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2015 DIGILAW 1366 (HP)

Parkash Chand v. State of H. P.

2015-09-24

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT : Rajiv Sharma, J. This appeal is instituted against the judgment and order dated 21.11.2013 and 28.11.2013, respectively, rendered by the learned Special Judge, Ghumarwin, Distt. Bilaspur, (Camp at Bilaspur), H.P. in Sessions Trial No.4/3 of 2013, whereby the appellants-accused (hereinafter referred to as accused) who were charged with and tried for offences punishable under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act), have been convicted and sentenced to undergo rigorous imprisonment for twenty years each and to pay fine of rupees two lac each and in default of payment of fine they were ordered to suffer further simple imprisonment for two years each for the commission of offence punishable under Section 20 (b) (ii) (C) of the ND & PS Act. They were also convicted and sentenced to undergo rigorous imprisonment for twenty years each and to pay fine of rupees two lac each and in default of payment of fine they were ordered to suffer further simple imprisonment for two years each, for the commission of offence punishable under Section 29 of the ND & PS Act. 2. The case of the prosecution, in a nut shell, is that ASI Sewa Singh (PW-31), alongwith other police personnel had set up a Naka on 6.11.2012 near Hilltop Hotel, Swarghat during day time. The secret information was received during the nakabandi to the effect that accused were transporting charas in huge quantity in vehicle No. DL-3CAY-7668 from Mandi towards Delhi. An intimation under Section 42 of the ND & PS Act, Ext. PW-3/A was reduced into writing and sent through Const. Desh Raj (PW-5) to DSP Naina Devi Ji. ASI Sewa Singh also informed DSP Manohar Lal on telephone in that regard. Const. Desh Raj (PW-5) handed over this information to DSP Manohar Lal (PW-3) at Kenchi More and in turn DSP made an endorsement over the same. Witnesses PW-1 Kartar Singh and PW-2 Pyare Lal were associated at the naka and thereafter small vehicles passing by were checked. At about 2:00 PM, a black coloured Skoda Car bearing regn. No. DL-3CAY-7668 came from the Bilaspur side. It was signaled to stop. Accused were sitting in the vehicle. Driver revealed his name as Prakash Chand. The antecedents of accused were verified. At about 2:00 PM, a black coloured Skoda Car bearing regn. No. DL-3CAY-7668 came from the Bilaspur side. It was signaled to stop. Accused were sitting in the vehicle. Driver revealed his name as Prakash Chand. The antecedents of accused were verified. The person sitting on the front seat of the vehicle disclosed his name as Krishan Lal and the other person sitting on the back seat disclosed his name as Raj Kumar. The smell of charas was emanating from the vehicle. The vehicle alongwith the accused, witnesses and the police officials was taken to PS Swarghat. There DSP Manohar Lal met them. Search of the vehicle was conducted by ASI Sewa Singh in their presence. Accused were asked to come out of the vehicle. Thereafter, its dicky was opened wherefrom three bags containing belongings of accused were found. On opening the lock of the back seat, a hole was found there in the middle of the iron sheet. On checking the hole, polythene envelopes being yellowish and transparent were recovered. The polythene envelopes were found to be containing charas on the basis of experience. The recovered polythene envelopes were taken out of the vehicle and separated. Charas in the form of pancakes was found in the envelopes. It weighed 26 kg 150 grams. The polythene envelopes were also separately weighed and found to be 2 kgs, 750 grams. The lot of charas Ext. P-3, weighing 13 kg 850 grams was put in a black coloured bag (Ext. P-2) bearing mark ?Perfect? and was sealed in a cloth parcel (Ext. P-1), with 12 impressions of seal ?M?. The other lot of charas Ext. P-6, weighing 12 kg. 300 grams was put in a light green coloured bag (Ext. P-5), bearing mark ?Perfect? and was sealed in a cloth parcel (Ext. P-4), with 12 impressions of seal ?M?. The empty polythene envelopes (Ext. P-8) and packing tape Ext. P-9, were put in a gunny bag and thereafter sealed in a cloth parcel (Ext. P-7) with 12 impressions of seal ?M?. The sample of seals was also taken on pieces of plain cloth. The seal after use was handed over to PW-1 Kartar Singh. NCB form Ext. PW-31/A was filled in triplicate. The parcels were marked separately. The parcel containing 13 kg. P-7) with 12 impressions of seal ?M?. The sample of seals was also taken on pieces of plain cloth. The seal after use was handed over to PW-1 Kartar Singh. NCB form Ext. PW-31/A was filled in triplicate. The parcels were marked separately. The parcel containing 13 kg. 850 grams of charas was marked as P-1, the other parcel containing the remaining charas was marked as P-2 and the parcel containing empty polythene envelopes was marked as P-3. Rukka Ext. PW-23/A was prepared and handed over to HHC Pradeep Kumar (PW-24) with the direction to carry the same to Police Station. He handed over the rukka to HC Thakur Dass (PW-23) and on the basis of rukka FIR Ext. PW-23/B was registered. The accused were arrested. The case property was handed over to HC Thakur Dass. He made endorsement in Malkhana register at Sr. No. 35. He sent the parcels, NCB form in triplicate, sample seal ?M?, copy of seizure memo and FIR to FSL, Junga for analysis through Const. Bal Krishan (PW-16) on 8.11.2012 vide RC No. 51/2012 vide Ext. PW-23/D. The result of the chemical analysis is Ext. PA. According to the analysis, the samples were found to be of charas and contained 38.24% and 38.65% resin in them. On completion of the investigation, challan was put up after completing all the codal formalities. 3. The prosecution has examined as many as 31 witnesses to prove its case. The accused were also examined under Section 313 Cr.P.C. The accused have denied having committed any offence. According to them, nothing was recovered from them and they were falsely implicated. The learned trial Court convicted the accused, as noticed hereinabove. 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. AG, has supported the judgment/order of the learned trial Court dated 21.11.2013/28.11.2013. 5. We have heard learned counsel for both the sides and gone through the records of the case carefully. 6. PW-1, Kartar Singh deposed that on 6.11.2012, a naka was put up by the police officials at Swarghat. During day time at around 12-12:30 PM, vehicles were being stopped for checking. A black coloured car was also stopped for checking by the police. He didn't remember its registration number. 6. PW-1, Kartar Singh deposed that on 6.11.2012, a naka was put up by the police officials at Swarghat. During day time at around 12-12:30 PM, vehicles were being stopped for checking. A black coloured car was also stopped for checking by the police. He didn't remember its registration number. The vehicle was taken to the Police Station Swarghat. It was checked in his presence. On opening the back seat of the vehicle, three bags containing clothes were found from its dicky. From behind the back seat, polythene envelopes were also recovered but he could not remember as to how many polythenes were recovered. He didn't know as to what was contained there in the polythenes. There were three persons occupying the car. In his presence, the polythene envelopes were neither checked nor weighed. Many people were present there and thereafter, he went away. He was declared hostile and cross-examined by the learned P.P. In his cross-examination by the learned P.P., he admitted that on checking the back seat of the vehicle, a hole was found in it. He admitted that from inside the hole, polythene envelopes sealed with yellow coloured packing tape were found. He did not know that these packets were emitting smell of charas. He denied that after removing the packing tape, black coloured substance, being charas was recovered from inside the polythene envelopes. He denied that Const. Pawan Kumar was sent to bring a scale. He denied that an electronic scale was brought and on weighing, one ploythene envelope was found containing 13 kgs. 850 grams charas and the other was containing 12 kgs. 300 grams charas. He also denied the suggestion that the charas so recovered was separately sealed in two cloth parcels while the polythene envelopes were separately sealed in another cloth parcels. He also denied that all the three parcels were duly sealed with 12 seal impressions each with seal ?M?. He admitted that the specimen of seal ?M? was taken on a piece of plain cloth. He denied that the seal was handed over to him after use. He denied that parcels were marked as P-1, P-2 and P-3, respectively. He also denied that NCB forms in triplicate were filled in. He admitted that parcel alongwith the vehicle and documents were seized by the police in his presence and in the presence of Pyare Lal, vide memo Ext. He denied that parcels were marked as P-1, P-2 and P-3, respectively. He also denied that NCB forms in triplicate were filled in. He admitted that parcel alongwith the vehicle and documents were seized by the police in his presence and in the presence of Pyare Lal, vide memo Ext. PW-1/A. He admitted his signatures on memo Ext. PW-1/A. He denied the suggestion that the accused persons had also appended their signatures on PW- 1/A in his presence and in the presence of Pyare Lal. The contents of Ext. PW-1/A were never read over and explained to him. In his cross-examination, by the learned defence counsel, he admitted that he was working as driver for the last 15 years and because of his profession, police officials frequently meet him. He admitted that he being a local, police officials of PS Swarghat are known to him. He also admitted that nearby PS Swarghat, there are number of shops and residences. The bazaar was open on that day. He also admitted that at Swarghat, BDC member, Pradhan and members of the Panchayat also reside. He admitted that neither the naka was put up by the police at 11:00 -12:00 O'Clock nor he was there at that time. He also admitted that in his presence, on checking the vehicle, only three bags filled with clothes were found and nothing else was recovered from inside the vehicle. The seats of the vehicle as well as its dickey were also checked. There was no hole in the back seat of the vehicle. He signed memo PW-1/A in good faith. Const. Pradeep Kumar and DSP had not put their signatures on memo Ext. PW-1/A in his presence. In his further cross-examination, he also admitted that generally, he was associated by the police, being local, at the time of nakabandi. 7. PW-2 Pyare Lal deposed that nothing has happened in his presence. No vehicle was stopped and searched in his presence and no charas was recovered. He was also declared hostile and cross-examined by the learned P.P. He did not know that on 6.11.2012, a naka was put up by the police officials near Hilltop Hotel, Swarghat. He was not present there. He did not know that Kartar Singh (PW-1) was also present there. He was also declared hostile and cross-examined by the learned P.P. He did not know that on 6.11.2012, a naka was put up by the police officials near Hilltop Hotel, Swarghat. He was not present there. He did not know that Kartar Singh (PW-1) was also present there. He denied the suggestion that a vehicle bearing No. DL-3CAY-7668 coming from the side of Bilaspur was stopped by the police officials at the place of naka. He admitted the suggestion that inside the hole, polythene envelopes were kept sealed with cello tape. He did not know that on removing the tape, flat shaped black coloured substance was recovered from them. He admitted that the said substance was charas. He denied the suggestion that charas was weighed in his presence. He also denied that the charas so recovered was sealed in two parcels, while the polythene envelopes were sealed in another parcel. He also denied the sealing proceedings on the spot. He admitted his signatures on memo Ext. PW-1/A. 8. PW-3 DSP Manohar Lal deposed that on 6.11.2012, he was informed on telephone that accused in his vehicle bearing No. DL-CAY-7668 was transporting charas in huge quantity from Mandi towards Delhi. When he reached Kanchi More at Sri Nina Devi Ji, he had received information. Const. Desh Raj had presented before him information in writing under Section 42 (2) of the ND & PS Act. He made endorsement over the same. Thereafter, he brought Constable Desh Raj in his official vehicle to PS Sawarghat. The Skoda car was found at the Police Station. The vehicle was searched. During the search of the vehicle from inside the metal box, a hole was found on the back seat. From the hole a number of packets sealed with packing tape were recovered. These contained charas. It weighed 26 kg150 grams. The sealing proceedings were completed on the spot. In his cross-examination, he has admitted that the personal search of the accused persons was also conducted by the I.O. and thereafter the vehicle was searched at Hilltop Hotel. He did not take personal search of the accused persons. He admitted that there were big shopkeepers at Swarghat. 9. PW-4 Const. Pawan Kumar deposed the manner in which the vehicle was signaled to stop, search, sealing and sampling proceedings were completed on the spot. He did not take personal search of the accused persons. He admitted that there were big shopkeepers at Swarghat. 9. PW-4 Const. Pawan Kumar deposed the manner in which the vehicle was signaled to stop, search, sealing and sampling proceedings were completed on the spot. In his cross-examination, he admitted that during that period thousands of vehicles had crossed. He also admitted that both the independent witnesses were drivers by profession, having their own vehicles with private numbers. 10. PW-5 Const. Desh Raj has taken the information to PW-3 DSP Manohar Lal. 11. PW-16 Const. Bal Krishan deposed that on 8.11.2012, MHC Thakur Dass had handed over to him the case property for depositing at FSL, Junga, vide RC No. 51/12. He was accompanied by Const. Gopal Chand as security, since the contraband was in huge quantity. 12. PW-18 Const. Sarwan Kumar deposed that on 26.11.2012, he was sent by MHC Thakur Dass to FSL, Junga to bring report of the Chemical Examiner and the case property pertaining to case FIR No. 80/2002. He brought the report as well as the case property i.e. parcels P-1 and P-2 containing charas and handed over the same to MHC Thakur Dass. 13. PW-23 HC Thakur Dass deposed that HHC Pardeep brought rukka Ext. PW- 23/A to the Police Station, on the basis of which, he registered FIR Ext. PW-23/B. On 6.11.2012, the case property was deposited with him by ASI Sewa Singh. He made entry in this regard in Malkhana register at Sr. No. 35. On 8.11.2012, he sent the case property for its analysis to FSL, Junga through Const. Bal Krishan vide RC No. 51/2012. 14. PW-24 HHC Pardeep Kumar also deposed the manner in which the vehicle was signaled to stop, search, sealing and sampling proceedings were completed on the spot on 6.11.2012. In his cross-examination, he admitted that from 12:45 PM till 2:00 PM, the vehicles were checked. Naka was put by the police officials, who were checking the vehicles. He also admitted that the accused were personally searched at the Police Station at about 2:45 PM by ASI Sewa Singh. He did not remember whether any document was prepared in that regard. The option of the accused was taken. He didn't remember whether any document was prepared or not. The personal search of the accused persons was taken in the presence of local witnesses and Dy. He did not remember whether any document was prepared in that regard. The option of the accused was taken. He didn't remember whether any document was prepared or not. The personal search of the accused persons was taken in the presence of local witnesses and Dy. Superintendent of Police. Local witnesses were called on to the spot by ASI Sewa Singh at 1:25 PM. 15. PW-31 ASI Sewa Singh also deposed the manner in which the vehicle was signaled to stop, search, sealing and sampling proceedings were completed on the spot on 6.11.2012. Witnesses Kartar Singh and Pyare Lal were associated in the naka party and the small vehicles passing by were checked. He admitted in his cross-examination that in front of the Police Station, there were number of shops of big traders and numbers of people reside there. The personal search of the accused was taken only after their arrest at 10:30 PM. 16. The case of the prosecution has not been supported by the independent witnesses PW-1 Kartar Singh and PW-2 Pyare Lal. According to PW-1 Kartar Singh, in his presence, the polythene envelopes were neither checked nor weighed. He also denied that the charas was weighed in his presence and the sealing proceedings were conducted on the spot. In his cross-examination, he admitted that near the Police Station Swarghat, there were number of shops and residences. However, he has identified his signatures on memo Ext. PW-1/A. Similarly, PW-2 Pyare Lal has deposed that nothing was recovered in his presence. Although, he has also identified his signatures on memo Ext. PW-1/A, but has denied the suggestion the manner in which the search, seizure and sealing proceedings were completed on the spot. 17. The accused were travelling in Skoda Car bearing No. DL-3CAY-7668, black in colour. The secret information was sent to PW-3 DSP Manohar Lal vide memo Ext. PW- 3/A. It was carried to him by PW-5 Const. Desh Raj. PW-3 DSP Manohar Lal, in his cross-examination, has stated that personal search of the accused persons was also carried out by the I.O. and thereafter the vehicle was searched at Hilltop Hotel, Swarghat. PW-24 HC Pardeep Kumar has also admitted that the accused were personally searched at the Police Station at about 2:45 PM by ASI Sewa Singh. He did not remember whether any document was prepared in that regard and option of the accused was taken. PW-24 HC Pardeep Kumar has also admitted that the accused were personally searched at the Police Station at about 2:45 PM by ASI Sewa Singh. He did not remember whether any document was prepared in that regard and option of the accused was taken. He did not remember whether any document was prepared or not. The personal search of the accused were taken in the presence of local witnesses and DSP and the local witnesses were called on to the spot by ASI Sewa Singh at 1:25 PM. PW-31 ASI Sewa Singh has deposed that the personal search of the accused was taken at 10:30 PM after their arrest. However, the fact of the matter is that as per the statement of PW-3 DSP Manohar Lal, PW-24 HHC Pardeep Kumar, the personal search of the accused persons was undertaken. PW-24 HHC Pardeep Kumar deposed in particular that the option of the accused persons was taken but he did not remember as to any document in this regard was prepared or not. Since the personal search of the accused was undertaken, Section 50 of the ND & PS Act was to be complied with. The accused were required to be apprised of their legal right to be searched before the Executive Magistrate or the Gazetted Officer. The personal search of the accused was not required to be carried out since the contraband was recovered from the vehicle but despite that the personal search of the accused was carried out and that too without following the mandate of Section 50 of the ND & PS Act. Section 50 of the ND & PS Act is mandatory. Thus, the entire trial is vitiated for non-compliance with mandatory provisions of Section 50 of the Act. 18. In the case of Dilip and another vrs. State of M.P., reported in (2007) 1 SCC 450 , their lordships of the Hon'ble Supreme Court have held that 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 to comply with the said provisions. It has been held as follows: ?12. It has been held as follows: ?12. Before seizure of the contraband from the scooter, personal search of 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. 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 persons of the appellants were also searched, it was obligatory on the part of P.W.10 to comply with the said provisions. It was not done.? 19. In the case of State of Delhi vrs. Ram Avtar alias Rama, reported in (2011) 12 SCC 207 , their lordships of the Hon'ble Supreme Court have held that when a safeguard or a right is provided, favouring the accused, compliance thereto should be strictly complied with. The theory of `substantial compliance' would not be applicable to such situations, particularly where the punishment provided is very harsh and is likely to cause serious prejudices against the suspect. Their lordships have further held that noncompliance of the provisions of Section 50 of the Act would cause prejudice to the accused, and, therefore, amount to the denial of a fair trial. It has been held as follows: ?27. It is a settled canon of criminal jurisprudence that when a safeguard or a right is provided, favouring the accused, compliance thereto should be strictly construed. As already held by the Constitution Bench in the case of Vijaysinh Chandubha Jadeja (supra), the theory of `substantial compliance' would not be applicable to such situations, particularly where the punishment provided is very harsh and is likely to cause serious prejudices against the suspect. The safeguard cannot be treated as a formality, but it must be construed in its proper perspective, compliance thereof must be ensured. The law has provided a right to the accused, and makes it obligatory upon the officer concerned to make the suspect aware of such right. The officer had prior information of the raid; thus, he was expected to be prepared for carrying out his duties of investigation in accordance with the provisions of Section 50 of the Act. The law has provided a right to the accused, and makes it obligatory upon the officer concerned to make the suspect aware of such right. The officer had prior information of the raid; thus, he was expected to be prepared for carrying out his duties of investigation in accordance with the provisions of Section 50 of the Act. While discharging the onus of Section 50 of the Act, the prosecution has to establish that information regarding the existence of such a right had been given to the suspect. If such information is incomplete and ambiguous, then it cannot be construed to satisfy the requirements of Section 50 of the Act. Non-compliance of the provisions of Section 50 of the Act would cause prejudice to the accused, and, therefore, amount to the denial of a fair trial.? 20. PW-1 Kartar Singh in his cross-examination has admitted that near the Police Station Swarghat, there were number of shops and residences. PW-3 DSP Manohar Lal has also admitted in his cross-examination that there were shops at Swarghat. PW-31 ASI Sewa Singh has also admitted in his cross-examination that in front of the Police Station, there were number of shops of big traders and number of people reside there. 21. The prosecution has associated PW-1 Kartar Singh and PW-2 Pyare Lal as witnesses, though on the spot, there were residences and shops in existence. The prosecution, instead of associating PW-1 Kartar Singh and PW-2 Pyare Lal, who are drivers by profession, should have associated independent witnesses from the nearby locality. PW-1 Kartar Singh, in his cross-examination has admitted that he was associated by the police, being a local, at the time of Nakabandi, generally. It was not an isolated or secluded place where the vehicle was intercepted. The independent witnesses, though available, were not associated by the police to inspire confidence, the manner in which the search, seizure and sealing proceedings were completed on the spot. Neither the prosecution has complied with Section 50 of the ND & PS Act, nor were the independent witnesses, though available, associated during the search, sealing and sampling proceedings and thus vitiating the entire trial. 22. Accordingly, in view of the analysis and discussion made hereinabove, the appeal is allowed. Judgment and order of conviction and sentence dated 21.11.2013 and 28.11.2013, respectively, rendered by the learned Special Judge, Ghumarwin, Distt. 22. Accordingly, in view of the analysis and discussion made hereinabove, the appeal is allowed. Judgment and order of conviction and sentence dated 21.11.2013 and 28.11.2013, respectively, rendered by the learned Special Judge, Ghumarwin, Distt. Bilaspur, (Camp at Bilaspur), H.P., in Sessions Trial No. 4/3 of 2013, is set aside. Accused are acquitted of the charges framed against them. Fine amount, if any, already deposited by the accused is ordered to be refunded to them. Since the accused are in jail, they be released forthwith, if not required in any other case. 23. The Registry is directed to prepare the release warrants of the accused and send the same to the Superintendent of Jail concerned, in conformity with this judgment forthwith.