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Himachal Pradesh High Court · body

2016 DIGILAW 38 (HP)

State of H. P. v. Balwinder Kumar alias Jagga

2016-01-05

P.S.RANA, RAJIV SHARMA

body2016
JUDGMENT : RAJIV SHARMA, J. 1. This appeal is instituted by the State against the judgment dated 24.6.2015, rendered by the learned Special Judge, Una, H.P., in Sessions trial No. 39 of 2014, whereby the respondent-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 acquitted. 2. The case of the prosecution, in a nut shell, is that on 9.6.2014, police party headed by ASI Suresh Kumar was on patrolling and traffic checking and at about 7:40 PM, he was present near Satsang Ghar on Sanoli-Santoshgarh road, where a motorcycle without registration number came from Sanoli side towards Santoshgarh having one plastic bag on the fuel tank of motorcycle between his legs. ASI Suresh Kumar signaled him to stop but the person got frightened and tried to turn back. He was apprehended. The plastic bag was checked in the presence of witness Mohinder Pal. It was found containing four plastic envelopes. These envelopes were opened and on smelling, it was found to be poppy husk. On weighing, one envelope was found containing 5 kg, second 1 kg 500 grams, third and fourth 2 kg each and total 10 kg 500 grams of poppy husk was recovered. The recovered envelopes were again put in the same plastic bag and the bag was put in a cloth parcel which was sealed with nine seals of impression “M”. The I.O. took separate seal impressions on a piece of cloth and filled up the NCB forms in triplicate. Seal “M” was also affixed on the NCB forms and seal after its use was handed over to witness Mohinder Pal. The case property, as per seizure memo, was handed over to SHO Police Station. The SHO of the Police Station resealed the parcel with seal impression “T” and filled the NCB form columns. The case property was deposited in the Malkhana. The samples were sent to FSL Junga for chemical examination. 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 13 witnesses. The accused was also examined under Section 313 Cr.P.C. The accused has denied the prosecution case. The samples were sent to FSL Junga for chemical examination. 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 13 witnesses. The accused was also examined under Section 313 Cr.P.C. The accused has denied the prosecution case. The learned trial Court acquitted the accused, as noticed hereinabove. Hence, this appeal. 4. Mr. V.S.Chauhan, learned Addl. Advocate General for the State has vehemently argued that the prosecution has proved its case against the accused. 5. PW-1 HC Sushil Kumar deposed that on 9.6.2014, he alongwith ASI Suresh Kumar, LHC Jagtar, LHC Bodh Raj, Const. Jasbir and others started from Police Post Santoshgarh for patrolling at 6:00 PM. At about 7:40 PM, when he was present near Satsang Ghar on Sanoli-Santoshgarh road, a motorcycle without registration number came from Sanoli side towards Santoshgarh. ASI Suresh Kumar signaled the motorcycle to stop. The person tried to run away. He was nabbed. He was carrying one plastic bag in his lap on the fuel tank of motorcycle. It was checked. It contained 4 envelopes. Two were of sky blue colour and on the other two packets “Khazana Gold” was printed. Mohinder Pal, independent witness, was also present on the spot. He was associated in the search. The packets contained poppy husk. The contraband weighed 10 kg. 500 grams in total. The sealing proceedings were completed on the spot. The impression of the seal was taken on separate piece of cloth and seal after its use was handed over to witness Mohinder Pal. The case property, as per seizure memo Ext. PW-1/A, was taken into possession. In his crossexamination, he admitted that Satsang Ghar is on the main road leading from Santoshgarh to Sanoli and there are houses situated. The road leads to Majara, Puna and Malookpur. He also admitted that these villages are just near to the boundary of Punjab. 6. PW-2 Const. Jasvir Singh and PW-3 Const. Kamal Krishan have corroborated the statement of PW-1 HC Sushil Kumar. PW-2 Const. Jasvir Singh has admitted that villages Majara, Puna etc. are situated on the boundary of the State. 7. PW-10 ASI Suresh Kumar is the I.O. He has also deposed that the abadi was at a distance of half kilometer from Satsang Ghar. The case property was deposited with PW-4 HC Subhash Chand. PW-2 Const. Jasvir Singh has admitted that villages Majara, Puna etc. are situated on the boundary of the State. 7. PW-10 ASI Suresh Kumar is the I.O. He has also deposed that the abadi was at a distance of half kilometer from Satsang Ghar. The case property was deposited with PW-4 HC Subhash Chand. PW-5 Const. Sukhwinder Singh has carried the case property alongwith the sample seals and documents to FSL, Junga. PW-8 HHC Surinder Kumar has brought the chemical report alongwith the case property from FSL, Junga. PW-9 Kapil Sharma, Asstt. Director has proved report Ext. PW-9/A. 8. The case of the prosecution has not been supported by PW-13 Mohinder Pal. He has denied the recovery as well as nabbing of accused by the police in his presence. Rather, he was declared hostile and cross-examined by the learned Public Prosecutor. We have gone through the statement of PW-13 Mohinder Pal, with the assistance of the record produced by the State during the course of hearing. PW-13 Mohinder Pal has denied that one motorcycle, without number, came from Sanoli side and was going towards Santoshgarh side, in which one plastic sack was being carried by the driver. He also denied that the police on checking the sack in his presence found four envelopes containing poppy husk. He also denied that the contraband weighed 10 kg 500 grams. He denied that the NCB forms were filled in on the spot and seals were affixed on it. 9. PW-10 ASI Suresh Kumar is the I.O. in this case. It has come on record that Satsang Ghar was in the close vicinity of the spot. There were three villages, namely, Majara, Puna and Malookpur at a distance of half kilometer from the spot and despite that the I.O. has not joined independent witnesses. PW-10 ASI Suresh Kumar submits that he has sent Const. Jagtar Singh to find out independent witnesses, however, the fact of the matter is that Const. Jagtar Singh has not been examined. 10. Seal “M” was handed over to witness PW-13 Mohinder Pal. He has not produced the same before the Court. Similarly, seal “T” which was allegedly used for resealing of the contraband by the SHO has also not been produced in the Court. 11. In the instant case, we have already noticed that the prosecution case has not been supported by PW-13 Mohinder Pal. He has not produced the same before the Court. Similarly, seal “T” which was allegedly used for resealing of the contraband by the SHO has also not been produced in the Court. 11. In the instant case, we have already noticed that the prosecution case has not been supported by PW-13 Mohinder Pal. The independent witnesses, though available, were not associated to give credibility to the search, seizure and sealing proceedings on the spot. Thus, there is no occasion for us to interfere with the well reasoned judgment of the learned trial Court dated 24.6.2015. 12. Accordingly, there is no merit in this appeal and the same is dismissed.