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Himachal Pradesh High Court · body

2015 DIGILAW 1345 (HP)

Rajinder v. State of Himachal Pradesh

2015-09-22

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT RAJIV SHARMA, J. 1. This appeal is instituted against the judgment dated 3.9.2014, rendered by the learned Special Judge (III), Mandi, Himachal Pradesh, in Sessions Trial No. 5 of 2013, whereby the appellant-accused (hereinafter referred to as the accused), who was charged with and tried for offence punishable under Sections 20-61-85 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 simple imprisonment for one year. 2. The case of the prosecution, in a nut shell, is that on 28.7.2012, Inspector Dulo Ram, Insp. Krishan Lal, ASI Pratap Singh, HHC Krishan Kumar, HHC Maan Singh and LHC Sanjay Kumar were on duty at Gharahn Badanu, link road on NH 21, at about 11:30 PM. In the meantime, a Santro car bearing No. HR-29W-9333 came from Kullu side. It was being driven by the accused. The accused was asked to stop the vehicle. He tried to run away but he was apprehended at the spot. In the presence of the police officials the vehicle of the accused was searched by the I.O. One bed sheet was found in the dicky of the vehicle under stepney (spare tyre). On opening this bed sheet, two plastic packets wrapped with tape were recovered. From these packets, stick shaped chapatti and round shaped charas was recovered. It weighed 10.02 kg. The bulk was sealed in a parcel and seal was taken separately on cloth. NCB form in triplicate was filled in. The case property alongwith the vehicle and documents was taken into possession by the police. Rukka was sent to the Police Station and FIR was registered. 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 15 witnesses. The accused was also examined under Section 313 Cr. P.C. The accused has denied the prosecution case. The learned trial Court convicted the accused, as noticed hereinabove. Hence, this appeal. 4. Mr. G.R. Palsra, 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.C. The accused has denied the prosecution case. The learned trial Court convicted the accused, as noticed hereinabove. Hence, this appeal. 4. Mr. G.R. Palsra, 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. Advocate General for the State has supported the judgment of the learned trial Court dated 3.9.2014. 5. We have heard learned counsel for both the sides and gone through the judgment and records of the case carefully. 6. PW-1 Insp. Krishan Lal Beri has deposed that he alongwith Insp. Dolu Ram, CID Crime Branch Mandi, ASI Pratap Singh, HHC Krishan Kumar, HHC Maan Singh and LHC Sanjay Kumar was present at place Link road Grahan-Badanu at about 11:30 PM, in connection with detection of cases pertaining to secret intelligence. One vehicle bearing No. HR-29-W-9333, Santro Car came from Kullu towards Mandi side. It was stopped. He disclosed his identity to the accused. The accused tried to run away. He was apprehended. The search was conducted by Insp. Dulo Ram in their presence. One bed sheet having printed flower on it was recovered kept under the Stepney (spare tyre) of the vehicle from the Dicky of the vehicle. Bed sheet was opened. 20 light yellow coloured polythene packets wrapped with plastic tape were recovered. Each packet was opened and checked. Charas was found in each packet. Recovery memo Ext. PW-1/A was prepared. It weighed 10 kg and 25 gms. The charas alongwith the bed sheet and polythene packet as well as tape was taken into a cloth parcel sealed with 20 seals of “H”. Separate seal was taken on cloth vide Ext. PW- 1/B. NCB forms in triplicate were prepared by the IO. Case property alongwith the Car and documents was taken into possession vide memo Ext. PW-1/C. IO prepared rukka mark “A” and it was sent to the Police Station through HHC Krishan Kumar. There was no abadi around the place. In his cross-examination, he admitted that the seal was with him but it was lost on the way. He admitted that the places such as Bhiuli, Sauli Khad, Bindra Bani, Kawari and Panch Meel fall on the way while going from Mandi to Bhadanu. There was no abadi around the place. In his cross-examination, he admitted that the seal was with him but it was lost on the way. He admitted that the places such as Bhiuli, Sauli Khad, Bindra Bani, Kawari and Panch Meel fall on the way while going from Mandi to Bhadanu. He also admitted that places such as Pandoh Bazar, Dam site, Jaral fall on the way while going from Bhadanu to Hanogi Mata Temple. He also admitted that these paces are thickly populated. The spot of alleged occurrence was situated at NH 21. It was month of July and it was tourist season. The National Highway is busy in day time but not in night time. They did not check any vehicle on the spot. They did not meet any informer. The IO did not send any of the officials to call for the witnesses from the locality. The IO did not stop any vehicle on the way in order to associate any independent witnesses. 7. PW-2 ASI Pratap Singh also deposed the manner in which the accused was apprehended, contraband was seized and sealing proceedings were completed on the spot. In his cross-examination, he admitted that while going to the spot, Bhiuli, Souli Khad, Bindrabani and Five meel come on the way. There were houses situated while moving from Mandi to Hanogi Mata temple. He also admitted that in the month of July, there was tourist season in Himachal. The licence was checked first. While checking the vehicle, accused was outside the vehicle and dicky of the vehicle was got opened through him. Insp. Dulo Ram entered the vehicle from left side door of the vehicle. Personal search of the accused was conducted later on. Consent of the accused was not taken for searching the vehicle. The I.O. did not give his personal search to the accused. The I.O. did not send any police official to call local witnesses from Badanu after opening the Dicky. No other vehicle was stopped on the spot by the I.O to associate witnesses. 8. PW-3 HC Prakash Chand deposed that SHO deposited with him one sealed parcel sealed with 20 seals of “H” and 10 seals of “R” stated to contain 10 kg 25 gms. cannabis alongwith the sample seal “H” and “R” NCB form in triplicate, copy of seizure memo and resealed certificate. He entered the case property at Sr. 8. PW-3 HC Prakash Chand deposed that SHO deposited with him one sealed parcel sealed with 20 seals of “H” and 10 seals of “R” stated to contain 10 kg 25 gms. cannabis alongwith the sample seal “H” and “R” NCB form in triplicate, copy of seizure memo and resealed certificate. He entered the case property at Sr. No. 96 in the malkhana register. He filled column No. 12 of the NCB form in triplicate. On 30.7.2012, he sent parcel containing charas alongwith sample seals “H” and “R”, NCB form in triplicate, copy of seizure memo, resealed certificate, copy of FIR and docket to FSL, Junga through Const. Kewal krishan vide RC No. 67/12. On 23.8.2012, case property alongwith the result Ext. PA was brought from the FSL Junga by Const. Bir Singh. He made entry regarding the same in the malkhana register. 9. PW-6 LHC Sanjay Kumar, also deposed the manner in which vehicle No. HR-29W-9333 was intercepted, contraband was seized and sealing proceedings were completed on the spot. He took photographs on the spot under the instructions of Insp. Dulo Ram. Rukka was scribed by Insp. Dulo Ram and sent to the Police Station through HHC Krishan Kumar. In his cross-examination, he admitted that no one was sent to Badanu for arranging witnesses from the locality. No vehicle was stopped by IO for associating witnesses. 10. PW-9 Insp. Tanzin Shashni deposed that he received rukka through Fax, Mark-B. On the basis of said rukka, he registered FIR Ext. PW-9/A. He made endorsement on rukka mark A. At 6:00 PM, HHC Krishan Kumar deposited with him case property, one sealed parcel sealed with 20 seals of “H” alongwith NCB form in triplicate, copy of seizure memo, sample seal “H”. The parcel contained 10 kg 25 grams of charas. He resealed the case property with seal “R” at 10 places. Sample seal was also taken separately on cloth. He filled in column Nos. 9 to 11 of NCB form Ext. PW-3/B and also embossed seal “R” on it. He prepared reseal certificate Ext. PW-9/D. 11. PW-12 Insp. Dulo Ram has also deposed the manner in which the accused was apprehended, contraband was seized and sealing proceedings were completed on the spot. According to him, the place was secluded one and thus, no independent witnesses could be associated. Therefore, Insp. PW-3/B and also embossed seal “R” on it. He prepared reseal certificate Ext. PW-9/D. 11. PW-12 Insp. Dulo Ram has also deposed the manner in which the accused was apprehended, contraband was seized and sealing proceedings were completed on the spot. According to him, the place was secluded one and thus, no independent witnesses could be associated. Therefore, Insp. Krishan Kumar, ASI Pratap Singh and HHC Krishan Kumar were associated as witnesses. The vehicle was searched. Rukka Ext. PW-12/A was prepared and sent to the Police Station for registration of the case through HHC Krishan Kumar. The case property, NCB forms in triplicate, sample seals, copy of seizure memo and the fax was also sent to the Police Station CID Bharari, Shimla. Spot map was also prepared. The statements of the witnesses were recorded. In his cross-examination, he admitted that they have checked about 15 vehicles on the spot. He also admitted that Badanu was 200 meters ahead from the spot on NH-21. He also admitted that it was a busy highway. They had gone to the spot in connection with traffic checking and detection of narcotic cases etc. They first checked the front seats of the vehicle. He also checked the accused by frisking. He did not give any option to the accused to produce him either before a Magistrate or a Gazetted Officer before frisking. The accused was standing outside when vehicle was checked. He did not try to send any police official to call for local witnesses from nearby places Badanu and Bindra Bani. He did not stop any passengers of the vehicles in the investigation. 12. PW-13 HHC Krishan Kumar also deposed the manner in which the accused was apprehended, contraband was seized and sealing proceedings were completed on the spot. He took rukka in original to Police Station Bharari. They did not deposit any case property at PS Bharari. He admitted that during the month of July, due to tourist season, vehicles were plying on National Highway continuously. He also admitted that at Badanu, there were many shops on both sides of the NH. Nobody from the raiding party was sent to Badanu or nearby places to call witnesses on the spot. No written consent of the accused was taken for checking his vehicle, however, verbal permission was taken. The team had not given personal search to the accused before checking the vehicle. 13. Nobody from the raiding party was sent to Badanu or nearby places to call witnesses on the spot. No written consent of the accused was taken for checking his vehicle, however, verbal permission was taken. The team had not given personal search to the accused before checking the vehicle. 13. The accused was apprehended on 28.7.2012 at 11:30 PM. The vehicle was intercepted on NH 21. It has come in the statement of PW-1 Krishan Lal that there was tourist season in the month of July and the National Highway remains busy. PW-2 ASI Pratap Singh has also admitted that in the month of July, there was tourist season. Badanu was situated at a distance of 150 meters away from the spot of occurrence on the road. The I.O. did not send any police officials to call for local witnesses from Badanu. PW-6 LHC Sanjay Kumar has also admitted that Badanu was situated at a distance of 150-200 meters from the spot. It was a National Highway. He also admitted that there were houses and shops on both sides of the road. No one was sent to Badanu for arranging witnesses of the locality. No vehicle was stopped by the I.O. to associate witnesses. PW-12 Insp. Dulo Ram has also admitted that they have checked 15 vehicles on the spot. He also admitted that Badanu was 200 meters away from the spot on the NH. He has also admitted that it is a busy highway. He did not try to send any police officials to call for independent witnesses from the nearby places like Badanu and Bindra Bani. Similarly, PW-13 HHC Krishan Kumar has also admitted that Badanu is on a National Highway. It was 100 meters away from the spot. He also admitted that there are many shops on both sides of the National Highway. It was tourist season and they had checked 5-6 vehicles on the spot. 14. The accused was apprehended on the National Highway. Though shops were situated near the place of occurrence, but no independent witness was associated at the time of apprehending the accused, search and sealing proceedings. It was not secluded or isolated place. The I.O. should have made sincere efforts to associate independent witnesses. He himself has admitted that no police official was sent to call for independent witnesses. They were on patrolling duty. They have checked many vehicles. It was not secluded or isolated place. The I.O. should have made sincere efforts to associate independent witnesses. He himself has admitted that no police official was sent to call for independent witnesses. They were on patrolling duty. They have checked many vehicles. They could easily associate either driver or passengers of the vehicles plying on the National Highway. If the IO had stopped the vehicles, the occupants of the vehicle were bound to witness the proceedings to give credence to seizure, search and sealing proceedings. PW-13 HHC Krishan Kumar has categorically admitted that nobody from the raiding party was sent to Badanu or nearby places to call witnesses on the spot. 15. PW-12 Insp. Dulo Ram has admitted in his cross-examination that accused was searched but he was not given any option to be searched either before the Magistrate or the Gazetted Officer. The I.O, ought to have apprised the accused of his legal right to be searched either before the Magistrate or the Gazetted Officer as per Section 50 of the ND & PS Act. It was not obligatory for the I.O. to search the accused since the contraband was recovered from the vehicle but despite that he has carried out the personal search of the accused without complying with Section 50 of the ND & PS Act. Section 50 of the ND & PS Act is mandatory. The nonassociation of independent witnesses, though available on the spot and non-compliance of Section 50 of the ND & PS Act, has vitiated the entire proceedings. 16. Thus, the prosecution has failed to prove the case against the accused for the commission of offence under Section 20-61-85 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 3.9.2014, rendered by the learned Special Judge (III), Mandi, Himachal Pradesh, in Sessions trial No. 5 of 2013, is set aside. Accused is acquitted of the charges framed against him. 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.