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Himachal Pradesh High Court · body

2016 DIGILAW 1087 (HP)

State of H. P. v. Teji Devi

2016-06-17

CHANDER BHUSAN BAROWALIA, RAJIV SHARMA

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JUDGMENT : Chander Bhusan Barowalia, J. The present appeal is maintained by the appellant/State against the judgment of acquittal dated 01.10.2012, passed by the learned Special Judge (Fast Track Court), Mandi, District Mandi, H.P., in Sessions Trial No.36/2011, whereby the accused, who was charged under Sections 20(B) & 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985, has been acquitted. 2. Briefly stating the facts giving rise to the present appeal, as per the prosecution story, are that on 13.12.2010, PW9, HC Dina Nath, Investigating Officer alongwith Constable Baldev Singh, L.C. Naina Devi and Constable Dhani Ram were present on nakkabandi at Silhi Largi. At about 2.30 p.m., they intercepted the accused, who on seeing the police party, turned back and tried to run away. She was apprehended by the Investigating Officer with the help of other police officials. Since the place was secluded one and no independent witnesses could be associated, as such, Constable Baldev Singh and LC Naina Devi were cited as witnesses. The police officials, gave their personal search to the accused. The accused was apprised of her legal rights to give search either before a Magistrate or a Gazetted Officer, but the accused gave her consent to be searched by LC Naina Devi. On search of the accused by LC Naina Devi, a kneecap was found to be worn by the accused on her left leg and on checking of the kneecap, an envelope wrapped in cello tape was recovered, which on opening, was found to contain white colour envelope having a black substance in the form of sticks. On experience and smelling, the same was found to be cannabis. The accused was also wearing kneecap on her right leg. On search of the knee cap, one envelope wrapped in cello tape was found and on opening of knee cap, one white colour envelope having a brown colour substance in a semi liquid form was found. On experience and smelling, the same was found to be Opium. On weighing the cannabis and opium, they were found to be 500 grams each. Cannabis and opium were again put together in white colour envelopes, which were then put in a cloth parcel and the same was sealed with seal impression ‘D’ at four places and NCB Form Ex.PW3/A was filled in triplicate from column No.1 to 8 by the Investigating Officer. Cannabis and opium were again put together in white colour envelopes, which were then put in a cloth parcel and the same was sealed with seal impression ‘D’ at four places and NCB Form Ex.PW3/A was filled in triplicate from column No.1 to 8 by the Investigating Officer. Seal impression was also separately taken on a piece of cloth, which is Ex.PW7/C. The rukka Ex.PW9/A was prepared and sent through Constable Baldev Singh to the Police Station and on the basis of which FIR Ex.PW3/D was got registered against the accused. The seal was handed-over to Constable Baldev Singh. Case property was taken into possession vide seizure memo Ex.PW7/D. The Investigating Officer prepared the spot map, which is Ex.PW9/B and also recorded the statements of witnesses as per their versions. The police party came back to the Police Station and Investigating Officer handed-over the case property to Shri Ram ASI for resealing. He resealed the case property with seal impression “G” at four places and deposited the same with MHC Khem Chand, who entered the case property in Malkhana Register at Sr.No.551 and sent the same through Constable Sandeep Kumar to F.S.L., Junga and as per the report of Chemical Examiner, FSL, Junga Ex.PX, the exhibit stated as Charas, was extract of cannabis and sample of Charas and exhibit stated as Opium as sample of Opium. 3. To prove its case, the prosecution examined as many as 09 witnesses. PW9 HC Dina Nath Investigating Officer, PW7 Constable Baldev Singh, who intercepted the accused and recovered 500 grams cannabis and 500 grams opium from the possession of the accused. 3. To prove its case, the prosecution examined as many as 09 witnesses. PW9 HC Dina Nath Investigating Officer, PW7 Constable Baldev Singh, who intercepted the accused and recovered 500 grams cannabis and 500 grams opium from the possession of the accused. PW-3, Shri Ram, who was posted as Investigating Officer in Police Station, Aut in the year, 2010 and to whom the case property was handed-over for resealing and he resealed the parcels with seal impression “G” at four places and also filled Column No.9 to 11 of the NCB Form in triplicate, which is Ex.PW3/A and also endorsed the sample seal impression “G” on it and the sample was taken on a piece of cloth, which is Ex.PW3/B. Thereafter, he handed-over the parcel alongwith sample seal D and G, NCB form in triplicate to PW-4 HC Khem Chand the then MHC Police Station, Aut, who made the entry in register No.19 at Sr.No.551, copy of which is Ex.PW4/A. On 14.12.2010, PW4 Khem Chand sent the parcel containing 500 grams of Charas, which was sealed with seal impression “D” at four places and resealed with seal impression “G” at four places alongwith sample seal impression “D” and “G” and NCB form in triplicate through PW1 Sandeep Kumar for depositing the same in FSL, Junga vide R.C. Ex.PW4/B and PW1 after depositing the same handed over the receipt to the MHC. On 14.12.2010, Additional Superintendent of Police, Hira Singh Thakur, handed over the special report to PW2, HC Yoginder Singh, who was posted as a Reader to Additional Superintendent of Police, Mandi. PW2 made an entry in the special report register, copy of which is Ex.PW2/B. PW5, HHC Inder Dev, has placed on record the copy of Rapat No.11 Ex.PW5/A, dated 13.12.2010. PW6, Inspector Dhorje Tam, after receiving the report of Chemical Examiner, Ex.PX prepared the challan and presented the same in the Court for trial. PW8, HHC Uday Chand on 3.2.2011, brought the case property and report of Chemical Examiner, Junga in case FIR No.144/2010 and handed-over the report and parcel to MHC Khem Chand. 4. The learned Court below has acquitted the accused after holding that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. 5. Heard. PW8, HHC Uday Chand on 3.2.2011, brought the case property and report of Chemical Examiner, Junga in case FIR No.144/2010 and handed-over the report and parcel to MHC Khem Chand. 4. The learned Court below has acquitted the accused after holding that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. 5. Heard. The learned Deputy Advocate General has argued that the Court below has failed to peruse and appreciate the evidence correctly and the prosecution has apprehended the accused on the spot and made recovery and learned Court below has given undue weightage to the minor contradictions of the accused. On the other hand, the learned counsel for the respondent Mr. H.S. Rangra, has argued that the prosecution has miserably failed to prove the guilt of accused beyond reasonable doubt and no interference in the judgment of the Court below is required as the same is just reasoned and as per law. 6. To appreciate the arguments addressed by the learned counsel for the parties, we have gone through the record in detail. 7. The statement of PW9 HC Dina Nath, Investigating Officer and PW7, Constable Baldev Singh is about the fact that they intercepted the accused at about 2.30 PM near Shili Largi and the police officials gave their personal search to the accused vide memo Ex.PW7/A. The accused was apprised of her legal right to give search either before a Magistrate or by the Gazetted Officer vide memo Ex.PW7/B and the accused gave in writing to be searched by LC Naina Devi. On search of the accused by LC Naina Devi, it was found that the accused had worn two kneecaps on her both legs. On checking of the left leg kneecap, brown colour cello tape was found and on opening of which, it was found containing white colour envelope having a black substance in the form of sticks. On experience and smelling, the same was found to be cannabis. Similarly, the accused was also wearing kneecap on her right leg. On search of the knee cap, one envelope wrapped in cello tape was found and on opening of knee cap, one white colour envelope having a brown colour substance in a semi liquid form was found. On experience and smelling, the same was found to be opium. Similarly, the accused was also wearing kneecap on her right leg. On search of the knee cap, one envelope wrapped in cello tape was found and on opening of knee cap, one white colour envelope having a brown colour substance in a semi liquid form was found. On experience and smelling, the same was found to be opium. On weighting, 500 grams of cannabis and 500 grams opium were found to be carried by the accused. Thereafter, the Charas and Opium was put back into the polythene envelope along with cello tape and then packed in cloth parcel and was sealed with seal impression “D” at four places and NCB form Ex.PW3/A was filled in triplicate from column No.1 to 8 by the Investigating Officer and seal impression was separately taken on a piece of cloth, which is Ex.PW7/C. The seal after use was handed-over to Constable Baldev Singh. The case property was taken into possession vide memo Ex.PW7/D, which was duly signed by witness Baldev Singh and LC Naina Devi and accused, copy of which was also given to the accused free of cost. Thereafter, PW9, HC Dina Nath prepared the Rukka Ex.PW9/A and sent through Constable Baldev Singh to the Police Station and on the basis of which FIR Ex.PW3/D was registered against the accused at Police Station, Aut. The accused was arrested vide memo Ex.PW7/E and information about her arrest was given to her husband, as desired by her. Constable Baldev Singh came back to the police post and handed over the case file to the Investigating Officer, who has mentioned the FIR number on the documents and recorded the statement of Baldev Singh. The police party came back to the Police Station, where the case property was handed-over to PW3 ASI Shri Ram for resealing. 8. Constable Baldev Singh handed-over the Rukka on 13.12.2010, which was subscribed by HC Dina Nath to PW3 ASI Shri Ram and PW3 got recorded the FIR in the Computer from MHC Khem Chand, copy of which is Ex.PW3/D, which bears his signatures and he also made endorsement on the Rukka which is Ex.PW3/E. After registration of the F.I.R., he sent the case file to HC Dina Nath through Constable Baldev Singh. On the same day, HC Dina Nath handed over him one parcel sealed with seal impression “D” and NCB form in triplicate for resealing allegedly containing 500 grams of cannabis and 500 grams of opium in the parcel and he resealed the parcel with seal “G” at 4 places and also filled column No. 9 to 11 of the NCB form in triplicate, which is Ex.PW3/A and also endorsed the sample seal “G” on it. The sample of the seal was taken on a piece of cloth, which is Ex.PW3/B and handed over the case property to MHC Khem Chand after preparing the resealing memo Ex.PW3/C. 9. As per the statement of PW9, HC Dina Nath, he tried to locate independent witnesses, but he did not initiate any proceedings against the persons, who refused to witness the search. According to him, the place was secluded and as such no witnesses could be associated. Contradicting the statement of Investigating Officer, PW7 Constable Baldev Singh, who was member of the police party, admitted that the vehicles were frequently passing through the said place from Larji to Aut, but he was not aware that PW9, Dina Nath, has tried to join any independent witness. However, he admitted that a number of persons both male and female, used to pass on the road. PW9 has stated before the Court that recoveries were effected in the presence of PW7 Baldev Singh, but PW7, Baldev Singh has stated that NCB form in triplicate had not been filled in his presence. PW7, also could not say whether the seal ‘D’ was put on the piece of cloth or not. He also could not say anything regarding the special report sent to the superior officers. He also could not say anything with regard to cannabis and opium which had been recovered from the personal search of the accused. Similarly, PW7 has further stated that he did not know whether the Investigating Officer Dina Nath had told the accused that she has got a legal right to be searched either before the police official or Magistrate or any Gazetted Officer. He also could not say whether the accused has consented to be searched before the police official. 10. Similarly, PW7 has further stated that he did not know whether the Investigating Officer Dina Nath had told the accused that she has got a legal right to be searched either before the police official or Magistrate or any Gazetted Officer. He also could not say whether the accused has consented to be searched before the police official. 10. PW9 Dina Nath, has stated that the accused was searched by LC Naina Devi, but she did not step into the witness box to prove that 500 grams of opium and 500 grams of cannabis were recovered from the possession of the accused which were searched by her as LC Naina Devi was given up by the learned Public Prosecutor. So non-examination of LC Naina Devi, a material witness, has created serious doubt in the prosecution case. 11. Memo Ex.PW7/B shows that the Investigating Officer has not informed the accused that she has a legal right to be searched before the Gazetted Officer, Magistrate or before police officials. 12. It is to be determined whether the provisions of Section 50 of the NDPS Act are applicable to the facts of the present case. Admittedly, 500 grams Charas and 500 grams Opium, according to the prosecution story, were recovered from the kneecaps, which the accused was wearing at the time of personal search. A three Judges Bench of the Hon’ble Supreme Court in State of H.P. versus Pawan Kumar (2005) 4 SCC 350 , while defining the expression “person” as it appears in Section 50 of the NDPS Act as a human being the appropriate covering and clothing and also got foot wear was of the view that a bag, a briefcase or any other articles or container etc., can under no circumstance be treated as a body of human being. It was stated by the Court that an incriminating article could be kept concealed in the body or clothing or covering in different manner or in the footwear that while making a search for such type of articles, which have been concealed, it would certainly come within the ambit of the word “search of person” and one of the test, which could be applied is, when in the process of search the human body come into contact or shall have to be touched by the person by carrying out the search it will be a search of person. So, in the present case, the provisions of Section 50 are applicable. Even this Court in Ashok Kumar Vs. State of H.P. latest HLJ 2009 (HP) 557 has held: “Mere taking consent from accused for personal search and recording to that effect in recovery memo is not sufficient compliance of Section 50 of NDPS Act, the accused must be informed that he has a right to be searched through Magistrate or Gazetted Officer by I.O.” 13. In a question which arose recently before the Constitution Bench of Hon’ble Supreme Court in Vijay Sinh Jadeja v. State of Gujarat (2011) 1 SCC 609 , was whether Section 50 of the Act casts a duty on the empowered officer to “inform” the suspect of his right to be searched in the presence of a Gazetted Officer or a Magistrate, if he so desires or whether a mere enquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a Gazetted Officer can be said to be due compliance with the mandate of Section 50 answering the reference aforesaid, the Supreme Court vide para-29 held:- “29. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz to check the misuse of power, to avoid harm to innocent persons and to minimize the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorized officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision.” 14. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision.” 14. Vijay Sinh Chandubha Jadeja’s case supra was relied in the latest judgment by the Apex Court in another case titled Narcotics Control Bureau vs. Sukh Dev Raj Sodhi, (2011) 6 SCC 392 and their Lordships observed that the requirement of Section 50 of the Act is not complied with by merely informing the accused of his option to be searched either in the presence of a Gazetted Officer or before a Magistrate. The requirement continues even after that and it is required that the accused person is actually brought before a Gazetted Officer or a Magistrate and in Para 32, the Constitution Bench made it clear that in order to impart authenticity, transparency and credit worthiness to the entire proceedings, an endeavor should be made by the prosecuting agency to produce the suspect before the nearest Magistrate. The prosecution has failed to examine the material witness, who has taken the search of the accused. 15. It has been held in K. Prakashan Vs. P.K. Surenderan (2008) 1 SCC 258 , that when two views are possible, appellate Court should not reverse the judgment of acquittal merely because the other view was possible. When judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non consideration/ misappropriation of evidence on record, reversal thereof by High Court was not justified. 16. The Hon’ble Supreme Court in T. Subramanian Vs. State of Tamil Nadu, (2006) 1 SCC 401 , has held that where two views are reasonably possible from the very same evidence, prosecution cannot be said to have its case beyond reasonable doubt. 17. The net result of the above discussion is that the prosecution has failed to prove the guilt of the accused. 18. In view of the aforesaid decision of the Hon’ble Supreme Court and discussion made above, we find no merit in this appeal and the same is accordingly dismissed. All the pending application(s), if any, also stand disposed of. Bail bonds are discharged.