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Himachal Pradesh High Court · body

2014 DIGILAW 1877 (HP)

Duni Chand v. State of H. P.

2014-12-11

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT : RAJIV SHARMA, J. 1. This appeal is instituted against the judgment dated 20.8.2011, rendered by the learned Special Judge, (Addl. Sessions Judge), Mandi, H.P., in Sessions Trial No. 59 of 2010, whereby the appellant-accused (hereinafter referred to as accused) who was charged with and tried for offence under Sections 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985, has been convicted and sentenced to undergo rigorous imprisonment for a period of 14 years and to pay a fine of Rs. 1,40,000/- and in default of payment of fine to undergo simple imprisonment for a period of two years. 2. The case of the prosecution, in a nut shell, is that LHC Narpat Ram (PW-1) alongwith PW-2 Const. Roshan Lal, Const. Mahesh Kumar and PW- 8 ASI Ram Lal was present at Khoti Nalla on 4.7.2010 in a private vehicle bearing registration No. HP-33B-3100. Accused came from Thalout at about 5:45 PM. He was carrying backpack Ext. P-2. He started walking briskly on seeing the police party. Accused was apprehended at a distance of about 20 meters. The place was lonely and deserted. No independent witnesses were available on the spot. ASI Ram Lal made efforts to stop the vehicle and associate the driver and conductor but none agreed. PW-1 LHC Narpat Ram and Const. Mahesh Kumar were associated as witnesses. The police party gave its personal search to the accused. No contraband was found in their possession. Backpack Ext. P-2 was searched. It contained white coloured plastic bag. The bag was opened and it was found to be containing stick like pancake and sphere like black substance. The substance was confirmed to be cannabis. It weighed 4500 gms. The contraband was put in white coloured bag and white coloured bag was put in the backpack. Backpack was wrapped in a piece of cloth. This parcel Ext. P-1 was sealed with 12 seal impressions of seal R. NCB-1 form Ext. PW- 5/C was filled in at the spot in triplicate. Seal impression was put on the NCB-1 form. Sample seal was taken on a separate piece of cloth and one such impression was Ext. PW-1/B. Rukka was prepared on the spot vide memo Ext. PW-8/A. It was handed over to Constable Roshan Lal. He took the same to Inspector Surinder Pal. He recorded FIR Ext. PW-5/A. The case file was handed over to Const. Sample seal was taken on a separate piece of cloth and one such impression was Ext. PW-1/B. Rukka was prepared on the spot vide memo Ext. PW-8/A. It was handed over to Constable Roshan Lal. He took the same to Inspector Surinder Pal. He recorded FIR Ext. PW-5/A. The case file was handed over to Const. Roshan Lal with the direction to carry the same to the spot. The contraband was deposited before the Inspector Surinder Pal. He re-sealed the same with six seal impressions of seal S. He filled in relevant columns of NCB-1 form and put seal impression on it. He prepared memo of resealing vide memo Ext. PW-5/B. He handed over parcel, sample seals R & S, NCB-1 form, copy of seizure memo and FIR to PW-7 HC Anil Kumar. PW-7 HC Anil Kumar made an entry in the Malkhana register at Sr. No. 1096. He handed over the entire case property to Const. Roshan Lal, PW-2 on 6.7.2010 with the direction to carry the case property to FSL Junga vide RC No. 86/2010. The Constable Roshan Lal deposited all the articles at FSL and handed over the receipt to MHC on his return. Special report Ext. PW-4/A was prepared and it was handed over to Const. Ram Lal PW-6 to carry the same to Addl. S.P. Hira Singh Thakur. Constable Ram Lal handed over the Special Report to Addl. S.P. on 5.7.2010 through his Reader PW-4 HC Girdhari Lal. The result of chemical analysis is Ext. PW-5/E. The sample was of charas containing 32.10% W.W. resin in it. On completion of the investigation, challan was put up after completing all the codal formalities. 3. The prosecution has examined as many as 8 witnesses to prove its case. The accused was also examined under Section 313 Cr.P.C. The accused has denied having committed any offence. According to him, the police came to his village on 2.7.2010 and took him to the Police Station on the next day. Mohan Lal Master and Tej Ram, who used to supply charas, ran away and he was falsely implicated. The learned trial Court convicted the accused, as noticed hereinabove. 4. Mr. Debinder Ghosh, Advocate, appearing on behalf of the accused has vehemently argued that the prosecution has failed to prove its case against the accused. On the other hand, Mr. P.M.Negi, Dy. The learned trial Court convicted the accused, as noticed hereinabove. 4. Mr. Debinder Ghosh, Advocate, appearing on behalf of the accused has vehemently argued that the prosecution has failed to prove its case against the accused. On the other hand, Mr. P.M.Negi, Dy. AG, has supported the judgment of the learned trial Court dated 20.8.2011. 5. We have heard learned counsel for both the sides and gone through the records of the case carefully. 6. PW-1, LHC Narpat Ram deposed that he alongwith ASI Ram Lal, Const. Mahesh Kumar, Const. Roshan Lal and Const. Kashmir Singh was present at Khoti Nalla on 4.7.2010. The accused came from Aut side towards them at about 5:45 PM. On seeing the police party, he started walking briskly. ASI Ram Lal shouted him to stop. He did not stop. ASI Ram Lal became suspicious about the possession of some stolen articles or contraband. The accused was apprehended with their help. He revealed his identity. The place was lonely and no passer by was present. The vehicles were stopped. The occupants were asked to become witnesses but they declined. ASI Ram Lal associated him and Cont. Mahesh Kumar as witnesses. ASI Ram Lal gave his personal search and search of accompanying police officials. The accused was having a backpack on his back. It was opened and searched. It contained charas. It weighed 4500 gms. It was put back in the same plastic bag and plastic bag was put in the same backpack from which it was recovered. The bag was sealed in a parcel with 12 impressions of seal “R'. Form NCB-1 was filled in triplicate. Seal impression was taken on the form. Seal impression was taken separately on piece of cloth and one such impression is Ext. PW-1/B. Seal was handed over to him after use. The parcel was seized vide seizure memo Ext. PW- 1/C. It was handed over to Const. Roshan Lal. The accused was arrested. The site plan was prepared. The personal search of the accused was conducted and memo Ext. PW-1/E was prepared to this effect. In his cross-examination, he deposed that at about 2:00 PM, they started in a Santro Car bearing No. HP- 33B-3100. They did not have any prior information. Khoti Nala is located on National Highway and there is a heavy flow of traffic. The personal search of the accused was conducted and memo Ext. PW-1/E was prepared to this effect. In his cross-examination, he deposed that at about 2:00 PM, they started in a Santro Car bearing No. HP- 33B-3100. They did not have any prior information. Khoti Nala is located on National Highway and there is a heavy flow of traffic. He could not narrate the registration of vehicles or name of the occupants who were stopped and inquired by them. He admitted that there was no street light at the spot. Volunteered that they had their own light. 7. PW-2 Const. Roshan Lal, also deposed the manner in which the accused was apprehended on 4.7.2010 in a “nakabandi.” The arrest, seizure and sampling process was completed on the spot. He carried rukka to the Police Station. He handed over the same to SHO Surinder Pal. SHO Surinder Pal registered FIR and handed over the case file to him with the direction to carry it to the spot. HC Anil Kumar handed over one parcel sealed with 12 impressions of seal “R', form NCB-1 in triplicate, sample seal “R' and “S' vide RC No. 86/10 dated 6.7.2010 with the direction to carry these to FSL Junga. He deposited them in safe condition at CTL Kandaghat. He was cross-examined. He could not tell the number of the vehicles which were stopped by them between 2:45 till 5:45 PM. He did not know the registration number of any vehicle. He could not tell the registration number of the vehicles or names of the occupants who were stopped by them and who were asked to become witnesses. 8. Statements of PW-3 Const. Jeevanand and PW-4 HC Girdhari Lal are formal in nature. 9. PW-5 Inspector Surender Pal, deposed that he recorded FIR Ext. PW-5/A after receipt of the “rukka?. A.S.I. Ram Lal handed over the one parcel sealed with 12 impressions of seal R alongwith sample seal R and NCB-1 form to him on the same date. He resealed the parcel with six impressions of seal “S'. Sample seal Ext. PW-5/B was taken separately on a piece of cloth. The seal impression was also taken on NCB-1 form. He filled in the relevant columns of NCB-1 form Ext. PW-5/C. He handed over the parcel alongwith sample seals “R' and “S' and form NCB-1 to MHC Anil Kumar. He prepared memo of reseal Ext. PW-5/D. 10. Sample seal Ext. PW-5/B was taken separately on a piece of cloth. The seal impression was also taken on NCB-1 form. He filled in the relevant columns of NCB-1 form Ext. PW-5/C. He handed over the parcel alongwith sample seals “R' and “S' and form NCB-1 to MHC Anil Kumar. He prepared memo of reseal Ext. PW-5/D. 10. Statement of PW-6 Const. Ram Lal is formal in nature. 11. PW-7 HC Anil Kumar deposed that Insp. SHO Surender Pal handed over one parcel sealed with 12 impressions of seal “R' and six impressions of seal “S' to him on 4.7.2010. He made entry in the register at Sr. No. 1096, the copy of which is Ext. PW-7/A. He handed over the case property to Const. Roshan Lal on 6.7.2010 with direction to carry it to FSL Junga vide RC No. 80/10. The copy of RC is Ext. PW-7/B. 12. PW-8 ASI Ram Lal deposed the manner in which the accused was apprehended, the contraband was recovered from the bag carried by the accused, the sampling and sealing process was completed on the spot. In his cross-examination, he deposed that he checked the vehicles after 4:00 PM till 5:45 PM. He could not tell the registration number of any vehicle. He did not remember the number of cases detected at Khoti Nala under the ND & PS Act. He denied that there was one Tea Shop at the place of occurrence. Volunteered that it was located at a distance. Many vehicles crossed during their stay on the spot. He had stopped 5-7 vehicles and had asked their occupants to be witnesses. He could not tell their registration number or name of the occupants. 13. Khoti Nalla is situated on a National Highway. It is a busy National Highway. PW-1 LHC Narpat Ram has admitted that Khoti Nalla is located on National Highway and there was heavy flow of traffic. However, he could not narrate the registration number of any vehicle or name of any of the occupants stopped by the police party. Similarly, PW-2 Const. Roshan Lal did not remember the registration number of any of the vehicles or names of any of the occupants who were stopped and asked by the police to become witnesses. He admitted that there was a Tea Shop at some distance from the place of occurrence. Similarly, PW-2 Const. Roshan Lal did not remember the registration number of any of the vehicles or names of any of the occupants who were stopped and asked by the police to become witnesses. He admitted that there was a Tea Shop at some distance from the place of occurrence. PW-8 ASI Ram Lal testified that he checked the vehicles after 4:00 PM till 5:45 PM. He did not narrate the registration number of any vehicle. He denied the suggestion that there was Tea Shop at the place of occurrence. Volunteered that it was located at a distance. Many vehicles crossed during their stay on the spot. He has stopped 5-7 vehicles and had asked their occupants to be witnesses. He could not tell their registration number or name of the occupants. It is not believable that when police party signals the vehicles to stop, their occupants would not cooperate with the police. None of the witnesses knew about the registration number of any vehicle or the name of the occupants who were stopped. The National Highway, as noticed by us hereinabove, is very busy. The flow of traffic on this road is day and night. The police have not at all made any sincere efforts to associate independent witnesses by ordering the occupants of the vehicles plying on the National Highway. 14. In order to prove that the contraband was recovered from the conscious and exclusive possession of the accused, it was necessary for the police to associate independent witnesses. It is not one of those cases where the accused was apprehended at an isolated place. It has come in the statement of PW-2 Const. Roshan Lal that a Tea Shop was also there at a short distance. PW-8 ASI Ram Lal, though initially denied that there was no Tea Shop, but later admitted that Tea Shop was at a distance from the place of occurrence. It is not the case of the prosecution that PW-8 ASI Ram Lal has sent the Constables accompanying him to search for the independent witnesses. Since the police have not associated any independent witnesses, the recovery of the contraband from the accused becomes doubtful. 15. 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. Since the police have not associated any independent witnesses, the recovery of the contraband from the accused becomes doubtful. 15. 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 vicinity. Moreover, in case the occupants of the vehicles have not come forward to become witnesses, it was always open to the Investigating Officer to invoke Section 160 of the Code of Criminal Procedure, 1973, for securing their presence. The police cannot show helplessness. 16. The prosecution has failed to prove that the contraband was recovered from the exclusive and conscious possession of the accused. Thus, the prosecution has failed to prove the case against the accused beyond reasonable doubt for the commission of offence under Section 20(b)(ii)(c) of the N.D.P.S., Act. 17. Accordingly, in view of the analysis and discussion made hereinabove, the appeal is allowed. Judgment of conviction and sentence dated 20.8.2011, rendered by the Special Judge (Addl. Sessions Judge), Mandi, H.P., in Sessions Trial No. 59 of 2010, is set aside. Accused is acquitted of the charges framed against him by giving him benefit of doubt. Fine amount, if any, already deposited by the accused is ordered to be refunded to him. Since the accused is in jail, he be released forthwith, if not required in any other case. 18. The Registry is directed to prepare the release warrant of the accused and send the same to the Superintendent of Jail concerned, in conformity with this judgment forthwith.