Research › Search › Judgment

Himachal Pradesh High Court · body

2016 DIGILAW 1183 (HP)

State of Himachal Pradesh v. Sunil Kumar

2016-06-27

RAJIV SHARMA, VIVEK SINGH THAKUR

body2016
JUDGMENT : Rajiv Sharma, J. The State has come in appeal against Judgment dated 1.4.2010 rendered by the learned Sessions Judge, Solan, Himachal Pradesh in Case No. 15-NL/7 of 2008, whereby respondent-accused (hereinafter referred to as 'accused' for convenience sake), who was charged with and tried for offence under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'Act' for convenience sake), has been acquitted by the learned trial Court. 2. Prosecution case, in a nutshell, is that on 5.11.2007, ASI Police Station, Nalagarh alongwith ASI Kuldeep Singh, HC Pratap Singh, Constable Gurnaib and Constable Balwant Singh was on patrolling duty in Nalagarh Bazaar. When the patrolling party reached near Barfani Chowk, ASI Yusuf Ali received a secret information that a person namely Sunil Kumar had come for sale of Charas and he was seen near Telephone Exchange and, if nabbed, Charas in huge quantity could be recovered from him. On receipt of the information, reasons of belief were reduced into writing and sent to SDPO Nalagarh. Thereafter, raiding party proceeded towards the place near Telephone Exchange, Nalagarh where one person named Mohammad Rafi, a resident of Nalagarh met the said raiding party. He was associated as an independent witness. They proceeded ahead. At a distance of 70 metres ahead of the Telephone Exchange, raiding party spotted a youth wearing green sweater and grey pants, who on seeing the police tried to run away. He was chased and nabbed. At that place, one Suresh Kumar, who was standing outside his house was apprised about the facts and was associated as a witness. Thereafter, ASI apprised the accused that a secret information regarding his being in possession of Charas was received and that he wanted to search his person. Accused was apprised of his legal right to be searched before a Magistrate or a Gazetted Officer. Accused consented to give his search to the Police. Accused was searched and Charas was recovered from the polythene envelope under his shirt and sweater. It weighed 250 grams. Two samples of 25 grams each were drawn and sealed with seal impression of ‘Y’. Remaining Charas was sealed with the same seal in a separate parcel. Sample parcels were marked as S1 and S2 whereas bulk Charas parcel was marked as P1. It weighed 250 grams. Two samples of 25 grams each were drawn and sealed with seal impression of ‘Y’. Remaining Charas was sealed with the same seal in a separate parcel. Sample parcels were marked as S1 and S2 whereas bulk Charas parcel was marked as P1. The sample impression of seal was taken on a piece of cloth and seal after use was given to witness Mohammad Rafi. Contraband was taken into possession vide seizure memo which was signed by the independent witnesses and the accused. A Rukka was sent to the Police Station through Constable Gurnaib Singh, on the basis of which FIR was registered. ASI Yusuf Ali produced the case property before SHO, who resealed the same and issued resealing certificate. ASI deposited case property with the MHC in the Malkhana. Case property was also produced before the Judicial Magistrate, Special report was prepared and sent to the Superintendent of Police, Solan. One of the parcels was sent to FSL for analysis. Investigation was completed. Challan was put in the Court after completing all the codal formalities. 3. Prosecution has examined as many as fourteen witnesses to prove its case against the accused. Accused was also examined under Section 313 CrPC. He pleaded innocence. Accused was acquitted as noticed above. Hence, this appeal by the State. 4. Mr. Neeraj K. Sharma, Deputy Advocate General, has vehemently argued that the prosecution has proved its case against the accused. 5. Mr. Bimal Gupta, learned Senior Advocate, has supported Judgment dated 1.4.2010. 6. We have heard the learned counsel for the parties and also gone through the Judgment and record carefully. 7. Suresh Kumar (PW-1) testified that he was called to the Police Station and was made to sign certain documents. He has not gone through the documents. He was declared hostile and was cross-examined by the learned Public Prosecutor. In his cross- examination by the learned Public Prosecutor, he admitted that on 5.11.2007, at about 5.30 PM, he was at his home. He also admitted that one person was running and police caught him in his presence. He admitted that Mohammad Rafi was also present. He also admitted that Sunil Kumar was coming from Telephone Exchange, Ward No.2, Nalagarh. Police caught the accused. Police conducted search of the accused in his presence and in the presence of Mohammad Rafi. He also admitted that one person was running and police caught him in his presence. He admitted that Mohammad Rafi was also present. He also admitted that Sunil Kumar was coming from Telephone Exchange, Ward No.2, Nalagarh. Police caught the accused. Police conducted search of the accused in his presence and in the presence of Mohammad Rafi. He denied the suggestion that option for search was given to the accused. He admitted that memo Ext. PW-1/A was prepared. He put his signatures on the same in red circle. Volunteered that he was made to sign Ext. PW-1/A in the Police Station. He admitted that Ext. PW-1/A was prepared on the spot and he put his signatures on it. Volunteered that his signatures were obtained in the Police Station. He admitted that Ext. PW-1/B was prepared by the police and thereafter he put his signature on it. He also admitted that Mohammad Rafi and accused also put their signatures on the same. He also admitted that Ext. PW-1/C was prepared and he put his signatures on it. He denied the suggestion that Ext. PW-1/C was signed on the spot by him, Mohammad Rafi and accused. Volunteered that it was signed by them in the Police Station. He admitted later that it was prepared on the spot by the police. He denied that 250 grams of Charas was recovered from the accused. He did not know whether recovery memo of Charas was prepared. He admitted that he signed recovery memo Ext. PW-1/D whereby Charas was recovered. It was also signed by Mohammad Rafi and accused. In his cross-examination by the learned defence Counsel, he admitted that wherever, he put his signatures on the papers, he did so in the Police Station and no proceedings have taken place in his presence. 8. Mohammad Rafi (PW-2) was also declared hostile and cross-examined by the learned Public Prosecutor. He admitted that the incident took place at 5.30 PM on 5.11.2007. He denied the suggestion that accused was running and police was chasing him. Volunteered that accused was apprehended in a Nallah. He also admitted that the police gave option to the accused for his personal search. He admitted that accused opted to give his search to the police officials. Ext. PW-1/A was prepared on which he put his signatures. It was also signed by Suresh Kumar and Sunil Kumar. Volunteered that accused was apprehended in a Nallah. He also admitted that the police gave option to the accused for his personal search. He admitted that accused opted to give his search to the police officials. Ext. PW-1/A was prepared on which he put his signatures. It was also signed by Suresh Kumar and Sunil Kumar. He denied that 250 grams of Charas was recovered from the accused. He denied that he had signed Ext. PW-1/D on the spot. Volunteered that it was signed by him in the Police Station. He denied that recovery was effected in his presence. He admitted his signatures on Ext. PW-1/E. Volunteered that he signed the same in the Police Station. In his cross-examination by the learned defence Counsel, he admitted that he signed the documents in the Police Station including Ext. PW-1/A. He admitted that nothing was recovered in his presence. No inquiry was made from the accused in his presence. 9. Constable Gurnaib Singh (PW-3) testified the manner in which accused was apprehended. Accused was asked to give option whether he wanted to be searched before a Magistrate or a Gazetted Officer. Accused has shown his willingness to be searched by the police. Memo Ext. PW-1/A was prepared. Accused has given consent in writing, in red circle. On the search of accused, a plastic envelope was recovered from the pocket inside the shirt. It contained Charas. It weighed 250 grams. Samples were drawn and duly sealed with seal impression ‘Y’. Rukka was prepared by the Investigating Officer. It was handed over to him. He handed over the same to MHC Visesh Kumar, on the basis of which FIR was recorded. In his cross-examination, he testified that the reasons of belief were recorded at Barfani Chowk Bazaar, Nalagarh. He brought weights and scale from a shop 300-400 metres from the spot. He denied the suggestion that nothing was recovered from the accused in his presence. 10. ASI Kuldeep Singh Rathor (PW-4) testified the manner in which accused was apprehended, search, seizure and sampling proceedings were completed at the spot. Consent memo Ext. PW- 1/A was prepared. Accused gave his option to be searched by the police. In his cross-examination, he has admitted that witnesses were associated in raiding party from the Telephone Exchange. Proceedings lasted till 8 PM. 11. Constable Balwant Singh (PW-5) testified that he was posted at Nalagarh since 2007. Consent memo Ext. PW- 1/A was prepared. Accused gave his option to be searched by the police. In his cross-examination, he has admitted that witnesses were associated in raiding party from the Telephone Exchange. Proceedings lasted till 8 PM. 11. Constable Balwant Singh (PW-5) testified that he was posted at Nalagarh since 2007. On 5.11.2007, he alongwith Constable Gurnaib Singh, HC Pratap Singh, ASI Kuldeep Singh and ASI Yusuf Ali was on patrolling near Barfani Chowk. ASI Yusuf Ali received a secret information that accused was dealing in Charas near the Telephone Exchange. On this, reasons of belief were prepared on the spot vide Ext. PW-3/A. Ext. PW-3/A was handed over to him to be produced before the SDPO Nalagarh. He handed over the same to Paramjeet Singh, Reader to the Dy.SP, Nalagarh. 12. Constable Jitender Kumar (PW-7) deposed that on 6.11.2007, MHC Visesh Kumar handed over to him one sealed parcel mark S1 and two sample seal impressions ‘H’ and ‘Y’ alongwith NCB form vide RC No. 74/2007 and docket No. 5318/SA to deposit in FSL. On 7.11.2007, he deposited the same at FSL and returned the receipt to MHC. 13. HC Visesh Kumar (PW-8) testified that on 5.11.2007, he received a Rukka through Constable Gurnaib Singh. It was produced before SHO. FIR Ext. PW-8/B was recorded. On the same day, at about 11.00 PM, SHO Som Dutt had deposited case property i.e. one sealed parcel Ext. P1, two sealed samples of Charas bearing seal impression ‘H’, before him. NCB form, seal impression of “H’ and ‘Y’ were also handed over to him by the SHO. He made entry to this effect in the register at Sr. No. 562. Copy of Malkhana Register is Ext. PW-8/D. He handed over case property on 6.11.2007 to Constable Jitender Kumar, to deposit with FSL. 14. Inspector Som Dutt (PW-12) deposed that the case property alongwith samples and NCB form was produced before him on 5.11.2007. He resealed two parcels of samples and one parcel of bulk of Charas with seal impression ‘H’. Seal impression was also taken on separate piece of cloth, which is Ext. PW-12/B. He filled in relevant columns of NCB form Ext. PW-12/C. Case property alongwith NCB form and sample was handed over to Visesh Kumar, on 5.11.2007. 15. He resealed two parcels of samples and one parcel of bulk of Charas with seal impression ‘H’. Seal impression was also taken on separate piece of cloth, which is Ext. PW-12/B. He filled in relevant columns of NCB form Ext. PW-12/C. Case property alongwith NCB form and sample was handed over to Visesh Kumar, on 5.11.2007. 15. SI Yusuf Ali (PW-14) deposed that on 5.11.2007, he was on patrolling alongwith ASI Kuldeep, HC Pratap Singh, Constable Gurnaib and Constable Balwant. At around 4.45 PM, when he was present near Barfani Chowk, he received a secret information that a person namely Sunil Kumar deals with selling and purchasing Charas. He was wearing green sweater and gray jean pants, sports shoes and was present near Telephone Exchange. If he was apprehended, Charas/ narcotic substance could be recovered from him. Information was reliable. There was no time to obtain the search warrant and in the event of delay, there was every possibility of the accused escaping. Reasons of belief were recorded and sent through Constable Balwant Singh to Dy.SP Nalagarh vide Ext. PW-3/A. Thereafter, he alongwith police officials proceeded towards that side. Accused was apprehended. He was apprised that there was information of some narcotic substance being in his possession and he had liberty to be searched in the presence of a Gazetted Officer or a Magistrate. Accused consented to be searched by the police party on the spot. Consent memo Ext. PW-1/A was prepared on the spot, which was signed by Mohammad Rafi and Suresh Kumar. Charas was recovered. All the codal formalities were completed on the spot. Accused and case property were brought to the Police Station and produced before SHO alongwith NCB form etc. SHO resealed the case property and deposited with Visesh Kumar. He denied in the cross-examination that he has not obtained consent of the accused before conducting his personal search. 16. Accused was apprehended. He was apprised that he had a liberty to be searched before a Magistrate or a Gazetted Officer. Ext. PW-1/A was prepared. Suresh Kumar (PW-1), though declared hostile, but has admitted his signatures on Ext. PW-1/A. He has admitted his signatures on Ext. PW-1/B, Ext. PW-1/C and Ext. PW-1/D also. Similarly, Mohammad Rafi (PW-2) was also declared hostile but he has also admitted his signatures on Ext. Ext. PW-1/A was prepared. Suresh Kumar (PW-1), though declared hostile, but has admitted his signatures on Ext. PW-1/A. He has admitted his signatures on Ext. PW-1/B, Ext. PW-1/C and Ext. PW-1/D also. Similarly, Mohammad Rafi (PW-2) was also declared hostile but he has also admitted his signatures on Ext. PW- 1/A. He categorically admitted that the police gave option to the accused for his personal search and accused gave personal search to the police. Gurnaib Singh (PW-3) deposed that consent of the accused was obtained to the effect whether he wanted to be searched before a Magistrate or a Gazetted Officer. Accused gave willingness to be searched by the police party. He took Rukka to the Police Station. Statement of Gurnaib Singh (PW-3) has been corroborated by ASI Kuldeep Singh. He has testified that consent memo was prepared vide Ext. PW-1/A. It was signed by him. Yusuf Ali (PW-14) has also deposed that the accused was given liberty to be searched before a Magistrate or a Gazetted Officer. Consent memo was prepared. It was signed by Suresh Kumar (PW-1) and Mohammad Rafi (PW-2). We have already noticed that Gurnaib Singh (PW-3) and Yusuf Ali (PW-14) have also testified that accused was apprised of his legal right to be searched before a Magistrate or a Gazetted Officer vide Ext. PW-1/A. 17. All the codal formalities were completed by the police at the spot. Case property was produced before SHO Som Dutt (PW- 12). He resealed the same with seal impression ‘H’. He handed over the case property to Visesh Kumar (PW-8). He made entry at Sr. No. 562 of the Malkhana Register. Case property was handed over by PW-8 Visesh Kumar to Jitender Kumar (PW-7) vide RC No. 74/2007. He deposited the same with the FSL. Copy of FSL report is Ext. PX. Samples have reached FSL intact and contraband was found to be Charas. 18. Prosecution has proved beyond reasonable doubt that the contraband was recovered from the conscious and exclusive possession of the accused. 19. Accordingly, the appeal is allowed. Judgment dated 1.4.2010 rendered by the learned Sessions Judge, Solan, Himachal Pradesh in Case No. 15-NL/7 of 2008 is set aside. The accused is convicted for offence punishable under Section 20 of the Act. Accused be produced to be heard on quantum of sentence on 30.6.2016. 20. 19. Accordingly, the appeal is allowed. Judgment dated 1.4.2010 rendered by the learned Sessions Judge, Solan, Himachal Pradesh in Case No. 15-NL/7 of 2008 is set aside. The accused is convicted for offence punishable under Section 20 of the Act. Accused be produced to be heard on quantum of sentence on 30.6.2016. 20. Registry is directed to prepare and send the production warrant to the quarter concerned.