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Himachal Pradesh High Court · body

2016 DIGILAW 225 (HP)

State of Himachal Pradesh v. Kashmir Singh

2016-03-11

P.S.RANA, RAJIV SHARMA

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JUDGMENT : Rajiv Sharma, J. The instant appeal has been instituted against Judgment dated 7.3.2009 rendered by learned Special Judge, Mandi, District Mandi, HP, in Sessions Trial No. 7/06, 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. 2. Case of the prosecution, in a nutshell, is on 30.1.2005 at about 6.30 pm, Shri Narender Kumar, incharge CIA Staff, Mandi alongwith S/Shri Ram Lal HC, Sant Ram Constable and Tara Chand, Constable, was on patrolling at Shilli-Larji. Police noticed a person coming from Shilli Larji side towards Thalaut. On noticing the police party, said person turned back and tried to escape. Police nabbed him and ascertained his identify. On suspicion, police carried out the search of the accused, on which, a polythene packet with knot concealed in his belly in the pants was recovered. On opening packet, police recovered Charas in the shape of Chapati and sticks. Charas was found to be 800 grams. Out of recovered Charas, two samples 25 grams each were separated and sealed with seal ‘T’. Bulk Charas was also sealed separately with seal ‘T’ and specimen of seal impression Ext. PA was taken. NCB form, Ext. PL, in triplicate was updated and seal was handed over to Ram Lal HC. Case property was taken into possession vide Ext. PB Rukka Ext. PE was prepared and sent to the Police Station, through Constable Sant Ram. FIR, Ext. PF was registered. Case property was produced by Narender Kumar, Incharge CIA Staff before Dabe Ram. He resealed the same. Investigation was completed and Challan was put up in the Court after completing all the codal formalities. 3. Prosecution has examined as many as 8 witnesses to prove its case against the accused. Accused was also examined under Section 313 CrPC. According to him, he was falsely implicated. Trial Court acquitted the accused. Hence, this appeal. 4. Mr. Kush Sharma, Deputy Advocate General, has vehemently argued that the prosecution has proved its case against the accused. 5. Mr. Sunny Dhatwalia, Advocate, has supported the judgment of acquittal dated 7.3.2009. 6. We have heard the learned counsel for the parties and also gone through the record carefully. 7. Trial Court acquitted the accused. Hence, this appeal. 4. Mr. Kush Sharma, Deputy Advocate General, has vehemently argued that the prosecution has proved its case against the accused. 5. Mr. Sunny Dhatwalia, Advocate, has supported the judgment of acquittal dated 7.3.2009. 6. We have heard the learned counsel for the parties and also gone through the record carefully. 7. PW-1 HC Ram Lal deposed that on 30.1.2005, he alongwith ASI Yog Raj, Inspector Narender Kumar, Constable Tara Chand, at about 6.30 pm was patrolling in Shilli Larji area and was proceeding towards Larji from Thalaut. When they reached 20 meters ahead of Larji project, they noticed a person coming from Larji side towards Thalaut and on seeing the police party, he got perplexed and tried to escape. He was nabbed. On the basis of suspicion, search of person of accused was carried out and a plastic envelope was recovered from the waist inside the shirt. Knot of the envelope was opened, and chars was recovered from there, in the shape of Chapati and sticks. It weighed 800 grams. Two samples of 25 grams each were separated and sealed in separate parcels. Recovered Charas was sealed in separate parcel and sealed with ‘T’ at six places each. Remaining charas was put in the same polythene envelope and sealed at six places with seal impression ‘T’. In the cross-examination, he has admitted that they went in a bus. He did not remember where the police party stayed during night of 29.1.2005. He could not state whether they stayed in private hotel or Police Station. He also admitted that the police party has not given search to the accused before taking search of accused. Accused was searched on suspicion by the IO without detailed inquiry. He was searched from outside and then around waist and inside his pants. 8. PW-2 Inspector Dabe Ram deposed that at 10.15 pm, inspector Narender Kumar came to the Police Station alongwith accused. He resealed the parcel with seal ‘H’ at three places. Bulk parcel, Ext. P1 and sample parcel Ext. P2 are same. Specimen impression of the seal ‘H’ was retained on memo Ext. PG. He filled in relevant columns of NCB form and embossed seal ‘H’ on it. He resealed the parcel with seal ‘H’ at three places. Bulk parcel, Ext. P1 and sample parcel Ext. P2 are same. Specimen impression of the seal ‘H’ was retained on memo Ext. PG. He filled in relevant columns of NCB form and embossed seal ‘H’ on it. He handed over case property i.e. two sample parcels, bulk parcel, sample ‘T’ and ‘H’, NCB form to MHC Raj Kumar who entered the same in the Malkhana register. 9. PW-3 HC Raj Kumar deposed that SHO Dabe Ram handed over to him one bulk parcel duly sealed with seals ‘T’ and ‘H’, two sample parcels allegedly containing charas with sample seal of ‘T’ and ‘H’, NCB form, seal of sample ‘T’ and ‘H’ which were entered in the Malkhana Register at Sr. No. 300 vide Ext. PH. The sample parcels, NCB form, recovery memo, copy of FIR etc. were handed over to Bhuri Singh, for depositing with CTL Kandaghat. 10. PW-4 HHC Bhuri Singh deposed that contraband was handed over to him by HC Raj Kumar vide RC No. 136/04/05. He deposited the same at CTL Kandaghat. 11. PW-8 Inspector Narender Kumar also deposed the manner in which accused was apprehended and search, sealing and seizure proceedings were completed at the spot, NCB form was filled in and Rukka was prepared. He also deposed that on the basis of suspicion, personal search of accused was carried out and during search, one plastic envelope was recovered from the waist of the accused inside his pants and shirt. He prepared Rukka Ext. PE and sent to the Police Station Aut for registering FIR. In the cross-examination, he has admitted that he has not reduced grounds of suspicion and belief into writing as he was not sure whether accused was in possession of contraband. General search of accused was carried and from the inside of his pants, charas was found. He has not given his personal search to the accused before taking his search. 12. It is evident from the record that accused was apprehended when he was approaching from Thalaut. His personal search was carried out but Section 50 of the Act was not complied with. Charas was recovered from the person of the accused. He was not apprised of his right to be searched before a Gazetted officer or a Magistrate. Section 50 of the Act is mandatory. His personal search was carried out but Section 50 of the Act was not complied with. Charas was recovered from the person of the accused. He was not apprised of his right to be searched before a Gazetted officer or a Magistrate. Section 50 of the Act is mandatory. Moreover, IO has not given his personal search before undertaking the search of the accused. PW-1 HC Ram Lal admitted, in his cross-examination that accused was formally searched by the IO without detailed inquiry. He was searched from outside firstly and then around waist and inside his pants. Statement of PW-1 HC Ram Lal does not inspire confidence and he did not remember whether patrolling was done on 29.1.2005. He did not know where the police party stayed on the night of 29.1.2005. He could not state whether they stayed in a private hotel or Police Station. He also admitted that there were about 25 shops in Thalaut bazaar. He was not deputed to call for independent witnesses by the IO from the locality. The National Highway was only 1 km from the spot. Officials of construction company were at the site. No official of the construction company was associated. However, fact of the matter is that despite 25 shops being available in the Thalaut Bazaar and officials of the construction company being available, no independent witnesses were associated. It was neither an isolated place nor a secluded place and independent witnesses though were available, were not associated during search, seizure and sealing proceedings. 13. The prosecution has failed to prove its case against the accused. Accordingly, there is no occasion for us to interfere in the well reasoned judgment of acquittal passed by the learned trial Court. 14. In view of the discussion and analysis made herein above, the appeal fails and is accordingly dismissed. Pending applications, if any, are also disposed of. Bail bonds of the accused persons are discharged.