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Himachal Pradesh High Court · body

2015 DIGILAW 1934 (HP)

State of Himachal Pradesh v. Sunita Devi

2015-12-19

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT : Per Rajiv Sharma, Judge: This appeal has been instituted against Judgment dated 18.6.2015 rendered by learned Special Judge-II, Kangra at Dharamshala in Session (RBT) Case No. 17-I/VII/13/2007, whereby respondent-accused (hereinafter referred to as 'accused' for convenience sake), who was charged with and tried for offence under Section 20 of the Narcotic Drugs & Psychotropic Substances Act (hereinafter referred to as 'Act' for convenience sake) has been acquitted. 2. Case of the prosecution, in a nutshell, is that on 20.4.2007, ASI Harpal Singh PW-15 of Police Station Indora alongwith HC Budhi Singh, HHC Rashpal Singh, Constable Jeewan Singh, Lady Constable Sneh Lata and Anjana, and Driver Narender Sood was present on patrolling duty at Indora Mod Damtal and Constable Kartar Singh of CIA Staff alongwith Constable Upender Singh met police party. Constable Kartar Singh got recorded statement under Section 154 CrPC to the effect that he alongwith Upender Singh was present at Damtal and at about 3.30pm, he received a secret information to the effect that accused Sunita Devi, wife of Som Raj resident of village Sirat is dealing in sale and purchase of Charas and has kept Charas in her house. Accordingly, the Investigating Officer reduced the information into writing and sent a Rukka Ext PW- 1/C through HHC Rashpal Singh to Police Station, Indora for Registration of case. FIR Ext PW-10/A was registered. Special information under Section 42 (1)(2) of the Act was sent through Constable Jeewan to SDPO Nurpur. Two independent witnesses, Ved Parkash and Desh Bandhu were also associated in the raiding party. Accused was found present in the house. Accused was informed that she had a right to be searched before a gazetted officer or a Magistrate. Accused opted for her being searched by the raiding party. Police party gave search to the accused and searched the upper floor of the house of the accused. Some material was found in the bed room which had been kept in black coloured polythene bag. It was found to be charas. It weighed 400 grams. Two samples of 25 grams each were separated and samples and bulk charas were put in three separate parcels, which were sealed with seal impression ‘H’. Specimen of seal was taken on a separate cloth. Seal after use was handed over to witness Ved Parkash and contraband was taken into possession vide Ext PW-1/E. Investigating Officer filled NCB forms in triplicate. Specimen of seal was taken on a separate cloth. Seal after use was handed over to witness Ved Parkash and contraband was taken into possession vide Ext PW-1/E. Investigating Officer filled NCB forms in triplicate. Case property was handed over to MHC Rajinder Singh in the Police Station. Arrest memo Ext. PW-15/B was prepared. Investigating Officer also obtained copy of Jamabandi vide Ext. PW-1/B. Contraband was sent to Forensic Science Laboratory Junga. FSL report is Ext. PA. Investigation was completed and Challan was put up in the Court after completing all codal formalities. 3. Prosecution has examined as many as 20 witnesses to prove its case against the accused. Accused was also examined under Section 313 CrPC. She pleaded innocence. Learned trial Court acquitted the accused. Hence, this appeal. 4. Mr. M.A. Khan, Additional Advocate General has vehemently argued that the prosecution has proved its case against the accused. 5. We have heard the learned counsel for the appellant and also gone through the record carefully. 6. PW-1 Kartar Singh deposed that he alongwith Constable Upender Singh was present in civil dress at Damtal on patrolling duty. At about 3.30 pm, they received a secret information that accused was indulging in sale and purchase of Charas and had kept charas in her house for that purpose. Police party met them and information Ext. PW-1/A was reduced into writing. Investigating Officer sent the information through Constable Jeewan to SDPO Nurpur. Thereafter he recorded statement under Section 154 CrPC and prepared Rukka Ext. PW-1/C and sent the same through HHC Rashpal for registration of case. They went to the house of accused alongwith police party. At Motli pump Ved Parkash and Desh Bandhu met them. They were associated in the raiding party. Accused was given option to be searched either before a Magistrate or a Gazetted Officer. She opted to be searched by the Police. Memo Ext. PW-1/D was prepared to this effect. Some material in a polythene bag was found in the upper storey of the house. On checking, it was found to be charas. It weighed 400 grams. Two samples of 25 grams each were separated and sealed with seal impression ‘H’ and remaining bulk was sealed in a parcel with seal impression ‘H’. Charas was taken into possession vide memo Ext. On checking, it was found to be charas. It weighed 400 grams. Two samples of 25 grams each were separated and sealed with seal impression ‘H’ and remaining bulk was sealed in a parcel with seal impression ‘H’. Charas was taken into possession vide memo Ext. PW-1/E. He has admitted in his cross-examination by the defence counsel that accused Sunita Devi might be residing at her house with three sons. All the sons were married. There were four rooms in ground floor and one room in upper floor. Ground floor has not been searched. 7. PW-2 Ved Parkash deposed that he remained present at GP Motli. On 20.4.2007, he was present at Motli. Police party took him to the house of Sunita Devi. The search party told him qua the packet recovered. He remained standing in the ground floor of the house and did not go upstairs. He was declared hostile and cross-examined by the learned Public Prosecutor. He specifically denied the suggestion that police officials have given personal search and upper room was searched and from the double bed, a packet containing charas was recovered. He has admitted his signatures on memo Ext. PW-1/D. He denied that Charas was recovered and that he had gone to first floor of house and there alleged recovery was effected. He admitted that sons and daughters of the accused were also staying in the same house. 8. PW-4 Desh Bandhu has not supported the case of the prosecution. According to him, on 20.4.2007, at 4.00 pm, he alongwith Ved Parkash was present at Motli petrol pump. Police party came to the spot. Search was not conducted in his presence. However, he saw some material recovered /lying therein. He was declared hostile and cross-examined by the learned Public Prosecutor. He has admitted his signatures on Ext. PW-1/E. Police has not disclosed him about the contents of Ext. PW-1/E. He denied that the personal search of the accused was conducted. He denied that in his presence, from the room of first floor, from double bed a packet containing Charas was found. During cross-examination by defence counsel, he stated that he had not gone through the papers. No charas was recovered in his presence from the upper floor of the house. 9. PW-7 HC Budhi Singh deposed that he had arranged for weights and scale. During cross-examination by defence counsel, he stated that he had not gone through the papers. No charas was recovered in his presence from the upper floor of the house. 9. PW-7 HC Budhi Singh deposed that he had arranged for weights and scale. In his cross-examination, he has admitted that no person from the locality was associated. 10. PW-9 Rashpal Singh has deposed that on 22.4.2007 MHC Rajinder Singh of PS Indora handed over a sealed parcel sealed with seal impression ‘H’ for depositing in FSL Junga alongwith NCB form in triplicate. He deposited the same at FSL Jung. 11. PW-10 ASI Rajinder Singh has deposed that on 20.4.2007 at about 8.45 he received some parcel weighing 350 grams alongwith two parcels of sample weighing 25 grams each, sample seal and NCB form and other documents. He entered the case property in Malkhana Register. He sent one of the sample parcel alongwith NCB forms through Constable Rashpal Singh for depositing in FSL Junga vide RC No. 60/21 on 22.4.2007. 12. PW-14 Anjana Randhawa deposed the manner in which search, sealing and seizure proceedings were completed at the spot including preparing Rukka Ext. PW-1/C. In her cross-examination, she admitted that sons and daughters-inlaw and daughters of accused were residing in the same house. Her signatures were not obtained on Ext. PW-1/E. 13. PW-15 Harpal Singh is the Investigating Officer of the case. He deposed the manner in which search, sealing and seizure proceedings were completed at the spot. In his crossexamination, he has admitted that three sons of the accused were residing in the same house alongwith family members. However, according to him, they were living in separate rooms. 14. Case of the prosecution has not been supported by independent witnesses PW-2 Ved Parkash and PW-4 Desh Bandhu. According to PW-2, Ved Parkash and he went to the house of the accused Sunita Devi. Raiding party told that one packet was recovered from the house. He remained standing on the ground floor and did not go to upper floor. PW-4 Desh Bandhu has denied that upper storey of house of accused was searched and from double bed a packet was found. 15. PW-2 Ved Parkash has categorically admitted in his cross-examination by the defence counsel that sons and daughters-in-law of the accused were also residing in the same house with the accused. PW-4 Desh Bandhu has denied that upper storey of house of accused was searched and from double bed a packet was found. 15. PW-2 Ved Parkash has categorically admitted in his cross-examination by the defence counsel that sons and daughters-in-law of the accused were also residing in the same house with the accused. PW-1 Kartar Singh has admitted in his cross-examination that accused Sunita Devi might be residing with three sons and all the sons were married. PW-14 Anjana has admitted in her cross-examination that sons and daughters-in-law were residing in the same house and their signatures were not obtained. PW-15 Harpal Singh admitted in his cross-examination that three sons of the accused were also residing in the same house alongwith family members. They were living in separate rooms. It was necessary for the prosecution to establish that the house was in exclusive possession of the accused. It has come on record that she was residing with her sons and daughters. It was necessary for the prosecution to establish that room was in exclusive possession of the accused from where recovery was effected. There is no evidence on record to show exclusive and conscious possession of accused. Independent witnesses have not supported the prosecution case. Prosecution has not examined any person from the neighbourhood. PW-7 Budhi Singh during cross-examination admitted that no person of the locality was associated. 16. The prosecution has failed to prove its case against the accused. There is no occasion for us to interfere with the well reasoned judgment of the learned trial Court. 17. There is no merit in the present appeal and the same is dismissed, so also the pending applications, if any.