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Himachal Pradesh High Court · body

2016 DIGILAW 368 (HP)

Firoz Ansari v. State of Himachal Pradesh

2016-03-31

RAJIV SHARMA, SURESHWAR THAKUR

body2016
JUDGMENT : Rajiv Sharma, J. Cr. Appeal No. 23/2014 and Cr. Appeal No. 123/2014 have been filed by appellants-accused (hereinafter referred to as 'accused' for convenience sake) against Judgment/order dated 2.12.2013 rendered by leaned Special Judge-I, Sirmaur at Nahan, HP in Sessions Trial No. 02-ST/7 of 2013, whereby the accused, who were charged and tried for offence under Sections 21 and 22 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'Act' for convenience sake), have been convicted and sentenced to undergo rigorous imprisonment for 4 years and to pay a fine of Rs.50,000/- each, and in default of payment of fine, to further undergo simple imprisonment for one year, for commission of offence under Sections 21 and 22 of the Act. The State has also come in appeal by way of Cr. Appeal No. 136/2014 seeking enhancement of the sentence. 2. Since all the three appeals arise from one judgment and common questions of law and facts are involved in the same, these were taken up together for hearing and are being disposed of vide this common judgment. 3. Prosecution case, in a nutshell, is that on 15.10.2012, on the eve of assembly elections in Himachal Pradesh, a team of election commission headed by Executive Magistrate (PW-1) Shri Rajinder Singh Fishta was present at Khodari Majri barrier for conducting checking of the vehicles. At about 5.30 PM, an Indigo Car No. UK-07-AJ-2004 being driven by accused Vinod reached the barrier in which accused Firoz Ansari was also sitting on the front seat. The election commission party stopped the car but accused Vinod stopped the same at a distance of 20 meters ahead of the place where the checking party was standing. On checking, 5 bags and 5 paper cartons were found in the car in which 13248 Spasmo Proxyvon capsules and 1165 Rexcof Syrup vials were contained. Accused could not produce any permit/licence. Thereafter, PW- 10 HC Rajinder Singh separated 480 Spasmo Proxyvon capsules and 209 Rexcof Syrup vials as samples and made it into two separate parcels which were sealed with seal bearing impression ‘T’ and the remaining Spasmo Proxyvon capsules and Rexcof Syrup vials were put back into the same bags and cartons, which were also sealed with the same seal impression. NCB form Ext. NCB form Ext. PW-8/B in triplicate was updated and the case property alongwith the aforesaid vehicle was taken into possession vide memo Ext. PW-1/A. Rukka Ext. PW-3/A was drawn by PW-10 HC Rajinder Singh, on the basis of which FIR Ext. PW-3/B was registered with Police Station, Paonta Sahib. Case property was produced before Inspector Bhagat Ram, who resealed the same with seal impression ‘A’. He deposited the case property in Malkhana with PW-5 HHC Narayan Singh. He entered the same at Sr. No. 31. On 17.10.2012 PW-5 sent the samples to FSL Junga through PW-7 Constable Navraj Sharma vide RC No. 383/12. He deposited the same at FSL Junga on 18.10.2012. Investigation was completed. Challan was put in the Court after completing all the codal formalities. 4. Prosecution has examined as many as 11 witnesses to prove its case against the accused. Accused were also examined under Section 313 CrPC. Two witnesses were examined from the defence side. Accused were convicted as noticed hereinabove. Hence, two appeals by the accused came to be filed against the conviction by the accused and third one by the State against the inadequacy of sentence. 5. Mr. Karan Singh Kanwar, Mr. Narender Sharma and Mr. Rajesh Vats, Advocates, have vehemently argued that the Prosecution has failed to prove its case against the accused. 6. Mr. Ramesh Thakur, Deputy Advocate General, has vehemently argued that the sentence as awarded against the accused is not commensurate with the gravity of offence and same be enhanced. 7. We have heard the learned counsel for the appellant and also gone through the record carefully. 8. PW-1 Rajinder Fishta, deposed that he was appointed as Station Surveillance Officer Incharge by the Election Commission of India in Paonta constituency. Three police officials, one videographer and one driver were attached with him. On 15.10.2012, they left towards Khodari Majri side for checking. At about 5.30 PM, when they were present at Khodari Majri barrier, an Indigo Car bearing No. UK-07-AJ-2004 of white colour came from Paonta Sahib side, which was stopped by them for checking but the vehicle stopped at a distance of 20 metres ahead. Two persons were found sitting in that vehicle and some bags and paper cartons were kept in the car. On checking of the bags and cartons, Spasmo Proxyvon capsules and vials of Rexcof Syrup were found. Two persons were found sitting in that vehicle and some bags and paper cartons were kept in the car. On checking of the bags and cartons, Spasmo Proxyvon capsules and vials of Rexcof Syrup were found. Total number of capsules was 13248 and number of vials was 1165. 20 strips containing 480 capsules and 209 vials were separated as samples and packed into parcels which were sealed with seal impression ‘T’ and remaining drugs were put back in the same bag and cartons which were also sealed with the same seal. NCB form was updated and sample of seal was drawn. Seal was handed over to Sachin Kumar. Seizure memo Ext. PW-1/A was prepared. Case property was produced during the examination-in-chief of PW-1. In his cross-examination, he has admitted that videographer was engaged from Paonta Sahib. When vehicle was stopped for checking, at that time, two persons were in front seat of the car. He did not recollect if another person was sitting in the backseat and whether he was caught in the video. He denied the suggestion that when the police conducted checking of the car, driver of the car told the police that the articles belonged to one Manoj Kumar, who was sitting on the backseat of the car. In further cross-examination he admitted that he has seen the DVD, which was displayed in the Court. In the picture, a person was sitting in the backseat of the car however, neither the person sitting in the backseat of the car nor the vehicle could be identified. Videography was done when vehicle was being checked. In his cross-examination by the learned Defence Counsel, he admitted that the place, where vehicle was stopped, was a busy place. The dickey of the car was opened by the police. 9. PW-2 Sachin Kumar deposed that he was engaged for videography during assembly elections during the year 2012. On 15.10.2012, he alongwith Tehsildar Paonta and Police officials was present at Khodari Majri for conducting videography. At about 5-5.30 PM, when they were present at the barrier, an Indigo Car bearing No. UK-07-AJ-2004 came from Paonta side. It was stopped for checking. Two persons were found sitting in the car. Police checked the vehicle. Capsules and vials were recovered which were kept in bags and paper cartons. Capsules were 13248 and vials were 1165 in number. Police separated samples from the bulk. It was stopped for checking. Two persons were found sitting in the car. Police checked the vehicle. Capsules and vials were recovered which were kept in bags and paper cartons. Capsules were 13248 and vials were 1165 in number. Police separated samples from the bulk. He did not remember the number of capsules and vials separated. In his cross-examination, he has admitted that in the DVD displayed in the court a person was seen sitting in the backseat of the car. He also admitted that at that time, besides the police officials, he, Tehsildar, some other persons were also present, who were watching the proceedings. 10. PW-3 Mohinder Singh deposed the manner in which vehicle was stopped, contraband was recovered. HC Rajinder scribed Rukka Ext. PW-3/A. It was handed over to him. He delivered the same to ASI Paramjeet Singh. He recorded FIR Ext. PW-3/B. 11. PW-4 Fateh Singh deposed that he has rented out one shop to a tailor, other shop to Manoj Kumar and third one was in his occupation. Manoj was selling drugs in the shop He was associated by the police on 18.3.2013. He was declared hostile and was cross-examined by the learned Public Prosecutor. He denied the suggestion that on 18.10.2012, accused Vinod Kumar and Firoz Ansari demarcated the shop of Manoj. He admitted that the police has prepared site map. In his cross-examination by the learned Defence counsel, he admitted that he had rented out shop to Manoj Kumar in September 2012. Manoj Kumar belonged to Haripur village situate near Vikasnagar. He had seen Manoj Kumar on the spot on 15.10.2012. He was not aware that he had loaded carton boxes in the car. He admitted that on that day, shop was open and some carton boxes were taken from the shop. 12. PW-5 HHC Narayan Singh deposed that on 15.10.2012 at about 10.40 PM, Inspector/SHO B.R. Mehta had deposited five paper cartons which were sealed with seal impression ‘T’ and resealed with seal impression ‘A’ purported to be containing Rexcof vials and five bags which were also sealed with seal ‘T’ and resealed with seal ‘A’ purported to be containing Spasmo Proxivon capsules and Rexcof vials. One sealed parcel sealed with seal bearing impression ‘T’ and resealed with seal impression ‘A’ purported to be containing 209 Rexcof vials and one sealed parcel sealed with seal bearing impression ‘T’ and resealed with seal impression ‘A’, also purported to be containing 480 capsules of Spasmo Proxyvon alongwith samples of seals ‘T’ and ‘A’, NCB form in triplicate and vehicle bearing No. UK-07-AJ-2004 were also deposited which were entered at Sr. No. 31 of the Malkhana Register. He sent two samples to FSL alongwith sample seals and NCB form through Constable Navraj Sharma vide RC No. 383/12. 13. PW-7 Constable Navraj Sharma deposed that on 17.10.2012, HHC Narayan Singh handed over two sealed parcels which were sealed with seal impression ‘T’ and resealed with seal impression ‘A’ alongwith samples of seals and NCB form. He delivered the same on 18.10.2012 to FSL Junga. 14. PW-8 Inspector Bhagat Ram, deposed that ASI Roshan Lal produced case property on 15.10.2012. He updated relevant columns of NCB form Ext. PW-8/A. Resealing memo Ext. PW-8/B was prepared. Thereafter, he deposited the case property in the Malkhana with HHC Mohinder Singh. 15. PW-10 HC Rajinder Kumar testified the manner in which vehicle was stopped, contraband was recovered. He scribed Rukka Ext. PW-3/A and sent the same to the police station Paonta Sahib through Constable Mohinder Singh. He denied the suggestion that Manoj was sitting in the backseat. He also denied that in the photograph some person was seen sitting in the backseat of the car. Volunteered that the photo pertained to later proceedings when some other person might have sat in the car. 16. PW-11 ASI Roshan Lal, investigated the case. He prepared site plan Ext. PW-11/A. He came to the Police Station and presented the case property and accused persons before SHO/Inspector Bhagat Ram. Resealing was done vide Ext. PW-8/B. Thereafter, he deposited the case property in the Malkhana. On 18.10.2012, accused persons demarcated the shop at Pachhmiwala in Tehsil Vikasnagar from where drugs were allegedly loaded. He prepared demarcation memo Ext. PW-11/D. He recorded the statements of witnesses Fateh Singh and Ram Singh. He also raided the houses of accused persons but no incriminating material was recovered from their houses. In his cross-examination, he admitted that Fateh Singh had told him that he had rented out shop to Manoj where he stored drugs. He prepared demarcation memo Ext. PW-11/D. He recorded the statements of witnesses Fateh Singh and Ram Singh. He also raided the houses of accused persons but no incriminating material was recovered from their houses. In his cross-examination, he admitted that Fateh Singh had told him that he had rented out shop to Manoj where he stored drugs. Shop which was in possession of Manoj, was not opened by him. He also admitted that on 18 and 21.10.2012, he visited the house of Manoj but he was not traced. 17. DW-1 Karnail Singh deposed that he was running a Dhaba at village Khodari Majri. Khodari Majri bridge is situated at a distance of ½ kms from his Dhaba. On 15.10.2012, accused visited for taking money which he owed to him. He had visited at 3-3.30 PM and remained with him for about 1 or 1 ½ hours. He could not arrange for money to pay to the accused Firoj. At about 5-5.15 PM, he sat in the front seat of the car. There were two more persons in the car, one driver and one another person. In his cross-examination by the learned Public Prosecutor, he admitted that he had financial dealings with accused Firoz. He knew him for the last four years. He had not seen any black bag lying under the front seat of the car. 18. DW-2 Pritam Chand deposed that the accused were known to him. They have visited his shop on 15.10.2012 and they had purchased 5 kgs sweets and three baskets of apple, Banana, dates etc., in connection with engagement ceremony to be performed at Paonta Sahib. In his cross-examination by the learned Public Prosecutor, he deposed that the fruits and sweets were kept in the vehicle of the accused by his servant. 19. Learned advocates appearing for the accused have vehemently argued that the accused have been falsely implicated. Contraband belonged to one Manoj Kumar, who was sitting in the backseat of the car. PW-1 Rajinder Fishta, Tehsildar alongwith other police officials was at Khodari Majri barrier when vehicle was stopped. It has come on record that every vehicle was photographed. DVD was shown to Rajinder Fishta. PW-1 Rajinder Fishta admitted that picture which had been shown to him revealed some person sitting in the backseat but neither the person nor the vehicle could be identified from the slide. Videography was conducted by Sachin Kumar. It has come on record that every vehicle was photographed. DVD was shown to Rajinder Fishta. PW-1 Rajinder Fishta admitted that picture which had been shown to him revealed some person sitting in the backseat but neither the person nor the vehicle could be identified from the slide. Videography was conducted by Sachin Kumar. In his crossexamination, he admitted that he could not say that when he conducted videography, whether some person was sitting on the backseat. He admitted that in the DVD displayed in the Court, some person was seen sitting in the backseat of the car. PW-4 Fateh Singh has testified in his examination-in-chief that he has rented out one shop to tailor, other shop to Manoj and third shop was in his occupation. Manoj was selling drugs in the shop. PW-11 ASI Roshan Lal in his cross-examination admitted that on 18 and 21.10.2012, he visited the house of Manoj, but he was not traced. It is duly proved that there were three occupants in the Car, accused Firoz Ansari and Vinod Kumar and third person was sitting in the backseat. Presence of third person in the backseat of the car has been admitted by PW-1 Rajinder Fishta and PW-2 Sachin Kumar. Presence of third person in the backseat of the car probablises the defence of the accused that the contraband belonged to Manoj Kumar who was sitting in the backseat of the car. 20. Mr. Ramesh Thakur, learned Deputy Advocate General, has vehemently argued that Manoj Kumar was not an occupant in the car. If that was so, there was no occasion for PW- 11 Roshan Lal to visit the house of Manoj on 18 and 21.10.2012. Police has not associated any independent witnesses at the time when car was stopped, search, sealing and sampling proceedings were completed at the spot. PW-1 Rajinder Fishta has admitted in his cross-examination that the place, where vehicle was checked, was a busy place. PW-2 Sachin Kumar also deposed that besides the police official, Tehsildar and himself, there were other persons who were watching the proceedings being conducted at the spot. Police ought to have associated independent witnesses. It was neither a secluded nor an isolated place. 21. PW-5 Narayan Singh deposed that he was In Charge Malkhana. Case property was produced at about 10.45 PM on 18.10.2012 by Inspector B.R. Mehta. He made necessary entry in the Malkhana Register. Police ought to have associated independent witnesses. It was neither a secluded nor an isolated place. 21. PW-5 Narayan Singh deposed that he was In Charge Malkhana. Case property was produced at about 10.45 PM on 18.10.2012 by Inspector B.R. Mehta. He made necessary entry in the Malkhana Register. Thereafter, case property was sent to FSL Junga through Constable Navraj Sharma vide RC No. 383/12. PW-7 Navraj Sharma has taken the case property alongwith NCB form to FSL Junga on 18.10.2012. 22. Case property was produced before the Court during the examination of PW-1 Rajinder Fishta. Who has brought the case property from Malkhana to the Court has not been examined. Entry in the Malkhana register to the effect that who has taken the property to the Court, is necessary as per Punjab Police Rules, 1934. Para 22.70 of the Punjab Police Rules, 1934, as applicable to the State of H.P., reads as under: “22.70. Register No. XIX- This register shall be maintained in Form 22.70. With the exception of articles already included in register No. XVI every article placed in the storeroom shall be entered in this register and the removal of any such article shall be noted in the appropriate column. The register may be destroyed three years after the date of the last entry.” The register is to be maintained in Form 22.70. It reads as under. “FORM NO. 22.70. POLICE STATION_____________DISTRICT Register No. XIX.-Store-Room Register (Part-I) Column 1.- Serial No. 2. No. of first information report (if any), from whom taken (if taken from a person), and from what place. 3. Date of deposit and name of depositor. 4. Description of property. 5. Reference to report asking for order regarding disposal of property. 6. How disposed of and date. 7. Signature of recipient (including person by whom dispatched). 8. Remarks. (To be prepared on a quarter sheet of native paper).” 23. 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. 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 redeposit 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. 24. Sub-rule (2) Rule 22.18 of Punjab Police Rules, reads as under: (2) All case property and unclaimed property, other than cattle, of which the police have taken possession shall, if capable of being so treated, be kept in the store-room. Otherwise the officer in charge of the police station shall make other suitable arrangements for its safe custody until such time as it can be dealt with under sub-rule (1) above. Each article shall be entered in the store-room register and labelled. The label shall contain a reference to the entry in the store-room register and a description of the article itself and, in the case of articles of case property, a reference to the case number. Each article shall be entered in the store-room register and labelled. The label shall contain a reference to the entry in the store-room register and a description of the article itself and, in the case of articles of case property, a reference to the case number. If several articles are contained in a parcel, a detail of the articles shall be given on the label and in the store-room register. The officer in charge of the police station shall examine Government and other property in the store-room at least twice a month and shall make an entry in the station diary on the Money following the examination to the effect that he has done so. 25. Rule 27.18 of Punjab Police Rules, reads as under: 27.18. Safe custody of property.- (1) Weapons, articles and property sent in connection with cases shall on receipt be entered in register No. 1 and shall (excluding livestock) be properly stored in the store-room of the head of the prosecuting agency, or the police station. See Rule 22.18. When required for production in court such articles shall, at headquarters, be taken out in the presence and under the personal order of an officer of rank not less than prosecuting sub-inspector and an entry made in the register of issue from and return to the prosecuting agency’s store-room, which register shall be maintained in Form 27.18(1). Animals sent in connection with cases shall be kept in the pound attached to the police station at the place to which they have been sent, and the cost of their keep shall be recovered from the District Magistrate in accordance with Rule 25.48. (2) In all cases in which the property consists of bullion, cash, negotiable securities, currency notes or jewellery, exceeding in value Rs. 500 the Superintendent shall obtain the permission of the District Magistrate, Additional District Magistrate or Sub-Divisional Officer to make it over to the Treasury Officer for safe custody in the treasury. (3) All cash, jewellery and other valuable property of small bulk, which is not required under sub-rule (2) above to be sent to the treasury, shall be kept in a locked strong box in the store-room. Each court orderly shall be provided with a strong lock-up box in which he shall keep all case property while it is in his custody in the court to which he is attached. Each court orderly shall be provided with a strong lock-up box in which he shall keep all case property while it is in his custody in the court to which he is attached. Case property shall invariably be kept locked-up in such box except when it is actually produced as an exhibit in the course of proceedings. After being so produced it shall be immediately replaced in the lock-up box. Boxes shall be provided from funds at the disposal of the District Magistrate. (4) Property taken out of the main store-room for production in court shall be signed for by the court orderly concerned in register No. 2 and the prosecuting officer authorizing the removal shall initial this entry. Such officer shall similarly, after personal check, initial the entry of return of the property to the main store-room on the closing of the courts. (5) Every day, when the courts close, an officer of the prosecuting branch of rank not less that of sub-inspector shall personally see that the articles produced in court are returned to the store-room, restored to their proper places in the shelves, cup-boards or strong box and registered as required by sub-rule (4) above. The opening of the storeroom in the morning and its closing in the evening shall invariably be in the presence of the police officials named in this rule. Animals brought from the pound shall be repounded under the supervision of a head constable. 26. Thus, it is evident from rule 22.18 that the case property is required to be kept in store room and each article is to be entered in store room, registered and labelled and label shall contain a reference to the entry in the store-room register and a description of the article itself and, in the case of articles of case property, a reference to the case number. If several articles are contained in a parcel, a detail of the articles is required to be given on the label and in the store-room register. Similarly, it is provided in Rule 27.18 that Weapons, articles and property sent in connection with cases shall on receipt be entered in register No. 1 and shall (excluding livestock) be properly stored in the store-room of the head of the prosecuting agency, or the police station. Similarly, it is provided in Rule 27.18 that Weapons, articles and property sent in connection with cases shall on receipt be entered in register No. 1 and shall (excluding livestock) be properly stored in the store-room of the head of the prosecuting agency, or the police station. The case property when required for production in court such articles shall, at headquarters, be taken out in the presence and under the personal order of an officer of rank not less than prosecuting sub-inspector (now APP/PP) and an entry made in the register of issue from and return to the prosecuting agency’s store-room, which register shall be maintained in Form 27.18(1). Property taken out of the main store-room for production in court is required to be signed for by the court orderly concerned in register No. 2 and the prosecuting officer authorizing the removal shall initial this entry. Such officer similarly, after personal check, is required to initial the entry of return of the property to the main store-room on the closing of the courts. It is further provided in this Rule that every day, when the courts close, an officer of the prosecuting branch of rank not less that of sub-inspector shall personally see that the articles produced in court are returned to the store-room, restored to their proper places in the shelves, cup-boards or strong box and registered as required by sub-rule (4) above. The opening of the storeroom in the morning and its closing in the evening shall invariably be in the presence of the police officials named in this rule. In case property is required to be committed to the higher Court, then under Rule 27.19, the parcel shall be sealed with the seal of the court and made over to the head of the police prosecuting agency, who shall produce it with unbroken seals before the superior court, or, if so ordered by competent authority, shall make it over to some other officer authorized so to produce it. 27. In this case, there is nothing on record to suggest that these Rules were followed while producing case property in the Court and on returning the same. These Rules have been framed to ensure that case property from its initial stage of seizure till production in the Court remains safe/intact and is restored to store room in the presence of senior police officer. These Rules have been framed to ensure that case property from its initial stage of seizure till production in the Court remains safe/intact and is restored to store room in the presence of senior police officer. Property taken out of the main store-room for production in court is required to be signed by the court orderly concerned in register No. 2 and the prosecuting officer authorizing the removal is required to initial this entry. Such officer shall similarly, after personal check, initial the entry of return of the property to the main store-room on the closing of the courts. 28. In Punjab Police Rules, also applicable to the State of Himachal Pradesh, Malkhana register is assigned serial number-19. It is in a tabular form. There are different columns like who has deposited the case property and when it was taken out and deposited back. These details are very material and every deposit made in the Malkhana /Store Room is to be recorded and also at the time when it is redeposited. 29. Thus, the prosecution has failed to prove case against accused beyond reasonable doubt. 30. Accordingly, Cr. Appeals No. 23/2014 and 123/2014, are allowed. Judgment/order dated 2.12.2013 rendered by leaned Special Judge-I, Sirmaur at Nahan, HP, in Sessions Trial No. 02-ST/7 of 2013 is set aside. Accused are acquitted of the offence under Section 21 and 22 of the Act, giving them benefit of doubt. They are ordered to be released immediately, if not required by the police in any other case. Fine amount, if any, paid by them shall be refunded to them. Registry is directed to prepare and issue release warrants of the accused to the concerned Superintendent of Jail, forthwith. 31. Cr. Appeal No. 136/2014 preferred by the State fails and is accordingly, dismissed. All pending applications, in all the appeals, also stand disposed of.