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Himachal Pradesh High Court · body

2016 DIGILAW 29 (HP)

Sanjiv Kumar v. State of H. P.

2016-01-04

RAJIV SHARMA, SURESHWAR THAKUR

body2016
JUDGMENT : Justice Rajiv Sharma, J. This appeal is instituted against the judgment dated 16.10.2015, rendered by the learned Special Judge-I, Una, H.P., in Sessions Case No. 31 of 2014, whereby the appellant-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 convicted and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs. 1,00,000/- and in default of payment of fine, he was further ordered to undergo simple imprisonment for one year. 2. The case of the prosecution, in a nut shell, is that on 17.2.2014, the police party headed by S.I./SHO Harjit Singh (PW-18) alongwith ASI Rajinder Singh, ASI Paras Ram etc. proceeded to Santoshgarh-Tahliwal side for setting up nakka at Swan bridge in government vehicle. At around 11:40 PM, the police party put Nakka and at around 12:40 AM, one vehicle came from Santoshgarh side. ASI Rajinder Singh gave signal to the driver for stopping the vehicle with the help of torch light. The truck driver stopped the vehicle and tried to jump out from the door but he was nabbed. He disclosed his name as Sanjiv Kumar. The truck was checked with the help of torch light and eight plastic white coloured bags which were tied were recovered. The recovered plastic bags were taken out from the tool box of the truck and were opened. The bags were found containing poppy straw and identification memo Ext. PW-14/A was prepared. PW-13 HC Shakti Nandan was deputed for arranging electronic scale. He brought the same after one hour. The bags were weighed with the help of electronic scale. Five bags were found containing 29.500 kg poppy straw each, one bag was found containing 25 kg and another bag was found containing 27.500 grams and last bag was found containing 26 kg poppy straw. The bags were marked as S-1 to S-8 and total weight of recovered stuff was 226 kgs. The I.O. took homogeneous samples i.e. 500 grams poppy straw from each bag in eight separate polythene bags and the samples were tied and sealed in eight cloth parcels and marked as T-1 to T-8. The plastic bags were sealed with seal “R”. The bags were marked as S-1 to S-8 and total weight of recovered stuff was 226 kgs. The I.O. took homogeneous samples i.e. 500 grams poppy straw from each bag in eight separate polythene bags and the samples were tied and sealed in eight cloth parcels and marked as T-1 to T-8. The plastic bags were sealed with seal “R”. The sample impression of seal “R” was taken on a piece of cloth vide Ext. PW-14/D. NCB form was filled in. No independent witness was available on the spot and only police officials were associated as witnesses. Rukka Ext. PW-18/A was sent to PS Haroli through PW-13 HC Shakti Nandan, on the basis of which FIR Ext. PW-17/A was registered. The I.O. prepared the site plan. The case property was re-sealed with seal impression “K” by PW-17 ASI Suresh Kumar. The case property was handed over with sample seals “R” and “K” alongwith truck, documents and keys to MHC Subhash Chand and PW-17 ASI Suresh Kumar issued the certificate of resealing Ext. PW-17/D. The case property was sent for chemical examination vide RC No. 37/17. The investigation was completed and the challan was put up after completing all the codal formalities. 3. The prosecution, in order to prove its case, has examined as many as 18 witnesses. The accused was also examined under Section 313 Cr.P.C. The accused has denied the prosecution case. The learned trial Court convicted the accused, as noticed hereinabove. Hence, this appeal. 4. Mr. Sanjeev K. Suri, Advocate, appearing on behalf of the accused, has vehemently argued that the prosecution has failed to prove its case against the accused. On the other hand, Mr. Ramesh Thakur, Asstt. Advocate General for the State has supported the judgment of the learned trial Court dated 16.10.2015. 5. We have heard learned counsel for both the sides and gone through the judgment and records of the case carefully. 6. PW-2 HHC Mukhwant Singh deposed that on 20.2.2014, MHC PS Haroli entrusted to him eight sealed parcels said to be containing 500 grams each poppy husk and having five impressions each of seal “R” and “K”. These parcels were marked as T-1 to T-8. The case property was entrusted to him vide RC No. 37/14 to be delivered at FSL, Junga. He deposited all these parcels along with documents at FSL, Junga on 20.2.2014. 7. PW-3 Const. These parcels were marked as T-1 to T-8. The case property was entrusted to him vide RC No. 37/14 to be delivered at FSL, Junga. He deposited all these parcels along with documents at FSL, Junga on 20.2.2014. 7. PW-3 Const. Sanjay Kumar deposed that on 21.2.2014, MHC PS Haroli handed over to him 8 sealed parcels marked as P-1 to P-8 having three seal impressions each of ‘court seal’ which were stated to be containing poppy husk 500 grams each. He deposited the parcels alongwith the documents at FSL, Junga on the same date. He returned back to Una on 22nd February late in the evening and handed over the RC to MHC on 23.2.2014. 8. PW-5 HHC Suresh Kumar brought back 16 parcels alongwith two envelopes from FSL Junga and deposited the same in PS Haroli on 23.5.2014. 9. PW-6 MHC Subhash Chand deposed that ASI Suresh Kumar deposited with him eight plastic sealed bags marked as S-1 to S-8 having one seal impression each of seals “K” & “R”, eight sealed parcels marked as T-1 to T-8 having five seal impressions each of seals “R” & “K” stated to be containing 500 grams each of poppy husk and impression of sample seals “R” & “K”, NCB form in triplicate etc. He made entry in the register No. 19 at Sr. No. 498/14. He proved extract of register vide Ext. PW-6/A (two leaves). On 20.2.2014, SHO deposited eight sealed bags containing sample of poppy husk having seal impressions of court seal and also another 16 sealed parcels having three seal impressions each of court seal marked as P-1 to P-8 and P-1A to P-8A and also one sealed parcel sealed with three seals of court. He made entry at Sr. No. 501 in the malkhana register. 10. PW-12 Harnam Singh deposed that on 17.2.2014, late in the evening one police official visited his shop and asked him for electronic scale. He delivered him the scale which he returned the very next day. In his cross-examination, he admitted that the police official had taken electronic scale when he was busy in closing the shop around 8 O’ clock. 11. PW-13 HC Shakti Nandan deposed the manner in which the truck was apprehended at 12:40 AM and the contraband was taken into possession. He proceeded to arrange for electronic scale in the government vehicle and came after an hour. 11. PW-13 HC Shakti Nandan deposed the manner in which the truck was apprehended at 12:40 AM and the contraband was taken into possession. He proceeded to arrange for electronic scale in the government vehicle and came after an hour. These bags were weighed in electronic scale. I.O. SI Harjeet Singh thereafter took 500 grams poppy husk from each bag for the purpose of chemical analysis and kept the same separately in eight polythene bags. Those polythene bags were tied and thereafter were sealed in eight cloth parcels which were also marked as T-1 to T-8. One seal “R” each was affixed on plastic bags S-1 to S-8, while five seals of the same impression were affixed on those eight small packets marked as T-1 to T-8. NCB form in triplicate was also filled up by the I.O. Thereafter, SI Harjeet, I.O. handed over to him rukka mark X-1 to deliver the same at PS Haroli for registration of FIR. On reaching PS Haroli, he handed over the rukka mark X-1 to MHC Subhash Chand. In his cross-examination, he deposed that there is ‘Khawaza” temple and cremation ground near Swan bridge towards Santoshgarh side. He also admitted that there is Dreamland Palace near Tahliwal bazaar but he is not aware of its distance from the place where Nakka was set up. They had checked about 5-6 vehicles in an hour during Nakka. They had not set up any barricade. He was deputed to arrange for electronic scale after lapse of 45 minutes when truck was intercepted. He made efforts to arrange the electronic scale in Tahliwal bazaar but all the shops were found closed due to odd hours and, therefore, he proceeded further and arranged the same from Samnal. He also admitted that PS Haroli falls on the way while approaching Samnal. He also admitted that just opposite to PS Haroli, there is hardware shop of Gurnam. 12. PW-14 ASI Paras Ram also deposed the manner in which the driver of the truck was apprehended at 12:40 AM, search, seizure and sealing proceedings were completed on the spot. In his cross-examination, he admitted that no barricade was affixed at the point of Nakka. He also admitted that on the way to PS Haroli, there are three markets/bazaars known as Tahliwal, Palakwah and Haroli. 13. In his cross-examination, he admitted that no barricade was affixed at the point of Nakka. He also admitted that on the way to PS Haroli, there are three markets/bazaars known as Tahliwal, Palakwah and Haroli. 13. PW-17 ASI Suresh Kumar also deposed the manner in which the driver of the truck was apprehended at 12:40 AM, search, seizure and sealing proceedings were completed on the spot. In his cross-examination, he deposed that his statement under Section 161 Cr.P.C. was recorded by the I.O. On the same day, i.e. on 18.2.2014 at 11:45 AM, the attention of the witness was drawn to the file. No statement of the witness under Section 161 Cr.P.C. was on the file. He has not produced the seal in the Court since he has lost the same. He has not entered in any rapat that the seal has been lost. 14. PW-18 SI Harjit Singh was the I.O. in this case. He also deposed the manner in which the driver of the truck was apprehended at 12:40 AM, search, seizure and sealing proceedings were completed on the spot. He prepared the rukka and handed over the same to be carried to the Police Station through PW-13 HC Shakti Nandan, on the basis of which FIR was registered. In his cross-examination, he admitted that there was no reference of making the contraband homogeneous before drawing sample marks T-1 to T-8 on record. 15. What emerges from the evidence discussed hereinabove is that the accused was apprehended on 18.2.2014 at 12:40 AM. The contraband was recovered from the truck. PW-13 HC Shakti Nandan, in his cross-examination, deposed that there is ‘Khawaza” temple and cremation ground near Swan bridge towards Santoshgarh side. He also admitted that there is Dreamland Palace near Tahliwal bazaar but he is not aware of its distance from the place where Nakka was set up. They had checked about 5-6 vehicles in an hour during Nakka. They had not set up any barricade. The very fact that the Nakka was put up, pre-supposes that the road was busy and there was lot of traffic plying on the road. PW-13 HC Shakti Nandan has also deposed that 5-6 vehicles were checked during Nakka, however, the fact of the matter is that despite that the prosecution has not joined any independent witnesses to give credibility to search, seizure and sealing proceedings on the spot. PW-13 HC Shakti Nandan has also deposed that 5-6 vehicles were checked during Nakka, however, the fact of the matter is that despite that the prosecution has not joined any independent witnesses to give credibility to search, seizure and sealing proceedings on the spot. It was neither secluded nor isolated place. There was “Khawaza’ temple nearby and Dreamland Palace was also nearby. The I.O. has not made any efforts, whatsoever, to associate independent witnesses. The I.O. could have easily joined the occupants of the vehicles as independent witnesses by requesting the occupants of the vehicles plying on the road. 16. PW-17 ASI Suresh Kumar, in his cross-examination, has deposed that his statement under Section 161 Cr.P.C. was recorded by the I.O. on 18.2.2014 at 11:45 AM, however, the same is not on record. The same ought to have been on the file. PW-18 SI Harjit Singh, in his cross-examination, admitted that there was no reference of making the contraband homogeneous before drawing sample marks T-1 to T-8 on record. 17. The case of the prosecution is that the accused was apprehended on 18.2.2014 at 12:40 AM and PW-13 HC Shakti Nandan proceeded to bring electronic scale. He returned after an hour. He has also admitted in his cross-examination that he made efforts to arrange the electronic scale in Tahliwal bazaar but all the shops were found closed due to odd hours and, therefore, he proceeded further and arranged the same from Samnal. He also admitted that Police Station Haroli falls on the way while approaching Samnal. He also admitted that just opposite to PS Haroli, there is hardware shop of Gurnam. He could not recollect the exact time of his return alongwith the electronic scale at the spot. 18. PW-12 Harnam Singh deposed that on 17.2.2014, late in the evening, one police official visited his shop and asked him for electronic scale. He delivered him the scale which he returned the next day. In his cross-examination, he admitted that the police official had taken electronic scale when he was busy in closing the shop around 8 O’ clock. The accused was apprehended at 12:40 AM on 18.2.2014. Thus, PW-13 HC Shakti Nandan had gone to bring electronic scale after 12:40 AM, but PW- 12 Harnam Singh stated that police official visited his shop when he was busy in closing the shop around 8 O’ clock. 19. The accused was apprehended at 12:40 AM on 18.2.2014. Thus, PW-13 HC Shakti Nandan had gone to bring electronic scale after 12:40 AM, but PW- 12 Harnam Singh stated that police official visited his shop when he was busy in closing the shop around 8 O’ clock. 19. The case property was produced while recording the statement of PW-13 HC Shakti Nandan in the trial Court. The extract of copy of the malkhana register is Ext. PW-6/A & PW-6/B. There is entry of the deposit of the contraband on 18.2.2014 and when it was received back from the FSL Junga. There is no entry when the case property was taken out from the malkhana and produced in the Court. There is no DDR recorded when the case property was produced before the trial Court. Similarly, there is no entry when the case property after production in the trial Court was re-deposited in the malkhana register. It is necessary for the prosecution to prove that the case property was taken out from the malkhana for the production in the Court and also preparing DDR to this effect and the same process is to be undergone when the case property after its production in the Court is taken back and deposited in the malkhana. There has to be entry in the malkhana register when it is re-deposited and DDR is also prepared. The production of the case property in the Court is mandatory. There is doubt whether the case property which was produced in the Court was the same which was recovered from the accused and sent to FSL, Junga in the absence of any corresponding entries made at the time of taking it and re-deposit in the malkhana register or it was case property of some other case. It has caused serious prejudice to the accused. The nabbing of the accused, recovery and sealing proceedings in the instant case are doubtful. When the case property was produced in the Court, there is no reference as to who brought the case property to the Court from malkhana and by whom it was taken back. It is necessary to keep the case property in safe custody from the date of seizure till its production in the Court in ND & PS cases. 20. When the case property was produced in the Court, there is no reference as to who brought the case property to the Court from malkhana and by whom it was taken back. It is necessary to keep the case property in safe custody from the date of seizure till its production in the Court in ND & PS cases. 20. Thus, the prosecution has failed to prove the case against the accused beyond reasonable doubt for the commission of offence under Section 15 of the N.D & P.S., Act. 21. Accordingly, in view of the analysis and discussion made hereinabove, the appeal is allowed. Judgment of conviction and sentence dated 16.10.2015, rendered by the learned Special Judge-I, Una, H.P., in Sessions case No. 31 of 2014, is set aside. Accused is acquitted of the charges framed against him by giving him benefit of doubt. Fine amount, if any, already deposited by the accused is ordered to be refunded to him. Since the accused is in jail, he be released forthwith, if not required in any other case. 22. The Registry is directed to prepare the release warrant of the accused and send the same to the Superintendent of Jail concerned, in conformity with this judgment forthwith.