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Himachal Pradesh High Court · body

2015 DIGILAW 1988 (HP)

State of Himachal Pradesh v. Halku Ram

2015-12-30

P.S.RANA, RAJIV SHARMA

body2015
JUDGMENT : Rajiv Sharma, J. This appeal has been instituted against Judgment dated 5.5.2015 rendered by learned Special Judge, Mandi, District Mandi (H.P.) in Sesions Trial No. 49/2010, whereby respondent-accused (hereinafter referred to as 'accused' for convenience sake), who was charged with and tried for offence under Section 18 and 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 15.3.2010, PW-9 ASI Naresh Kumar, PW-4 Constable Bansi Ram, Constable Birbal Singh, HHC Sukh Ram and HHG Devinder Kumar had gone on patrolling duty in a vehicle. Police party laid Naka at Galu on National Highway. At about 4.15 pm, accused came on motorcycle bearing registration No. PB-07-H-4369 from Jogindernagar side. He was signalled to stop. Accused was asked to produce documents of the motorcycle. During search of Dickey of motorcycle, two polythene packets were found. Accused became frightened. Investigating Officer sent PW-4 Bansi Lal to bring independent witnesses. However, no one was ready to join the investigation PW-4 Bansi Lal and Constable Birbal were associated in the investigation. On checking of parcels, opium and charas were found. HHG Devender Kumar was sent to bring weights and scale from the shop of Rakesh Kumar. Opium weighed 140 grams and Charas weighed 100 grams. Contraband so recovered was put in the same polythene packets and each packet was separately sealed with seal impression ‘T’. NCB form Ext. PW-7/C was filled in triplicate on the spot. Investigating Officer prepared Rukka Ext. PW-9/A and sent the same to the Police Station through HHC Sukh Ram. Investigating Officer prepared spot map. Contraband was produced before PW-8 Shakuntla Devi, who resealed the case property with seal impression ‘K’. Case property was deposited with PW-7 MHC Mangat Ram, the then MHC Jogindernagar. Case property was sent to FSL through HHC Bachitar Singh vide RC Ext. PW-2/A. Report of the Forensic Science Laboratory 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 9 witnesses to prove its case against the accused. Accused was also examined under Section 313 CrPC. He pleaded innocence. Learned trial Court acquitted the accused. Hence, this appeal. 4. Mr. PA. Investigation was completed and Challan was put up in the Court after completing all codal formalities. 3. Prosecution has examined as many as 9 witnesses to prove its case against the accused. Accused was also examined under Section 313 CrPC. He pleaded innocence. Learned trial Court acquitted the accused. Hence, this appeal. 4. Mr. V.S. Chauhan, 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 judgment and record carefully. 6. PW-1 Jagdish Chand has deposed that on 17.3.2010, special report was handed over by SHO Shakuntla Devi with the direction to deliver the same to Additional Superintendent of Police Hira Singh Thakur. 7. PW-2 Vachitar Singh stated that on 17.3.2010 case property was handed over to him with sample seal and NCB form etc. He deposited the same with Forensic Science Laboratory. 8. PW-4 Bansi Lal deposed that he requested 10-12 persons to be associated as witnesses in the case but all of them refused. He admitted that at a distance of 60-70 metres from the spot, there was Gram Panchayat, Patwarkhana and School. 9. PW-7 HC Mangat Ram deposed that on 15.3.2010 PW-8 Shakuntla Devi had deposited the case property sealed with seal impressions ‘T’ and ‘K’ with sample seals, NCB form and copy of seizure memo. He made entries in the Malkhana register vide Ext. PW-7/B. Case property was sent to Forensic Science Laboratory vide RC Ext. PW-2/A through Constable Vachitar Singh. 10. PW-8 Shakuntla Devi deposed that on receipt of Rukka, FIR Ext. PW-8/B was registered. Naresh Kumar produced two parcels sealed with seal impression ‘T’ at six places. Those parcels were resealed by her with three seals of impression ‘K’. 11. PW-4 Bansi Lal and PW-9 Naresh Kumar are the witnesses of search. According to them, at about 4.15 pm accused came on motorcycle bearing registration No. PB-07-H-4369 from Jogindernagar side. It was signalled to stop. On search of dickey of motorcycle, two polythene packets were found. Accused became perplexed. Efforts were made to associate independent witnesses. However, no one was ready. On checking polythene packets, 140 grams opium and 100 grams charas was found. It was put in the same packet and sealed with six seals of ‘T’. Parcels were taken into possession vide seizure memo Ext. PW-4/D. Rukka Ext. Accused became perplexed. Efforts were made to associate independent witnesses. However, no one was ready. On checking polythene packets, 140 grams opium and 100 grams charas was found. It was put in the same packet and sealed with six seals of ‘T’. Parcels were taken into possession vide seizure memo Ext. PW-4/D. Rukka Ext. PW-9/A was prepared and sent to the Police Station through Constable Sukh Ram. Spot map was prepared. Accused was arrested. 12. It is admitted by PW-3 Rakesh Kumar, PW-4 Bansi Lal and PW-9 Naresh Kumar that independent witnesses could have been easily joined. According to PW-4 Bansi Lal, after search of Dickey of motorcycle of accused two polythene packets were found. On checking of polythene packets, alleged contraband was recovered. However, PW-9 deposed that on search of dickey of motorcycle, two packets were found. He suspected that the polythene packets may be containing contraband. Thereafter, Bansi Lal, PW-4 was sent to bring independent witnesses. PW-4 Bansi Lal admitted that there was Gram Panchayat, Patwarkhana and School nearby. He has admitted that he has not made efforts to bring witnesses from these places though directed by PW-9 Naresh Kumar. He could not disclose the names of persons to whom he had made request to be joined as independent witnesses in the case though he claimed that he requested 10-12 persons to be associated in the investigation. 13. No search memo was proved on record. We have perused the NCB form from the record produced by the learned Additional Advocate General. SHO was required to fill up columns No. 9 to 11 of the NCB form. It is not mentioned in the resealing certificate that case property was resealed with three seals of ‘K’. Columns No. 9 and 11 are also kept blank. 14. The person who has taken Rukka to the Police Station has not been examined i.e. Constable Sukh Ram. The place where accused was apprehended was not an isolated or secluded place. Police has not joined independent witnesses though available since at a distance of 60-70 metres, there was Gram Panchayat, Patwarkhana and School. The members of Panchayat or some person from the school could have been joined as independent witnesses to give credibility to the search, seizure and sealing proceedings. Police has not joined independent witnesses though available since at a distance of 60-70 metres, there was Gram Panchayat, Patwarkhana and School. The members of Panchayat or some person from the school could have been joined as independent witnesses to give credibility to the search, seizure and sealing proceedings. According to PW-4, Bansi Lal, he was sent to get independent witnesses after contraband was found, but as per PW-9 Naresh Kumar, he opened the Dickey and suspected that contraband may be in the Dickey and thereafter sent PW-4 Bansi Lal to arrange for independent witnesses. 15. Thus, 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 dated 5.5.2015. 16. There is no merit in the present appeal and the same is dismissed, so also the pending applications, if any.