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Himachal Pradesh High Court · body

2016 DIGILAW 1704 (HP)

STATE OF H. P. v. PAWAN KUMAR

2016-08-16

RAJIV SHARMA, SURESHWAR THAKUR

body2016
JUDGMENT : RAJIV SHARMA, J. 1. This appeal is instituted by the State against the judgment dated 18.9.2013 rendered by the learned Special Judge, Kullu, in Sessions Trial No. 28/2011 (16/2013) (77/2013), whereby the respondents (hereinafter referred to as the "accused"), who were charged with and tried for offences punishable under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the Act) have been acquitted. 2. The case of the prosecution, in a nutshell, is that on 18.3.2011 at about 11.00 P.M., a secret information was received at Police Station Banjar to the effect that four persons sitting in Toyota Innova vehicle No. DL-4C-NE-1501 had come to purchase charas and they were present at a place about 5 kms from Sainj Towards Neuli. On the basis of said information, rapat was lodged at the Police Station and the Police Party headed by ASI Ram Lal went towards the spot. A naka was laid near Dhaugi zero point (Sainj). In the morning at 4.30 A.M., on 19.3.2011, the aforesaid vehicle came and it was stopped. On asking, the occupants of the vehicle disclosed their identities. The vehicle was searched and below the dash-board, four packets sealed with brown tape were recovered. The packets were opened and checked. The recovered substance was found to be 1 kg charas. The charas was again put in all the four packets and said packets were sealed in one cloth parcel with six seals of letter "T". The accused persons revealed that they had purchased charas for Rs. 44,000/- near Ropa. The accused persons were arrested. The Investigating Officer sent ruka to the Police Station, on the basis of which, FIR was registered. The sealed parcels of charas were produced before the SHO, who resealed the same with three seals of letter "N" and then deposited the same with the MHC. The case property was sent to FSL Junga for chemical analysis and the Chemical Examiner's report was also obtained. The matter was investigated and the challan was put up in the trial court after completing all codal formalities. During the pendency of the proceedings before the learned trial court, one of the accused, Parma Nand, expired and vide order dated 7.7.2011, proceedings against him stood abated. 3. The prosecution examined as many as 8 witnesses, in all, to prove its case against the accused persons. During the pendency of the proceedings before the learned trial court, one of the accused, Parma Nand, expired and vide order dated 7.7.2011, proceedings against him stood abated. 3. The prosecution examined as many as 8 witnesses, in all, to prove its case against the accused persons. Statements of the accused persons under Section 313 Cr. P.C., 1973 were recorded, in which they pleaded that they have been falsely implicated. The trial court acquitted the accused persons vide impugned judgment dated 18.9.2013. Hence, the present appeal. 4. Mr. P.M. Negi, learned Deputy Advocate General, has vehemently argued that the prosecution has proved its case against the accused persons beyond all reasonable doubts. 5. Mr. Raju Ram Rahi and Mr. Dheeraj K. Vashisth, learned Advocates appearing for the respective accused persons, have supported the impugned judgment dated 18.9.2013. 6. We have heard the learned counsel for the parties and have gone through the judgment and record meticulously. 7. PW1, HC Nirat Singh, deposed that he was posted as Reader to Deputy Superintendent of Police (Headquarters), Kullu w.e.f. 19.3.2011. On 19.3.2011 Deputy Superintendent of Police (Headquarters), Kullu had handed over to him report under Section 42(2) of the Act, Ext.PW1/A after making his endorsement, Ext. PW1/B on it. He also made entry in the concerned register at Sr. No. 18. He proved the abstract of register, Ext.PW1/C. In his cross-examination, he deposed that the information under Section 42(2) of the Act was received in the form of rapat, Ext.PW1/A. 8. PW2, Surender Pathak, testified that he remained posted as SHO, Police Station, Banjar w.e.f. May 2010 to May 2012. A secret information was received at Police Station, which was recorded in the daily diary register and ASI Ram Lal was deputed along with police party for the investigation of the case. On 19.3.2011, ASI Ram Lal had sent a ruka, Ext.PW2/A, through HHC Hem Raj to the Police Station and on the receipt of ruka, he recorded the FIR, Ext.PW2/B. ASI Ram Lal produced before him parcel, Ext.P1 duly sealed with six seals of letter "T" along with NCB form in triplicate and sample seal of letter "T". He also filled-in the relevant columns of NCB form vide Ext.PW2/D. 9. PW3, Davender Verma, Nodal Officer, Bharti Aitrel, Kasumpti, Shimla, proved on record letter, Ext.PW3/A from Superintendent of Police, Kullu and call details, Ext.PW3/B. 10. He also filled-in the relevant columns of NCB form vide Ext.PW2/D. 9. PW3, Davender Verma, Nodal Officer, Bharti Aitrel, Kasumpti, Shimla, proved on record letter, Ext.PW3/A from Superintendent of Police, Kullu and call details, Ext.PW3/B. 10. PW4, HHC Hem Raj, deposed that on 18.3.2011, a secret information was received that a vehicle of Toyota Innova Make bearing registration No. DL-4C-NE-1501 was parked on the road approximately at the distance of 5 kms from Sainj to Neuli. It was also disclosed that four persons were occupying the vehicle and they had purchased charas, which was kept in the vehicle and they are trying to escape. Thereafter, rapat as required under Section 42(2) of the Act was recorded by the Investigating Officer. He along with ASI Ram Lal, HC Raj Pal and Constable Narender was deputed in a government vehicle to verify the information. Thereafter, on 19.3.2011 they laid a naka at Dhaugi zero point, Sainj. At about 4.30 A.M., they noticed a vehicle coming from Sainj side towards Larji. The vehicle was signalled to stop. Four persons were found sitting in the vehicle. The vehicle was the same about which the secret information was received by the police. On search of the vehicle, four parcels wrapped with brown coloured tape were recovered from the dash-board of the vehicle. The substance was found to be 1 kg charas. No independent witness was present. The charas along with vehicle was taken into possession vide memo, Ext.PW4/A. Ruka, Ext.PW2/A, was prepared and handed over to him with direction to take the same to the Police Station, on the basis of which, FIR, Ext.PW2/B was registered. On 21.3.2011, the accused persons got recorded their statements, Ext.PW4/G, Ext.PW4/H, Ext.PW4/J and Ext.PW4/K under section 27 of the Indian Evidence Act to the effect that they could identify the house of the accused, Fateh Chand, from whom they had purchased 1 kg charas at Village Dharmeda. The accused persons were taken in government vehicle by the Investigating Officer to Ropa, from where they went to village Dharmeda on foot. The accused persons identified the house of the accused Fateh Chand. The accused Fateh Chand was not found in the house. On search, no contraband was found in his house. In his cross-examination, he deposed that he took ruka from the spot at 7.00 A.M. 11. The accused persons identified the house of the accused Fateh Chand. The accused Fateh Chand was not found in the house. On search, no contraband was found in his house. In his cross-examination, he deposed that he took ruka from the spot at 7.00 A.M. 11. PW5, HC Bhader Singh, deposed that on 19.3.2011, MHC, Police Station Banjar handed over to him Rapat No. 44, dated 18.3.2011 under Section 42(2) of the Act with direction to deliver the same to the S.P. Kullu. He delivered the report to Dy. S.P. at about 12.10 P.M. On 20.3.2011 MHC Ramesh handed over a parcel to him stated to be containing 1 kg charas sealed with six seals of letter "T" and three seals of letter "N" along with sample seals "T", "N", NCB form and other relevant documents vide R.C. No. 29/2011, which he deposited at FSL Junga on 21.3.2011. On his return, he deposited the RC along with receipt with MHC. 12. PW7, HC Ramesh Chand, deposed that on 19.3.2011, at about 3.00 P.M. SI/SHO Surender Pathak had deposited with him a parcel stated to be containing 1 kg charas, sealed with six seals of letter "T" and three seals of letter "N", sample seals of letters "T", "N" and NCB form in triplicate. He made entry in the register No. 19 at Sr. No. 42, Ext.PW7/A qua its deposit. On 20.3.2011, after filling-in column No. 12 of the NCB form, the case property was handed over to HHC Bhadar Singh along with docket, copy of FIR, copy of seizure memo, samples of seals "T" and "N" and other relevant documents for being deposited with FSL Junga. HHC Bhadar Singh after depositing the case property at FSL Junga, handed over the RC and receipt to him. 13. PW8, ASI Ram Lal, deposed the manner in which the vehicle was intercepted and the contraband was recovered. Codal formalities were completed on the spot. He prepared ruka, Ext.PW2/A and handed over the same to HHC Hem Raj. The disclosure statements of the accused persons to the effect that they had purchased the charas from accused Fateh Chand were recorded. Memo regarding identification of the house of accused Fateh Chand was separately prepared vide Ext.PW4/L. During investigation it was found that the accused Narender and Fateh Chand had telephonic conversation with each other. Call details were obtained. The disclosure statements of the accused persons to the effect that they had purchased the charas from accused Fateh Chand were recorded. Memo regarding identification of the house of accused Fateh Chand was separately prepared vide Ext.PW4/L. During investigation it was found that the accused Narender and Fateh Chand had telephonic conversation with each other. Call details were obtained. In his cross-examination, he deposed that though, he had not associated any independent witness on the spot however he waited for vehicles for about 10-15 minutes on the spot. There were Police Post Bali Chowki and Forest Check Post, Larji between Police Station Banjar and Zero Point. 14. The case of the prosecution in a nutshell is that a secret information was received at Police Station Banjar on 18.3.2011 at about 11.00 P.M. The rapat, Ext. PW1/A, was prepared under Section 42(2) of the Act. According to PW5 HHC Bhadar Singh on 19.3.2011 MHC, Police Station Banjar handed over to him Rapat No. 44, dated 18.3.2011 under Section 42(2) of the Act with a direction to deliver the same to the S.P. Kullu. He delivered the report to Dy. S.P. at about 12.10 P.M. PW1, HC Nirat Singh, also testified that he was posted as Reader to Deputy Superintendent of Police (Headquarters), Kullu w.e.f. 19.3.2011. On 19.3.2011 the Deputy Superintendent of Police (Headquarters), Kullu had handed over to him report under Section 42(2) of the Act, Ext.PW1/A after making his endorsement, Ext. PW1/B on it. He also made entry in the concerned register at Sr. No. 18. He proved the abstract of register, Ext.PW1/C. PW2, SHO Surender Pathak, deposed that a secret information was received at the Police Station, which was recorded in the daily diary register and ASI Ram Lal was deputed along with police party for the investigation of the case. PW4, HHC Hem Raj, deposed that on 18.3.2011, on receiving a secret information, rapat as required under Section 42(2) of the Act, was recorded by the Investigating Officer and thereafter, he along with ASI Ram Lal, HC Raj Pal and Constable Narender was deputed in a government vehicle to verify the information. Similarly, PW8, ASI Ram Lal, deposed that on 18.3.2011 a secret information was received and rapat, Ext.PW1/A under Section 42(2) of the Act was recorded. Thereafter, the police team went to the spot, where they laid the Naka and the accused persons were intercepted. Similarly, PW8, ASI Ram Lal, deposed that on 18.3.2011 a secret information was received and rapat, Ext.PW1/A under Section 42(2) of the Act was recorded. Thereafter, the police team went to the spot, where they laid the Naka and the accused persons were intercepted. The rapat, Ext.PW1/A, was in conformity with the provisions of Section 42(2) of the Act. The endorsement was also made by the Deputy Superintendent of Police vide Ext.PW1/B. PW1 HC Nirat Singh had also made entry in the concerned register at Sr. No. 18. He proved the abstract of register, Ext.PW1/C. It is specifically mentioned in rapat, Ext.PW1/A that the police had received a secret information that in a Toyota Innova vehicle No. DL-4C-NE-1501, four persons were sitting and they had come to purchase charas. The charas was concealed in the vehicle. The information was reduced into writing in rojnamcha. Thereafter, the police team was constituted and sent to the spot. Learned Advocates appearing for the accused persons have not brought to the notice of the Court any prescribed proforma in which the secret information was required to be reduced into writing under Section 42(2) of the Act. What requires under the law is the "grounds of belief" to be reduced into writing that a particular person is transporting or in possession of the contraband. It is the substance which matters, not the form. Section 42 of the Act is mandatory, which in the present case has been complied with. The learned trial court has erred in law by coming to the conclusion that there was no compliance of Section 42 of the Act. Statements of the accused were also recorded under section 27 of the Indian Evidence Act to the effect that they had purchased the charas from accused Fateh Chand. The house of the accused Fateh Chand was also identified by them. It has also come on record that the accused Narender Kumar was in constant touch with accused Fateh Chand as per call details. Rojnamcha, Ext.PW1/A, was in conformity with Section 42 of the Act and no separate memo was required to be prepared. The prosecution has proved its case beyond all reasonable doubts against the accused persons. 15. Accordingly, the appeal is allowed and the impugned judgment dated 18.9.2013 rendered by the learned Special Judge, Kullu, in Sessions Trial No. 28/2011 (16/2013) (77/2013) is set aside. The prosecution has proved its case beyond all reasonable doubts against the accused persons. 15. Accordingly, the appeal is allowed and the impugned judgment dated 18.9.2013 rendered by the learned Special Judge, Kullu, in Sessions Trial No. 28/2011 (16/2013) (77/2013) is set aside. The accused persons are convicted for offences punishable under Sections 20 and 29 of the Act. They be produced in the Court to be heard on the quantum of sentence on 20.8.2016. The bail bonds are cancelled. 16. The registry is directed to prepare the production warrants.