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Himachal Pradesh High Court · body

2015 DIGILAW 1970 (HP)

State of H. P. v. Pappu son of Sh. Rasala Ram

2015-12-24

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT : Justice Rajiv Sharma, J. This appeal has been instituted at the instance of the State against the judgment dated 30.7.2015, rendered by the learned Special Judge, Shimla, H.P. in Sessions Trial No. 28-S/7 of 2012, whereby the respondent-accused, who was charged with and tried for offence punishable under Sections 20 of the Narcotic Drugs and Psychotropic Act, 1985 (hereinafter referred to as the “ND & PS Act”), has been acquitted. 2. The case of the prosecution, in a nut shell, is that on 16.5.2012, SI Rupinder Kumar along with other police officials left the Police Station, State CID Bharari for collecting information and patrolling towards Taradevi-Shoghi side. When the police party reached near Taradevi on NH-22, at about 1:45 (noon), three km. short from Shoghi towards Taradevi, they noticed a person sitting on the parapet. SI Rupinder Kumar inquired his name from him. The person got perplexed and tried to run away. Since no independent witnesses were available, hence the I.O. made efforts to associate independent witnesses by stopping the vehicles passing thereby. But, no one stopped their vehicles, the I.O. associated Const. Govind Singh and HHG Prem Singh. Thereafter, the personal search of the accused was undertaken. During the search, it was found that the accused had tied something on his legs with the help of cello tape. The tap was removed and two packets were found containing the balls and sticks shaped black substance. It was found to be charas. It weighed 800 grams. The I.O. filled in the NCB forms in triplicate and specimen seal impressions of seal “W” were taken on three pieces of cloth. The case property was taken into possession. The rukka was sent to the Police Station. 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 7 witnesses to prove its case. The accused was also examined under Section 313 Cr.P.C. He denied the prosecution case. The learned Trial Court acquitted the accused, as noticed hereinabove. Hence, the present appeal. 4. Mr. P.M.Negi, learned Dy. 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 Const. Govind Singh was the member of the police party. Hence, the present appeal. 4. Mr. P.M.Negi, learned Dy. 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 Const. Govind Singh was the member of the police party. He has stated that the I.O. has handed over seal “W” to him after use and he has lost the same. The I.O. prepared the rukka and the same was taken by him along with the case property, sample seals, recovery memo, NCB forms with direction to deposit the same at Police Station, State CID Bharari. In his cross-examination, he deposed that the spot where the recovery was made is situated towards Taradevi from Shoghi. He admitted that in between the spot and Taradevi, there was a check post of ITBP. The road bifurcate from Taradevi to village Phail. He also admitted that PWD workshop was at a distance of about 200-300 meters. The place where the recovery was made is situated on NH 22. There remains vehicular traffic and no vehicle was stopped for checking. He also admitted that no person was sent to PWD workshop to bring independent witnesses. The police had no prior information qua indulgence of the accused that he was carrying charas. 7. PW-2 MHC Parkash Chand deposed that on 16.5.2012 at about 4:00 PM, rukka was sent to the Police Station by SI Rupinder Kumar through PW-1 Const. Govind Singh. Thereafter FIR Ext. PW-2/B was registered. Const. Govind Singh when reached at Police Station, State CID Bharari, he handed over the case property to SHO Tenzin Shashni and on the same day SHO Tenzin Shashni deposited with him the case property. He entered the same in the malkhana register at Sr. No. 82. He forwarded the parcel alongwith the sample seals “W” and “R”, NCB forms etc. on 17.5.2012 to FSL Junga through Const. Joginder Singh. 8. PW-3 Const. Joginder Singh deposed that he took the case property to Junga on 17.5.2012 vide RC No. 38/12. 9. PW-4 HC Pardeep Kumar was posted as Reader to Dy. S.P. (Crime), State CID Bharari. On 17.5.2012 SI Rupinder Kumar submitted the special report in the case. 10. PW-5 Prem Singh deposed that the I.O. has associated him and Const. Govind Singh as witnesses. 9. PW-4 HC Pardeep Kumar was posted as Reader to Dy. S.P. (Crime), State CID Bharari. On 17.5.2012 SI Rupinder Kumar submitted the special report in the case. 10. PW-5 Prem Singh deposed that the I.O. has associated him and Const. Govind Singh as witnesses. Thereafter, the I.O. gave option to the accused for conducting his search. Memo Ext. PW-1/B was prepared in this regard. 11. PW-6 Insp. Tenzin Shashni deposed that on 16.5.2012 at about 4:00 PM, Const. Govind Singh produced rukka Ext. PW-2/A before him. He got recorded the FIR No. 10 Ext. PW-2/B. Thereafter, he made endorsement vide Ext. PW-2/C. Const. Govind Singh also produced a sealed parcel stated to be containing 800 grams charas sealed with seven seals of seal “W” before him alongwith the case property. He resealed the parcel with six seals of seal “R”. He obtained specimen seal impression of seal “R” vide Ext. PW-6/A. He also filled in column Nos. 9 to 11 of the NCB forms in triplicate. Thereafter, the case property was handed over to the MHC. The resealing certificate is Ext. PW-2/D. 12. PW-7 SI Rupinder Kumar was the I.O. He deposed that on 16.5.2012, he alongwith Const. Govind Singh, HHG Prem Singh and HHG Rajeev Kumar left the Police Station for patrolling as well as collecting information relating to crime. They started for Shoghi-Taradevi road at 1:45 PM (noon). When they were present on the spot, 3 kms. short of Shoghi towards Taradevi, he noticed a person sitting on the paraphet. He developed suspicion that the accused might be having some contraband. He enquired about the antecedents of the accused. The accused tried to run away. He nabbed him. He has tried to stop the vehicles but the drivers of the vehicles did not stop. Thereafter, Const. Govind Singh and HHC Prem Singh were associated as witnesses. He gave option to the accused to give his personal search to some Magistrate or Gazetted Officer, upon which, the accused opted to give his search to the police present on the spot vide memo Ext. PW-1/A. Thereafter, he gave his personal search. The contraband was recovered from the lower portion of his legs. It weighed 800 grams. The search, seizure and sealing proceedings were completed on the spot. In his cross-examination, he admitted that they had waited for independent witnesses for about 5-7 minutes. PW-1/A. Thereafter, he gave his personal search. The contraband was recovered from the lower portion of his legs. It weighed 800 grams. The search, seizure and sealing proceedings were completed on the spot. In his cross-examination, he admitted that they had waited for independent witnesses for about 5-7 minutes. He has admitted that there is check post of ITBP and PWD workshop. He also admitted that he has not associated any person from the ITBP workshop or PWD workshop in the investigation of the case. 13. The consent memo of the accused was prepared vide memo Ext. PW-1/A. The State has produced the record. We have gone through memo Ext. PW-1/A. In Ext. PW-1/A, it is specifically mentioned in vernacular: “Madak Padarth hone ki vishwashnia suchna prapt hui hai”. Section 42(2) of the ND & PS Act was not complied with. It was necessary for the I.O. to reduce the information in writing and send the same immediately to his superior officer. The learned trial Court has rightly come to the conclusion that it was not the case of chance recovery but the police had prior information that the accused was carrying some contraband with him. 14. The personal search of the accused was also carried out on the spot. PW-1 Govind Singh, in his examination-in-chief, has deposed that the I.O. had given option to the accused as to whether he wanted to be searched before the Gazetted Officer, Magistrate or the Police party. It would be apt at this stage to mention that though the I.O. has not stated that third option to the accused, but the statement of PW-1 Govind Singh is categorical to the effect that I.O. had given 3rd option to the accused to be searched before the Police Officer. 15. Section 50 of the ND & PS Act postulates only two options. i.e. either to be searched before the Executive Magistrate or the Gazetted Officer. Their lordships of the Hon’ble Supreme Court in the case of State of Rajasthan vrs. Parmanand and another, reported in (2014) 5 SCC 345 , have held that if merely a bag carried by a person is searched without there being any search of his person, S. 50 will have no application but if bag carried by him is searched and his person is also searched, S. 50 would be attracted. Parmanand and another, reported in (2014) 5 SCC 345 , have held that if merely a bag carried by a person is searched without there being any search of his person, S. 50 will have no application but if bag carried by him is searched and his person is also searched, S. 50 would be attracted. Their lordships have also held that it was improper for PW-10 SI “Q” to tell respondents that a third alternative was available. It has been held as follows: “15. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case, respondent No.1 Parmanand’s bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of respondent No.2 Surajmal was also conducted. Therefore, in light of judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application. 19. We also notice that PW-10 SI Qureshi informed the respondents that they could be searched before the nearest Magistrate or before a nearest gazetted officer or before PW-5 J.S. Negi, the Superintendent, who was a part of the raiding party. It is the prosecution case that the respondents informed the officers that they would like to be searched before PW-5 J.S. Negi by PW-10 SI Qureshi. This, in our opinion, is again a breach of Section 50(1) of the NDPS Act. The idea behind taking an accused to a nearest Magistrate or a nearest gazetted officer, if he so requires, is to give him a chance of being searched in the presence of an independent officer. Therefore, it was improper for PW-10 SI Qureshi to tell the respondents that a third alternative was available and that they could be searched before PW-5 J.S. Negi, the Superintendent, who was part of the raiding party. PW-5 J.S. Negi cannot be called an independent officer. We are not expressing any opinion on the question whether if the respondents had voluntarily expressed that they wanted to be searched before PW-5 J.S. Negi, the search would have been vitiated or not. PW-5 J.S. Negi cannot be called an independent officer. We are not expressing any opinion on the question whether if the respondents had voluntarily expressed that they wanted to be searched before PW-5 J.S. Negi, the search would have been vitiated or not. But PW-10 SI Qureshi could not have given a third option to the respondents when Section 50(1) of the NDPS Act does not provide for it and when such option would frustrate the provisions of Section 50(1) of the NDPS Act. On this ground also, in our opinion, the search conducted by PW-10 SI Qureshi is vitiated.” 16. The accused was nabbed on NH-22. The traffic at this road flows 24 hours. It has come in the statement of PW-1 Const. Govind Singh that in between the spot and Taradevi, there was a check post of ITBP. He also admitted that PWD workshop was at a distance of about 200-300 meters from the spot. He also admitted that no person was sent to PWD workshop to bring independent witnesses. PW-7 SI Rupinder Kumar has also admitted that between Taradevi and the spot, there is check-post of ITBP and PWD workshop towards Taradevi. No one from the PWD workshop was associated by him in the investigation. He also admitted that there was a temple adjoining to PWD workshop. He also admitted that the vehicles also crossed and he had tried to stop them but no vehicle stopped. In case the drivers of the vehicle have not stopped the vehicles, he should have taken action against them under the provisions of the Cr.P.C. It was neither an isolated nor secluded place. The accused was apprehended on a National Highway and despite that no independent witnesses have been associated either from the PWD workshop or from the ITPB check-post or by associating the occupiers of the vehicles crossing at NH-22. PW-5 Prem Singh, initially deposed that the I.O made efforts to associate the independent witnesses in the investigation of the case, however, later on stated that since no one was present, no efforts were made. 17. In the present case, the prosecution has neither complied with Section 42 or Section 50 of the ND & PS Act. The independent witnesses, though readily available, were not associated. There is no occasion for us to interfere with the well reasoned judgment of the learned trial Court dated 30.7.2015. 18. 17. In the present case, the prosecution has neither complied with Section 42 or Section 50 of the ND & PS Act. The independent witnesses, though readily available, were not associated. There is no occasion for us to interfere with the well reasoned judgment of the learned trial Court dated 30.7.2015. 18. Accordingly, there is no merit in this appeal and the same is dismissed.