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Himachal Pradesh High Court · body

2015 DIGILAW 226 (HP)

Tarun Sharma v. State of H. P.

2015-03-23

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT : Rajiv Sharma, J. This appeal is instituted against the judgment dated 19/20.8.2010, rendered by the learned Special Judge, Kullu, H.P, in Sessions Trial No. 29 of 2008, whereby the appellant-accused (hereinafter referred to as the accused), who was charged with and tried for offence punishable under Sections 20 & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ND & PS Act), alongwith the co-accused, has been convicted and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs. 1,00,000/- under Section 20 of the Act and in default of payment of fine, he was further ordered to undergo simple imprisonment for one year. Accused Vinod and Amit were acquitted. 2. The case of the prosecution, in a nut shell, is that on 5.3.2008, SI Vidya Chand, ASI Kishan Chand, HC Piare Lal, Const. Pritam Singh alongwith sniffer dog and its handler were present at police check post Bajaura. They had gone there in official vehicle driven by Const. Karam Chand. When the police party was present at Police Post Bajaura, a bus bearing registration No. HP-03-2817, enroute from Manali to Delhi reached there. The bus was stopped and the police party alongwith the dog squad entered the bus. The police party after associating its driver Joginder Singh and Conductor Manohar Lal as witnesses, started checking the luggage of the passengers. The sniffer dog started smelling the luggage of the passengers sitting on seats No. 23 & 24. Those persons were having two bags between their legs and beneath the seat. The sniffer dog pounced upon two blue coloured bags. The handler of the dog expressed his suspicion. Then name of the person occupying seat No. 24 was ascertained as Tarun Sharma. Similarly, the person sitting on seat No. 23 disclosed his name as Nitin Khanna. Accused Tarun Sharma alongwith the bag and the person sitting on seat No. 23 alongwith his bag were taken out of the bus. The bags were searched. It was found containing two plastic khakhi coloured envelopes and one yellow coloured envelope upon which words “Malhan Cloth House” were written. On opening the two polythene envelopes, charas in the shape of sticks, chapaties and balls was found. The contraband was weighed. It was found to be 6 kgs. The bags were searched. It was found containing two plastic khakhi coloured envelopes and one yellow coloured envelope upon which words “Malhan Cloth House” were written. On opening the two polythene envelopes, charas in the shape of sticks, chapaties and balls was found. The contraband was weighed. It was found to be 6 kgs. Out of the recovered charas, two samples of 25-25 gms each were separated and thereafter samples were packed in separate parcel. The remaining bulk charas was again put in the same polythene envelopes and packed separately in cloth parcel. Thereafter, sample parcels and bulk parcel were sealed with seal impression –T. NCB-I form in triplicate were filled in and case property was taken into possession. Accused Vinod Kumar was arrested in FIR No. 142 of 2008. On interrogation Vinod Kumar disclosed that he had purchased four kilograms of charas from one Amit Kumar. Accused Amit Kumar made disclosure statement during police custody disclosing that he had kept Rs. 4000/- in his house which he received by selling charas and on the basis of this statement he got recovered Rs. 4000/-. 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 22 witnesses. The accused was also examined under Section 313 Cr.P.C. The accused has denied the prosecution case in entirety. The learned trial Court convicted the accused, as noticed hereinabove. 4. Mr. Anoop Chitkara, 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. M.A.Khan, learned Addl. AG, for the State has supported the judgment of the learned trial Court dated 19/20.8.2010. 5. We have heard learned counsel for both the sides and gone through the records of the case carefully. 6. HC Rakesh Kumar PW-1 deposed that he had gone for narcotic checking in the police party. They were checking the vehicles. In the meantime, at about 5:30 PM on 5.3.2008, HRTC Bus coming from Manali on way to Delhi was stopped. The driver and conductor of the bus were associated by the I.O. for checking. He started checking the bus alongwith sniffer dog Pluto. When he reached at seat Nos. They were checking the vehicles. In the meantime, at about 5:30 PM on 5.3.2008, HRTC Bus coming from Manali on way to Delhi was stopped. The driver and conductor of the bus were associated by the I.O. for checking. He started checking the bus alongwith sniffer dog Pluto. When he reached at seat Nos. 23 & 24, bags were lying under the seat in between the legs of occupants Nitin Khanna and Tarun Sharma. The sniffer dog after smelling the bag started pouncing. When he pounced on the bag, he told the I.O. that sniffer dog was indicating that bag must be containing some narcotic. I.O. took both the occupants of seat Nos. 23 & 24 out of the bus. He kept on checking the passengers and their luggage with the help of sniffer dog. The bags were searched. The contraband was taken out. It weighed 6 kgs. Out of the recovered charas, two samples of 25 grams each were drawn and sealed in sealed packets with three seal impression of ‘T’ and remaining bulk was sealed in a separate sealed parcel with 16 seal impressions of seal ‘T’. The sample seal was separately taken on the cloth piece. The seal was handed over to Conductor of the bus, namely, Manohar Lal. In his cross-examination, he admitted that he did not sign any document. He did not remember as to whether the entire NCB forms were filled in or not. 7. Sh. Manohar Lal, PW-3 was the conductor of the bus. According to him, the police signaled the bus to stop. The bus was stopped. He was in the driver cabin. The police brought two occupants of the bus occupying seats No. 23 & 24. They were brought down from the bus. Their luggage lying in the dickey of the bus was taken out by him. Both the passengers were made to sit in the police van. He was declared hostile and cross-examined by the learned Public Prosecutor. He has identified his signatures at point A on Mark A. He denied that document Mark A was read over and explained to him and after admitting its correctness, he appended his signatures at point A. He identified his signatures at point A on Mark B. According to him, when he appended his signatures at point A on Mark B, it was already written. He also identified his signatures at point A on Mark E. He signed at point A Mark K which was already written. He denied that the charas weighed 6 kgs. and samples of 25 gms. each were drawn. In his cross-examination by the learned Advocate appearing on behalf of accused stated that his signatures were obtained on the packets on 9.3.2008 in the Police Station. He admitted that his signatures on Mark A, D and E were procured by the police in the Police Station on 9.3.2008. According to him, no bag from Tarun was recovered in his presence. He also admitted that the occupants of seats No. 23 and 24 were having only one bag which was kept in the Dickey of the bus. 8. Sh. Joginder Kumar PW-4 deposed that he was driver of the Volvo bus. The bus was stopped by the police for checking. He got down from the bus alongwith the Conductor. The police started checking the bus. No charas was recovered from any passenger. He was declared hostile and cross-examined by the learned Public Prosecutor. According to him, portion A to A of statement Mark G was incorrect. He has not given any such statement. He also denied that the charas weighed 6 kg and two samples of 25 gms each were drawn from the recovered bulk, sealed in separate parcel and bulk and samples were then taken in possession vide seizure memo. Though, he has identified signatures on mark B at point A, at point A of Mark D and at point A of Mark K but according to him, when his signatures were obtained on Mark B, paper was blank. 9. Sh. Hira Lal, PW-5 deposed that he was working as waiter in Hotel Trans Shiva Bhuntar for two and a half years. He had not brought the visitors’ register of the Hotel since he was not working in the hotel and left the service about one month back. There is neither any entry nor he was in a position to bring the register. He was also declared hostile and cross-examined by the learned Public Prosecutor. In his cross-examination, he deposed that Harish was the Receptionist who had been making entries in the hotel visitor’s register. 10. Sh. There is neither any entry nor he was in a position to bring the register. He was also declared hostile and cross-examined by the learned Public Prosecutor. In his cross-examination, he deposed that Harish was the Receptionist who had been making entries in the hotel visitor’s register. 10. Sh. Bhupender Singh, PW-6 deposed that on 13.3.2008, police enquired from him about the issuance of bus ticket which was issued on 5.3.2008 from Kullu to Delhi on which date, he was on duty. The ticket was prepared on computer by him. The same was Ext. PW-6/A. It was taken into possession vide seizure memo Ext. PW-6/B. In his cross-examination, he admitted that the bus ticket Ext. PW-6/A was not produced by anyone in his presence. The ticket was brought by the police. 11. HG Chitter Dev, PW-7 deposed that in his presence Amit Kumar accused disclosed that he had purchased 4 kgs. charas from Vinod Kumar and has paid Rs. 24000/- and had kept Rs. 4000/- out of the received amount in his residential house in Pooja Room in Godrej almirah. In his cross-examination, he admitted that his statement was recorded in the Police Station. He also admitted that the office of Tehsildar and Naib Tehsildar are situated just adjacent to the Police Station. 12. Const. Narender Singh, PW-8 deposed the manner in which the bus was stopped, accused were apprehended, search was carried out, sealing process was completed on the spot and rukka was prepared. He took rukka Ext. PX to the Police Station. In his cross-examination, he deposed that ASI entered the bus first of all followed by dog and trainer. 10-20 people can stand in the middle of the bus. Probably, he was at the 3rd or 4th number in the queue to enter the bus. He was also checking the passengers in the bus. He had checked the passengers and their luggage at seat No. 3 & 4. It took about 10-15 minutes for checking. 13. Const. Diwan Chand, PW-9 also deposed the manner in which the bus was stopped, accused were apprehended, search was carried out and sealing process was completed on the spot. He proved bus ticket Ext. PW-6/A, which was taken into possession vide seizure memo Ext. PW-6/B. 14. Const. Tikam Ram, PW-10 deposed that in his presence, abstract of visitor register from Waiter Hira Lal was taken in possession vide seizure memo Ext. He proved bus ticket Ext. PW-6/A, which was taken into possession vide seizure memo Ext. PW-6/B. 14. Const. Tikam Ram, PW-10 deposed that in his presence, abstract of visitor register from Waiter Hira Lal was taken in possession vide seizure memo Ext. PW-10/A. 15. Sh. Thakur Chand, PW-11 deposed that he was called by the police. He remained associated in the investigation. He was called by the police to identify Amit Kumar. He was declared hostile and cross-examined by the learned Public Prosecutor. He identified his signatures on Ext. PW- 11/A. 16. HHC Narpat Ram, PW-12 deposed that on 9.3.2008, a sealed packet sealed with three seal impressions of A and T each was handed over to him by MHC Manoj Kumari for depositing the same in FSL, Junga for chemical examination. The sealed packet was handed over to him alongwith seal impressions of A and T, NCB forms in triplicate, copy of fard, copy of FIR vide RC No. 69/08. The same was deposited with FSL, Junga on 10.3.2008. On return, the receipt was deposited with the MHC. The copy of RC is Ext. PW-12/A and receipt thereon is Ext. PW-12/B. In his cross-examination, he admitted that as per the receipt, only the sealed parcel was received by the FSL, Junga. He appended his signatures on the RC. 17. ASI Ram Swarup, PW-15 deposed that rukka was handed over to him by Const. Narender on 5.3.2008 on the basis of which FIR Ext. PW- 15/B was registered. 18. HC Pyare Lal PW-17 also deposed the manner in which the bus was stopped, accused were apprehended, search was carried out and sealing process was completed on the spot. 19. HC Manoj Kumari, PW-19 deposed that on 6.3.2008 in case FIR No. 143/08, three sealed parcels were deposited with her by Insp. SHO Partap Singh at 1:50 AM. Out of the three parcels, one was sealed with 16 seals of T and resealed with eight impressions of A and two sample parcels were sealed with three seal impressions of T each and resealed with three impressions of seal A. The parcels were deposited with the sample seals T and A, NCB form and other documents and she entered in the register Malkhana at Sr. No. 94 dated 6.3.2008. No. 94 dated 6.3.2008. On 9.3.2008, one sample parcel of charas alongwith sample seals T and A, NCB forms in triplicate, photocopy of seizure memo and other documents was sent to FSL, Junga for chemical examination through HHC Narpat Ram No. 274 vide RC No. 69/08. He deposited the same against the receipt. She filled in column No. 12 of the NCB forms. The case property remained with her in the Malkhana. She produced the original Malkhana register Ext. PW-19/A. RC is Ext. PW- 12/A and the receipt of the RC is Ext. PW-12/B. NCB form is Ext. PW- 19/B. She has admitted in her cross-examination that there was no sample seal with the case property. 20. Insp. Partap Singh, PW-21 deposed that on 5.3.2008, ASI Kishan Chand produced case property of this case consisting of one big parcel sealed with 16 seal impressions of seal T and two sample parcels sealed with three seals of T each alongwith the NCB forms in triplicate and sample seal. He resealed all the three parcels and put eight seals of impression A on bulk parcel and remaining sample parcels were resealed with seal A by putting three seal impressions. He filled up relevant column of NCB forms Ext. PW-19/B. Sample seal Ext. PW-21/A was drawn. The case property alongwith the NCB forms, sample seals T and A were deposited with the MHC Manoj Kumari. He also appended seal impression A on the NCB forms. In his cross-examination, he admitted that only one sample seal of T was deposited with him by Kishan Chand. He did not attach the sample seal with bulk parcel. He has drawn three sample seals of A out of which, one was attached with the case property and two were kept on the police file. He admitted categorically that he had not mentioned in the NCB forms or any other documents as to at what time and where the case property was produced before him by ASI Kishan Chand. 21. SI Kishan Chand, PW-22 also deposed the manner in which the bus was stopped, accused were apprehended, search was carried out and sealing process was completed on the spot. According to him, a bulk parcel was put into the bag from which contraband was recovered. 21. SI Kishan Chand, PW-22 also deposed the manner in which the bus was stopped, accused were apprehended, search was carried out and sealing process was completed on the spot. According to him, a bulk parcel was put into the bag from which contraband was recovered. In addition to it, the other articles which were recovered from the bag were also put in the same bag and after putting all the things in the bag, the same was sealed in cloth parcel. He filled up NCB forms in triplicate. He took into possession ticket Ext. PW-6/A. He prepared rukka and endorsed the same to Const. Narender Kumar, on the basis of which, FIR was registered. The accused was formally arrested vide memo Ext. PW-22/G. He has produced the case property before the SHO for re-sealing at 11:25, who resealed the same with seal A. He prepared the special report on 6.3.2008 vide memo Ext. PW-14/A. He produced the case property i.e. bulk parcel Ext. PW-17/C, one sample parcel produced by tendering the copy of the DDR No. 15A dated 1.4.2010, PS, Kullu. Seals on the bulk as well as sample parcel were intact. Parcel Ext. PW-17/C and sample parcel Ext. PW-17/D which were same, were taken into possession alongwith other sample parcel vide memo Ext. PW-17/C. It was opened with the permission of the Court. In his cross-examination, he admitted that no efforts were made by them to associate independent witnesses from the locality. He also admitted that the house of Mahinder Pal was near the place where the picketing was done. He further admitted that no specimen seal impression has been annexed with the bulk parcel. 22. What emerges from the statements of the witnesses discussed hereinabove, is that the accused was apprehended on 5.3.2008 while he was travelling from Manali to Delhi. The charas was recovered from his bag. It weighed 6 kgs. The sealing process was completed on the spot. The rukka was taken by Constable Narender Singh to the police station and thereafter, FIR was registered. The case property was produced before the SHO. The SHO re-sealed the same and deposited it with HC Manoj Kumari, PW-19. 23. HC Manoj Kumari, PW-19 deposed that on 6.3.2008, in case FIR No. 143/08, three sealed parcels were deposited with her by Insp. SHO Partap Singh at 1:50 AM. The case property was produced before the SHO. The SHO re-sealed the same and deposited it with HC Manoj Kumari, PW-19. 23. HC Manoj Kumari, PW-19 deposed that on 6.3.2008, in case FIR No. 143/08, three sealed parcels were deposited with her by Insp. SHO Partap Singh at 1:50 AM. On 9.3.2008, one sample parcel of charas alongwith sample seals T and A, NCB forms in triplicate, photocopy of seizure memo and other documents was sent to FSL, Junga for chemical examination through HHC Narpat Ram No. 274 vide RC No. 69/08. He deposited the same against the receipt. He proved RC Ext. PW-12/A and receipt on the RC Ext. PW-12/B. HC Manoj Kumari PW-19 filled in column No. 12 of the NCB forms. According to her, the entries were made in the Malkhana Register at Sr. No. 94, dated 6.3.2008. She has proved copy of extract of Malkhana Register Ext. PW-19/A. One sample was taken by PW- 12 Narpat Ram on 9.3.2008 vide RC No. 69/08. He deposited the same on 10.3.2008 at FSL Junga and obtained the receipt Ext. PW-12/B. 24. SI Kishan Chand, PW-22 has also deposited three parcels with Insp. Partap Singh PW-21 for the purpose of re-sealing. He deposited the same with HC Manoj Kumari PW-19. The case property was produced by SI Kishan Chand PW-22 before the Court i.e. one bulk parcel and one sample parcel. The bulk parcel is Ext. PW-17/C and sample parcel is Ext. PW-17/D. Mr. Anoop Chitkara, Advocate, for the accused has drawn the attention of the Court to the extract of Malkhana Register Ext. PW-19/A. The entry has been made at Sr. No. 94 on 6.3.2008. According to this extract of the Malkhana Register, one packet weighing 5 kg. 950 gms alongwith driving licence etc. were entered. Two sample parcels were also entered. One sealed sample charas alongwith sample seals T and A, form NCB-I in triplicate, copy of FIR No. 143 of 2008, seizure memo were sent to FSL Junga vide RC No. 69/08 on 9.3.2008. The samples were taken by HHC Narpat Ram PW-12 vide Ext. PW-12/A. We have gone through the same. There is only reference to one sample in Ext. PW-12/A, road certificate. The sample was received in FSL Junga on 10.3.2008 through HHC Narpat Ram PW-12. It was analysed. The resin was found to be in exhibit 32.63 gms. The samples were taken by HHC Narpat Ram PW-12 vide Ext. PW-12/A. We have gone through the same. There is only reference to one sample in Ext. PW-12/A, road certificate. The sample was received in FSL Junga on 10.3.2008 through HHC Narpat Ram PW-12. It was analysed. The resin was found to be in exhibit 32.63 gms. On weighing the sample exhibit on electronic balance, the weight was found to be 25.980 gms. It appears from the record that the bulk sample was also sent for chemical analysis as per Ext. PX on 7.11.2009 through Constable Pritam Singh No. 159. It was marked as ‘A’ bearing 16 seals of ‘T’ and re-sealed with 8 seals of ‘A’ and one sealed cloth parcel marked in the laboratory as “B” bearing three seals of ‘T’ and resealed with three seals of ‘A’. The seals were found intact and tallied with specimen seals sent by the forwarding authority on the form NCB-I. Surprisingly, the prosecution has not examined Constable Pritam Singh No. 159. It is clear from Ext. PW-19/A that neither bulk nor second sample was ever taken out from the Malkhana Register against entry No. 94. Only one sealed sample was sent as per Ext. PW-19/A. There is also no corresponding entry of re-deposit of the bulk with second sample in any Malkhana Register. It was necessary for the prosecution to prove that the bulk alongwith one sample were taken out from the Malkhana Register and sent for chemical analysis at FSL, Junga. It is also surprising to note that how the bulk charas Ext. PW-17/C and second sample Ext. PW-17/D have been produced by SI Kishan Chand (PW-22) before the trial Court, when there is no corresponding entry of taking out the case property from the Malkhana Register also at the time of producing the same before the trial Court and its redeposit. 25. HC Manoj Kumari, PW-19 in her cross-examination, has admitted that there was no sample seal with the case property. The attention of SI Kishan Chand PW-22 was invited to PW-17/C by the learned trial Court. No specimen seal impression was annexed with the bulk parcel. The prosecution was required to complete the chain when the bulk sample and second sample were taken out from the Malkhana Register, deposited at FSL, Junga by Pritam Chand with the RC. Const. The attention of SI Kishan Chand PW-22 was invited to PW-17/C by the learned trial Court. No specimen seal impression was annexed with the bulk parcel. The prosecution was required to complete the chain when the bulk sample and second sample were taken out from the Malkhana Register, deposited at FSL, Junga by Pritam Chand with the RC. Const. Pritam Chand could not take the bulk sample without RC. RC is issued to ensure that the case property alongwith the documents reach the FSL, Junga intact and after the deposit of the same, the RC is to be returned to MHC. The bulk after analysis is re-sealed by the FSL and sent back. It is required to be collected and again entry is to be made in the Malkhana Register. No case property can be taken out from the Malkhana without making entry and also at the time of re-deposit entry is required to be made. We have also gone through column No. 12 of NCB forms i.e. Ext. PW-19/B. HC Manoj Kumari, PW-19 has specifically stated therein that one sealed parcel containing charas 25 gms. was sent to FSL, Junga, vide RC No. 69 on 9.3.2008 through HHC Narpat Ram No. 274 and another sample was kept in the Malkhana alongwith the remaining bulk. The manner in which the bulk and second sample were deposited at FSL, Junga without the same being taken out from the Malkhana Register after making corresponding entry and re-deposited and again taken out at the time of producing the same before the Court without any corresponding entry in the Malkhana Register, casts doubt on the entire case of the prosecution. It casts doubt whether the contraband, as per the version of the prosecution, was ever recovered from the conscious and exclusive possession of the accused. The prosecution, since has not followed the mandatory provisions, the manner in which the case property was taken out from the Malkhana Register by making corresponding entries for the purpose of analysis and also redeposit in the Malkhana and producing the same before the Court, has definitely prejudiced the accused. 26. The case property is required to be produced before the Court in accordance with law. Thus, in the instant case, the possibility of some other case property produced before the trial Court cannot be ruled out. 27. 26. The case property is required to be produced before the Court in accordance with law. Thus, in the instant case, the possibility of some other case property produced before the trial Court cannot be ruled out. 27. As per the prosecution story, the bus was stopped at 5:30 PM on 5.3.2008. No independent witnesses, though readily available, were associated at the time of apprehending the accused, search and sealing process. ASI Kishan Chand PW-22 has admitted in his cross-examination that no efforts were made by them to associate the independent witnesses from the locality. He has also admitted that the house of Maohinder Pal was near the place, where the Naka was laid down. The case of the prosecution has not been supported by Sh. Manohar Lal PW-3 and Sh. Joginder Kumar PW-4 though they have admitted their signatures on memos. Similarly, HC Pyare Lal PW-17 has admitted that there were houses at the place of Naka. It is settled law that the statements of the official witnesses can be relied upon but in the instant case, the independent witnesses have not supported the case of the prosecution, who were the driver and conductor of the bus in question and no efforts were made by the police party to associate independent witnesses, though readily available. It was neither secluded nor isolated place, thus witnesses were available. Moreover, the recovery was made on the National Highway. 28. 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. 29. Accordingly, in view of the analysis and discussion made hereinabove, the appeal is allowed. Judgment of conviction and sentence dated 19/20.8.2010, rendered by the learned Special Judge, Kullu, H.P., in Sessions trial No. 29 of 2008, 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. 30. 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. 30. 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.