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Himachal Pradesh High Court · body

2015 DIGILAW 172 (HP)

Narotam Ram v. State of Himachal Pradesh

2015-03-12

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT Rajiv Sharma, J. 1. This appeal is instituted against the judgment dated 3.12.2009, rendered by the learned Special Judge, Mandi, H.P. in Sessions Trial No. 33 of 2009, 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 simple imprisonment for one year. 2. The case of the prosecution, in a nut shell, is that on 17.12.2008 at about 5:20 P.M., ASI Amar Nath alongwith HC Satya Parkash, HC Hari Singh and Const. Ashok Kumar were on patrolling at Larji Dam towards Shihli Larji. On reaching about 400 meters beyond Larji Dam, the police noticed the accused with a bag on his back. On seeing the police party, the accused got nervous and tried to flee. The accused was apprehended. The police after intercepting the accused checked the bag in his possession. On checking the bag of the accused, another black bag tied with a polythene was recovered containing charas in the shape of sticks and balls. It weighed 4 kg. 200 gms. Two samples of 25 grams each were separated and sealed in two separate parcels with four seals of “Y”. The bulk charas was also sealed in a separate parcel with six seals of impression “Y” and specimen seal impression Ext. PW- 7/A was drawn and NCB forms in triplicate Ext. PW-7/B were filled in and seal was handed over to HC Hari Singh. The charas and the specimen seal impression were taken into possession by the police as per memo Ext. PW-1/A. Rukka Ext. PW-8/B was prepared and forwarded through Const. Ashok Kumar to the Police Station, on the basis of which, FIR Ext. PW-2/C was registered. The spot map was prepared. The case property was handed over to SHO Shreshtha Thakur, P.S. Aut by ASI Amar Nath. She resealed the case property with seal “M” and deposited the same with the MHC, PS Aut. The special report Ext. PW-4/A was prepared. Sample was sent for chemical analysis to FSL, Junga. PW-2/C was registered. The spot map was prepared. The case property was handed over to SHO Shreshtha Thakur, P.S. Aut by ASI Amar Nath. She resealed the case property with seal “M” and deposited the same with the MHC, PS Aut. The special report Ext. PW-4/A 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 8 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. 4. 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. Ramesh Thakur, Assistant AG, for the State has supported the judgment of the learned trial Court dated 3.12.2009. 5. We have heard learned counsel for both the sides and gone through the records of the case carefully. 6. PW-1 HC Hari Singh deposed that at 5:20 PM, when they were about 400 meters away from Dam, accused was seen coming from Shili Larji side carrying bag/pithu on his back. On seeing the police party, accused took U turn and started running. He was apprehended by ASI Amar Nath with their assistance. There was no independent person present at the spot or nearby and as such ASI Amar Nath associated him and HC Satya Parkash in the search proceedings. ASI Amar Nath checked the bag of the accused. On opening bag, another black coloured bag was found inside which was tagged with plastic envelope. On opening it was found to be containing charas in the shape of sticks and round balls. The charas weighed 4 kgs. 200 grams. Out of the recovered charas, two samples of 25 grams each were separated and sealed in separate parcels with seal impression “Y” and marked as A-1 and A-2. The residue charas was put in the bag and sealed in separate parcel with seal impression “Y” and parcel was marked as ‘A”. The IO filled in the NCB forms in triplicate. The parcels were took into possession vide memo Ext. PW-1/A. I.O signed the rukka and sent the same through Const. The residue charas was put in the bag and sealed in separate parcel with seal impression “Y” and parcel was marked as ‘A”. The IO filled in the NCB forms in triplicate. The parcels were took into possession vide memo Ext. PW-1/A. I.O signed the rukka and sent the same through Const. Ashok Kumar for registration of the case to the Police Station. In his cross-examination, he admitted that the I.O. did not tell to trace any independent witness or to stop any vehicle for independent witnesses. Police Station Aut is 4 km from the place of occurrence. The I.O. also took personal search of the accused. He did not remember as to how much money and what other articles were found from the possession of the accused. The recovery memo was prepared before Ashok Kumar and thereafter, rukka was prepared by the I.O and Ashok Kumar went to the Police Station. 7. PW-2 HC Dina Nath, deposed that on 17.12.2008, SHO PS Aut deposited with him the case property of this case i.e. one bulk parcel sealed with six seals of “Y” and six seals of “M” impression alleged to be containing 4 kg 150 gms of charas and two sample parcels sealed with four seals of “Y” and “M” each alongwith the NCB forms in triplicate, specimen of seal impressions and copy of FIR. He entered the case property in the malkhana register at page 194 at Sr. No. 512 and kept the same in the safe custody. On 19.12.2008, one sample parcel alongwith the NCB forms in triplicate, copy of seizure memo and specimen of seal impressions “Y” and “M” were handed over by him to HHC Udai Singh vide RC No. 90/08 for depositing the same in FSL Junga. He proved the extract of malkhana register Ext. PW-2/A and copy of R/C Ext. PW-2/B. In his cross-examination, he admitted that he did not remember as to who brought the rukka to him. According to him, rukka was brought. He did not remember that rukka was brought in the evening or at night. He did not remember the exact time. 8. Statements of PW-3 and PW-4 are formal in nature. 9. PW-2/B. In his cross-examination, he admitted that he did not remember as to who brought the rukka to him. According to him, rukka was brought. He did not remember that rukka was brought in the evening or at night. He did not remember the exact time. 8. Statements of PW-3 and PW-4 are formal in nature. 9. PW-5 HHC Udai Chand, deposed that on 19.12.2008 MHC Dina Nath handed over to him sample parcels of this case sealed with four seals of “Y” and four seals of “M” each and marked as A-2 alongwith specimen seal impression, NCB form, copy of seizure memo and FIR for depositing the same at FSL, Junga. He deposited the same on 20.12.2008 in safe condition. 10. PW-6 Const. Virender has proved rapat rojnamcha vide memo Ext. PW-6/A. In his cross-examination, he admitted that there was one bus stop at Shilli Jarji. This road is National Highway road and is a busy road. 11. PW-7 SHO Shreshta Thakur, deposed that ASI Amar Nath handed over to her two sample parcels and one bulk parcel of this case alongwith the documents. The bulk parcel was sealed with six seals of mark “Y” and sample parcels were sealed with four seals each of mark “Y”. She resealed the bulk parcel with six seals of mark “M” and the sample parcels were sealed with 4 seals each of mark “M”. She filled up the columns No. 9 to 12 of the NCB forms Ext. PW-7/B. 12. PW-8 ASI Amar Nath was the I.O. He deposed the manner in which the accused was apprehended and the charas was recovered from the accused weighing 4 kg 200 gms. According to him, rukka Ext. PW- 8/B was prepared and sent to the Police Station through Const. Ashok Kumar at about 7:00 PM for recording FIR. In his cross-examination, he admitted that there was huge traffic flow on the national Highway. The Police Station was about 3 kms. from the place of occurrence. The shops were about 3 kms. from the place where the accused was apprehended. The Forest Check Post was situated at Larji. He did not ask the Constables to stop the vehicle to associate witnesses. Volunteered that the vehicles were not crossing the road. He did not notice any guard on the tunnel. According to him, Constable Ashok Kumar carried the case property to the Police Station. The Forest Check Post was situated at Larji. He did not ask the Constables to stop the vehicle to associate witnesses. Volunteered that the vehicles were not crossing the road. He did not notice any guard on the tunnel. According to him, Constable Ashok Kumar carried the case property to the Police Station. He filled up the entire NCB forms at the spot in his own hand writing. 13. What emerges from the statements of PW-1 HC Hari Singh, PW-6 Virender and PW-8 ASI Amar Singh is that the accused was apprehended on a road. It was a busy road. According to PW-1 HC Hari Singh, the accused was straightway searched by the I.O and the I.O. did not told them to trace any independent witness or to stop any vehicle for independent witness. PW-8 ASI Amar Nath has deposed that there was huge traffic flow at the National Highway. The Police Station was about 3 kms. from the place of occurrence. The shops were about 3 kms. from the place where the accused was apprehended. The Forest Check Post was situated at Larji. He did not ask the Constables to stop the vehicle to associate witnesses. It cannot be believed that the vehicles were not crossing on the road at 5:20 PM. The prosecution has not given any cogent explanation why the independent witnesses were not associated at the time of nabbing the accused, recovery, seizure and sealing of the contraband. 14. PW-1 HC Hari Singh has deposed that the recovery memo was prepared by Ashok Kumar and rukka was prepared by the I.O. Thereafter, Constable Ashok Kumar went to the Police Station. PW-8 ASI Amar Singh also deposed that rukka Ext. PW-8/B was prepared by him and sent to the Police Station through Const. Ashok Kumar at 7:00 PM. Constable Ashok Kumar has not been examined by the prosecution. He was important witness since he has taken the case property to the Police Station and also carried the rukka. Surprisingly, in his cross-examination, PW-2 HC Dina Nath stated that he did not remember as to who brought the rukka to him, however, rukka was brought. The rukka, according to him, was brought in the evening or night. He did not remember the exact time. He being the MHC at the Police Station Aut, ought to have remembered the name of the Constable who had brought the rukka. 15. The rukka, according to him, was brought in the evening or night. He did not remember the exact time. He being the MHC at the Police Station Aut, ought to have remembered the name of the Constable who had brought the rukka. 15. We have also gone through the NCB forms Ext. PW-7/B. PW- 8 ASI Amar Nath has stated that he had filled up the NCB forms on the spot. PW-7 SHO Shreshta Thakur has testified that she has filled up the columns No. 9 to 12. It can be seen with the naked eyes that the columns No. 9 to 11 have also been filled up by the same person on the basis of the hand-writing who has filled up columns No. 1 to 8. The columns No. 1 to 8 are supposed to be filled up by the I.O/Seizing Officer and columns No. 9 to 11 are to be filled up by the SHO/Officer re-sealing the case property. The purpose of re-sealing is to ensure that innocent persons are not implicated in false cases. In the present case, the prosecution has not at all made any effort to associate the independent witnesses, though readily available on the road and at Forest Check Post at Larji. The prosecution has not examined Constable Ashok Kumar who had carried out the rukka and case property to the Police Station and the NCB forms have also been filled in the same hand writing. 16. 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. 17. Accordingly, in view of the analysis and discussion made hereinabove, the appeal is allowed. Judgment of conviction and sentence dated 3.12.2009, rendered by the learned Special Judge, Mandi, H.P. in Sessions trial No. 33 of 2009, 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. 18. 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. 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.