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2015 DIGILAW 501 (HP)

Rajesh Kumar v. State of H. P.

2015-05-08

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT : Justice Rajiv Sharma, J. This appeal is instituted against the judgment dated 26.3.2012, rendered by the learned Special Judge (II), Kinnaur at Rampur, H.P., in RBT No. 33-AR-3 of 2010/2011, whereby the appellant-accused (hereinafter referred to as the 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), has been convicted and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs. 1,00,000/- and in default of payment of fine, he was further ordered to undergo simple imprisonment for one year. 2. The case of the prosecution, in a nut shell, is that on 27.6.2008 at about 6:45 P.M., PW-11 Insp. Sangat Ram, SHO PS Rampur alongwith PW-4 SI Brij Lal, PW-5 HC Uttam Kumar, Const. Sanjeev Kumar, PW-10 Const. Devi Dass was present at Kudidhar near Nirth, in connection with routine patrol duty. PW-2 Pawan Katoch and PW-3 Pal Singh met them there and they started talking to the police party. In the meantime, accused Rajesh came from the side of Snahjhula carrying a bag in his right hand and on seeing the police party, he got scared and tried to flee. He was apprehended. He was informed to exercise his option under Section 50 of the Act. He opted to be searched by the police party. Thereafter, PW-11 Insp. Sangat Ram alongwith other witnesses rendered themselves to be searched by the accused. The accused and his bag was searched. Charas weighing 2 kg 500 grams was recovered from the possession of the accused. The charas recovered was put in the same bag, which was made into parcel and seal impression ?O? was taken on it. NCB form Ext. PW-11/B was updated in triplicate. The impression of seal ?O? was also taken on a piece of cloth vide memo Ext. PW-11/C. The case property was taken into possession vide seizure memo Ext. PW-11/D. Rukka Ext. PW-9/A was prepared on the spot. It was sent to the Police Station Rampur through Const. Devi Dass, on the basis of which FIR Ext. PW-9/B was registered. Site plan was prepared. PW-11 Insp. Sangat Ram deposited the case property in the malkhana of the Police Station with MHC. PW-9 MHC Liaq Ram incorporated the entries at Sr. PW-9/A was prepared on the spot. It was sent to the Police Station Rampur through Const. Devi Dass, on the basis of which FIR Ext. PW-9/B was registered. Site plan was prepared. PW-11 Insp. Sangat Ram deposited the case property in the malkhana of the Police Station with MHC. PW-9 MHC Liaq Ram incorporated the entries at Sr. No. 734 in the malkhana register vide Ext. PW-9/D. Special report was also prepared and sent to SDPO Rampur. Chemical report is Ext. PW-11/H. 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 11 witnesses. The accused was also examined under Section 313 Cr.P.C. The accused has denied the prosecution case. The learned trial Court convicted the accused, as noticed hereinabove. 4. Mr. Bhupinder Ahuja, 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 26.3.2012. 5. We have heard learned counsel for both the sides and gone through the records of the case carefully. 6. PW-1 Prem Singh deposed that on 27.6.2010, HC Uttam Chand visited his shop and borrowed weighing scale and weights of 1 kg, 500 gms, 200 gms and 100 gms at about 7:15 PM. 7. PW-2 Pawan Katoch, deposed that on 27.6.2010 at 6:45 PM, when he was coming to attend his duty and reached at Kuridhar near Nirath on NH-22, the police was present there alongwith the accused person. One bag was lying near the accused. The police told him that charas was contained in that bag but he did not check the stuff but had seen it. He did not see the police apprehending the accused. The police also did not make inquiry about the name and address of the accused in his presence. He remained present on the spot for 15-20 minutes as he was to attend his duty. The police also did not inform the accused that they were suspecting that he was carrying some narcotic substance and as such it was intended to conduct his personal search as well as search of his bag. He remained present on the spot for 15-20 minutes as he was to attend his duty. The police also did not inform the accused that they were suspecting that he was carrying some narcotic substance and as such it was intended to conduct his personal search as well as search of his bag. The police had prepared documents on the spot and obtained his signatures on those documents. He was declared hostile and cross-examined by the learned Public Prosecutor. He denied that when he alongwith Pal Singh and police were present on the spot, the accused person came from the side of Shnahjhula and on seeing the police party, he turned back and tried to escape. He also denied that on suspicion the police apprehended the accused person in their presence and at that time the accused person was also carrying a bag in his right hand. He also denied that the police had made inquiry about the name and address of the accused person in their presence and thereafter informed that it was intended to conduct personal search as well as search of his bag and if he so desired search could be arranged in the presence of the Magistrate or the gazetted officer but the accused person opted to be searched by the police on the spot in their presence. He also denied that thereafter the bag of the accused was checked in their presence from which one pink colour bag containing three nylon socks containing charas was recovered. He also denied that the charas recovered from the bag was put back into the same bag which was made into parcel and sealed with seal bearing impression ?O? which was handed over to Pal Singh after its use. He also denied that NCB form in triplicate were updated in his presence. He identified his signatures on mark A, B and C. In his cross-examination, he admitted that when he reached on the spot, at that time Pal Singh was not present and he reached there after five minutes. 8. PW-3 Pal Singh deposed that on 27.6.2010, when he was coming from Nankhari, the police met him at Kuridhar near Nirath at about 6:45 PM. At that time, besides police accused Rajesh were also present. The police officials were preparing some documents. 8. PW-3 Pal Singh deposed that on 27.6.2010, when he was coming from Nankhari, the police met him at Kuridhar near Nirath at about 6:45 PM. At that time, besides police accused Rajesh were also present. The police officials were preparing some documents. The police asked him to stop by saying that his signatures were required on some documents as they had seized charas from the accused person. Thereafter, the police obtained his signatures on some documents. He was declared hostile and cross-examined by the learned Public Prosecutor. He admitted that Pawan Katoch was also present on the spot. He denied that when they were talking to the police the accused person came from Snahjhula and on seeing the police party, he tried to flee and on suspicion, he was apprehended. He denied that the police informed the accused that it was intended to conduct his personal search and that if he so desired the search could be arranged in presence of Magistrate of gazetted officer but the accused person opted to be searched by the police on the spot in their presence vide consent memo Mark A. He also denied that bag of the accused was searched and during search, three nylon socks containing chars 2 kg. 500 gms were recovered from the bag of the accused. He also denied that the charas recovered from the bag was put back in the same bag which was made into parcel and sealed with seal bearing impression ?O?. He also denied that NCB form in triplicate were updated in their presence and thereafter samples of seal were drawn and the seal was handed over to him. He also denied that search and seizure memo mark B was prepared which was witnessed by him and Pawan Katoch. He admitted that consent memo Mark A, seizure memo Mark B, form mark C and sample of seal Mark G bears his signatures. He denied that he has put his signatures on all the aforesaid documents after going through its contents. In his crossexamination, he denied that the bag containing charas was recovered from the accused in his presence. 9. PW-4 SI Brij Lal, deposed the manner in which the accused was apprehended and the charas was recovered, on search from the accused. The same was put back in the bag and thereafter made into parcel which was sealed with seal impression ?O?. 9. PW-4 SI Brij Lal, deposed the manner in which the accused was apprehended and the charas was recovered, on search from the accused. The same was put back in the bag and thereafter made into parcel which was sealed with seal impression ?O?. Rukka was scribed by Insp. Sangat Ram, which was sent to the Police Station through Const. Devi Dass. In his cross-examination, he admitted that a large number of shops are situated at Nirath. According to him, Pawan Katoch and Pal Singh were already present on the spot before they reached there. 10. PW-5 HC Uttam Kumar, also deposed the manner in which the accused was apprehended and the charas was recovered, search and sealing process was completed on the spot. In his cross-examination, he admitted that no search memo about their personal search was prepared. 11. PW-8 Const. Sanjeev Kumar, deposed that on 30.6.2010, MHC PS Rampur Laiq Ram handed over one parcel having seal impression ?O? alongwith the NCB form and samples of seal to him vide RC No. 64/2010. He delivered it in FSL, Junga on 1.7.2010 and obtained its receipt on the RC which he handed over to MHC. 12. PW-9 HC Laiq Ram, deposed that he recorded FIR Ext PW-9/B on the basis of rukka. On the same day at 10:35 PM Insp. Sangat Ram deposited the case property of this case alongwith the sample of seal and NCB form in triplicate in malkhana of the Police Station. He incorporated the entries in the malkhana register at Sr. No. 734. On 30.6.2010, he sent the case property to FSL Junga through Const. Sanjeev Kumar vide RC 64/2010 who after depositing the same handed over its receipt on the RC to him. 13. PW-10 const. Devi Dass, also deposed the manner in which the accused was apprehended and the charas was recovered, search and sealing process was completed on the spot. He has carried the rukka which he delivered to MHC Laiq Ram. 14. PW-11 Insp. Sangat Ram, was the I.O. He also deposed the manner in which the accused was apprehended and the charas was recovered, search and sealing process was completed on the spot. He filled up NCB form. He deposited the case property alongwith the NCB form with MHC Laiq Ram at 10:35 PM. He prepared DD 46 to this effect. PW-11 Insp. Sangat Ram, was the I.O. He also deposed the manner in which the accused was apprehended and the charas was recovered, search and sealing process was completed on the spot. He filled up NCB form. He deposited the case property alongwith the NCB form with MHC Laiq Ram at 10:35 PM. He prepared DD 46 to this effect. The case property was produced during the recording of his statement. The seals were found intact. He identified parcel cover Ext. P-1, bag Ext. P-2, socks Ext. P-3, P-4 and P-5. In his cross-examination, he admitted that in the rukka and special report and the statements of the witnesses, there was no specific mention about option of being searched in the presence of Magistrate or the Gazetted Officer. 15. The copy of the consent is mark A. The accused was not apprised that it was his legal right to be searched before the Executive Magistrate or the Gazetted Officer. It is mandatory to apprise the accused of his legal right to be searched before the Executive Magistrate or the Gazetted Officer. 16. The police has cited two independent witnesses, PW-2 Pawan Katoch and PW-3 Pal Singh. They have not supported the case of the prosecution but they have admitted their signatures on mark A, B and C. They were declared hostile and crossexamined by the learned P.P. PW-2 Pawan Katoch has not seen the police apprehending the accused person. According to him, the police also did not make enquiry about the name and particulars of the accused. The police also did not inform the accused person that they were suspecting the accused of carrying some narcotic substance and as such, it was intended to carry his personal search and that of his bag. He denied specifically when cross-examined by the learned P.P. that he alongwith Pal Singh were present alongwith the police on the spot. He has also denied that NCB form were filled in his presence. He also denied that the charas was recovered and put back into the same bag and sealed with seal impression ?O?. It was handed over to Pal Singh after its use. In his cross-examination by the Advocate on behalf of the accused, he testified that when he reached on the spot, at that time, Pal Singh was not present and he reached after five minutes. It was handed over to Pal Singh after its use. In his cross-examination by the Advocate on behalf of the accused, he testified that when he reached on the spot, at that time, Pal Singh was not present and he reached after five minutes. Similarly, PW-3 Pal Singh, has not supported the case of the prosecution. He was also cross-examined by the learned Public Prosecutor. He denied that charas was recovered from the bag of the accused. He also denied that charas recovered from the bag was put into the same bag which was made into parcel and sealed with seal impression ?O?. 17. The case property was produced when the statement of PW-11 Sangat Ram was recorded. The copy of the malkhana register is Ext. PW-9/D. There is entry of the deposit of the contraband on 27.6.2010 and when it was received back from the FSL Junga. There is no entry when the case property was taken out from the malkhana and produced in the Court. There is no DDR recorded when the case property was produced before the trial Court. Similarly, there is no entry when the case property after production in the trial Court was re-deposited in the malkhana register. It is necessary for the prosecution to prove that the case property was taken out from the malkhana for the production in the Court and also preparing DDR to this effect and the same process is to be undergone when the case property after its production in the Court is taken back and deposited in the malkhana. There has to be entry in the malkhana register when it is re-deposited and DDR is also prepared. The production of the case property in the Court is mandatory. There is doubt whether the case property which was produced in the Court was the same which was recovered from the accused and sent to FSL, Junga in the absence of any corresponding entries made at the time of taking it and re-deposit in the malkhana register. It has caused serious prejudice to the accused. The nabbing of the accused, recovery and sealing is doubtful, since the case of the prosecution has not been supported by the independent witnesses. The accused has not been told specifically that he has legal right to be searched before the Executive Magistrate or the Gazetted Officer. It has caused serious prejudice to the accused. The nabbing of the accused, recovery and sealing is doubtful, since the case of the prosecution has not been supported by the independent witnesses. The accused has not been told specifically that he has legal right to be searched before the Executive Magistrate or the Gazetted Officer. The case property when produced in the Court, there is no reference who brought the case property to the Court from malkhana and by whom it was taken back. 18. Their lordships of the Hon'ble Supreme Court, in a recent decision in the case of Makhan Singh vrs. State of Haryana, reported in JT 2015 (4) SC 222, have held that it is well settled that conviction can be based solely on the testimony of official witnesses, condition precedent is that the evidence of such official witnesses must inspire confidence. In that case, it was not as if independent witnesses were not available. Independent witness PW1 and another independent witness examined as DW-2 had spoken in one voice that the accused person was taken from his residence. In such circumstances, their lordships have held that the High Court ought not to have overlooked the testimony of independent witnesses, especially when it casts doubt on the recovery and the genuineness of the prosecution version. Their lordships have held as under: ?10. For recording the conviction, the Sessions Court as well as the High Court mainly relied on the testimony of official witnesses who made the recovery, i.e. H.C. Suraj Mal-PW2 and Inspector Raghbir Singh-PW6, and found them sufficiently strengthening the recovery of the possession from the appellant. In our considered view, the manner in which the alleged recovery has been made does not inspire confidence and undue credence has been given to the testimony of official witnesses, who are generally interested in securing the conviction. In peculiar circumstances of the case, it may not be possible to find out independent witnesses at all places at all times. Independent witnesses who live in the same village or nearby villages of the accused are at times afraid to come and depose in favour of the prosecution. Though it is well-settled that a conviction can be based solely on the testimony of official witnesses, condition precedent is that the evidence of such official witnesses must inspire confidence. Independent witnesses who live in the same village or nearby villages of the accused are at times afraid to come and depose in favour of the prosecution. Though it is well-settled that a conviction can be based solely on the testimony of official witnesses, condition precedent is that the evidence of such official witnesses must inspire confidence. In the present case, it is not as if independent witnesses were not available. Independent witnesses PW1 and another independent witness examined as DW2 has spoken in one voice that the accused person was taken from his residence. In such circumstances, in our view, the High Court ought not to have overlooked the testimony of independent witnesses, especially when it casts doubt on the recovery and the genuineness of the prosecution version.? 19. 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. 20. Accordingly, in view of the analysis and discussion made hereinabove, the appeal is allowed. Judgment of conviction and sentence dated 26.3.2012, rendered by the learned Special Judge-II, Kinnaur at Rampur, H.P., in RBT No. 33-AR-3 of 2010/2011, 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. 21. 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.