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Himachal Pradesh High Court · body

2015 DIGILAW 633 (HP)

Kamal Bahadur Rana v. State of Himachal Pradesh

2015-05-29

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT : Rajiv Sharma, J. This appeal is instituted against the judgment dated 23.1.2013 rendered by the Special Judge, Shimla in Case No. 3-S/7 of 2012, whereby the appellant-accused (hereinafter referred to as the “accused” for convenience sake), who was charged with and tried for offence punishable under section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 has been convicted and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 1,00,000/- and in default of payment of fine, he was further ordered to suffer rigorous imprisonment for a period of one year. 2. Case of the prosecution, in a nutshell, is that on 19.8.2011, police party headed by SI Kamal Chand consisting of HC Manoj Kumar, Constables Anil Kumar, Pawan and Sanjeev of SIU, Shimla was on patrol duty on Sanjauli-Dhalli bypass road. At about 12.30 P.M. they spotted a man coming from Dhalli side with a carry bag on his shoulder. On seeing the police party, he got perplexed and started running towards Batish Colony. The police officials over powered him. Option was given to him to be searched either by the Gazetted Officer or Magistrate. However, accused gave consent to be searched by SI Kamal Chand. The bag was searched. It contained 1.800 grams of charas. The recovered contraband was put into the same packets and the packets were sealed with 8 seals of seal impression ‘Z’. SI Kamal Chand also filled in NCB forms in triplicate. The case property was produced before the officiating S.H.O. He re-sealed the same. He deposited the case property alongwith other documents with the M.H.C. The contraband was sent to F.S.L. Junga for chemical examination. The report of F.S.L. Junga was obtained. Police investigated the case and the challan was put up in the court after completing all the codal formalities. 3. Prosecution examined as many as 9 witnesses in all to prove its case against the accused. Statement of accused under Section 313 Cr. P.C. was recorded. He has denied the case of the prosecution in entirety. Learned trial Court convicted and sentenced the accused, as noticed hereinabove. 4. Ms. Nishi Goel, learned counsel for the accused has vehemently argued that the prosecution has failed to prove its case against the accused. 5. Mr. Ramesh Thakur, learned Assistant Advocate General has supported the judgment passed by the trial Court. 6. Learned trial Court convicted and sentenced the accused, as noticed hereinabove. 4. Ms. Nishi Goel, learned counsel for the accused has vehemently argued that the prosecution has failed to prove its case against the accused. 5. Mr. Ramesh Thakur, learned Assistant Advocate General has supported the judgment passed by the trial Court. 6. We have heard the learned counsel for the parties and have gone through the record meticulously. 7. PW-1 Anil Kumar has deposed that on 19.8.2011, police party headed by SI Kamal Chand and other police officials went towards Dhalli from Sanjauli on patrol duty. When they were near Batish Colony at about 12.30 P.M., a person came from Dhalli side. He got confused. He ran towards stairs of Batish Colony. He was over powered. SI Kamal Chand told the accused that he was suspecting that he may be carrying incriminating material with him and he wanted to conduct his search. The accused was also told that it was his legal right to get himself searched in the presence of gazetted officer or the Magistrate. The accused stated that he would give his search to SI Kamal Chand. A consent memo Ex.PW-1/A was prepared. The bag was searched. One transparent plastic bag was taken out from the bag. On opening the plastic bag, two small plastic packets were taken out. The plastic packets were having the stick shaped black substance, which on inspection was found as Charas. It was weighed. The parcel was prepared and sealed with 8 seals of ‘Z’. The NCB form was filled up in triplicate. The seals after use were given to HC Manoj Kumar. The case property was produced at the time of recording statement of PW-1. It was sealed with 5 seals of FSL-II, 4 seals of ‘T’ and 7 seals of ‘Z’. It was produced by the learned Public Prosecutor. There were two other seals which were not legible. The seals were intact. On opening, one plastic bag Ex.P-2 was taken out and in that plastic bag, there were two plastic packets Ex.P-3 and P-4. In these plastic packets stick shaped charas Ex.P-5 was contained. Similarly, Ex.P-7 was also produced in the court. In his cross-examination, PW-1 Anil Kumar has admitted that the road was used by vehicles going towards Kufri. They did not go to the residence of any person for calling him to join the investigation. 8. In these plastic packets stick shaped charas Ex.P-5 was contained. Similarly, Ex.P-7 was also produced in the court. In his cross-examination, PW-1 Anil Kumar has admitted that the road was used by vehicles going towards Kufri. They did not go to the residence of any person for calling him to join the investigation. 8. PW-2 Pawan Kumar has also deposed the manner in which the accused was nabbed, search, seizure and sealing process was completed on the spot. He handed over rukka mark A to MHC, Police Station, Dhalli to record FIR. FIR was recorded. In his crossexamination, he has admitted that when they reached Batish Colony at about 12.30 P.M. they were in a vehicle when they spotted the accused. Volunteered that the vehicle was in a very slow speed. According to him, it was not a busy road and after lapse of many minutes, vehicle started crossing the road. Batish Colony was at a distance of 200 meters from the stairs where the accused was arrested. They did not call any person from Batish Colony. 9. Statement of PW-3 Salig Ram is formal in nature. 10. PW-4 Vinesh Kumar has taken the case property to F.S.L. Junga vide R.C. No. 142/2011. 11. PW-5 Vikas Kumar has brought the result of the chemical examination from F.S.L. Junga. 12. Statement of PW-6 Sant Ram is formal in nature. 13. PW-7 Shiv Kumar has deposed that on 19.8.2011, constable Pawan gave two sealed parcels containing 1.800 grams of charas, NCB forms and sample seal Z to ASI Parkash, who was officiating as S.H.O., Police Station, Dhalli. Thereafter, ASI Parkash Chand resealed the parcel containing Charas by putting five seals of ‘T’. Separate sample of seal ‘T’ was taken by him. Ex.PW-7/A was prepared. On the same day, ASI Parkash Chand gave both the parcels to him alongwith NCB forms, sample seals of ‘T’ and ‘Z’. He deposited the same in the Malkhana after making entries in the Malkhana register. The extract of Malkhana register is Ex.PW-7/B. The case property was sent on 20.8.2011 through constable Vinesh to F.S.L. Junga for chemical examination. He sent Constable Vikas Kumar to F.S.L. Junga for collecting the report. He also filled up NCB form. 14. PW-8 Parkash Chand has deposed that Constable Pawan Kumar had brought two sealed cloth parcels sealed with seal ‘Z’. He sent Constable Vikas Kumar to F.S.L. Junga for collecting the report. He also filled up NCB form. 14. PW-8 Parkash Chand has deposed that Constable Pawan Kumar had brought two sealed cloth parcels sealed with seal ‘Z’. He gave him sealed parcels as well as NCB forms and sample of seal Z. He resealed both the parcels by affixing five seals of ‘T’ on each parcel and gave the parcels to MHC Shiv Kumar. He prepared resealing certificate Ex.PW-7/A. Specimen seal of ‘T’ was taken separately on cloth vide Ex.PW-8/C. Columns No. 9 to 11 were filled up by him. 15. PW-9 SI Kamal Chand has deposed the manner in which accused was apprehended, search and seizure process was undertaken and other formalities were completed on the spot. Rukka Ex.PW-9/A was prepared. It was sent to Police Station, Dhalli through Constable Pawan Kumar alongwith case property and NCB form for registration of FIR. He has also identified the case property. In his cross-examination, he has admitted that they were in a private vehicle, but he did not remember the number of the vehicle. He did not know who was the owner of the vehicle. He has admitted that they reached near Batish Colony at about 12.30 P.M. He has also admitted that long route buses as well as other vehicles go via Sanjauli bypass road to Dhalli. Many persons reside in Batish Colony. 16. What emerges from the evidence discussed hereinabove is that accused was apprehended at about 12.30 P.M. on 19.8.2011 at Dhalli bypass road. He gave his consent to be searched by the police officer. The bag on search was found to be contained 1.800 grams of charas. The contraband was sealed. Rukka was prepared. NCB forms were filled in. The rukka was taken to Police Station, Dhalli for the registration of FIR. The FIR was registered. Resealing process was undertaken and the case property was deposited with MHC. MHC sent the case property to F.S.L. Junga and the same was received back after analysis alongwith report. 17. Accused has been nabbed at Dhalli bypass road. It is a busy road. PW-1 Anil Kumar has admitted in his cross-examination that they did not go to the residence of any person for calling him to join the investigation, though the accused was nabbed on the stairs of Batish Colony. 17. Accused has been nabbed at Dhalli bypass road. It is a busy road. PW-1 Anil Kumar has admitted in his cross-examination that they did not go to the residence of any person for calling him to join the investigation, though the accused was nabbed on the stairs of Batish Colony. PW-2 Constable Pawan Kumar, in his cross-examination, has admitted that Batish Colony was at a distance of 200 meters from the stairs where the accused was arrested and they did not call any person from Batish Colony. PW-9 SI Kamal Chand is the Investigating Officer. He has also admitted in his cross-examination that they had reached near Batish Colony and long route buses as well as other vehicles go via Sanjauli bypass road to Dhalli. Many persons reside in Batish Colony. However, fact of the matter is that despite independent witnesses available, either in Batish Colony or on a busy road, no independent witnesses were associated at the time of search and seizure on the spot. Surprisingly, the police party had gone in a private vehicle but PW-9 Kamal Chand did not remember the number of the vehicle and he did not know who was the owner of the vehicle. 18. The case property, as noticed hereinabove, was produced by the learned Public Prosecutor at the time of recording statement of PW-1 Anil Kumar. There is an entry of the case property deposited with the MHC in Ex.PW-7/B and at the time of sending to F.S.L. Junga and received back from F.S.L. Junga. However, there is no entry when the case property was taken again from the Malkhana to be produced in the court. There is also no DDR. Again there is no entry when the case property was deposited in the Malkhana after the statement of PW-1 was recorded. There is no entry in the Malkhana register when the case property was produced again before the Court at the time of recording the statement of PW-9 Kamal Chand on 8.11.2012. Statement of PW-1 Constable Anil Kumar was recorded on 3.10.2012. It is necessary to make an entry when the case property is deposited in the Malkhana (store room) and taken out from the store room. The production of case property in the court is mandatory. Statement of PW-1 Constable Anil Kumar was recorded on 3.10.2012. It is necessary to make an entry when the case property is deposited in the Malkhana (store room) and taken out from the store room. The production of case property in the court is mandatory. However, in this case since no entry has been made in the Malkhana register when the case property was produced on 3.10.2012 and 8.11.2012, it casts doubt whether it was the same property, which was recovered from the accused and sent to F.S.L. and produced in the Court. It has caused serious prejudice to the accused. 19. Consequently, in view of analysis and discussion made hereinabove, the prosecution has failed to prove the case for offence under section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 beyond reasonable doubt against the accused. 20. Accordingly, the appeal is allowed. Judgment of conviction and sentence dated 23.1.2013 rendered in Case No. 3-S/7 of 2012 is set aside. Accused is acquitted of the charge framed against him by giving him benefit of doubt. Fine amount, if already deposited, be refunded to the accused. 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 accused and send the same to the Superintendent of Jail concerned in conformity with this judgment forthwith.