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Himachal Pradesh High Court · body

2016 DIGILAW 484 (HP)

State of Himachal Pradesh v. Vikas

2016-04-13

RAJIV SHARMA, SURESHWAR THAKUR

body2016
JUDGMENT : Justice Rajiv Sharma, J. This appeal is instituted at the instance of the State against the judgment dated 10.9.2010, rendered by the learned Special Judge (FTC) Kullu, H.P., in Sessions trial No. 07/2010, whereby the respondent-accused (hereinafter referred to as the accused), who was charged with and tried for offence punishable under Section 20 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 PW-3 HC Chaman Lal, PW-5 SHO Narain Singh and ASI Yashwant Singh had gone to Larji in official vehicle being driven by Const. Tej Ram on 27.12.2008 at 10:00 AM. PW-4 HC Paras Ram, HC Gulab Chand, Const. Nek Ram, HC Naresh Kumar and Const. Deep Chand were already present at Larji Forest Barrier. Accused came on foot from Larji at about 11:00 AM. He started running on seeing the police. He was carrying a backpack Ext. P-1. He was apprehended. The accused was apprised that police was suspecting some narcotic in his person or in the backpack and therefore, the search of his person and the backpack was to be conducted and that he was having legal right to be searched before a Magistrate or Gazetted Officer. Accused consented to be searched by the police and memo Ext. PW-1/A was prepared regarding the consent. Paras Ram and accompanying police officials gave their personal search to the accused and memo Ext. PW-1/B was prepared. The backpack was checked and it was found to be containing one polythene bag Ext. P-4 bearing the words ?Kotanyi?. When the polythene bag was opened, it was found to be containing black coloured substance in the shape of sticks and spheres Ext. P-5 which was wrapped in white polythene. It was found to be cannabis. It weighed 1 kg. 700 grams. Two samples weighing 25 grams each were separated for the purpose of chemical analysis. The remaining cannabis was put in the polythene bag from which it was recovered and it was wrapped in a piece of cloth. Each parcel was sealed with six impressions of seal ?H?. NCB-I form Ext. PW-4/A was filled in triplicate at the spot. Rukka Ext. PW-4/B was prepared and handed over to HC Chaman Lal with the direction to carry it to the Police Station. Each parcel was sealed with six impressions of seal ?H?. NCB-I form Ext. PW-4/A was filled in triplicate at the spot. Rukka Ext. PW-4/B was prepared and handed over to HC Chaman Lal with the direction to carry it to the Police Station. He handed over the rukka to MHC Kartar Singh PW-8, who recorded the FIR Ext. PW-8/A and sent the case file to the spot. Site plan Ext. PW-3/C was prepared and statements of the witnesses were recorded. The case property alongwith the sample seal ?H?, NCB-I form were produced before PW-5 SHO Narain Singh, who resealed the same with three impressions of seal ?T?. He filled in columns No. 9 to 11 of the NCB-I form Ext. PW-4/A. The case property was deposited with sample seals and NCB-I form with PW-8 Kartar Singh, who made entry at Sr. No. 80 in the malkhana register. The samples were sent to FSL, Junga for analysis. 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 8 witnesses. The accused was also examined under Section 313 Cr.P.C. According to him, he was falsely implicated. The learned trial Court acquitted the accused, as noticed hereinabove. Hence, this appeal. 4. Mr. P.M.Negi, learned Dy. Advocate General for the State has vehemently argued that the prosecution has proved its case against the accused. On the other hand, Mr. Ajay Chandel, Advocate for the accused has supported the judgment of the learned trial Court dated 10.9.2010. 5. We have heard the learned counsel for both the sides and have also gone through the judgment and records of the case carefully. 6. PW-1 Nirat Singh testified that he was working as Forest Guard in Larji Check Post in the month of December, 2008. There was office of Marketing Committee adjacent to their check post. He alongwith Krishan Chand, Chowkidar were present on 27.12.2008 at about 10:00 AM at check post. A nakka was laid by the police. The police was stopping the vehicles. One HRTC bus was going from Neoli to Kullu which was also stopped. The accused was brought down from the bus by the police. He was not carrying anything. There was a backpack with the police official. A nakka was laid by the police. The police was stopping the vehicles. One HRTC bus was going from Neoli to Kullu which was also stopped. The accused was brought down from the bus by the police. He was not carrying anything. There was a backpack with the police official. When he came to the check post, he told that cannabis was recovered from the accused. It weighed 1 kg. 700 grams. He was declared hostile and cross-examined by the learned Public Prosecutor. In his cross-examination, he admitted that SHO Narain Singh, ASI Yashwant Singh and other police officials came to the check post on 27.12.2008 at 11:00 AM. He denied that HC Paras Ram apprehended the accused with the help of accompanying police officials. He admitted that accused was taken with the bag to the office of Forest Barrier. He admitted that the police associated Krishan Chand as witness. He admitted that the backpack was checked in his presence and in the presence of Krishan Chand and HC Chaman Lal. He admitted that accused revealed his name as Vikas Kumar on inquiry. He admitted his signatures on memo Ext. PW-1/A. He admitted that bag was opened and it was found to be containing a polythene bag having sticks and marble like charas. He admitted that two samples each weighing 25 grams were separated and were wrapped in different pieces of cloth. He admitted that the remaining charas was put in the same polythene bag from which it was recovered and polythene bag was put in the same backpack. He admitted that the backpack was wrapped in a piece of cloth and sealed with six impressions of seal ?H?. He denied that the seal was handed over to him, however, he admitted that the charas was seized vide seizure memo Ext. PW-1/C and he also admitted his signatures over the same alongwith the signatures of Krishan Chand and HC Chaman Lal as witnesses. In his cross-examination by the learned defence counsel, he deposed that the bus was enroute from Neoli to Kullu and it arrived at check post at about 10:00 AM. It was stopped in his presence. 4-5 persons were present. Two persons boarded the bus from rear side and one from the front side. The bag which was brought by Constable was in open condition. SHO Nariain Singh reached after the search in the evening. It was stopped in his presence. 4-5 persons were present. Two persons boarded the bus from rear side and one from the front side. The bag which was brought by Constable was in open condition. SHO Nariain Singh reached after the search in the evening. He did not know from whose possession bag was recovered inside the bus. He did not know that bag was unclaimed or that the accused was brought out of the bus on the basis of suspicion. He had put his signatures on all the documents in the evening. He admitted that the police had not given personal search to the accused. He admitted that there is a bazaar in front of their check post which is having 15-20 shops. The police was having traditional balance. He did not know from where they fetched the balance. He admitted that the police had obtained his signatures by saying that since the charas was weighed in his presence, there he was being cited as a witness. He also admitted that the accused stated to him that the bag did not belong to him and was recovered from the bus. 7. PW-2 Const. Pushap Raj deposed that MHC Kartar Singh handed over to him one parcel sealed with six impressions of seal ?H? and resealed with three seals of ?T?, NCB form in triplicate and other documents, copy of FIR, sample seals ?T? and ?H? on 28.12.2008 with direction to carry the same to FSL, vide RC No. 92/08. He deposited the same in FSL, Junga on 29.12.2008. 8. PW-3 ASI Chaman Lal deposed that the accused was apprehended and he was apprised of his legal right to be searched before a Magistrate or Gazetted Officer. The accused gave his consent vide Ext. PW-1/A. Thereafter, the contraband was recovered from the bag. Sampling proceedings were completed on the spot. NCB-I forms were filled in triplicate. Seal was handed over to PW-1 Nirat Singh after use. His signatures alongwith signatures of witnesses Krishan Chand and PW-1 Nirat Singh were taken vide memo Ext. PW-1/C. The accused put his thumb impression over the same. Rukka, mark-B was prepared and handed over to him. He carried the same to the Police Station and handed over to MHC Kartar Singh. FIR was recorded on the basis of rukka. The accused was arrested vide memo Ext. PW-1/C. The accused put his thumb impression over the same. Rukka, mark-B was prepared and handed over to him. He carried the same to the Police Station and handed over to MHC Kartar Singh. FIR was recorded on the basis of rukka. The accused was arrested vide memo Ext. PW-3/A. The case property was produced while examining PW-3 ASI Chaman Lal. He denied that one unclaimed bag was recovered by the Constables from HRTC bus during routine checking lying in the aisle adjacent to the seat of the accused. He denied that when the bag was checked, it was found to be containing charas and no one claimed the ownership of the bag. He denied that many shops and residential houses were located adjacent to Larji Barrier. They were at a distance of one and a half kilometer. He also admitted that check post belongs to Forest Department. SHO Narain Singh left the spot in the official vehicle prior to the apprehension of the accused about half an hour. ASI Yashwant Singh accompanied him. He admitted that no option was given to the accused to be searched by the police. No memo of personal search was conducted prior to the search of the bag. Rukka was handed over to him at 2:00 PM. He reached at the Police Station at 3:00 PM. He went in a private vehicle. He left the Police Station at 3:30 PM and arrived at the spot at 5:30 PM. His statement was recorded by the I.O. on his arrival at the spot. 9. PW-4 HC Paras Ram also deposed the manner in which the accused was apprehended, search, seizure and sealing proceedings were completed on the spot. Rukka Ext. PW-4/B was prepared on the spot and handed over to ASI/HC Chaman Lal at 2:00 PM with direction to carry the same to the Police Station. ASI/HC Chaman Lal handed over the case file to him at 5:30 PM. He filled in the relevant columns and documents were prepared by him. The case property was produced before SI/SHO Narain Singh at 8:45 PM on the same day, who resealed the parcels with three seal impressions of seal ?T? at 9:05 PM. 10. PW-5 SHO Narain Singh deposed that column numbers 9 to 11 of NCB-I form Ext. PW-4/A were filled by him and seal impression of seal ?T? was affixed over it. at 9:05 PM. 10. PW-5 SHO Narain Singh deposed that column numbers 9 to 11 of NCB-I form Ext. PW-4/A were filled by him and seal impression of seal ?T? was affixed over it. The case property was handed over to MHC Kartar Singh along with sample seals ?T? and ?H? and NCB-I form. Earlier, he alongwith ASI Yashwant Singh, HC/ASI Chaman Lal had gone to Larji in official vehicle being driven by Constable Tej Singh on 27.12.2008 at 10:00 AM. He remained at the spot till 10:30 AM and after giving necessary directions, he left the spot in the official vehicle. Earlier, the police officials were present at the nakka at the spot under the supervision of HC Paras Ram. 11. PW-8 MHC Kartar Singh testified that on 27.12.2008 SHO Narain Singh handed over three parcels each of which was sealed with six impressions of seal ?H? and resealed with three seal impressions of ?T? with sample seals ?T? and ?H?, NCB-I form in triplicate, copy of seizure memo, one backpack to him at 9:05 AM. He made entry at Sr. No. 80 in the malkhana register. He also filled in column No. 12 of the NCB-I form Ext. PW-4/A. The case property was sent to FSL, Junga on 28.12.2008 vide RC No. 92/08 through Const. Pushap Raj. 12. PW-3 ASI Chaman Lal deposed that SHO Narain Singh left the spot in the official vehicle prior to the apprehension of the accused about half an hour. ASI Yashwant Singh accompanied him. However, as per entry made in Ext. D-1, SHO Narain Singh along with HC Chaman lal who had gone towards Larji in official vehicle being driven by Tej Singh returned with Chaman Lal. Everything was found in order. ASI Yashwant Singh was deputed at Larji. Hotels etc. were checked and everything was found to be perfect. This entry clearly demonstrate that PW-5 SHO Narain Singh had left the spot not with ASI Yashwant Singh but with HC Chaman Lal. PW-6 Constable Lal Singh has stated that this report was the true copy of the original and thus authenticity of this report is not in dispute. Since ASI/HC Chaman Lal had left with the SHO Narain Singh, no recoveries were effected in the presence of ASI/HC Chaman Lal. PW-6 Constable Lal Singh has stated that this report was the true copy of the original and thus authenticity of this report is not in dispute. Since ASI/HC Chaman Lal had left with the SHO Narain Singh, no recoveries were effected in the presence of ASI/HC Chaman Lal. No option was given to the accused of the legal right to be searched before a Magistrate or Gazetted Officer in the presence of ASI/HC Chaman Lal. Neither charas was weighed in his presence nor rukka was handed over to ASI/HC Chaman Lal to be carried to Police Station Bhuntar. 13. PW-4 HC Paras Ram deposed that the recovery was effected in the presence of ASI/HC Chaman Lal, however, it is factually incorrect since ASI/HC Chaman Lal had already left with SHO Narain Singh, as per Ext. D-1. According to PW-4 HC Paras Ram, ASI/HC Chaman Lal left the spot at 2:00 PM. The accused was arrested at 4:00 PM. ASI/HC Chaman Lal came back and handed over the case file at 5:30 PM. However, signatures of ASI/HC Chaman Lal were found on the arrest memo. On a specific question put to him as to how it could be possible. He replied that ASI/HC Chaman Lal was not present at the time of arrest but his signatures were obtained subsequently when he arrived at the spot. Thus, the testimony of this witness cannot be relied upon. 14. According to PW-4 HC Paras Ram and ASI/HC Chaman Lal NCB-I form Ext. PW-4/A was filled at the spot. They deposed that columns No. 1 to 8 were filled on the spot. It is mentioned in column No. 7 that the case property was dispatched to the Police Station on 27.12.2008 at 8:45 PM. It was not possible for the I.O. to know at the spot that the case property would be deposited at 8:45 PM. It clearly demonstrates that column No. 7 was filled up after handing the case property and the testimonies of these witnesses cannot be believed. 15. The case property was produced while recording the statement of PW-3 ASI/HC Chaman Lal. 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. 15. The case property was produced while recording the statement of PW-3 ASI/HC Chaman Lal. 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 store-room 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). 16. It is necessary that as and when case property is taken out from Malkhana, necessary entry is required to be made in the Malkhana Register and also at the time when case property is re-deposited in the Malkhana. Case property in NDPS cases is required to be kept in safe custody from the date of seizure till its production in the Court. It is also necessary that when case property is taken out from Malkhana, DDR is made and also at the time when case property is re-deposited in the Malkhana. Thus, it casts doubt whether it is the same case property which was recovered from the accused and sent to FSL or it was case property of some other case. 17. 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. 17. 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. 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.? 18. 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. (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. 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.? 19. 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. 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 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, cupboards 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. 20. In the instant 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. 20. In the instant 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. 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. 21. In the instant case, it has also come on record that the shops were also situated near the spot of incidence, however, no independent witnesses were cited by the prosecution. PW-1 Nirat Singh has not supported the case of the prosecution. Thus, the prosecution has failed to prove the case against the accused under Sections 20 of the ND & PS Act that the charas was recovered from the conscious and exclusive possession of the accused. This Court has no occasion to interfere with the well reasoned judgment of the learned trial Court dated 10.9.2010. 22. Accordingly, there is no merit in this appeal and the same is dismissed.