesses. The accused was informed about his right to be searched before Magistrate or Gazetted Officer. Accused consented to be searched by the Police Officer vide memo Ex.PW-2/A. SI Gurbachan alongwith him and Anuj Kumar gave their personal search to the accused. The bag of the accused was searched. It contained charas. It was put back in the same bag and the bag was made into a parcel which was sealed with seal impression =H'. NCB from in triplicate was updated by SI Gurbachan Singh. Thereafter, he obtained specimen of seal Ex.PW-2/C and handed over the seal to Anuj Kumar. In his cross-examination, he has admitted that a house was situated below Taluna bifurcation. However, he was not aware that the house belonged to Ex-Pradhan of Gram Panchayat, Taluna. The house of Shambu Ram retired police constable was situated at a distance of 250 meters from the spot. One or two houses were situated near the house of Shambu Ram on both the sides of road. Those houses were situated from Taluna bifurcation towards, Ani. He did not recollect in which direction HC Kashmi Ram had gone in search of witnesses. 9. One or two houses were situated near the house of Shambu Ram on both the sides of road. Those houses were situated from Taluna bifurcation towards, Ani. He did not recollect in which direction HC Kashmi Ram had gone in search of witnesses. 9. PW-3 Kashmi Ram has deposed the manner in which accused was apprehended, search was conducted and contraband was recovered. According to him, the place where the accused was apprehended was an isolated and secluded place. SI Gurbachan Singh sent him to bring independent witnesses. He went towards Haripur side in search of independent witnesses. No witness was available and he returned after ten minutes. In his crossexamination, he has admitted that at a distance of about 250 meters from the spot there was a house of retired police constable Shambu Ram and near his house there were one or two houses on both the sides of road. He did not call any witness from those houses because nobody was available. The house of Ex- Pradhan of Taluna was situated at a distance of about 250 meters below the road at Taluna bifurcation. 10. Statement of PW-4 HHC Jia Lal is formal in nature. 11. PW-5 SI Gurbachan Singh has deposed the manner in which accused was apprehended and the contraband was recovered. It was sealed and seizure memo was prepared. According to him, the place where the accused was apprehended was an isolated and secluded place. There was no habitation, therefore, he sent HHC Kashmi Ram in search of independent witnesses towards Haripur. He came back after ten minutes and told that he could not find any independent witness. Thereafter, he joined Anuj Kumar and HC Ten Singh. In his cross-examination, he has admitted that the house of Shambu Ram retired police constable was situated on the road at a distance of about 100-150 meters from the Taluna bifurcation towards Ani. He has also admitted that one or two houses were also situated besides the house of Shambu Ram. Volunteered that the house of Shambu Ram and others were not visible from the spot. HHC Kashmi Ram had gone in search of witnesses towards Ani side. 12. Case of the prosecution has not been supported by independent witness PW-1 Anuj Kumar. His presence on the spot on 23.3.2011 is also doubtful. Volunteered that the house of Shambu Ram and others were not visible from the spot. HHC Kashmi Ram had gone in search of witnesses towards Ani side. 12. Case of the prosecution has not been supported by independent witness PW-1 Anuj Kumar. His presence on the spot on 23.3.2011 is also doubtful. However, in his cross-examination by the learned counsel appearing on behalf of the accused has admitted that the Police Station, Ani was surrounded by many residential houses and shops. He has also admitted that residential houses were situated at a distance of about 50 meters from Taluna bifurcation. He has also admitted that he has signed all the documents in the Police Station at one time. PW-2 HC Ten Singh has deposed that SI Gurbachan Singh had sent HHC Kashmi Ram in search of local witnesses as the place where the accused was apprehended was an isolated and secluded. HHC Kashmi Ram came back after ten minutes and told that no witness was available. In his cross-examination, he has admitted that a house was situated below Taluna bifurcation. However, he was not aware that the house belonged to Ex-Pradhan of Gram Panchayat, Taluna. He has also admitted that the house of Shambu Ram retired police constable was situated at a distance of 250 meters from the spot. One or two houses were situated near the house of Shambu Ram on both the sides of road. Those houses were situated from Taluna bifurcation towards Ani. PW-3 Kashmi Ram has deposed that the place where the accused was apprehended was isolated and secluded. He was asked by SI Gurbachan Singh to go in search of independent witnesses. He went towards Haripur side in search of independent witnesses, but no witness was available. He returned after ten minutes. In his cross-examination, he has admitted that at a distance of about 250 meters from the spot, there was a house of retired police constable Shambu Ram. There were one or two houses on both the sides of the road. He did not call any witness from those houses because nobody was available in those houses at that time. The house of Ex- Pradhan of Taluna was situated at a distance of about 250 meters below the road at Taluna bifurcation. There were one or two houses on both the sides of the road. He did not call any witness from those houses because nobody was available in those houses at that time. The house of Ex- Pradhan of Taluna was situated at a distance of about 250 meters below the road at Taluna bifurcation. PW-5 SI Gurbachan Singh has also admitted that the house of Sambhu Ram retired police constable was situated on the road at a distance of about 100 to 150 meters from the Taluna bifurcation towards Ani. He has also admitted that one or two houses were also situated besides the house of Shambu Ram. Volunteered that the house of Shambu Ram and others were not visible from the spot. 13. It is evident from the statements of PW-1 Anuj Kumar, PW-2 HC Ten Singh, PW-3 HHC Kashmi Ram and PW-5 SI Gurcharan Singh that the residential house of one retired police constable Sambhu Ram was at a short distance. The other houses were situated near the house of Sambhu Ram. According to PW-3 Kashmi Ram, he had gone towards Haripur side in search of independent witnesses, but could not find any independent witness. According to him, he had gone to the house of Sambhu Ram. However, none was available. It is not believable that no one was available in the house of Sambhu Ram and in other houses situated near the house of Sambhu. Ordinarily, in villages, the houses are always occupied and it is not believable that no one was available in those houses as per the version of PW-3 HHC Kashmi Ram. It is not one of those cases that independent witnesses were not available. The independent witnesses were available near the place of occurrence but the police has not made the efforts to associate them during the search and seizure. It is not proved that the contraband was recovered from the exclusive and conscious possession of the accused. The sincere efforts were required to be made by the police to associate independent witnesses. PW-3 Kashmi Ram has deposed that he had gone in search of witnesses, but came back after ten minutes. 14. Though the version of the official witnesses can be relied upon in the absence of independent witnesses, but their statements must inspire confidence and should be trustworthy. PW-3 Kashmi Ram has deposed that he had gone in search of witnesses, but came back after ten minutes. 14. Though the version of the official witnesses can be relied upon in the absence of independent witnesses, but their statements must inspire confidence and should be trustworthy. In the instant case, it is not believable that sincere efforts were made by the police, as discussed hereinabove, to associate independent witnesses from the nearby villages. 15. 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. 16. Accordingly, the appeal is allowed. Judgment of conviction and sentence dated 29.10.2011 rendered in RBT No. 60-AR/3 of 2011 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. 17. 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.