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Himachal Pradesh High Court · body

2016 DIGILAW 1309 (HP)

State of H. P. v. Ramesh

2016-07-08

RAJIV SHARMA, VIVEK SINGH THAKUR

body2016
JUDGMENT : Justice Rajiv Sharma, J. The State has come in appeal against the judgment dated 30.4.2011, rendered by the learned Special Judge (II), Kinnaur at Rampur, H.P., in RBT No. 17-AR/3 of 2009/2010, whereby the respondents-accused (hereinafter referred to as the accused), who were charged with and tried for offences punishable under Sections 18, 20, 29 and 60 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ND & PS Act), have been acquitted. 2. The case of the prosecution, in a nut shell, is that on 22.6.2009, police party comprising of Dy. S.P. Pankaj Sharma (Probationer), PW-1 HHC Kashmi Ram, PW-2 HHC Roshan Lal, PW-9 HC Pushap Dev, Const. Bhoop Singh, Const. Mukesh Kumar and HHG Om Parkash left PS Anni in taxi No. HP-01K-0810. It was driven by Const. Hem Raj towards Kothi in connection with routine patrolling. At about 3:00 PM, when they reached at Riun Gaad, they found Indica Car No. HR-55-CT-0914 standing. The accused were the occupants of the Car. The accused were apprised by PW-9 HC Pushap Dev that the police intended to search their person as well as car and they have the legal right to be searched either in the presence of a Magistrate or a Gazetted Officer. The accused persons opted to be searched by the police on the spot. Efforts were made to join independent witnesses but no independent witness was available. PW-9 HC Pushap Dev joined HHC Kashmi Ram and PW-2 HHC Roshan Lal as witnesses. The personal search of the accused persons was conducted but nothing incriminating was recovered from their possession. Thereafter, search of the car was conducted and one polythene bag containing 7 transparent polythene envelopes was recovered. Out of the seven polythene envelopes five contained charas in shape of sticks and balls weighing 2 kg 100 grams and the remaining two packets contained opium weighing 1 kg 500 grams. The charas and opium were separately packed and sealed with seal impression “X”. NCB form in triplicate was filled in and after drawing the specimen of seal the same was handed over to HHC Roshan Lal. The case property was taken into possession vide seizure memo Ext. PW-1/J. Rukka Ext. PW-1/C was scribed by PW-9 HC Pushap Dev and sent to PS Anni through HHC Kashmi Ram on the basis of which FIR Ext. PW-1/P was registered. The case property was taken into possession vide seizure memo Ext. PW-1/J. Rukka Ext. PW-1/C was scribed by PW-9 HC Pushap Dev and sent to PS Anni through HHC Kashmi Ram on the basis of which FIR Ext. PW-1/P was registered. Indica Car No. HR-55-CT-0914 along with its documents was taken into possession vide seizure memo Ext. PW-1/L. Site plan Ext. PW-9/A was prepared. The case property was produced before PW-5 MHC Anup Kumar who resealed the same with seal bearing impression “H” and thereafter, he deposited the same in the malkhana. On 23.6.2009 MHC sent the case property to FSL Junga through Const. Mukesh Kumar and the report is Ext. PW-8/A. 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 nine witnesses. The accused were also examined under Section 313 Cr.P.C. According to them, they were falsely implicated. They also examined six witnesses in defence. The learned trial Court acquitted the accused, as noticed hereinabove. Hence, this appeal. 4. Mr. Neeraj K. Sharma, Dy. AG has vehemently argued that the prosecution has proved its case against the accused. On the other hand, M/S Lakshay Thakur and Ashish Verma, Advocates for the respective accused have supported the judgment of the learned trial Court dated 30.4.2011. 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 HHC Kashmi Ram deposed that on 22.6.2009 he along with other police officials was on patrolling under the supervision of Dy. S.P. Pankaj Sharma (Probationer) in vehicle No. HP-01K-0810 from Anni towarks Kothi. At about 3:00 PM, when they reached at Riun Gaad, Indica Car No. HR-55-CT-0914 was found standing there. The accused were the occupants of the car. HC Pushap Dev suspected that the same might be containing any contraband article and he asked the accused as to why they had stopped their vehicle. Accused replied that their vehicle had developed some snag. Thereafter, HC Pushap Dev apprised the accused of their legal right to be searched either in the presence of a Magistrate or a Gazetted Officer. The accused persons opted to be searched by the police officer. Consent memos Ext. Accused replied that their vehicle had developed some snag. Thereafter, HC Pushap Dev apprised the accused of their legal right to be searched either in the presence of a Magistrate or a Gazetted Officer. The accused persons opted to be searched by the police officer. Consent memos Ext. PW-1/A, PW-1/B and PW-1/C, respectively were prepared which were witnessed by him and HHC Roshan Lal. HC Pushap Dev sent HHC Roshan Lal to bring independent witnesses but he came back after 10-15 minutes and told that he met two persons who were passing but they refused to be associated as witnesses. HC Pushap Dev joined him and HHC Roshan Lal as witnesses. Personal search of the accused persons was carried out. Nothing incriminating was found. Search memos Ext. PW-1/E, PW-1/F and PW-1/G were signed by the accused and witnesses. The vehicle in which the accused were travelling was also searched. One polythene envelope containing seven packets comprising of transparent polythene was found. Out of these seven packets, 5 packets contained charas in the shape of balls and sticks. The remaining two packets contained opium. Charas was found to be 2 kg. 100 grams and opium weighed 1 kg. 500 grams. Thereafter, charas and opium, so recovered was packed in two packets which were sealed with seal bearing “X”. NCB form in triplicate was filled up by HC Pushap Dev. Specimen of seal Ext. PW-1/H was also obtained. The case property was taken into possession vide memo Ext. PW-1/J. HC Pushap Dev scribed rukka Ext. PW-1/K. The same was handed over to him. Before scribing rukka, HC Pushap Dev took Indica Car No. HR-55-CT-0914 along with its documents and key into possession. He handed over rukka to MHC Anoop Kumar on the basis of which FIR Ext. PW-1/P was registered. In his cross-examination, he deposed that they were on patrolling to Kothi. He specifically deposed that HC Roshan Lal had gone to look for independent witnesses towards Kandaghar side. They had no prior information about the accused persons. He denied the suggestion that Kandaghar was situated at a distance of 100 meters away from the spot. He denied the suggestion that tea shop of Maghu Ram and Krishna was situated at Riun Gaad. He admitted that village Didi was situated at a distance of 2 km. from the spot. They had no prior information about the accused persons. He denied the suggestion that Kandaghar was situated at a distance of 100 meters away from the spot. He denied the suggestion that tea shop of Maghu Ram and Krishna was situated at Riun Gaad. He admitted that village Didi was situated at a distance of 2 km. from the spot. He was not sure whether Nallah was at a distance of about 100 feet ahead of village Didi. He also denied the suggestion that the vehicle of the accused persons had broken down at Didi nallah. He denied the suggestion that accused Kuldeep and Sat Pal were brought by the police party from the shop of Veer Singh at village Didi where they were sitting outside the shop. He denied that no charas was recovered from the vehicle. He had come from the spot to the Police Station along with rukka in a taxi. He has admitted that the distance from Riun Gaad to village Didi was about 6 kms. 7. PW-2 HHC Roshan Lal has also corroborated the statement of PW-1 HHC Kashmi Ram, the manner in which the vehicle was intercepted, the accused were apprised of their legal right to be searched either in the presence of a Magistrate or a Gazetted Officer and the contraband was recovered. The charas weighed 2 kg. 100 grams and opium weighed 1 kg. 500 grams. All the codal formalities were completed on the spot. He identified his signatures on Ext. P-1 and P-8. The vehicle was also taken into possession. In his cross-examination, he admitted that two persons met him at a distance of about 50 meters from the spot. He did not ask their names nor brought them to the I.O. Village Kandaghar was situated at a distance of about ½ to ¾ kms from the spot. He denied the suggestion that tea stall of Maghu Ram and his wife Krishna was situated at Riun Gaad and the same was in existence for the last about 5 years. He admitted that there was Nulla at a distance of 100 feet from village Didi. He denied the suggestion specifically that on 22.6.2009 the vehicle of the accused persons had broken down at Didi Nalla and its front suspension had come out. The seal which was handed over to him was lost but he did not lodge any report. 8. PW-3 Const. He denied the suggestion specifically that on 22.6.2009 the vehicle of the accused persons had broken down at Didi Nalla and its front suspension had come out. The seal which was handed over to him was lost but he did not lodge any report. 8. PW-3 Const. Mukesh deposed that on 23.6.2009 MHC Anoop Kumar handed over to him two sealed parcels sealed with seal bearing impressions “X” and “H” vide RC No. 29/09 along with NCB from and specimen of seal. He delivered the same at FSL Junga on 24.6.2009. 9. PW-4 Const. Beli Ram deposed that on 25.6.2009, he was joined in the investigation. The accused persons demarcated the place from where they had purchased opium and charas. The place was situated below Kothi Batot road. Identification memo Ext. PW-4/A was prepared. In his cross-examination, he denied that Rajesh Mistri was not present with them. He also denied that the vehicle of the accused has broken down in Didi Nullah and the same was standing there on 25.6.2009. 10. PW-5 HC Anoop Kumar testified that on 22.6.2009, HHC Kashmi Ram handed over rukka Ext. PW-1/K to him which was sent from the spot by HC Pushap Dev. FIR Ext. PW-1/P was recorded. HC Pushap Dev presented the case property sealed with impression “X” before him. He being the officiating SHO, resealed the same with impression “H”, facsimile of which was fixed by him on NCB form at column No. 9. He also filled in column No. 10 of the NCB form. He deposited the same in the malkhana at Sr. No. 209 vide Ext. PW-5/C. He sent the case property along with the specimen of seal and NCB form to FSL Junga through Const. Mukesh Kumar vide RC No. 29/09. 11. PW-9 HC Pushap Dev testified the manner in which the accused were apprehended while traveling in taxi No. HP-01K-0810. The accused were apprised of their legal right to be searched either in the presence of a Magistrate or a Gazetted Officer. Consent memos were prepared, however, the accused opted to be searched before the police. Thereafter, HHC Roshan Lal was sent in search of independent witnesses who came back after 15 minutes and told that he had met two persons but they refused to join as witnesses. He joined HHC Roshan and HHC Kashmi Ram as witnesses. Consent memos were prepared, however, the accused opted to be searched before the police. Thereafter, HHC Roshan Lal was sent in search of independent witnesses who came back after 15 minutes and told that he had met two persons but they refused to join as witnesses. He joined HHC Roshan and HHC Kashmi Ram as witnesses. Nothing incriminating was recovered from the personal search of the accused. Thereafter search of the vehicle was conducted. Charas was recovered which weighed 2 kg. 100 grams. The weight of the opium was 1 kg. 500 grams. All the codal formalities were completed on the spot. Rukka was scribed and sent to PS Anni through HHC Kashmi Ram. Indica Car No. HR-55-CT-0914 was taken into possession vide seizure memo Ext. PW-1/L. In his cross-examination, he deposed that they have not taken the driver of the taxi along with them and left him at Anni and the vehicle was driven by their own driver. They did not take the driver of the taxi because the driver of their official vehicle was free. He was told by his superior officer that driver of the taxi may not be taken along with them for the purpose of patrolling. He denied the suggestion that at 3:00 PM on 22.6.2009 he was present in the Court of SDJM, Rampur. The distance from Rampur to Village Didi is about 66 kms. He denied the suggestion that the distance between Rampur and village Didi was 85 kms. He also denied the suggestion that the vehicle of the accused was standing at Didi Nulla near village Didi. The vehicle of the accused was got repaired by their driver by taking mechanic from Anni on the next day. He denied the suggestion that the vehicle was repaired by Ramesh mechanic and brought to the Police Station on 25.6.2009. 12. DW-1 Vir Singh deposed that he was running a shop of Karyana at Village Didi since 1998. On 22.6.2009 at about 6:30 AM, when the was going to his shop, he found one vehicle parked at a distance of 35-40 meters away from his shop. On inquiry made from the occupants of the vehicle, he came to know that the vehicle had broken down. The vehicle was bearing No. HR-55-CT-0914. All the accused persons were present in the vehicle. On inquiry made from the occupants of the vehicle, he came to know that the vehicle had broken down. The vehicle was bearing No. HR-55-CT-0914. All the accused persons were present in the vehicle. The accused asked him about the availability of the spare parts of the vehicle to which he told them that the same would be available at Sainj or Nogli. Thereafter, he arranged a vehicle bearing No. HP-2A-0305 belonging to Bhupinder Negi. 13. DW-2 Krishna Devi deposed that she was staying at Riun Nulla where she has also constructed a residential house. During the month of June, 2009, no vehicle went out of order at Riun Nulla nor the police had visited there during that period. The police did not seize any charas at Riun Nulla. In her cross-examination, she admitted that she was running a tea stall on government land. There was no residential house or shops near her tea stall. 14. DW-3 Rajesh Kumar deposed that on 25 or 26th June, 2009, SHO PS Anni and his driver Hem Raj came to him and took him to Didi nulla for repair of vehicle. When he reached at the spot along with the police, Indica Car No. HR-55-CT-0914 was found there. He got that vehicle repaired and thereafter Hem Raj brought that vehicle to PS Ani. 15. DW-6 Ramesh Chand testified that he along with accused Kuldeep and Sat Pal was going to Kullu-Manali in Tata Indica Car No. HR-55-CT-0914 via Banjar. They went on wrong track from Nagan as the topography of the area was not known to them and they went up to village Didi where they came to know that they had taken the wrong track. They turned back their vehicle at village Didi but the same was broken down on 22.6.2009 at 6:30 AM. The front right side suspension arm was broken and axel boot had also come out as a result of which the vehicle did not move. In the meantime Vir Singh Shopkeeper came there and on inquiry made by them from him they came to know that the spare parts of the vehicle were available either at Sainj or at Rampur. Thereafter, Vir Singh shopkeeper arranged a Taxi for him to visit Rampur for purchasing spare parts. He purchased front suspension arm for a sum of Rs. 1950/- vide bill Ext. Thereafter, Vir Singh shopkeeper arranged a Taxi for him to visit Rampur for purchasing spare parts. He purchased front suspension arm for a sum of Rs. 1950/- vide bill Ext. DW-4/A at Khaneri from one shop and axel boot vide challan Ext. DW-5/A from another shop against payment of Rs. 477/-. 16. The learned trial Court has acquitted the accused on the ground that driver Hem Raj, the material witness, who has driven the taxi No. HP-01K-0810 from Anni towards Kothi, was not examined and independent witnesses, though available were also not associated. The contraband and the Indica car were to be seized by common seizure memo. The vehicle in question was got repaired at Didi as per the version of DW-2 Krishna Devi. There is variance in the timings given by the witness who has taken the rukka to the Police Station and came back and also there is variance in the statement of PW-9 HC Pushap Dev. 17. PW-1 HHC Kashmi Ram deposed that HC Pushap Dev sent HHC Roshan Lal to bring independent witnesses but he came back after 10-15 minutes and told that he met two persons who were passing but they refused to be associated as witnesses. The place was isolated. HC Pushap Dev joined him and HHC Roshan Lal as witnesses. PW-2 HHC Roshan Lal has admitted in his cross-examination that two persons met him at a distance of about 50 meters from the spot. He did not ask their names nor brought them to the I.O. Village Kandaghar was situated at a distance of about ½ to ¾ kms from the spot. PW-9 HC Pushap Dev deposed that HHC Roshan Lal was sent in search of independent witnesses who came back after 15 minutes and told that he had met two persons but they refused to join as witnesses. Thus, it cannot be said that the police has not tried to join independent witnesses. PW-2 HHC Roshan Lal was specifically sent to bring independent witnesses. Though he met two passersby but they refused to be associated as witnesses. 18. The police has gone on patrolling duty in taxi No. HP-01K- 0810 from Anni towards Kothi. The police has not taken the taxi driver on patrolling duty to maintain the secrecy. The police has taken their own driver, namely, Hem Raj. Though he met two passersby but they refused to be associated as witnesses. 18. The police has gone on patrolling duty in taxi No. HP-01K- 0810 from Anni towards Kothi. The police has not taken the taxi driver on patrolling duty to maintain the secrecy. The police has taken their own driver, namely, Hem Raj. The learned trial Court has come to the wrong conclusion that Hem Raj driver was required to be examined as a witness. The fact of the matter is that all the official witnesses have deposed in unison without there being any contradiction that they had gone in taxi No. HP-01K-0810 at Riun Gaad where Indica Car No. HR- 55-CT-0914 was intercepted. The accused were also apprised of their legal right to be searched either in the presence of a Magistrate or a Gazetted Officer. The contraband was recovered. Hem Raj driver was not a material witness. It is the quality of the witnesses and not a number which should be taken into consideration by the Courts. 19. The learned trial Court has given undue weightage to the statement of DW-3 Rajesh Kumar that he has repaired the vehicle of the accused. The fact of the matter is that the vehicle was found stranded at Riun Gaad near Didi nulla on 22.6.2009. The vehicle of the accused persons, as per the statement of PW-9 HC Pushap Dev, was got repaired by their driver by taking mechanic from Anni on the next day. 20. The vehicle was taken into possession vide memo Ext. PW- 1/L. It is not the requirement of law that the entire case property was to be taken into possession vide one seizure memo. The charas and opium were put in separate parcels and sealed in accordance with law vide separate seizure memos. There was no illegality in preparing separate seizure memos while taking charas, opium and car into possession. NCB form was filled in triplicate on the spot. The case property was produced before the competent officer. He resealed the same. It was deposited with MHC Anoop Kumar who sent the same to FSL Junga. The rukka was taken to the Police Station by PW-1 HHC Kashmi Ram. MHC Anoop Kumar has admitted that rukka was brought to him by PW- 1 HHC Kashmi Ram on 22.6.2009. 21. The case property was produced before the competent officer. He resealed the same. It was deposited with MHC Anoop Kumar who sent the same to FSL Junga. The rukka was taken to the Police Station by PW-1 HHC Kashmi Ram. MHC Anoop Kumar has admitted that rukka was brought to him by PW- 1 HHC Kashmi Ram on 22.6.2009. 21. The learned Advocates appearing on behalf of respondents have argued that the presence of PW-9 HC Pushap Dev on the spot is doubtful, however, there is no conclusive evidence to this effect. The rukka was taken by PW-1 HHC Kashmi Ram and he has handed over the same to MHC Anoop Kumar. The distance between the Police Station and the spot where accused were apprehended could be covered by PW-1 HHC Kashmi Ram within the time as stated by him. The prosecution witnesses are not supposed to make statements in parrot like manner. There is bound to be some contradiction with the passage of time. 22. The learned trial Court has relied upon the statement of DW-6 Ramesh Chand that he was driving the car and not accused Kuldeep. The statement of DW-6 Ramesh Chand does not inspire confidence. The version given by him that they had lost the way cannot be believed. The statements made by the official witnesses are trustworthy and inspire confidence. The Indica car was owned by accused Ramesh Chand as per Exts. PW-9/A and PW-9/C. 23. Mr. Lakshay Thakur, Advocate has also argued that there is non-compliance of Section 50 of the ND & PS Act. The Court has gone through Exts. PW-1/A, PW-1/B and PW-1/C. The accused were apprised of their legal right to be searched either in the presence of a Magistrate or a Gazetted Officer. They have consented to be searched by the police. Thus, there is no violation of Section 50 of the ND & PS Act as well. 24. Accordingly, the prosecution has conclusively proved beyond reasonable doubt the case against the accused persons under Section 18(c) of the ND & PS Act for possession of 1 kg. 500 grams of opium and under Section 20 (b) (ii)(C) of the ND & PS Act for possessing 2 kg 100 grams of charas read with Section 29 of the ND & PS Act for transporting the same. 25. 500 grams of opium and under Section 20 (b) (ii)(C) of the ND & PS Act for possessing 2 kg 100 grams of charas read with Section 29 of the ND & PS Act for transporting the same. 25. The accused persons were travelling in the same Indica Car No. HR-55-CT-0914 from which the contraband was recovered. The vehicle was used for transporting opium weighing 1 kg. 500 grams and 2 kg. 100 grams of charas. They had purchased the contraband from the area they were travelling and were found in conscious possession of the same on the date when they were apprehended with Indica Car No. HR- 55-CT-0914. 26. Consequently, the appeal is allowed. The judgment of the learned trial Court dated 30.4.2011 is set aside. The accused are convicted under Sections 18(c), 20(b)(ii)(C) read with Section 29 of the ND & PS Act and the Indica Car bearing registration No. HR-55-CT-0914 is liable to be confiscated under Section 60 of the Act being used for transporting opium and charas on 22.6.2009. The accused be heard on quantum of sentence on 18.7.2016. The Registry is directed to prepare and sent the production warrants to the quarter concerned. Bail bonds are cancelled.