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Himachal Pradesh High Court · body

2015 DIGILAW 1064 (HP)

Sunil Kumar v. State of Himachal Pradesh

2015-08-10

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT : Rajiv Sharma, J. Both the Criminal Appeals arise out of the same Judgment. As such, both were taken up together and are being disposed of by a common judgment. 2. The present criminal appeals have been instituted against Judgment dated 20.9.2014 rendered by learned Special Judge-IV, Kangra at Dharamshala in Sessions Case No. 30-D/VII/2013, whereby appellants-accused (hereinafter referred to as 'accused' for convenience sake), who were charged with and tried for offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'Act' for convenience sake), have been convicted and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1.00 Lakh each, and in default of payment of fine, to further undergo simple imprisonment for a period of two years. 3. Case of the prosecution, in a nutshell, is that on 23.4.2013 police party headed by Inspector Prem Chand was on patrolling duty alongwith Inspector Lal Singh, SI Geeta Parkash, HC Rakesh Kumar, HHC Jagrup Singh, C. Gurbachan Singh and C. Ajeet Singh. Police party was present at by pass road at Charan Khadd at 9.30 pm when a Santro Car bearing registration No. HP-76-0632 occupied by accused was stopped for checking. Driver of the vehicle disclosed his name as Sunil Kumar son of Shri Sadhu Ram and another person disclosed his name as Surender Pal son of Dila Ram. The place was isolated as such independent witnesses could not be associated. On suspicion, Santro Car was searched in the presence of SI Geeta Parkash and HC Rakesh Kumar. One reddish colour bag was recovered which was kept near the gear between the driver seat and front seat. Bag was checked and it was found containing Charas in the shape of sticks and balls weighing 1500 grams. The Charas so recovered was sealed in a cloth parcel with seven seals of seal impression ‘K’. The case property was taken into possession vide seizure memo. IO Prepared Rukka and handed over the same to Gurbachan Singh to carry to the Police Station, State Vigilance & Anti Corruption Bureau, Dharamshala for registration of case. Consequently, FIR was registered. Investigating Officer also prepared site plan. Case property was produced before Additional Superintendent of Police, State Vigilance & Anti Corruption Bureau, Dharamshala. He resealed the case property with 4 seal impressions of ‘P’. Consequently, FIR was registered. Investigating Officer also prepared site plan. Case property was produced before Additional Superintendent of Police, State Vigilance & Anti Corruption Bureau, Dharamshala. He resealed the case property with 4 seal impressions of ‘P’. Impression of seal ‘P’ was taken on separate piece of cloth. The Additional Superintendent of Police also filled in relevant columns of NCB form in triplicate. Reseal certificate was obtained. Case property alongwith NCB form was sent to Director State Forensic Science Laboratory, Junga for chemical opinion. On receipt of FSL report, it was found that exhibit is Charas. Investigation was completed. Challan was put up in the Court after completing all codal formalities. Hence, this appeal. 4. Prosecution has examined as many as 8 witnesses to prove its case against the accused. Accused were also examined under Section 313 CrPC. They pleaded innocence. Trial Court convicted and sentenced the accused as noticed above. 5. Mr. B.L. Soni, Advocate has vehemently argued that the prosecution has failed to prove its case against the accused. 6. Mr. P.M. Negi, Deputy Advocate General, has supported the judgment of conviction. 7. We have heard the learned counsel for the parties and also gone through the record carefully. 8. PW-1 Geeta Parkash deposed that on 23.4.2013, he was on patrolling duty with Inspector Prem Chand, Inspector Lal Singh and other police officials towards Chamunda Nagri and Palampur. At 9.30 pm, they were present at By Pass road Charan Khadd. A car occupied by two persons approached from Dari side. Vehicle was stopped. Inspector told the occupants of the Car for its search. Inspector Prem Chand before searching accused, gave search to HC Rakesh Kumar. He alongwith Rakesh Kumar signed memo Ext. PW-1/A Thereafter Inspector Prem Lal searched the car. A bag of reddish colour (Gajri) was found lying between the front seat near the gear. On checking the said bag, stick and ball shaped Charas wrapped in poly wrappers was recovered. It was weighed. It weighed 1500 GMS. No local witness could be associated as witness despite efforts as the area was not populated. The Charas was put in the same and sealed in cloth parcel by affixing 7 seal impressions of seal ‘K’.Case property was taken into possession vide Seizure Memo Ext. PW-1/C. Case property was produced by the learned Public Prosecutor when statement of PW-1 SI Geeta Parkash was recorded. The Charas was put in the same and sealed in cloth parcel by affixing 7 seal impressions of seal ‘K’.Case property was taken into possession vide Seizure Memo Ext. PW-1/C. Case property was produced by the learned Public Prosecutor when statement of PW-1 SI Geeta Parkash was recorded. In the cross-examination, the witness has admitted that personal search of the accused was conducted in his presence. He also deposed that IO did not try to call for any independent witness on the spot. 9. PW-2 Gurbachan Singh has also deposed the manner in which accused were apprehended and codal formalities of seizure and sampling were completed at the spot. He has taken Rukka Ext. PW-1/F to the Police Station. 10. PW-3 Constable Sanjay Kumar has deposed that on 24.4.2013 at about 10.10 am, constable Gurbachan Singh brought special report before him. He entered the same in the concerned register. 11. PW-4 Jograj, Additional Superintendent of Police has deposed that on 23.4.2013, he received a Rukka in the police station at 10.10 pm. He registered case FIR Ext. PW-4/A. On 24.4.2013 at 1.30 am, Inspector Prem Chand deposited case property i.e. 1500 grams Charas sealed in a parcel with seven seals of seal impression ‘K’ alongwith specimen seal impression, NCB form in triplicate. He checked the parcel. He resealed the parcel with four seals of seal impression ‘P’. He also filled up columns No. 9 to 11 of the NCB form. He issued resealing certificate Ext. PR-4/D and handed over the case property alongwith relevant documents to MHC Dinesh Kumar. 12. PW-6 Sanjay Kumar deposed that on 25.4.2013, MHC Dinesh Kumar handed over one parcel sealed with seven seal impressions of seal ‘K’ and four seal impressions of seal ‘P’, vide RC No. 12/21 alongwith documents i.e. FIR, envelope, to be deposited with FSL Junga. He deposited the same on 26.4.2013 at Forensic Science Laboratory Junga and handed over receipt to Dinesh Kumar on his return. 13. PW-7 Inspector Prem Chand also deposed the manner in which accused were apprehended and codal formalities of seizure and sampling were completed at the spot. In his cross-examination, he has admitted that spot is situated on State Highway. He could not disclose whether memo qua personal search of the accused was prepared or not. He also admitted that both the accused were personally searched by him on the spot. In his cross-examination, he has admitted that spot is situated on State Highway. He could not disclose whether memo qua personal search of the accused was prepared or not. He also admitted that both the accused were personally searched by him on the spot. In his further cross-examination, he has admitted that he did not send any constable to call for any Gazetted Officer on the spot before personal search of the accused. 14. PW-8 HC Dinesh Kumar deposed that on 23.4.2013 at about 1.35 mid night, Additional Superintendent of Police deposited one parcel sealed with seal impressions of ‘K’ and ‘P’, which was resealed with four seal impressions of seal ‘P’ alongwith NCB form and sample seal impressions of ‘K’ and ‘P’. He made entry in the Malkhana Register and abstract of the same is Ext. PW-8/A. He also filled in column NO. 12 of the NCB form Ext. PW-4/C. He sent the parcel, sample seal to FSL on 25.4.2013 through constable Sanjay Kumar vide RC No. 12/21 dated 25.4.2013. In his crossexamination, he has admitted that the register brought by him was not paginated and there was no certificate appended when the register was opened. 15. Precise case of the prosecution is that police party was on patrolling duty. Car was signalled to stop at 9.30 pm. Charas was recovered from the car. It weighed 1500 GMS. It was sealed. Rukka was prepared and was sent to police station. Resealing was completed. Case property was deposited in the Malkhana Register. Recovery is at 9.30 pm on State Highway. According to PW-1, no local witness could be associated despite efforts as the area was not populated. However, in his cross-examination, he has admitted that IO did not try to call for any independent witness on the spot. PW-7 Inspector Prem Chand has also admitted that spot is situated on State Highway. Thus, police has not made any efforts to associate any independent witness to inspire confidence regarding the manner in which accused was apprehended and contraband was recovered. 16. PW-4 Jograj resealed the case property and deposited with PW-8 Dinesh Kumar. Dinesh Kumar made entry in the Malkhana Register vide Ext. PW-8/A. He has admitted in his cross-examination that the register brought by him was not paginated and there was no certificate appended when the register was opened. Register is required to be maintained as per Punjab Police Rules. PW-4 Jograj resealed the case property and deposited with PW-8 Dinesh Kumar. Dinesh Kumar made entry in the Malkhana Register vide Ext. PW-8/A. He has admitted in his cross-examination that the register brought by him was not paginated and there was no certificate appended when the register was opened. Register is required to be maintained as per Punjab Police Rules. Para 22.70 of the Punjab Police Rules, 1934, as applicable to the State of H.P. reads as under: “22.70. Register No. XIX- This register shall be maintained in Form 22.70. With the exception of articles already included in register No. XVI every article placed in the storeroom shall be entered in this register and the removal of any such article shall be noted in the appropriate column. The register may be destroyed three years after the date of the last entry.” 17. The register is to be maintained in Form 22.70. It reads as under. “FORM NO. 22.70. POLICE STATION_________ ____DISTRICT Register No. XIX.-Store-Room Register (Part-I) Column 1.- Serial No. 2. No. of first information report (if any), from whom taken (if taken from a person), and from what place. 3. Date of deposit and name of depositor. 4. Description of property. 5. Reference to report asking for order regarding disposal of property. 6. How disposed of and date. 7. Signature of recipient (including person by whom dispatched). 8. Remarks. (To be prepared on a quarter sheet of native paper).” 18. We have also seen Ext. PW-8/A. There is no pagination. It is only a plain paper on which separate columns have been made. Case property is required to be deposited in the Malkhana by making entry in the prescribed proforma and when case property is taken out, entry is to be made in the prescribed Malkhana register. Case property was produced when statement of PW-1 Geeta Parkash was recorded. Case property was produced by the learned Public Prosecutor in the Court. The person who has brought the case property to the Court has not been examined. Prosecution has not proved when case property was taken out from the Malkhana. It is necessary that as and when case property is taken out from Malkhana, necessary entry is required to be made in the Malkhana Register and also at the time when case property is redeposited in the Malkhana. Prosecution has not proved when case property was taken out from the Malkhana. It is necessary that as and when case property is taken out from Malkhana, necessary entry is required to be made in the Malkhana Register and also at the time when case property is redeposited in the Malkhana. Thus, it casts doubt whether it is the same case property which was recovered from the accused and sent to FSL or it was case property of some other case. It is also mandatory that when case property is taken out from Malkhana, DDR is made and also at the time when case property is redeposited in the Malkhana. 19. Contraband was recovered from the Car, however, despite that PW-7 has conducted personal search of the accused. PW-7 has admitted that personal search of accused was carried on the spot. PW-1 has corroborated his statement. Police has not prepared any memo of personal search. If personal search of the accused was carried out, accused were required to be told about their legal right to be searched before a Gazetted Officer or a Magistrate. PW-7 Prem Chand has admitted that he has not sent any constable for bringing any Gazetted Officer at the spot. Provisions of Section 50 of the Act are mandatory. These were not followed in the present case while conducting their personal search. 20. Their Lordships of the Hon'ble Supreme Court in Dilip v. State of M.P. reported in (2007) 1 SCC 450 have held that before the seizure of the contraband from the scooter, personal search of the appellants had been carried out and, admittedly, even at that time the provisions of Section 50 of the Act, although required in law, had not been complied with so far the search of scooter is concerned, but keeping in view the fact that the person of the appellants was also searched, it was obligatory to comply with the said provisions. Their Lordships have held as under: “12 . Before seizure of the contraband from the scooter, personal search of the appellants had been carried out and, admittedly, even at that time the provision of Section 50 of the Act, although required in law, had not been complied with. 16. Their Lordships have held as under: “12 . Before seizure of the contraband from the scooter, personal search of the appellants had been carried out and, admittedly, even at that time the provision of Section 50 of the Act, although required in law, had not been complied with. 16. In this case, the provisions of Section 50 might not have been required to be complied with so far as the search of scooter is concerned, but, keeping in view the fact that the person of the appellants was also searched, it was obligatory on the part of PW 10 to comply with the said provisions.” 21. In this case also, personal search of the accused was not necessary since contraband was recovered from the Car but despite that personal search of the accused was carried out. It ought to have been in conformity with Section 50 of the Act. 22. Their Lordships of the Hon'ble Supreme Court in Union of India v. Shah Alam reported in (2009) 16 SCC 644 have held that since heroin was recovered from the bag carried by respondents, thereafter personal search was carried out and it was said that since personal search did not lead to any recovery, there was no need of complying Section 50 of the Act. It was held that since provisions of Section 50 of the Act were not complied with, the High Court was right in acquitting the respondents on that ground. 22. In this case, though personal search did not lead to any recovery but Section 50 was required to be complied with and accused were to be apprised of their legal right to be searched before a Gazetted Officer or a Magistrate. 23. Their Lordships of the Hon'ble Supreme Court in State of Rajasthan v. Parmanand reported in (2014) 5 SCC 345 , have held as under: “15. Thus, if merely a bag carried by person is searched without there being any search of this person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case, Respondent 1 Parmanand’s bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of respondent 2 Surajmal was also conducted. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case, Respondent 1 Parmanand’s bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of respondent 2 Surajmal was also conducted. Therefore, in the light of the judgments of this Corut mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application. ” 24. Accordingly, both the appeals are allowed. Judgment dated 20.9.2014 rendered by learned Special Judge-IV, Kangra at Dharamshala in Sessions Case No. 30-D/VII/2013 is set aside. Accused are acquitted of the offence under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985. They be released forthwith. Fine amount, if any deposited, be also refunded to the accused Registry is directed to prepare the release warrants of the accused and send the same to the Superintendent Jail, concerned, forthwith.