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2015 DIGILAW 668 (HP)

Kansara Mayur v. State of Himachal Pradesh

2015-06-04

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT : Rajiv Sharma, J. This appeal is instituted against the judgment, dated 05.01.2013, rendered by the learned Special Judge (II), Mandi, District Mandi, H.P. in Sessions Trial No. 2 of 2012, whereby the appellant-accused (hereinafter referred to as ‘the accused’ for the sake of convenience), who was charged with and tried for an offence punishable under Section 20(b)(ii)(c) of the ND & PS Act, was 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 to further undergo simple imprisonment for a period of one year. 2. Case of the prosecution, in a nut-shell, is that on 15.10.2011, police party was present at Suki Bain NH-21. Accused came from Pandoh side having a bag in his right hand. On seeing the police party, he turned back and tried to run away. The police party suspected the accused carrying some contraband. Police party gave their personal search to accused and thereafter, search of light maroon and yellow bag was conducted, which was being carried by the accused in right hand. It contained envelope in which black material in the shape of chapattis, sphere and stick was found, which on smelling was found to be cannabis/charas. It weighed 2 kg. 300 grams. It was sealed with seal H at 10 places. NCB form in triplicate was prepared and seal impression H was affixed on it. Sample seal was taken on piece of cloth. Rukka through Constable Kashmir Singh was sent, on the basis of which, FIR No. 248/10, dated 15.10.2011, under Section 20 of NDPS Act was registered against the accused. The contraband was deposited with MHC. It was sent to FSL, Junga. The report was received. Thereafter, the challan was put up after completing all the codal formalities. 3. The prosecution has examined as many as 11 witnesses to support its case. The accused was also examined under Section 313 of the Cr. P.C. He pleaded innocence. He was convicted and sentenced, as noticed hereinabove. Hence, this appeal. 4. Mr. Chaman Negi, learned counsel for the appellant has vehemently argued that the prosecution has failed to prove the case against the appellant. 5. Mr. P. M. Negi, learned Deputy Advocate General, supported the judgment, dated 05.01.2013. 6. We have heard the learned counsel for the parties and gone through the judgment and records, carefully. Hence, this appeal. 4. Mr. Chaman Negi, learned counsel for the appellant has vehemently argued that the prosecution has failed to prove the case against the appellant. 5. Mr. P. M. Negi, learned Deputy Advocate General, supported the judgment, dated 05.01.2013. 6. We have heard the learned counsel for the parties and gone through the judgment and records, carefully. 7. PW-1, HC Vijay Kumar has deposed that on 15.10.2011 at about 8:50 a.m., they were present near Suki Bain. Accused came from the Pandoh side. He was carrying a light maroon and yellow coloured raxine type bag. He got frightened on seeing the police. He tried to run away. He was apprehended. There was no abadi in the vicinity. Investigating Officer stopped the ongoing vehicle and asked the occupants of the vehicle to become witness, but none of them come forward. The Investigating Officer associated him and Constable Dhameshwar. Police gave the search of the police party to the accused. Bag of the accused was checked. It contained charas. It weighed 2 kg. 300 grams. Charas was put in the polythene bag and polythene bag was put in a cloth parcel. Parcel was sealed with 10 impressions of seal H. Form NCB-1 was filled in triplicate at the spot. Charas was seized vide seizure memo Ex. PW1/C. Rukka was prepared. It was sent through Constable Kashmir Singh to the Police Station. FIR was registered. Investigating Officer completed the investigation. During the course of recording of his statement, one sealed parcel sealed with 10 impressions of seal H, six impressions of seal A and six impressions of seal of FSL were produced. Seals were intact and legible. The parcel was opened. PW-1 Vijay Kumar identified the same. In his cross-examination, he admitted that they had set up nakka and they were stopping the vehicles. They had stopped about 5-7 vehicles. No challan was issued. 8. PW-2, Constable Kashmir Singh also deposed the manner, in which the accused was apprehended, search, seizure, sealing and other codal formalities were completed on the spot. He took the rukka to the Police Station. 9. PW-3, HHC Thakur Singh, deposed that Additional SHO Sardari Lal had handed over one cloth parcel sealed with ten impressions of seal H, six impressions of seal A alongwith NCB-1 form in triplicate, sample seals A and H and seizure memo to him on 15.10.2011. He took the rukka to the Police Station. 9. PW-3, HHC Thakur Singh, deposed that Additional SHO Sardari Lal had handed over one cloth parcel sealed with ten impressions of seal H, six impressions of seal A alongwith NCB-1 form in triplicate, sample seals A and H and seizure memo to him on 15.10.2011. He made an entry in the malakhana register at Sr. No. 1279, Ex. PW3/A. He deposited the same in the malakhana. Re-seal memo Ex. PW3/B was signed by him. He sent the parcel, NCB-1 form in triplicate, sample seals A and H, copy of FIR and seizure memo to FSL, Junga for analysis on 17.10.2011 through Constable Kesar Singh vide RC No. 215/11, copy of which is Ex. PW 3/C. He deposited all the articles in FSL and handed over the receipt to him on his return. The case property remained intact till it remained in his custody. In his cross-examination, he has admitted that he has not obtained the signatures of the person depositing the case property. PW-4, HC Girdhari Lal is a formal witness. PW-5, Sardari Lal, Additional SHO, has deposed that PSI Sanjeev Kumar handed over one parcel sealed with 10 impressions of seal H alongwith sample seal H and NCB-1 form in triplicate on 15.10.2011 at 2:40 p.m. He re -sealed the parcel with six impressions of seal A. He obtained the seal impression on separate pieces of cloths. He filled the columns No. 9-11 of NCB-1 form Ex. PW-3/D. 10. PW-6, ASI Surinder Kumar, PW-7 Inspector Surinder Pal are formal witnesses. PW-8, Constable Kesar Singh, deposed that HHC Thakur Dass handed over one parcel sealed with ten impressions of seal H and six impressions of seal A, copy of FIR, NCB-1 form in triplicate, sample seals H and A and copy of seizure memo with the direction to carry them to FSL, Junga for analysis. He took the case property to FSL, Junga. He deposited all the articles at FSL Junga on the same day and handed over the receipt to MHC on his return. 11. PW-10, SI Sanjeev Kumar deposed the manner in which the accused was apprehended on the spot, the charas was seized, the sealing procedure was completed by him and seal was handed over to Vijay Kumar after use. He prepared rukka Ex. PW10/A. He also prepared the site plan Ex. 11. PW-10, SI Sanjeev Kumar deposed the manner in which the accused was apprehended on the spot, the charas was seized, the sealing procedure was completed by him and seal was handed over to Vijay Kumar after use. He prepared rukka Ex. PW10/A. He also prepared the site plan Ex. PW10/B. Accused was arrested vide arrest memo Ex. PW1/D. In his cross-examination, he admitted that Sukki bain falls on National Highway. He was not aware that there was dumping site at Kawari. PW-11, LHC Mast Ram is a formal witness. 12. The accused was apprehended on National Highway. According to PW-1, HC Vijay Kumar, the Investigating Officer stopped the ongoing vehicles and he asked the occupants of the vehicles to become witness. It is not believable that if the vehicles had been stopped by PW-10, SI Sanjeev Kumar, the occupants would not have become independent witnesses to support the arrest, search and seizure. The police have ample powers to take action against the persons who are not willing to help in their investigation. The National Highway-21 is a busy Highway. The police could easily associate independent witnesses. Moreover, when the nakka has been laid and the vehicles were being checked. It is not one of those cases where the recovery was effected from an isolated or secluded place. The recovery has been made from the National Highway and, in these circumstances, the police ought to have associated the independent witnesses being available. The case property was deposited in the malkhana by the Additional SHO on 15.10.2011 alongwith NCB-1 form and s ample seals H and A. These were sent to FSL, Junga for chemical examination through PW-8, Constable Kesar Singh. He deposited the same at FSL, Junga. The case property has been produced while recording the statement of PW-1, HC Vijay Kumar. Vijay Kumar has identified Ex.-P1. There is no entry in the malkhana register when the case property was taken out for being produced in the Court. Similarly, there is no entry when the case property was re-deposited in the malkhana. Moreover, it has not come in the evidence, who has produced the case property in the Court. An entry is required to be made when the case property is taken out from the malkhana for production the Court in Form-19. Similarly, there is no entry when the case property was re-deposited in the malkhana. Moreover, it has not come in the evidence, who has produced the case property in the Court. An entry is required to be made when the case property is taken out from the malkhana for production the Court in Form-19. Similarly, entry is required to be made when the case property is taken back and re -deposited in the malkhana. There is neither any entry at the time of taking out of the case property nor at the time of re- depositing of the same. There is no DDR report also prepared at the time of producing the case property in the Court and when it was taken back to be re -deposited in the malkhana. Thus, it casts doubt whether it was the same case property which was recovered from the accused and sent to FSL, Junga and produced in the Court or some other case property was produced in the Court without there being any corresponding entries at the time of taking out and re -deposit in the malkhana register. Consequently, the prosecution has failed to prove the case against the accused beyond reasonable doubt. 13. Accordingly, in view of the observations and discussions made hereinabove, the appeal is allowed. The accused is acquitted of the charge framed against him. He be released immediately, if not required in any other case. The Registry is directed to prepare the release warrant and send it to the concerned Superintendent of Jail.