Research › Search › Judgment

Himachal Pradesh High Court · body

2015 DIGILAW 1153 (HP)

Nihal Singh v. State of H. P.

2015-08-21

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT : Rajiv Sharma, J. This appeal is instituted against the judgment dated 2.9.2014, rendered by the learned Special Judge-I, Sirmaur at Nahan, H.P, in Sessions Trial No. 67-ST/7 of 2013, whereby the appellant-accused (hereinafter referred to as the accused), who was charged with and tried for offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ND & PS Act), has been convicted and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs. 1,00,000/- and in default of payment of fine, to further undergo simple imprisonment for one year. 2. The case of the prosecution, in a nut shell, is that on 30.1.2013, PW-7 SI Ankush Dogra, PW-1 Const. Anil Kumar, HC Jagir Singh and others left the Police Station in an official vehicle driven by Const. Vicky Kumar for patrolling. The police was present at a place 1 km ahead towards Neri Pul at about 5:20 PM. The accused was spotted coming from opposite direction. The accused, on seeing the police party got perplexed and tried to flee away. He was overpowered by the police. The place was secluded one. The accused was holding a pithu bag, which was checked in the presence of police officials. On search of the pithu bag, pink coloured cloth bag was found containing nine envelopes, in which charas in the shape of sticks, was found. The charas, so recovered from the possession of the accused, was weighed. It weighed 2 kg 250 grams. The charas was re-packed in the same manner and kept in cloth parcel, which was sealed with seal “I”. NCB forms in triplicate were prepared and seal impression Ext. PW-2/B was drawn. The seal was handed over to Const. Vicky Kumar. The case property was taken into possession vide seizure memo Ext. PW-2/B. The I.O. prepared “rukka” Ext. PW-1/A and sent the same to the Police Station through Const. Anil Kumar. FIR Ext. PW-1/B was registered. The spot map Ext. PW-7/C was also prepared. The statements of the witnesses were recorded. The I.O. deposited the case property in the malkhana with PW-3 HC Purshotam Singh. PW-3 HC Purshotam Singh, made entry in the malkhana register at Sr. No. 250 vide Ext. PW-3/B. The case property alongwith the sample of seal and other relevant documents were sent to SFSL, Junga through Const. The statements of the witnesses were recorded. The I.O. deposited the case property in the malkhana with PW-3 HC Purshotam Singh. PW-3 HC Purshotam Singh, made entry in the malkhana register at Sr. No. 250 vide Ext. PW-3/B. The case property alongwith the sample of seal and other relevant documents were sent to SFSL, Junga through Const. Anil Kumar PW-6 vide RC Ext. PW-3/C. The report of the FSL is Ext. PW-7/E. The investigation was completed and the challan was put up after completing all the codal formalities. 3. The prosecution, in order to prove its case, has examined as many as 7 witnesses. The accused was also examined under Section 313 Cr.P.C. According to him, he was falsely implicated in the case by the police. The learned trial Court convicted and sentenced the accused, as noticed hereinabove. 4. Mr. Ramesh Sharma, 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. M.A.Khan, learned Addl. Advocate General for the State has supported the judgment of the learned trial Court dated 2.9.2014. 5. We have heard learned counsel for both the sides and gone through the judgment and records of the case carefully. 6. PW-1 Const. Anil Kumar, deposed that at about 5:20 PM on 30.1.2013 when they were going from Jagher towards Neripul side, accused was coming on foot from Neripul side at a place 1 km. from Jagher. On seeing the police party, the accused got perplexed. He tried to run away. He was overpowered. The place was secluded one and there was no habitation nearby. The accused was holding a pithu bag. It contained charas. It weighed 2 kgs. 250 grams. The S.I. took the photographs. Thereafter, the charas was put into the same polythene envelopes and then put into the same pithu bag. The parcel was sealed with seal bearing impression “I”. The specimen of seal was obtained and seal was handed over to Const. Vicky Kumar. Seizure memo was prepared which was witnessed by HC Jagir and Const. Vicky Kumar. Rukka Ext. PW-1/A was drawn by SI Ankush Dogra which was entrusted to him. He delivered it to MHC Purshotam in the Police Station. The specimen of seal was obtained and seal was handed over to Const. Vicky Kumar. Seizure memo was prepared which was witnessed by HC Jagir and Const. Vicky Kumar. Rukka Ext. PW-1/A was drawn by SI Ankush Dogra which was entrusted to him. He delivered it to MHC Purshotam in the Police Station. In his cross-examination, he deposed that, on the way from Sanora to Jagher, they stopped at several places for checking the traffic, but no vehicle was challaned. He could not depict the number of any vehicle which was checked on the way. They stated at Jagher for 15-20 minutes. The proceedings were conducted on the spot on the road. 7. PW-2 Const. Vicky Kumar deposed the manner in which the accused was apprehended, search, seizure and sealing proceedings were completed on the spot. The case property was produced while recording his statement as PW-2. In his cross-examination, he deposed that no record about traffic checking was prepared. The proceedings were conducted inside the vehicle by sitting on the back side of the jeep. 8. PW-3 HC Purshotam Singh deposed that rukka was handed over to him by PW-1 Const. Anil Kumar. FIR Ext. PW-1/B was registered on the basis of the rukka. On the same night at 2:10 AM, SI Ankush Dogra deposited one sealed parcel sealed with seal “I” alongwith the sample seal and NCB forms and articles recovered, regarding which he incorporated the entries in the malkhana register at Sr. No. 250. He proved the extract of the malkhana register vide Ext. PW-3/B. He sent the case property to SFSL Junga, through Const. Anil Kumar vide RC No. 98/12-13. 9. PW-6 Const. Anil Kumar, deposed that MHC Purshotam handed over to him one sealed parcel sealed with seal impression “I” alongwith the sample of seal and NCB form in triplicate vide RC No. 98/12-13, which he delivered in FSL Junga on the same day under receipt. 10. PW-7 SI Ankush Dogra is the I.O. He deposed the manner in which the accused was apprehended, search, seizure and sealing proceedings were completed on the spot. In his cross-examination, he admitted that the documents were prepared by sitting inside the vehicle. According to him, no person had passed from that place during that period. He did not call any person from Jagher to witness the proceedings on the spot. 11. According to PW-1 Const. In his cross-examination, he admitted that the documents were prepared by sitting inside the vehicle. According to him, no person had passed from that place during that period. He did not call any person from Jagher to witness the proceedings on the spot. 11. According to PW-1 Const. Anil Kumar, the proceedings were completed on the spot on the road. PW-2 Const. Vicky Kumar deposed that the proceedings were completed inside the vehicle by sitting on the back side of the jeep. PW-7 SI Ankush Dass also deposed that the proceedings were conducted while sitting inside the jeep. 12. It has come in the statements of PW-1 Const. Anil Kumar, PW-2 Const. Vicky Kumar and PW-7 SI Ankush Dogra that they were on patrolling duty. PW-1 Const. Anil Kumar deposed that on the way from Sanora to Jagher, they stopped at several places for traffic checking. He did not recollect the number of vehicles they checked on the way. PW-2 Constable Vicky Kumar has also deposed that on the way, they stopped at Sanora and conducted traffic checking for 1 ½ -2 hours, but he was not aware that any vehicle was challaned. No record about the traffic checking was prepared. PW-7 SI Ankush Dogra, deposed that no person had passed though that place, but he did not recollect if any vehicle passed through that place during that period. They reached at Jagher at about 5-6 PM and on the way from Sanora to Jagher, no vehicle was challaned. Even at Sanora, they had checked 15-20 vehicles, but he did not recollect if any vehicle was challaned for violation of provisions of M.V. Act. The fact that they had gone on patrolling duty and were checking the traffic pre-supposes that the road from Sanora to Jagher was a busy road and despite that no independent witnesses were associated by stopping the occupants of the vehicle, who were plying on the road from Sanora to Jagher towards Neripul. 13. PW-7 SI Ankush Dogra, has categorically deposed in his cross-examination that he has not called any witness from village Jagher to witness the proceedings on the spot. Jagher was at a distance of only 1 km. from the place where the accused was apprehended. The police has not at all made any sincere efforts to join the independent witnesses at the time of arrest, seizure and sealing proceedings on the spot. 14. Jagher was at a distance of only 1 km. from the place where the accused was apprehended. The police has not at all made any sincere efforts to join the independent witnesses at the time of arrest, seizure and sealing proceedings on the spot. 14. The case property was produced while recording the statement of PW-2 Constable Vicky Kumar. The copy of the malkhana register is Ext. PW-3/B. There is entry of the deposit of the contraband on 30.1.2013 and when it was received back from the FSL Junga. There is no entry when the case property was taken out from the malkhana and produced in the Court. There is no DDR recorded when the case property was produced before the trial Court. Similarly, there is no entry when the case property after production in the trial Court was re-deposited in the malkhana register. It is necessary for the prosecution to prove that the case property was taken out from the malkhana for the production in the Court and also preparing DDR to this effect and the same process is to be undergone when the case property after its production in the Court is taken back and deposited in the malkhana. There has to be entry in the malkhana register when it is re-deposited and DDR is also prepared. The production of the case property in the Court is mandatory. There is doubt whether the case property which was produced in the Court was the same which was recovered from the accused and sent to FSL, Junga in the absence of any corresponding entries made at the time of taking it and redeposit in the malkhana register or it was case property of some other case. It has caused serious prejudice to the accused. The nabbing of the accused, recovery and sealing proceedings in the instant case are doubtful. When the case property was produced in the Court, there is no reference as to who brought the case property to the Court from malkhana and by whom it was taken back. 15. Thus, the prosecution has failed to prove the case against the accused beyond reasonable doubt for the commission of offence punishable under Section 20 of the N.D & P.S., Act. 16. Accordingly, in view of the analysis and discussion made hereinabove, the appeal is allowed. 15. Thus, the prosecution has failed to prove the case against the accused beyond reasonable doubt for the commission of offence punishable under Section 20 of the N.D & P.S., Act. 16. Accordingly, in view of the analysis and discussion made hereinabove, the appeal is allowed. Judgment of conviction and sentence dated 2.9.2014, rendered by the learned Special Judge-I, Sirmaur at Nahan, H.P., in Sessions trial No. 67-ST/7 of 2013, 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. 17. 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.