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2015 DIGILAW 703 (HP)

Roshan Lal v. State of Himachal Pradesh

2015-06-15

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT : Rajiv Sharma, J: This appeal is instituted against Judgment dated 5.8.2013 rendered by learned Special Judge (III) Mandi, District Mandi, Himachal Pradesh in Session Trial No. 56/2010, whereby appellant-accused (hereinafter referred to as 'accused' for convenience sake), who was charged with and tried for offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985, was convicted and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1.00 Lakh, and in default of payment of fine, to further undergo simple imprisonment for one year. 2. Case of the prosecution, in a nutshell, is that on 22.3.2010, SI Dharam Singh (PW-13) alongwith Constable Bansi Lal (PW-5), HHC Hukam Chand (PW-11), HHG Trilok Chand and HHG Praveen Kumar proceeded from Police Station Jogindernagar for Nakkabandi. At about 8.00 am, they were checking the vehicles at place near Galu. Dharam Dass also called ASI Bansi Lal (PW-7) from police station. At about 8.30 am, a private bus bearing registration No. HP-32-5117 came from Mandi, which was going towards Palampur. HHC Hukam Chand signalled the bus to stop. SI Dharam Dass entered the bus from front door and ASI Bansi Lal from back door. They asked the passengers to get their luggage checked. Accused was found standing near front door of the bus and carrying one rucksack (Pithu bag) of blue and red colour. Accused was asked to get the bag checked. The accused opened the zip of the bag and inside the bag, one more pink coloured bag was found, on which words =Dharwal Garments' were printed, which contained substance in the shape of sticks. Accused was asked to alight from the bus. Driver of the bus Hoshiar Singh and conductor Kashmir Singh as well as ASI Bansi Lal were associated as witnesses. Constable Bansi Lal was sent for balance and weights. Contraband was weighed and found to be 2.7 kg. Charas was put back in the pink coloured bag and then put into said rucksack and parcelled in a cloth by putting 10 seals of seal =D'. NCB form in triplicate, Ext. PW-13/A was prepared. Seal impression of seal =D' was embossed on NCB form. Case property was taken into possession vide recovery memo Ext. PW-7/B. Rukka Ext. PW-13/B was prepared. Rukka was sent to the police Station through Constable Hukam Chand. Thereafter FIR Ext. PW-12/A was registered. NCB form in triplicate, Ext. PW-13/A was prepared. Seal impression of seal =D' was embossed on NCB form. Case property was taken into possession vide recovery memo Ext. PW-7/B. Rukka Ext. PW-13/B was prepared. Rukka was sent to the police Station through Constable Hukam Chand. Thereafter FIR Ext. PW-12/A was registered. Contraband was produced before the Inspector/SHO Smt. Shakuntla (PW-12) alongwith sample seal. She resealed the same with seal =K' at four places. She filled in the relevant columns of NCB form and prepared reseal memo Ext. PW-12/D. Case property alongwith sample seals =D' and =K', NCB form in triplicate was deposited by PW-12 with HC Mangat Ram, who made entry in the Malkhana Register. Extract of Malkhana Register is Ext. PW-1/A. Case property alongwith sample seals and NCB form was sent to the Forensic Science Laboratory Junga through HHG Jagdish Chand. He deposited the case property and obtained receipt and handed it over to PW-1. Report of the FSL Junga is Ext. PX. Matter was investigated. Challan was put up in the Court after completing all the codal formalities. Accused was convicted and sentenced as noticed by us herein above. 3. Prosecution has examined as many as 13 witnesses to prove its case against the accused. Accused was also examined under Section 313 CrPC. He pleaded innocence. Trial Court convicted and sentenced the accused as noticed above. Hence, this appeal. 4. Mr. Anoop Chitkara, Advocate has vehemently argued that the prosecution has failed to prove its case against the accused. 5. Mr. Ramesh Thakur, Assistant Advocate General, has supported the judgment of conviction dated 5.8.2013. 6. We have heard the learned counsel for the parties and also gone through the record carefully. 7. PW-1 Mangat Ram deposed that on 22.3.2010 Inspector Shakuntla deposited with him one parcel sealed with seal impression =D' at 10 places and seal =K' at four places. The parcel was stated to be containing Charas. He made entry in the Malkhara Register. Extract of Malkhana Register is Ext. PW-1/A. On 23.3.2010, he forwarded the case property to FSL Junga through Jagdish Chand vide receipt No. 52/2010. Samples seals were also sent alongwith case property. Copy of RC is Ext. PW-1/B. Jagdish Chand after depositing the case property returned RC alongwith receipt to him. 8. PW-2 Hoshiar Singh deposed that at about 8.15 am, a bus was stopped by the police. Police checked the bus. Samples seals were also sent alongwith case property. Copy of RC is Ext. PW-1/B. Jagdish Chand after depositing the case property returned RC alongwith receipt to him. 8. PW-2 Hoshiar Singh deposed that at about 8.15 am, a bus was stopped by the police. Police checked the bus. He did not know what was recovered because he was on the driver seat. He did not identify the accused. He could not narrate whether the accused was travelling in the bus or not. He was declared hostile and cross-examined by the learned Public Prosecutor. He admitted that two police officers entered the bus, one from front door and other from the back door. He denied that accused was sitting on the seat ahead of first gate of the bus and carrying a pithu on his back, red and blue in colour. He denied the suggestion that search of the bag of the accused, another pink coloured bag was found. He denied the suggestion that it contained any charas. He identified signatures mark =X'. He also denied that suggestion about resealing of contraband. He also denied that parcel alongwith sample seals alongwith NCB form was taken into possession in his presence and in the presence of Kashmir Singh. However, in his cross-examination, he has admitted that police told him that they wanted to search the bus and luggage of passengers. 9. PW-3 Jagdish Chand deposed that on 23.3.2010, a sealed parcel with 10 seals of =D' as well as 4 seals =K' was handed over to him by Mangat Ram for depositing that parcel alongwith sample seals alongwith NCB form with FSL Junga vide RC No. 52/2010. The case property was carried by him and deposited with FSL Junga on 25.3.2010. Receipt was also obtained. 10. PW-4 Suresh Kumar is a formal witness. 11 PW-5 Bansi Lal also deposed the manner in which accused was nabbed, search, seizure and sealing process was completed at the spot on 22.3.2010. 12. PW-6 Parmod Kumar is a formal witness. 13. PW-7 ASI Bansi Lal also deposed the manner in which accused was apprehended, search, seizure and sealing process was completed on 22.3.2010. 14. PW-8, Tej Singh, PW-9 Lachhman Dass and PW-10 Roshan Lal, are formal witnesses. 15. PW-11 Hukam Chand also testified the manner in which accused was nabbed, contraband was recovered, seized and sealed. Case property was deposited vide memo Ext. 14. PW-8, Tej Singh, PW-9 Lachhman Dass and PW-10 Roshan Lal, are formal witnesses. 15. PW-11 Hukam Chand also testified the manner in which accused was nabbed, contraband was recovered, seized and sealed. Case property was deposited vide memo Ext. PW-7/B. Rukka was prepared. He carried the same to the police station. In his cross-examination, he has admitted that they have associated the driver and conductor of the bus as independent witnesses and no other independent witness was called on the spot. 16. PW-12 Smt. Shakuntla deposed that on 23.3.2010, HHC Hukam Chand deposited a parcel sent by SI Dharam Chand at 10.15am. FIR Ext. PW-12/A was registered. On the same day, i.e. 3.25 pm, SI Dharam Singh handed over a parcel containing 2.7 kg charas. Parcel was sealed with 10 seals of =D' alongwith sample seals and NCB form. She resealed the parcel with seal =K' at four places. She filled the relevant columns of NCB form and prepared reseal memo vide Ext. PW-12/D. 17. PW-13 Dharam Singh has deposed the manner in which accused was apprehended at 8.00 am on 22.3.2010 and contraband was recovered, search and seizure process was completed at the spot. He handed over the case property to PW-12. Case property was produced while recording his statement. It was produced before the Court by HHG Mohan Singh of Police Station Jogindernagar. 18. PW-2 Hoshiar Singh has not at all supported the case of the prosecution. According to him, no contraband was recovered in his presence. He has also denied seizure and sealing process completed at the spot. Though he has identified his signatures at mark =X'. 19. Case property was deposited by PW-12 Shakuntla with PW-1 HC Mangat Ram. On 22.3.2010, he made entry in the Malkhana Register. He proved Malkhana Register Ext. PW-1/A. Case property was sent to FSL Junga through HC Jagdish Chand vide RC No. 52/2010. He has deposited it on 25.3.2010. Case property was produced in the Court while recording statement of PW-13 Dharam Singh. Mohan Singh, who has produced the case property, has not been examined. Prosecution has not led any evidence when the case property was taken out from the Malkhana to be produced before the Court. Malkhana Register has not been produced to verify this fact. Entry was required to be made when the case property was taken out from Malkhana, for its production in the Court. Prosecution has not led any evidence when the case property was taken out from the Malkhana to be produced before the Court. Malkhana Register has not been produced to verify this fact. Entry was required to be made when the case property was taken out from Malkhana, for its production in the Court. Similarly, entry was also required to be made when the case property was returned to be deposited in the Malkhana after its production in the Court. There is no DDR also when the case property was taken out from the Malkhana. Every time, the case property is deposited and taken out, entries are required to be made in the Malkhana Register which is prescribed in form (Form- 19) of Punjab Police Rules. It is, thus, doubtful that the case property, which was seized and sent to FSL Junga and produced before the Court was the same, which was recovered from the accused, or it was the case property of some other case. Prosecution has not proved the entire link from the time of seizure of contraband till its production in the Court. 20. Accordingly, the present appeal is allowed. Judgment dated 5.8.2013 rendered by learned Special Judge (III) Mandi, District Mandi, Himachal Pradesh in Session Trial No. 56/2010, is set aside. Accused is acquitted of the offence under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985. The accused is ordered to be released forthwith, if not wanted by the police in any other case. Fine amount, if any deposited by the accused, be also refunded to him. Registry is directed to prepare the release warrant of the accused and send the same to the concerned Superintendent of Jail immediately.