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Himachal Pradesh High Court · body

2016 DIGILAW 1267 (HP)

State of H. P. v. Makhan Singh alias Kalia

2016-07-04

RAJIV SHARMA, VIVEK SINGH THAKUR

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JUDGMENT : Rajiv Sharma, J. This appeal is instituted against the judgment dated 20.10.2012, rendered by the learned Special Judge, Fast Track Court, Una, H.P., in Sessions case No. 13-VII-2011, whereby the respondent-accused (hereinafter referred to as the accused), who was charged with and tried for offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ND & PS Act), has been acquitted. 2. The case of the prosecution, in a nut shell, is that on 1.6.2011, police party headed by HC Sanjay Kumar, I.O. SIU, Una along with ASI Kuldeep Singh, HC Prem Singh, HHC Dharam Pal and others was on patrolling duty at Palkwah chowk at around 4:15 PM. HC Sanjay Kumar received secret information about the indulgence of the accused in illegal business of selling poppy straw in his tea-stall/Khokha at village Thakran. HC Sanjay Kumar prepared rukka Ext. PW-1/A and sent the same to PS Haroli through PW-1 Const. Ram Gopal, on the basis of which FIR Ext. PW-15/A was registered. Credible information report Ext. PW-3/A was prepared and sent through HHC Dharam Pal to Superintendent of Police, Una. The police team reached at village Thakran and local witnesses Surjeet Singh, Niranjan Kaur and Sushma were called. The I.O. formed the raiding party and the search of the Khokha was carried out. During search, one pink coloured polythene envelope lying underneath Almirah was recovered. The packet was opened and it was found to be poppy straw. It weighed 2.250 Kgs, including the weight of the packet. The same was wrapped in a cloth parcel and sealed with impression “J” at distinct places. IO also filled in column Nos. 1 to 8 of the NCB form in triplicate and affixed three seal impressions on the form. The I.O. took sample seal impression Ext. PW-4/B on separate piece of cloth and seal after use was handed over to witness PW-5 Niranjan Kaur. The I.O. took the case property into possession vide memo Ext. PW-4/A. He also prepared the site plan. The case property was produced before PW-15 SHO Shakti Singh at Police Station, Haroli who resealed the same with three seals of impression “T” and filled in relevant columns of the NCB form and deposited the same with the MHC. The Khokha was got demarcated. PW-4/A. He also prepared the site plan. The case property was produced before PW-15 SHO Shakti Singh at Police Station, Haroli who resealed the same with three seals of impression “T” and filled in relevant columns of the NCB form and deposited the same with the MHC. The Khokha was got demarcated. The investigation was completed and the challan was put up before the Court after completing all the codal formalities. 3. The prosecution, in order to prove its case, has examined as many as seventeen witnesses. The accused was also examined under Section 313 Cr.P.C. According to him, he was falsely implicated. He also examined two witnesses in defence. The learned trial Court acquitted the accused, as noticed hereinabove. Hence, this appeal. 4. Mr. P.M.Negi, Dy. AG has vehemently argued that the prosecution has proved its case against the accused. On the other hand, Mr. Naresh Thakur, Sr. Advocate, has supported the judgment of the learned trial Court dated 20.10.2012. 5. We have heard the learned counsel for both the sides and have also gone through the judgment and records of the case carefully. 6. PW-1 Const. Ram Gopal, deposed that at around 4:15 PM on 1.6.2011, HC Sanjay Kumar received secret information which was reduced into writing and sent to the Police Station through him. He handed over the rukka Ext. PW-1/A at Police Station, Haroli and FIR was registered. In his cross-examination, he admitted that Palkwah chowk is busy and many shops are situated at the spot. 7. PW-2 Sushma Devi deposed that in the month of June, 2011, one Surjit Singh came to her house and told that her presence was required by S.I. Pathania in connection with search of Khokha of accused. She went to the spot where the police party was present and one polythene bag was in the hands of one police official. No search was conducted in her presence. She was declared hostile and cross-examined by the learned Public Prosecutor. In her cross-examination, she denied the suggestion that she was called by Ward Panch, Niranjan Kaur. She denied that police officials gave their personal search to the accused in her presence. She admitted that memo Ext. PW-2/A was prepared at the spot. Volunteered that the IO had not read over the contents of the memo to her. In her cross-examination, she denied the suggestion that she was called by Ward Panch, Niranjan Kaur. She denied that police officials gave their personal search to the accused in her presence. She admitted that memo Ext. PW-2/A was prepared at the spot. Volunteered that the IO had not read over the contents of the memo to her. She was made to sign on the memo by SI/SHO Pathania believing him, she had signed the same. She denied portion A to A and B to B of her statement Mark-B. In her cross-examination by the learned defence counsel, she deposed that the Khokha of the accused was not situated in the land owned by the accused. The police party was consisting of 10-12 persons. The mother of the accused as well as his brother used to sit in the Khokha. The accused was called from his house to the Khokha. His house was at a distance of around 100 meters from Khokha. 8. PW-3 HHC Dharam Pal testified that on 1.6.2011 at around 4:15 PM, he along with the police party was present at Palkwah chowk. HC Sanjay Kumar received secret information which was reduced into writing and sent through Const. Ram Gopal to the Police Station for registration of a case. Reasons of belief under Section 42-1 (2) of ND & PS Act were handed over to him to be given to S.P. Una. He delivered the same at 6:00 PM at SP Office, Una vide Ext. PW-3/A. 9. PW-4 HHC Ashwani Kumar, deposed that on 1.6.2011 at around 4:15 PM, he along with ASI Kuldeep and other police officials was on patrolling duty in official vehicle. HC Sanjay Kumar received secret information which was reduced into writing. He prepared rukka Ext. PW- 1/A and sent it through Const. Ram Gopal to Police Station, Reasons of belief under Section 42-1(2) of ND & PS Act were handed over to Dharam Pal. AT about 4:50 PM, the police party reached at village Thakran. The I.O. deputed him to bring public witnesses and he brought Smt. Niranjan Kaur, Sushma and Surjeet Singh. They went to the shop of the accused and apprised him about the reason of search of his shop. The Khokha of the accused was searched leading to recovery of one polythene bag beneath the steel almirah lying in the shop. On opening the same, poppy straw was found. They went to the shop of the accused and apprised him about the reason of search of his shop. The Khokha of the accused was searched leading to recovery of one polythene bag beneath the steel almirah lying in the shop. On opening the same, poppy straw was found. It weighed 2 kg.200 grams. The recovered poppy straw was wrapped in a cloth parcel and sealed with seal impression “J”. He also clicked the photographs. In his cross-examination, he deposed that there were two shops in front of the shop of the accused. One shop was open and people were sitting in the shop of Surjeet Singh. Surjeet Singh was also present in his shop. He did not go inside the shop/khokha of the accused. They left the spot at 8:00 PM. 10. PW-5 Niranjan Kaur testified that she was Ward Panch of village Palkwah, Majra Thakran. She was called by the police. When she reached on the spot, she saw the police party having one polythene carry bag. Nothing was recovered from the shop of the accused in her presence. She was declared hostile and cross-examined by the learned Public Prosecutor. In her cross-examination she admitted that on 1.6.2011 at about 5:00 PM, she was called by the police to the shop of accused where Surjeet Singh and Sushma had come later on. She denied that the police informed them that it had information that accused had kept poppy husk in his Khokha. She denied that police gave personal search to accused. She admitted that rukka Ext. PW-1/A was prepared at the spot and she signed the same. She denied that the police searched the shop of the accused and a polythene bag containing poppy straw was found beneath steel almirah in the khokha/shop of the accused, though she admitted that the contraband weighed 2 kg. 250 grams. Volunteered that the bag was with the police. She also admitted that the polythene bag was wrapped in a cloth parcel and sealed. The police has obtained her signatures on Ext. PW-4/A as well as PW-4/B and parcel Ext. P-1. 11. PW-6 Surjeet Singh deposed that he used to sit in his father’s shop at village Thakran. The police called him. Sanjay Sharma, asked him to call Sushma Devi and he accordingly brought her to the spot. No poppy straw was recovered in his presence from the shop of the accused. PW-4/A as well as PW-4/B and parcel Ext. P-1. 11. PW-6 Surjeet Singh deposed that he used to sit in his father’s shop at village Thakran. The police called him. Sanjay Sharma, asked him to call Sushma Devi and he accordingly brought her to the spot. No poppy straw was recovered in his presence from the shop of the accused. He was declared hostile and cross-examined by the learned Public Prosecutor. He denied the suggestion that the police told him that they have to search shop of accused on the suspicion that he possessed poppy husk. He admitted his signatures on Ext. PW-2/A. Volunteered that it was prepared later on. The poppy husk was weighed. He admitted his signatures on memos Ext. PW-4/A, PW-2/A and Ext. P-1. In his cross-examination by the learned defence counsel, he deposed that mother and brother of accused also used to sit in Khokha of the accused. 12. PW-7 ASI Kuldeep Singh also deposed the manner in which secret information was received by HC Sanjay Kumar. On this information, HC Sanjay Kumar prepared rukka and also recorded reasons of belief. The same were sent through HHC Dharam Pal to Superintendent of Police, Una. They reached at village Thakuran near Water tank. The shop of the accused was searched. One polythene bag was recovered from below the Godrej almirah. It contained poppy husk. It weighed 2.250 Kgs. All the codal formalities were completed on the spot, including filling up of NCB forms etc. In his cross-examination, he admitted that there is one shop near water tank. 13. PW-9 Satpal Singh, Kanungo deposed that he along with Halqa Patwari Sunil Kumar on the directions of Tehsildar visited the spot at village Thakran, Tehsil Haroli, Distt Una and demarcated the land comprised in Kh. No. 416, in which Khokha was constructed. According to the revenue record, Gram Panchayat Palkwah was recorded as owner in the column of possession. Entry of “Bartan Aam” was recorded. A tea stall was found on the spot run by a lady at that time. The local persons present on the spot informed them that Khokha belonged to the accused. The police officials identified the spot. He prepared demarcation report on the spot vide Ext. PW-9/A. In his cross-examination, he admitted that he did not record the separate statements of the local persons to the effect that Khokha was constructed by the accused. 14. The local persons present on the spot informed them that Khokha belonged to the accused. The police officials identified the spot. He prepared demarcation report on the spot vide Ext. PW-9/A. In his cross-examination, he admitted that he did not record the separate statements of the local persons to the effect that Khokha was constructed by the accused. 14. PW-12 Const. Gurbax had gone to FSL to deposit the case property and other documents in FIR No. 157/11. On 28.6.2011, he collected the sealed parcel of result in case FIR No. 126 (present case). 15. PW-14 HC Vipan Kumar deposed that he remained posted as MHC at PS Haroli w.e.f. July, 2009 to August, 2011. On 1.6.2011, SI Shakti Singh Pathania deposited with him one cloth parcel containing 2 kg. 250 grams of poppy husk duly sealed with seals “J” and “T” along with sample seals “J” and “T”, NCB form etc. He entered the same at Sr. No. 605/11 vide Ext. PW-14/A in the register. On 3.6.2011, he handed over the case property to HHC Dharam Pal vide RC No. 163/11. He also filled in relevant columns of the NCB form vide Ext. PW-14/C. HHC Dharam Pal after depositing the case property handed over the RC to him. 16. PW- 15 SI Shakti Singh Pathania deposed that on 1.6.2011 HC Sanjay Kumar and Const. Ram Gopal came at Police Station, Haroli in a private vehicle and regarding this rapat vide Ext. PW-11/A was entered in the daily diary. On the same day at around 5:00 PM, he received rukka Ext. PW-1/A. On the same day at 8:15 PM, HC Sanjay Kumar handed over the case property to him. He resealed the same with seal “T” at three places and also filled in relevant columns of NCB form. He also obtained seal impression on the NCB form and handed over the case property to the MHC, Police Station Haroli for further action. 17. PW-16 HC Sanjay Kumar deposed that he was posted as I.O., SIU Una. On 1.6.2011, he along with Const. Ram Gopal was in his car on patrolling duty. He asked SHO to provide some additional force for patrolling in the area about Narcotic drugs on which SHO provided ASI Kuldeep Singh, HC Prem Singhy, HHC Ashwani Kumar, HHC Dharam Pal, Const. Sanjay Kumar, HHG P.C. Vijay Kumar, etc. At 4:15 PM, they reached at Palkwah chowk. Ram Gopal was in his car on patrolling duty. He asked SHO to provide some additional force for patrolling in the area about Narcotic drugs on which SHO provided ASI Kuldeep Singh, HC Prem Singhy, HHC Ashwani Kumar, HHC Dharam Pal, Const. Sanjay Kumar, HHG P.C. Vijay Kumar, etc. At 4:15 PM, they reached at Palkwah chowk. He received secret information about the indulgence of accused in narcotics. He was selling poppy husk illegally to the customers. No time was left to seek search warrant as there was apprehension that the accused would liquidate the contraband from his tea stall. The information was well founded. He scribed rukka Ext. PW-1/A and sent the same to the Police Station, Haroli and FIR Ext. PW-15/A was registered. He along with other police officials reached at village Thakran. The raiding party was constituted. The Khokha of accused was searched in the presence of accused leading to recovery of one polythene packet. It contained poppy husk. It weighed 2.250 Kgs. All the codal formalities were completed on the spot. The application Ext. PW-16/E was moved before the Tehsildar for demarcation of the Khokha. On 18.7.2011, Kanungo had demarcated the Khokha of the accused and report is Ext. PW-9/A. In his cross-examination, he admitted that there was abadi and shops near the spot. 18. The independent witnesses, namely, PW-2 Sushma Devi, PW-5 Niranjan Kaur and PW-6 Surjeet Singh have not supported the case of the prosecution except to the extent that they have appended their signatures on various documents. 19. According to PW-2 Sushma Devi when she went to the spot, the police party was present and one polythene bag was in the hands of one police official. No search was conducted in her presence. In her cross-examination, she admitted that the mother of the accused as well as his brother used to sit in the Khokha. The accused was called from his house to the Khokha. His house was at a distance of around 100 meters from the Khokha. PW-5 Niranjan Kaur deposed that she was called by the police. When she reached at the spot, she saw the police party having one polythene carry bag. Nothing was recovered from the shop of the accused in her presence. She was declared hostile and cross-examined by the learned Public Prosecutor. PW-5 Niranjan Kaur deposed that she was called by the police. When she reached at the spot, she saw the police party having one polythene carry bag. Nothing was recovered from the shop of the accused in her presence. She was declared hostile and cross-examined by the learned Public Prosecutor. In her cross-examination she denied the suggestion that the police searched the shop of the accused and a polythene bag containing poppy straw was found beneath steel almirah in the Khokha/shop of the accused. PW-6 Surjeet Singh deposed that no poppy straw was recovered in his presence from the shop of the accused. He was declared hostile and cross-examined by the learned Public Prosecutor. In his cross-examination by the learned defence counsel, he deposed that the mother and brother of the accused also used to sit in Khokha of the accused. 20. The case of the prosecution is that the Khokha of the accused was searched in the presence of PW-2 Sushma Devi, PW-5 Niranjan Kaur and PW-6 Surjeet Singh, but they have denied that contraband was recovered from the khokha in their presence. Rather, PW-2 Sushma Devi and PW-5 Niranjan Kaur deposed that when they reached at the spot, the polythene bag was already in the hands of the police officials. 21. PW-9 Satpal Singh, Kanungo, as noticed hereinabove, has undertaken the demarcation of the Khokha/shop in question. According to him, entry of “Bartan Aam” was recorded. A tea stall was found on the spot run by a lady at that time. However, in his cross-examination, he admitted that he did not record the separate statements of the local persons to the effect that Khokha was constructed by the accused. PW-4 HHC Ashwani Kumar, deposed that the photographs were taken from outside the shop/Khokha. He did not go inside the Khokha. HC Sanjay Kumar had entered the Khokha of accused and he remained standing at the door. The investigation should have been carried by PW-7 ASI Kuldeep Singh who was superior to HC Sanjay Kumar. The prosecution has failed to prove that the accused was found in exclusive possession of the contraband inside his shop. The prosecution has also not proved that the Khokha belonged to the accused from where the alleged recovery was effected. The independent witnesses, as noticed hereinabove, have not supported the case of the prosecution. The prosecution has failed to prove that the accused was found in exclusive possession of the contraband inside his shop. The prosecution has also not proved that the Khokha belonged to the accused from where the alleged recovery was effected. The independent witnesses, as noticed hereinabove, have not supported the case of the prosecution. There were shops around the place where the alleged recovery was made, however, no independent witnesses were associated. 22. Thus, the prosecution has failed to prove its case against the accused beyond reasonable doubt and there is no occasion for us to interfere with the well reasoned judgment of the learned trial Court dated 20.10.2012. 23. Accordingly, there is no merit in this appeal and the same is dismissed.