Research › Search › Judgment

Himachal Pradesh High Court · body

2015 DIGILAW 1252 (HP)

Raj Kumar v. State of H. P.

2015-09-04

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT : Rajiv Sharma, J. This appeal is instituted against the judgment dated 5.7.2014, rendered by the learned Special Judge, Kinnaur Sessions Division at Rampur Bushahr, H.P, in Sessions Trial No. 0100005 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, he was further ordered to undergo rigorous imprisonment for six months. 2. The case of the prosecution, in a nut shell, is that on 4.12.2012, police party headed by SI/SHO Rohit Mrigpuri and consisting of Probationer SI Ankur Sharma, HC Tain Singh and Const. Mukesh Kumar of PS Anni, had laid naka at Banigaad. At about 6:30 A.M., a motorcycle bearing registration No. HP-35-1010 came from Kandugaad side. It was stopped for checking. The accused was riding the motorcycle. He was asked by SI/SHO Rohit Mrigpuri to show the documents of the motorcycle. The accused was carrying a carry bag on his back. In order to take out the documents of the vehicle, he put his bag on the motorcycle and started searching it by opening the zip. In the meantime, a plastic packet kept in the bag fell down on the ground. The packet was having ball and sticks shaped charas in it. Constable Mukesh Kumar (PW-2) was sent for search of independent persons to join the investigation. However, as the place was secluded and it was too early in the morning, no independent witnesses could be joined. SI/SHO Rohit Mrigpuri associated SI Ankur Sharma and HC Tain Singh as witnesses and gave his personal search to the accused. The contraband weighed 2.5 kg. On opening the outer pocket of the bag, currency worth Rs. 20,000/- was also recovered. The I.O. then put the contraband in the same bag and parceled up after sealing with seals of seal “H”. The currency was separately packed and sealed. He also filled the necessary columns of NCB form. Rukka was sent to the Police Station, Anni through Const. Mukesh for registration of the FIR. The special report was prepared. Sample was sent for chemical analysis to FSL, Junga. The currency was separately packed and sealed. He also filled the necessary columns of NCB form. Rukka was sent to the Police Station, Anni through Const. Mukesh for registration of the FIR. The special report was prepared. Sample was sent for chemical analysis to FSL, Junga. 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 9 witnesses. The accused was also examined under Section 313 Cr.P.C. The accused has denied the prosecution case. According to him, he was falsely implicated. The learned trial Court convicted the accused, as noticed hereinabove. 4. Mr. Y.P.S. Dhaulta, 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, Addl. AG, for the State has supported the judgment of the learned trial Court dated 5.7.2014. 5. We have heard learned counsel for both the sides and gone through the judgment and records of the case carefully. 6. PW-1 probationer SI Ankur Sharma, deposed that on 4.12.2012, he alongwith HC Tain Singh, Const. Mukesh Kumar had gone to Banigaad on Nakabandi duty. At about 6:30 AM, one motorcycle came from Kandugaad and SI/SHO Rohit Mrigpuri stopped the motorcycle. The antecedents of the accused were ascertained. The accused was asked to produce the documents. The accused was having a rucksack bag on his back. When the accused was searching the bag by keeping it on the seat of the motorcycle, one transparent polythene envelope fell from the bag. It was having some black material in the shape of balls and sticks. Thereafter, the SHO sent Const. Mukesh Kumar for the search of independent witnesses. He came back after 20 minutes and informed that no independent witnesses could be found by him as the place was deserted and secluded. The SHO associated him and HC Tain Singh as witnesses. The SHO gave his personal search and then the transparent polythene envelope was checked by the SHO, which was containing charas in the shape of balls and sticks. Thereafter, the outer pocket of the bag was also searched by the SHO, out of which, currency notes worth Rs. 20,000/- were recovered. The charas weighed 2.5 kg. The SHO gave his personal search and then the transparent polythene envelope was checked by the SHO, which was containing charas in the shape of balls and sticks. Thereafter, the outer pocket of the bag was also searched by the SHO, out of which, currency notes worth Rs. 20,000/- were recovered. The charas weighed 2.5 kg. The charas was put alongwith transparent polythene envelope in the bag and was made into a parcel. The parcel was sealed with seal impression “H”. The NCB form in triplicate was filled up. The currency notes and charas were made into separate parcels which were marked as A-1 and A-2. Charas was kept in parcel A-1 and thereafter, another parcel A-2 was prepared in which currency notes worth Rs. 20,000/- were kept. The parcel A-2 was sealed with 4 seals of seal impression “H”. The sample seal was taken on a separate cloth vide Ext. PW-1/B. The case property was taken into possession vide recovery memo Ext. PW-1/C. The case property was produced before the Court while recording the statement of PW-1 SI Ankur Sharma. In his cross-examination, he deposed that they stopped at two places before reaching the spot but since there was no traffic going on, so no vehicle was checked on the way to the spot. They reached on the spot at 6/6:15 A.M. 7. PW-2 Constable Mukesh Kumar, deposed the manner in which the accused was apprehended at 6:30 AM on 4.12.2012. He was sent in search of independent witnesses. After about 20 minutes, he returned back as he was unable to find any independent witnesses as the place was secluded and deserted. In his cross-examination, he admitted that he left the spot in search of independent witnesses towards Kandugaad which is about 1 km. from the spot. He also admitted that Banigaad village was also situated above the road. He had gone in private vehicle alongwith rukka and also came back in private vehicle with the case file. 8. PW-3 HC Amar Singh, deposed that on 4.12.2012, SI/SHO Rohit Mrigpuri deposited with him one parcel marked as A-1 duly sealed with 6 impressions of seal “H” and one another parcel marked as A-2 sealed with 4 impressions of seal “H”. Parcel marked as A-1 was stated to be containing charas weighing 2.5 kg and parcel marked as A-2 was stated to be containing currency notes of worth Rs. 20,000/-. Parcel marked as A-1 was stated to be containing charas weighing 2.5 kg and parcel marked as A-2 was stated to be containing currency notes of worth Rs. 20,000/-. The entry was made in the malkhana register at Sr. No. 349. He proved the extract of the malkhana register vide Ext. PW-3/A. On 5.12.2012, vide RC No. 110/2012 and after updating the relevant column of NCB form Ext. PW- 3/B, he sent the case property to FSL Junga through Const. HHC Roshan Lal, who after depositing the same in FSL, handed over receipt on the backside of RC. On 3.1.2013, HHC Nihal Chand brought the case property from FSL Junga and deposited the same marked as A-1 with him. The seal impression “H” over the parcel were broken and not legible. The parcel mark A-1 was sealed with 6 seals of FSL, out of which, 2 seals were broken and others were intact. 9. PW-4 HHC Roshan Lal, deposed that on 5.12.2012, MHC Amar Singh handed over to him one parcel containing charas weighing 2.5 kg, duly sealed with 6 seals of seal “H” alongwith the sample of seal, NCB form in triplicate, FIR and recovery memo for depositing the same in FSL vide RC No. 110/2012, Ext. PW-3/C. He deposited the same at FSL Junga on the same day and obtained the receipt on the back of the RC vide receipt Ext. PW-3/D. 10. PW-5 HHC Nihal Chand, deposed that he brought the case property from FSL, Junga and deposited the same with MHC Amar Singh on 3.1.2013. In his cross-examination, he admitted that when the case property was handed over to him at FSL, 5 seals of “H” were broken whereas one seal was intact. 11. PW-8 HC Tain Singh, deposed the manner in which the accused was apprehended and the charas was recovered from the accused, search, seizure and sealing proceedings were completed on the spot. In his cross-examination, he deposed that Const. Mukesh Kumar went towards Kandugaad in search of independent witnesses. Village Banigaad was situated at a distance of ¾ km. from the spot towards Kandugaad. 12. PW-9 SI/SHO Rohit Mrigpuri, also deposed the manner in which the accused was apprehended and the charas was recovered from the accused, search, seizure and sealing proceedings were completed on the spot on 4.12.2012. He filled up the relevant columns of NCB form. Rukka Ext. from the spot towards Kandugaad. 12. PW-9 SI/SHO Rohit Mrigpuri, also deposed the manner in which the accused was apprehended and the charas was recovered from the accused, search, seizure and sealing proceedings were completed on the spot on 4.12.2012. He filled up the relevant columns of NCB form. Rukka Ext. PW-1/D was prepared and sent to the Police Station through Const. Mukesh at 8:30 AM for registration of the FIR. FIR Ext. PW-2/A was registered. He also prepared the special report Ext. PW-6/A. In his cross-examination, he deposed that before reaching the spot, they had stopped at 2 places for checking. They had checked 2-3 other vehicles before the arrival of the motorcycle. According to him, the sun had not appeared when the accused came there but it was dawn. The spot is known as Banigaad but there was no house nearby. He also admitted in his cross-examination that during completion of the codal formalities, some vehicles did cross that road. He did not know as to how Constable Mukesh went with the rukka and how he returned from the Police Station. 13. According to PW-1, SI Ankur Sharma, PW-2 Const. Mukesh Kumar was sent towards Kandugaad side to join the independent witnesses. PW-2 Const. Mukesh Kumar deposed that he went in search of independent witnesses and came back after 20 minutes. He has admitted in his cross-examination that he left the spot in search of independent witnesses towards Kandugaad which is about 1 km from the spot and village Banigaad was situated above the road. PW-8 HC Tain Singh also deposed that Constable Mukesh Kumar was sent in search of independent witnesses. He came back after 20 minutes. According to him, village Banigaad was situated at a distance of ¾ km. from the spot towards Kandugaad. 14. PW-1 SI Ankur Sharma, has deposed that no vehicle was checked on the spot, however, PW-9 SI/SHO Rohit Mrigpuri deposed that they had already checked 2-3 vehicles before the arrival of the motorcycle. He also deposed that during completion of codal formalities, some vehicles crossed from the road. It is evident from the record that village Banigaad was situated at a distance of ¾ km. from the spot and village Kandugaad was at a distance of 1 km and despite that the police has not joined any independent witnesses, though it was 6:30 AM and it was dawn. It is evident from the record that village Banigaad was situated at a distance of ¾ km. from the spot and village Kandugaad was at a distance of 1 km and despite that the police has not joined any independent witnesses, though it was 6:30 AM and it was dawn. The police party could always stop the vehicles which were crossing on the road, to associate independent witnesses but have failed to do so. It cannot be said that the place was so remote and secluded that no independent witnesses could be associated at the time when the accused was apprehended, search, seizure and sealing proceedings were completed on the spot. 15. When the case property was produced while recording the statement of PW-1 before the Court, 6 seals of the FSL were intact but in the statement of PW-3 HC Amar Singh, out of the six seals of FSL, two seals were broken and others were intact. Moreover, the person who brought the case property to the Court has also not been examined by the prosecution. 16. The case property was produced while recording the statement of PW-1 SI Ankur Sharma in the trial Court. The extract of copy of the malkhana register is Ext. PW-3/A. There is entry of the deposit of the contraband on 4.12.2012 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 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 re-deposit 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. It is necessary to keep the case property in safe custody from the date of seizure till its production in the Court in ND & PS cases. 17. 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 of the N.D & P.S., Act. 18. Accordingly, in view of the analysis and discussion made hereinabove, the appeal is allowed. Judgment of conviction and sentence dated 5.7.2014, rendered by the learned Special Judge, Kinnaur Sessions Division at Rampur Bushahr, H.P., in Sessions trial No. 0100005 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. 19. 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.