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Himachal Pradesh High Court · body

2015 DIGILAW 1834 (HP)

State of H. P. v. Hitender Kumar

2015-12-10

P.S.RANA, RAJIV SHARMA

body2015
JUDGMENT : Rajiv Sharma, J. Cr.M.P.(M) No. 1233 of 2015. Leave to appeal is granted. The application is disposed of. The appeal be registered. Cr. Appeal No. 524 of 2015. This appeal has been instituted at the instance of the State against the judgment dated 23.5.2015, rendered by the learned Special Judge-II, Kullu, H.P. in Sessions Trial No. 25 of 2014 (2012), whereby the respondent-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) was acquitted. 2. The case of the prosecution, in a nut shell, is that on the evening of 29.8.2012 at around 7:00 PM, the police party headed by PW- 6 HC Shesh Raj, I.O. Police Station Banjar and consisting of PW-2 HHC Hira Singh and HHC Amar Chand was on patrolling and Nakabandi duty at Fagu Pul, Banjar, Distt. Kullu. The accused was seen coming from the path (pagdandi) towards the road by carrying yellow colour bag in his right hand. The accused on seeing the police party turned back and tried to flee away. He threw the bag on the road. He was nabbed. PW-6 HC Shesh Raj waited for local witnesses for some time and then associated HHC Amar Chand and PW-2 HHC Hira Singh as witnesses. The bag was searched. It contained charas. It weighed 910 grams. Search, seizure and sealing proceedings were completed on the spot. Rukka Ext. PW-5/A was prepared and sent through PW-2 HHC Hira Singh, on the basis of which FIR Ext. PW-5/B was registered at PS Banjar. The spot map was also prepared. The I.O. produced the case property before PW-5 SI/SHO Shiv Singh, who resealed the parcel containing charas with seal “H”. He filled up the relevant columns of NCB-1 form. The case property was handed over to PW-1 MHC Sunil Kumar for depositing in the Malkhana. He deposited the same and made entry in the relevant register. The abstract of the register is Ext. PW-1/B. On 31.8.2014, MHC Sunil Kumar sent the case property alongwith other documents through PW-2 HHC Hira Singh for depositing at FSL, Junga, vide RC Ext. PW-1/D. The investigation was completed and challan was put up before the Court after completing all the codal formalities. 3. The prosecution has examined as many as 6 witnesses to prove its case. PW-1/B. On 31.8.2014, MHC Sunil Kumar sent the case property alongwith other documents through PW-2 HHC Hira Singh for depositing at FSL, Junga, vide RC Ext. PW-1/D. The investigation was completed and challan was put up before the Court after completing all the codal formalities. 3. The prosecution has examined as many as 6 witnesses to prove its case. The accused was also examined under Section 313 Cr.P.C to which he pleaded not guilty. According to him, he was falsely implicated. The accused has also examined DW-1 Amar Chand, Adda Incharge, DW-2 Const. Vijay Kumar and DW-3 Gagan Kumar in defence. The learned trial Court acquitted the accused, as noticed hereinabove. Hence, the present appeal. 4. Mr. J.S.Guleria, Asstt. Advocate General, appearing for the State has vehemently argued that the prosecution has proved its case against the accused. 5. We have gone through the impugned judgment and records of the case carefully. 6. PW-1 HC Sunil Kumar testified that the Station House Officer, PS Banjar handed over to him one sealed parcel stated to be containing 910 grams of charas, sealed with six seals of “T” and resealed with three seals of “H”, along with relevant papers. He made entry in the relevant register vide Ext. PW-1/B. The case property was sent through HHC Hira Singh vide RC Ext. PW-1/D to be deposited at FSL, Junga. He deposited the same at FSL, Junga under receipt. 7. PW-2 HHC Hira Singh deposed that on 29.8.2012 the police party headed by HC Shesh Raj was on patrolling duty. The accused was noticed coming from Pagdandi (short cut) carrying a bag of yellow colour in his hand. On seeing the police party, he tried to flee away by throwing the bag on the road. He was nabbed by Const. Shesh Raj at a distance of 10-15 paces. The bag was searched. The place was isolated one and they waited for independent witnesses. The charas was found in the bag. It weighed 910 grams. He further deposed the manner in which charas with polythene was put in a piece of cloth parcel and sealed with seal “T” at six places. Rukka Mark “B” was prepared. It was handed over to MHC Sunil Kumar. In his cross-examination, he deposed that they left the Police Station at 6:30 PM. The accused was spotted at a distance of 30-40 meters from Fagu Pul. Rukka Mark “B” was prepared. It was handed over to MHC Sunil Kumar. In his cross-examination, he deposed that they left the Police Station at 6:30 PM. The accused was spotted at a distance of 30-40 meters from Fagu Pul. He denied the suggestion that Abadi was situated near Fagu Pul. He also denied that another village Joul is situated at a distance of 50-100 meters from Fagu Pul. He also deposed that I.O had not sent any police official to call local witnesses before the search of the bag. He denied specifically that accused was taken out from a bus on the relevant day at around 4:30 PM at Larji by CIA staff. 8. PW-3 HC Nirat Singh has proved special report Ext. PW-3/A. 9. PW-5 S.I. Shiv Singh Guleria deposed that he was posted as SHO PS Banjar. Rukka was handed over to him. In sequel to rukka, FIR was registered. HC Shesh Raj produced case property before him and he resealed the parcel with three seals of seal “H”. He handed over the case property to MHC for depositing in the malkhana. He has admitted specifically that accused was arrested by the police at around 4:30 PM when he was travelling in HRTC bus driven by driver Babu Ram and Conductor Gagan Kumar. 10. PW-6 HC Shesh Raj deposed the manner in which the accused was apprehended, search, seizure and sealing proceedings were completed on the spot. According to him also, the accused was spotted with one yellow coloured bag in his right hand. He has also prepared the spot map. In his cross-examination, he deposed that they left the Police Station at 6:30 PM. Fagu Pul was visible in the photograph Ext. DA. He denied that house is visible in the photograph which is near to Fagu Pul. Self stated that the same was at a distance of 250-300 meters. He deposed that one house is visible from the spot which is in village Joul at a distance of 1½ -2 kms. He denied that village Joul was near to the spot. He categorically deposed that he had not sent any person to call local witnesses from those houses. He admitted that the road was busy one and vehicular traffic remained regular. 11. DW-1 Amar Chand, deposed that he was Incharge of buses. He denied that village Joul was near to the spot. He categorically deposed that he had not sent any person to call local witnesses from those houses. He admitted that the road was busy one and vehicular traffic remained regular. 11. DW-1 Amar Chand, deposed that he was Incharge of buses. On 29.8.2012 bus No. 5405 was enroute from Kullu to Bathad which left the bus stand in the morning at 7:00 AM. The bus was supposed to come back at around 1:00 PM. 12. DW-2 Const. Vijay Kumar deposed that on 26.8.2012 HHC Hem Raj was posted in S.I.U. Kullu. 13. DW-3 Gagan Kumar deposed that on 29.8.2012 he was conductor in HRTC bus bearing No. HP-34-5405, which was enroute from Kullu to Bathad. The driver of the bus was Babu Ram. Their bus was checked by police at Larji at 4:30 PM and at that time an altercation between police and accused took place. The accused alongwith other passengers were asked to come down from the bus. The police obtained his signatures as well as signatures of driver on some papers at that time. In his cross-examination, he deposed that police obtained his signatures on blank papers. 14. According to PW-2 HHC Hira Singh and PW-6 HC Sheesh Raj the accused was seen coming from Pagdandi. He tried to run away. He was nabbed and he threw bag on the road. However, PW-5 SI Shiv Singh Guleria has categorically admitted in his statement that accused was arrested by the police at around 4:30 PM when he was travelling in HRTC bus being driven by driver Babu Ram. The conductor of the bus was Gagan Kumar. DW-3 Gagan Kumar has also deposed that on 29.8.2012 he was conductor in HRTC bus bearing No. HP-34-5405, which was enroute from Kullu to Bathad. The driver of the bus was Babu Ram. Their bus was checked by police at Larji at 4:30 PM. An altercation took place between police and accused at that time. According to him, the police obtained his signatures as well as signatures of driver on some blank papers at that time. DW-1 Amar Chand, Incharge of buses has also testified that on 29.8.2012 bus No. 5405 was on its way from Kullu to Bathad. The same was driven by Babu Ram driver with conductor Gagan Kumar. According to him, the police obtained his signatures as well as signatures of driver on some blank papers at that time. DW-1 Amar Chand, Incharge of buses has also testified that on 29.8.2012 bus No. 5405 was on its way from Kullu to Bathad. The same was driven by Babu Ram driver with conductor Gagan Kumar. These circumstances probablises the defence of the accused that he was not nabbed by the police near Fagu Pul but was taken to Police Station by the police when he was travelling in the HRTC Bus. Thus, there are two versions available on record; one is that the accused was seen coming from Pagdandi (short cut) and the second that he was travelling in HRTC bus bearing No. HP-34-5405, which was enroute from Kullu to Bathad. 15. PW-2 HHC Hira Singh has categorically deposed that I.O had not sent any police official to call local witnesses before the search of the bag. It has come on record that village Joul was nearby. He further deposed that one house was visible from the spot which was in village Joul at a distance of 1½ -2 kms. He also admitted that he has not sent any person to call any person from those houses. PW-6 HC Shesh Raj has admitted that the road was busy one and vehicular traffic remained regular. If that was so, he could have associated the occupants of the vehicles travelling on the road as witnesses to inspire confidence in apprehending, search, seizure and sealing proceedings carried out on the spot. Thus, the prosecution has miserably failed to prove the case against the accused. 16. Accordingly, there is no merit in this appeal and the same is dismissed.