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Himachal Pradesh High Court · body

2015 DIGILAW 855 (HP)

Naseeb v. State of Himachal Pradesh

2015-07-09

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT Rajiv Sharma, J. 1. This appeal is instituted against the judgment and order dated 6.10.2012 and 10.10.2012, respectively, rendered by the learned Special Judge, Shimla, H.P. in Sessions Trial No. 4-S/7 of 2011, whereby the appellant-accused (hereinafter referred to as the accused), alongwith other co-accused, was charged with and tried for offence punishable under Sections 18 & 29 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. The co-accused namely, Hameed Mohammad, Gudoo Ram, Rameshwar Singh and Ashok Kumar were acquitted. 2. The case of the prosecution, in a nut shell, is that on 7.1.2011, during night time at about 1:15 AM, at place Sarivan, bypass NH-22, Shimla-Rampur police officials were on patrolling duty. A vehicle was signaled to stop. One bag was found on the lap of accused Naseeb. The number of the vehicle was HP-12C-2302 (Bolero jeep). Since the incident took place at an isolated place, no independent witnesses could be procured. ASI Rajinder Singh and Constable Ramesh Chand were associated as witnesses. The bag was searched. Opium was found in the polythene envelope kept in the bag. It weighed 1 kg. 400 gms. NCB forms in triplicate were prepared and seal impressions were obtained on a piece of cloth. The contraband was sealed and the same was deposited before the MHC. He sent the same to FSL for chemical examination. 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 19 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. Hence, this appeal. 4. Mr. Manoj Pathak, 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. Ramesh Thakur, Assistant Advocate General for the State has supported the judgment and order of the learned trial Court dated 6/10.10.2012. 5. Hence, this appeal. 4. Mr. Manoj Pathak, 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. Ramesh Thakur, Assistant Advocate General for the State has supported the judgment and order of the learned trial Court dated 6/10.10.2012. 5. We have heard learned counsel for both the sides and gone through the judgment and records of the case carefully. 6. PW-1 ASI Yoginder Singh, deposed that on 7.1.2011, the police party left the Police Station for routine patrol duty at 12:30 AM. The police party was camping on NH-22 in the area of Sariwan. At about 1:15 AM, Bolero Camper bearing No. HP-12C-2302 was noticed on way from Matiyana side towards Shimla. The police party laid the naka. The vehicle was stopped. The person sitting on the front seat was found in possession of one black bag. It was kept on his lap by him. SHO interrogated the other occupants of the jeep. The contents of the bag were also checked. It was found to be containing one polythene envelope. The polythene envelope contained black substance. It weighed 1 kg. 400 grm opium. The opium was packed and sealed in a packet with seal ‘A’ and was taken into possession vide recovery memo Ext. PW-1/B. The black bag alongwith the polythene envelope were sealed alongwith the opium in the same packet. The SHO prepared report Ext. PW-1/C. He signed recovery memo Ext. PW-1/B. The case property was examined in the Court while examining PW-1 Yoginder Singh. It was produced by APP. The packet contained bag of black colour Ext. P-1, the polythene envelope Ext. P-2 and Opium Ext. P-3. A clear impression of seal “A” was noticed vide Ext. PW-1/F. 7. PW-2 HHC Ramesh Kumar, also deposed the manner in which the jeep bearing registration No. HP-12C-2302, was signaled to stop, searched and sealing proceedings were completed on the spot. He also signed the recovery memo Ext. PW-1/B. SHO prepared the report Ext. PW-1/C and the same was sent to the Police Station through him. 8. PW-4 Kamal Singh, deposed that in his presence, accused Naseeb had not got anything recovered from his house. He was declared hostile and cross-examined by the learned APP. He did not read the document Ext. PW-1/B. SHO prepared the report Ext. PW-1/C and the same was sent to the Police Station through him. 8. PW-4 Kamal Singh, deposed that in his presence, accused Naseeb had not got anything recovered from his house. He was declared hostile and cross-examined by the learned APP. He did not read the document Ext. PW-4/A. He visited the Police Station and was made to sign the document. He denied that the police officials had offered themselves for search and memo Ext. PW-4/A was prepared. He admitted signatures on Ext. PW-4/A. 9. PW-5 LC Ranjna, has proved report Ext. PW-5/A. 10. PW-6 Bhagi Ram, was declared hostile. He was cross-examined by the learned APP. He denied the suggestion that the accused Naseeb has stated before them that he had picked up consignment of opium from the house of Ashok Kumar for Rs. 65,000/-. 11. PW-8 HC Het Ram, deposed that on 7.1.2011, Const. Ramesh Chand produced report Ext. PW-1/C before him, on the basis of which FIR Ext. PW-8/A was registered. Insp./SHO Baldev Thakur had deposited one sealed packet containing opium weighing 1400 gms. He also deposited specimen impression of seal and NCB forms with him. He entered the case property in the register vide Ext. PW-8/B. On 8.1.2011, Insp./SHO Baldev Thakur deposited one sealed packet duly sealed with seal impression “P” containing opium, weighing 100 gms. The sample of seal and NCB form were also deposited with him. Another packet duly sealed with seal “P” containing one lock was also deposited with him. He made entry in the malkhana register. He sent both the sealed packets containing opium to the Chemical Examiner alongwith the specimen impression of the seals and NCB forms and other documents vide RC No. 1 of 2011, through HHC Surinder. The copy of the RC is Ext. PW-8/C. 12. PW-11 ASI Prem Lal, deposed that the accused had made disclosure statement vide Ext. PW-3/A to the effect that he could identify the house from where he had purchased the opium. He paid Rs. 65,000/- to accused person Ashok Kumar. The disclosure statement Ext. PW-3/A was reduced into writing. He signed the same. 13. PW-12 Ramesh Sharma, deposed that accused had disclosed that he could get some quantity of opium recovered from his house in Tehsil Nalagarh, District Solan. The disclosure statement is Ext. PW-12/A. 14. PW-15 Const. He paid Rs. 65,000/- to accused person Ashok Kumar. The disclosure statement Ext. PW-3/A was reduced into writing. He signed the same. 13. PW-12 Ramesh Sharma, deposed that accused had disclosed that he could get some quantity of opium recovered from his house in Tehsil Nalagarh, District Solan. The disclosure statement is Ext. PW-12/A. 14. PW-15 Const. Surinder has taken the case property to the Chemical Examiner vide RC No. 1 of 2011 and deposited the same on 10.1.2011. 15. PW-18 SHO Baldev Thakur, also deposed the manner in which the accused was apprehended from the jeep, search, seizure and sealing proceedings of the contraband were completed on the spot. He prepared the rough sketch Ext. PW-18/E of the site of recovery of opium. He tried to send for the non-official witnesses, but none was available since it was odd hour at the night. He deposited the case property with the MHC. 16. The case of the prosecution, precisely, is that on 7.1.2011, the accused was apprehended from the vehicle bearing registration No. HP-12C-2302. He was carrying contraband on his lap. The vehicle was searched. It contained charas. It weighed 1400 gms. The search, seizure and sampling proceedings were completed on the spot. The case property was deposited with the MHC. He sent the same to FSL. 17. The case property, as noticed hereinabove, was produced in the trial Court, while recording the statement of PW-1. It was produced by the APP. The prosecution has not proved as to when the case property was withdrawn from the malkhana. It is mandatory that as and when the case property is deposited or taken out from the malkhana, corresponding entry has to be made in the malkhana register. No DDR report was also prepared when the case property was taken out from the malkhana and produced before the Court and when it was re-deposited in the malkhana after its production before the Court. The DDR is required to be prepared as and when the case property is taken out from the malkhana and re-deposited. In ND & PS cases, it is necessary to ensure the safe custody of the case property from its seizure till its production in the Court. Who has handed over the case property to APP has also not been proved. In ND & PS cases, it is necessary to ensure the safe custody of the case property from its seizure till its production in the Court. Who has handed over the case property to APP has also not been proved. It casts doubt as to whether it was the same case property which was seized from the accused and produced before the Court in the absence of entry made in the malkhana register at the time of withdrawal and re-deposit in the malkhana. The malkhana register is Ext. PW-8/B. There is entry of the case property being deposited in the malkhana at the initial stage and thereafter on being sent to FSL, Junga on 10.1.2011 and when it was received on 7.2.2011, but no corresponding entry is there when it was again taken out from the malkhana to be produced before the Court. 18. According to PW-18 SHO Baldev Thakur, on 7.1.2011, the Dy. Superintendent of Police was also accompanying the team. He was in uniform. The Dy. Superintendent of Police has not been examined. PW-18 SHO Baldev Thakur did not remember the period up to which the Dy. Superintendent of Police was with the police party. The Dy. Superintendent of Police was a material witness, being the senior most Police Officer, accompanying the police party. 19. Thus, the prosecution has failed to prove the case against the accused beyond reasonable doubt for the commission of offence punishable under Sections 18 & 29 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 6/10.10.2012, rendered by the learned Special Judge, Shimla, H.P. in Sessions trial No. 4-S/7 of 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.