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Himachal Pradesh High Court · body

2016 DIGILAW 168 (HP)

State of H. P. v. Ram Bahadur

2016-03-01

P.S.RANA, SANJAY KAROL

body2016
JUDGMENT : Sanjay Karol, J. CRMP(M) No.1246/2015 1. For the reasons set out in the application, delay of 14 days in filing the application for leave to appeal, which, in my considered view, has sufficiently been explained, is condoned. Application stands disposed of. CRMP(M) No.1245/2015 2. 135 grams of Charas is alleged to have been recovered from the conscious possession of accused Ram Bahadur on 26.10.2013. In order to substantiate its case, prosecution has examined 9 witnesses. No independent witness stood associated at the time of search and seizure operations nor examined in Court. Finding the testimonies of police officials to be not inspiring in confidence, accused stands acquitted of the charge framed for commission of offence punishable under the provisions of Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). 3. State has filed the present petition, under the provisions of Section 378(3) of the Code of Criminal Procedure, seeking leave to appeal against the judgment dated 1.5.2015, passed by Special Judge-II (Additional Sessions Judge), Kullu, Himachal Pradesh, in Sessions Trial No.110 of 2014, titled as State of Himachal Pradesh v. Ram Bahadur, whereby accused-respondent Ram Bahadur (hereinafter referred to as the accused), stands acquitted of the charge of having committed offence, punishable under the provisions of Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter after referred to as the Act). 4. In relation to FIR No.315, dated 26.10.2013 (Ex. PW-2/A), registered at Police Station, Kullu, District Kullu, Himachal Pradesh, accused Ram Bahadur was charged to face trial, for having committed offences, punishable under the provisions of Section 20 of the Act. 5. Briefly stated, case of the prosecution is that on 26.10.2013, at about 11 a.m., when a police party headed by Inspector Raj Kumar (PW-8) and comprising of HC Ramesh, Constable Rajesh Kumar (PW-4) and constable Tej Ram, was on patrol duty, in a private vehicle, at a place known as Tegadi Nala, accused was noticed coming from Barshaini side towards Manikaran, who on seeing the police party tried to flee away, after throwing some article from his pocket towards right side of the road. On suspicion, police party overpowered the accused, who led the police to the place where he had thrown the said article, which was found to be a polythene envelope, wrapped with a Khaki tape. On suspicion, police party overpowered the accused, who led the police to the place where he had thrown the said article, which was found to be a polythene envelope, wrapped with a Khaki tape. On opening the envelope, it was found containing Charas. Since the place was secluded one, after associating HC Ramesh, Constables Rajesh and Tej Ram, as witnesses, the recovered stuff was weighed and found to be of 135 grams. NCB form (Ex. PW-2/C) was filled up on the spot and the contraband substance taken into possession vide memo (Ex.PW-4/B). On the basis of Rukka (Ex.PW-8/A), which was sent through Constable Rajesh Kumar, FIR No.315, dated 26.10.2013 (Ex.PW-2/A), was registered at Police Station, Kullu, District Kullu, Himachal Pradesh. After completion of proceedings on the spot, accused and the case property were produced before SHO Tenzin (PW-2), who re-sealed the case property with his own seal of impression ‘A’ and handed it over to MHC HC Gajender Pal (PW-1). The case property was sent through Constable Yash Pal (PW-7) to the Forensic Science Laboratory. On receipt of the report of the Chemical Examiner (Ex.PX) and with the completion of investigation, which, prima facie, revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial. 6. Based on the testimonies of witnesses and the material on record, trial Court acquitted the accused of the charged offence. Hence, the present petition for leave to appeal by the State. 7. Mr. V.S. Chauhan, learned Additional Advocate General, has taken us through the record of trial Court, including testimonies of the prosecution witnesses. 8. Through the testimonies of Constable Rajesh Kumar and Inspector Raj Kumar, prosecution wants the Court to believe that on 26.10.2013, police party apprehended the accused at a place and time of their patrol duty. Accused could not satisfactorily explain his presence on the spot and finding him to be present under suspicious circumstances, search was conducted. The packet, which was thrown by the accused, was found to be containing Charas. 9. In the instant case, we do not find the testimony of the witnesses to be inspiring in confidence. This we say so for the following reasons. The packet, which was thrown by the accused, was found to be containing Charas. 9. In the instant case, we do not find the testimony of the witnesses to be inspiring in confidence. This we say so for the following reasons. (a) no endeavour was made by the police party to associate any independent witness, while carrying out the recovery proceedings, for it is an admitted case of Constable Rajesh Kumar that in village Shangna, which was close by, there were 10-15 hosues, where people reside. Why no effort was made to summon any one from there, remains unexplained, and (b) in fact, presence of the police party on the spot appears to be doubtful. Police had no reason to travel in a private vehicle. Purpose of their presence on the spot remains unexplained by leading cogent and convincing piece of evidence. 10. There is a major contradiction with regard to the date on the NCB form (Ex.PW-2/C). Whereas according to Inspector Raj Kumar, it was filled up on the spot on 26.10.2013, but the document records the date to be 27.10.2013. Not only that, there is no reference of the said form either in the Road Certificate or the Malkhana Register, which fact emerges from the testimony of MHC along with(PW-9) and Constable Yash Pal (PW-7), who took the contraband substance for analysis to the Forensic Science Laboratory. Also, the seals were not sent along with the sample to the Laboratory. Why so, remains unexplained. 11. Hence, the trial Court, in our considered view, rightly acquitted the accused. There is no error apparent on the face of record or illegality or perversity, resulting into miscarriage of justice, in the findings returned by the trial Court, warranting interference by this Court. As such, present petition for leave to appeal, being without any merit, is dismised and disposed of. Petition dismissed.