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Himachal Pradesh High Court · body

2015 DIGILAW 153 (HP)

Ravi Kumar v. State of Himachal Pradesh

2015-03-09

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT Rajiv Sharma, J. 1. This appeal is instituted against the judgment dated 29.11.2008, rendered by the learned Special Judge, Presiding Officer, Fast Track Court, Mandi, District Mandi, in Sessions Trial No. 33 of 2008, 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 rigorous imprisonment for one year. 2. The case of the prosecution, in a nut shell, is that on 15.2.2008 at about 4:35 A.M., HC Krishan Chand alongwith HC Ashok Kumar, Lady Constable Sangita Devi, HHC Padam Singh, HHC Ramesh Kumar and Const. Hitender Kumar proceeded from S.I.U. Mandi to Bindrabani for ‘Naka Bandi’ and routine traffic checking. At about 7:50 AM, a bus of Punjab Roadways bearing registration No. PB-32F-1303 came from Manali side which was enroute to Jallandhar. The bus was stopped for checking by the police party. Driver Kulwant Singh and Conductor Jaspal Singh were associated in the raiding party. Thereafter, the search of the bus was carried out in their presence. The accused was found sitting on seat No. 20 having polythene packet on his lap. Upon search of the packet, another polythene packet was found in it containing 4 sweet boxes which were wrapped with gift paper. All the four packets were opened and a black material in the shape of sticks and “chapatti” was found. It was found to be charas. It weighed 4 kgs. Out of the recovered charas two samples of 25-25 grams each were separately drawn and packed in two small cloth parcels which were sealed with seal impression ‘D’ at four places each and the remaining charas was also packed in a main cloth parcel alongwith sweet boxes and polythene packets and sealed with seal impression ‘D’ at 8 places. The specimen of sample seal ‘D’ was also drawn separately on a piece of cloth over which accused and witnesses Kulwant Singh and Jaspal have appended their respective signatures. NCB forms in triplicate were filled in. The specimen of sample seal ‘D’ was also drawn separately on a piece of cloth over which accused and witnesses Kulwant Singh and Jaspal have appended their respective signatures. NCB forms in triplicate were filled in. The impression of seal ‘D’ was affixed over it and the seal was handed over to witness Jaspal Singh after use. On the basis of the rukka, which was carried from the spot by HHC Padam Singh, FIR No. 63 of 2008 was registered. The contraband was re-sealed by SI SHO Dandu Ram with seal impression ‘A’ at 8 places and the sample parcels were resealed with seal impression ‘A’ at four places each. He also filled Sr. No. 9 to 11 of NCB forms. 3. Thereafter, SI/SHO Dandu Ram handed over the case property alongwith related documents to Incharge Malkhana HHC Nand Lal. On 15.2.2008, after receiving the case property by HHC Nand Lal entered all the case property in the Malkhana Register at Sr. No. 847. On 19.2.2008 HHC Nand Lal forwarded one of the sample parcel to FSL, Junga through HHC Nika Ram alongwith NCB forms in triplicate, seizure memo, sample seals ‘D’ and ‘A’ copy of FIR and other related documents vide RC No. 49/2008. HHC Nand Lal has handed over the receipt of deposit to HHC Nand Lal, PS Sadar, Mandi, H.P. The investigation was completed and the challan was put up after completing all the codal formalities. 4. The prosecution, in order to prove its case, has examined as many as 11 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. 5. Mr. Ajay 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. P.M. Negi, Dy. AG, for the State has supported the judgment of the learned trial Court dated 29.11.2008. 6. We have heard learned counsel for both the sides and gone through the records of the case carefully. 7. PW-1 Jaspal Singh is the independent witness. He was the Conductor of the Punjab Roadways Bus No. PB-32F-1303. According to him at about 7:50 AM, they reached near Bindraban Forest Barrier Naka. 6. We have heard learned counsel for both the sides and gone through the records of the case carefully. 7. PW-1 Jaspal Singh is the independent witness. He was the Conductor of the Punjab Roadways Bus No. PB-32F-1303. According to him at about 7:50 AM, they reached near Bindraban Forest Barrier Naka. The bus was stopped by the police and the search of the passengers as well as the bus was carried out by the police. The checking of the bus and the passengers was done in his presence. The driver was sitting on his seat. The police was checking every passenger and their belongings individually. When the police reached near Seat No. 20, a person was having two polythene bags in his hands. The polythene bags were having two sweet boxes in each polythene. The sweet boxes were wrapped with gift paper. Upon checking, sweet boxes were opened and black material was found in those boxes. The police arrested the accused vide memo Ext. PW-1/A. The recovered charas was weighed. It was taken into possession vide recovery memo Ext. PW-1/B. He signed the same. Samples of 25-25 gms. each were taken out of the recovered charas. The sample parcels and the residue charas was packed in the same sweet boxes and polythene bags packed in a cloth parcel and all the parcels were sealed with seal ‘D’. The sample seal Ext. PW-1/C was separately drawn which bears his signature at Point ‘A’ and signature of Kulwant Singh at point ‘B’. In his cross-examination, he deposed that SHO of police signaled to stop the bus. In police party, there were 6-7 personnel. The bus was 50 seater. It was full of passengers. The bus was having two doors. He was issuing tickets at that time when the bus was stopped. He was standing in the rear portion of the bus. The accused was sitting on the three seater bench which consisted of seats No. 19 to 21. No passenger was sitting on seats No. 19 and 21. The seat Nos. 19 to 21 are situated at the back of the driver seat side. He admitted in his crossexamination that when the police was conducting search of the passengers and their luggage, he was busy in issuing the tickets from the rear portion of the bus and as such he could not see the police official recovering the polythene bags Ext. 19 to 21 are situated at the back of the driver seat side. He admitted in his crossexamination that when the police was conducting search of the passengers and their luggage, he was busy in issuing the tickets from the rear portion of the bus and as such he could not see the police official recovering the polythene bags Ext. P-4 and Ext. P-5. The polythene bags Ext. P-4 and Ext. P-5 were not recovered in his presence from the accused by the police. After preparing document Ext. PW-1/A, the police told him that charas was recovered from one passenger Ravi Kumar. After preparing memo Ext. PW-1/A, the police arranged weight and scale from the PS Sadar Mandi, H.P. The weight and scale were brought from PS within about half an hour after preparation of memo Ext. PW-1/A. 8. Statement of PW-2 Const. Ramesh Chand is formal in nature. 9. PW-3 HHC Padam Singh, is the official witness. He narrated the manner in which the accused was apprehended and the sealing and seizure process was completed on the spot. In his cross-examination, he deposed that the bus was 52 seater. The bus was full up to capacity and no seat was vacant. The conductor of the bus was issuing the tickets in the bus. He did not remember as to who was sitting on either side of the accused on seat Nos. 19 and 21 but those were occupied by the passengers. According to him, the weights and scale were already with the IO in his kit. He further deposed that he took rukka to the Police Station at 9:45 AM and reached in the Police Station at 10:10 AM. The file was handed over to him at about 10:30 AM and he could not narrate at what time he reached on the spot with the case file. The FIR was written by MHC Prakash Chand. He did not know at what time the police party returned from the spot to the Police Station, Sadar Mandi. 10. PW-4 HC Lachhman Dass is a formal witness. 11. PW-5 HHC Nika Ram, deposed that on 19.2.2008, MHC Nand Lal handed over one sample parcel, NCB forms, sample seal and copy of FIR and seizure memo vide R/C No. 49/2008. He took the same and handed over at FSL, Junga on 20.2.2008. 12. 10. PW-4 HC Lachhman Dass is a formal witness. 11. PW-5 HHC Nika Ram, deposed that on 19.2.2008, MHC Nand Lal handed over one sample parcel, NCB forms, sample seal and copy of FIR and seizure memo vide R/C No. 49/2008. He took the same and handed over at FSL, Junga on 20.2.2008. 12. PW-6 HHC Nand Lal deposed that on 15.2.2008 SI/SHO Dandu Ram handed over three parcels one of which sealed with impression ‘D’ at 8 places and resealed with seal ‘A’ at 8 places and remaining two parcels were sealed with seal ‘D’ at four places each and re-sealed with seal ‘A’ at four places each. He entered the case property in the Malkhana Register at Sr. No. 847 in his hand writing vide Ext. PW- 6/A. On 19.2.2008, he forwarded one of the sample to FSL Junga through HHC Nika Ram alongwith NCB forms in triplicate, seizure memo, sample seals and copy of FIR vide R/C No. 49/2008. In his cross-examination, he admitted that he has not deleted the items in his register which were forwarded to FSL, Junga through HHC Nika Ram. He received the case property after re-sealing. 13. PW-7 SI Dandu Ram has re-sealed the residue charas with seal impression ‘A’ at 8 places and sample parcels were re-sealed with seal ‘A’ at four places. The sample seal Ext. PW-7/A was separately drawn over a piece of cloth. He filled in column No. 9 to 11 of the NCB forms Ext. PW-7/B in his own hand writing and signature. In his cross-examination, he did not know on which date MHC had forwarded the sample parcel to FSL, Junga. 14. Statements of PW-8 to PW-10 are formal in nature. 15. PW-11 HC Krishan Chand also deposed the manner in which the bus was signaled to stop and the bus alongwith the passengers was checked. According to him, on seat No. 20, a person was sitting carrying a polythene packet on his lap. He identified the accused in the Court. Search of the polythene was carried out. It contained four sweet like boxes wrapped with gift paper. On opening, a black material in the shape of sticks and chapatti was found. He prepared memo Ext. PW-1/E in the presence of witnesses Jaswal and Kulwant Singh regarding the identification of the contraband in accordance with law. The charas was recovered vide recovery memo Ext. It contained four sweet like boxes wrapped with gift paper. On opening, a black material in the shape of sticks and chapatti was found. He prepared memo Ext. PW-1/E in the presence of witnesses Jaswal and Kulwant Singh regarding the identification of the contraband in accordance with law. The charas was recovered vide recovery memo Ext. PW-1/B. Rukka Ext. PW-11/A was written and forwarded to Police Station through HHC Padam Singh on the basis of which FIR was registered. He prepared the spot map. The tickets Ext. P-11 were collected from the accused and taken into possession vide recovery memo Ext. PW-11/D. He handed over the case property for resealing and obtaining certificate Ext. PW-11/E. In his cross-examination, he admitted that the bus was 52 seater. It was full to capacity and nobody was standing. He entered the bus from front door and HC Ashok Kumar boarded the bus from the rear door in the bus. He had searched about 14-15 passengers of the bus on that day. The driver and conductor were associated with him and were standing in the gallery of the bus. The bus was having luggage shelf near the roof. The passengers were having their luggage with them and some were having their luggage on the bus shelf. Seat No. 20 was in the three seater bench. Nobody was sitting on seat Nos. 19 and 21. He has not inquired about the names and addresses of passengers but checked their luggage. He sent rukka at 9:55 AM. He did not know how HHC Padam Singh went from the spot to the Police Station. He remained on the spot up to 2:00 PM. 16. What emerges from the statements of the witnesses is that the bus was stopped at 7:50 AM. The accused was apprehended. The contraband was recovered. The charas weighed 4 kg. According to PW-1 Jaspal Singh, the bus was full of passengers and the accused was sitting on three seater bench consisting of seats No. 19 to 21. No passenger was sitting on seat Nos. 19 and 21. He admitted in his cross-examination categorically that when the police was conducting search of the passengers and their luggage, he was busy in issuing tickets from the rear portion of the bus and as such he could not see the police official recovering the polythene bags Ext. P-4 and Ext. P-5. The polythene bags Ext. 19 and 21. He admitted in his cross-examination categorically that when the police was conducting search of the passengers and their luggage, he was busy in issuing tickets from the rear portion of the bus and as such he could not see the police official recovering the polythene bags Ext. P-4 and Ext. P-5. The polythene bags Ext. P-4 and Ext. P-5 were not recovered in his presence from the accused by the police. According to PW-3 Padam Singh, the accused was sitting on seat No. 20. The bus was 52 seater. The bus was full to capacity and no seat was vacant. He reiterated in his cross-examination that he did not remember who was sitting on either side of seat No. 19 and 21 but those seats were occupied by passengers. According to PW-11 Krishan Chand, nobody was sitting on seat Nos. 19 and 21. There is variance in the statements of PW-1 Jaspal Singh, PW-3 Padam Singh and PW-11 Krishan Chand. According to PW-1 Jaspal Singh, nobody was sitting on seat Nos. 19 and 21, however as per PW-3 Padam Singh, these seats were occupied. PW-11 Krishan Chand has testified that seats No. 19 and 21 were not occupied. PW-11 HC Krishan Chand has stated that he has prepared the rukka Ext. PW-11/A. It was handed over to PW-3 HHC Padam Singh to be carried to the Police Station. PW-3 has carried the rukka to the Police Station at 9:45 AM. He reached the Police Station at 10:10 AM. The file was handed over to him at about 10:30 AM. Surprisingly, he could not tell as to at what time he reached on the spot with the case file. 17. According to PW-6 HHC Nand Lal, he entered the case property in the Malkhana Register at Sr. No. 847 in his hand writing vide Ext. PW-6/A. He further deposed that he handed over one of the sample to FSL Junga through HHC Nika Ram alongwith NCB forms in triplicate, seizure memo, sample seals and copy of FIR vide R/C No. 49/2008 dated 19.2.2008. PW-6 HHC Nand Lal in his cross examination admitted that he has not deleted the items in the register which were forwarded to FSL, Junga through HHC Nika Ram. 18. Mr. P.M.Negi, learned Dy. PW-6 HHC Nand Lal in his cross examination admitted that he has not deleted the items in the register which were forwarded to FSL, Junga through HHC Nika Ram. 18. Mr. P.M.Negi, learned Dy. Advocate General has vehemently argued that infact PW-5 HHC Nika Ram has taken the case property to FSL Junga and it was handed over at FSL Junga. According to PW-11 Krishan Chand he has filled in column Nos. 1 to 8 of NCB forms Ext. PW- 7/B. According to PW-7 SI Dandu Ram, he has filled in column Nos. 9 to 11. However, surprisingly, column No. 12 of the NCB forms Ext. PW-7/B has not been filled in. It was required to be filled in by MHC of the Police Station. Now, what emerges is that in Ext. PW-6/A, there is no corresponding entry of the details of the case property taken out of the malkhana and handed over to HHC Nika Ram including NCB forms in triplicate, seizure memo, sample seals “D’ and ‘A’ copy of FIR and other related documents. PW-6 HHC Nand Lal has only given reference to RC in the Malkhana register. The column No. 12 has not been filled in. Thus, it casts doubt that whether the same contraband, which was seized, was sent for chemical examination or not. 19. There is another loophole in the prosecution case. According to PW-1 Jaspal Singh, weights and scale were summoned from the Police Station, Sadar Mandi, which reached the spot within half an hour. However, as per the statement of PW-3 Padam Singh, the weights and scale were already with the I.O. in his kit. 20. 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 Sections 20, 61 & 85 of the N.D. & P.S. Act. 21. Accordingly, in view of the analysis and discussion made hereinabove, the appeal is allowed. Judgment of conviction and sentence dated 29.11.2008, rendered by the learned Special Judge, Presiding Officer, Fast Track Court, Mandi, H.P. in Sessions trial No. 33 of 2008, is set aside. Accused is acquitted of the charges framed against him by giving him benefit of doubt. 21. Accordingly, in view of the analysis and discussion made hereinabove, the appeal is allowed. Judgment of conviction and sentence dated 29.11.2008, rendered by the learned Special Judge, Presiding Officer, Fast Track Court, Mandi, H.P. in Sessions trial No. 33 of 2008, 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. 22. 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.