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2016 DIGILAW 501 (HP)

State of Himachal Pradesh v. Satish Kumar

2016-04-19

RAJIV SHARMA, VIVEK SINGH THAKUR

body2016
JUDGMENT : Rajiv Sharma, J. The State has come in appeal against Judgment dated 2.3.2010 rendered by the learned Special Judge, Chamba Division, Chamba, Himachal Pradesh in Sessions Case No. 16 of 1995, whereby respondent-accused (hereinafter referred to as 'accused' for convenience sake), who was charged with and tried for commission of 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 that on 12.3.1995, SI SHO Kishan Chand (PW-7) was present near Surgani on patrolling duty alongwith ASI Babu Ram, HC Mukesh Kumar, Constable Ashok Kumar (PW-3) and other police officials, where Budhi Singh met them and they proceeded on foot towards Manjeer. At some distance, accused was found sitting on a parapet on the side of the road alongwith his companion Chanan Singh. Accused and his companion Chanan Singh were carrying a bag each in their laps and on inquiry, the accused became perplexed, on which suspicion arose and search of the bag in possession of accused was carried out. Charas weighing 1.6 kg was recovered from the polythene bag. One sample weighing 20 grams was separated from the charas so recovered which was put in a parcel whereas the bulk of the charas was put in separate parcel alongwith the bag and clothes, and both the parcels were sealed with seal impression ‘KS” and were taken into possession vide memo Ext. PA. Rukka Ext. PD was prepared and sent to Police Station, Kihar through Constable Ashok Kumar, on the basis of which FIR, Ext. PE was registered in Police Station, Kihar. Case property alongwith sample seal was deposited with Mr. Subhash Kumar (PW-4), the then MHC Police Station, Kihar, who on 28.3.1995 forwarded the sample parcel alongwith the specimen seal to Chemical Examiner at Kandaghat through Constable Sham Lal (PW-5) vide RC No. 26/95 and as per report of Chemical Examiner, Ext. PF, the sample, was found to be charas. Investigation was completed and Challan was put up in the Court after completing all codal formalities. 3. Prosecution has examined as many as 7 witnesses to prove its case against the accused. Accused was also examined under Section 313 CrPC. He pleaded innocence. Learned trial Court acquitted the accused. Hence, this appeal. 4. Mr. Investigation was completed and Challan was put up in the Court after completing all codal formalities. 3. Prosecution has examined as many as 7 witnesses to prove its case against the accused. Accused was also examined under Section 313 CrPC. He pleaded innocence. Learned trial Court acquitted the accused. Hence, this appeal. 4. Mr. Ramesh Thakur, Deputy Advocate General, has vehemently argued that the prosecution has proved its case against the accused. 5. Mr. Rajesh Kumar, Advocate, has supported the judgment of acquittal dated 2.3.2010. 6. We have heard the learned counsel for the parties and also gone through the judgment and record carefully. 7. PW-1 Budhi Singh testified that he was on his way on 12.3.1995 from his village to Saili to supervise his work. On the way just below the police post, SI Kishan Chand, SHO-ASI Babu Ram and other police officials met him and they all started proceeding towards Manjeer. When they proceeded ahead, they found two persons sitting on the parapets of the road near Kandla Morh. These persons were not known to him. Both the persons were questioned by the SI. They disclosed their identify. Accused Satish Kumar upturned his bag. It contained Charas wrapped in the shape of balls. There were some clothes also. Charas weighed 1.6 kg. Sealing proceedings were completed at the spot. 8. PW-2 Shiv Kanya LHC, testified that on 13.3.1995, Babu Ram ASI handed over to her a special report. It was presented by her to the SP on 14.3.1995. 9. PW-4 Subhash Kumar deposed that on 13.3.1995, SHO deposited with him case property consisting of two parcels. Both were sealed with seal ‘KS”. Parcel containing sample of recovered charas was handed over by him to Constable Sham Lal No. 238 vide RC No. 26/95 on 28.3.1995 for being taken to the Chemical Examiner at Kandaghat. Sample seals were also sent alongwith. In his cross-examination, he deposed that he has not brought the register. He further admitted that the case property remained with him for three months as it was deposited in Malkhana after challan was presented in the Court. Case property was deposited by the SHO. SHO never took back the case property. 10. PW-5 Constable Sham Lal deposed that on 28.3.1995, MHC Subhash Kumar handed over to him a sealed sample parcel for being taken to Chemical Examiner, Kandaghat alongwith sample impression of seal vide RC No. 26/95. Case property was deposited by the SHO. SHO never took back the case property. 10. PW-5 Constable Sham Lal deposed that on 28.3.1995, MHC Subhash Kumar handed over to him a sealed sample parcel for being taken to Chemical Examiner, Kandaghat alongwith sample impression of seal vide RC No. 26/95. He deposited the same with chemical examiner on 31.3.1995. 11. PW-7 Inspector Kishan Chand is a material witness. He deposed the manner in which accused was apprehended, contraband was recovered from the bag. In his cross-examination, he deposed that the night intervening 12 and 13.3.1995, was spent in PP Surgani. He kept the case property with him on 12.3.1995. There was Malkhana in the police post but he had no faith in the officials posted there. He had put case property in the bag which was kept by him under his pillow under his head. He had not made entry in any document except Zimnis that the case property was kept by him in his custody on the said night. He started to Police Station, Kihar from Surgani at 11/12 PM. He had travelled on motor cycle. The motor cycle was brought there by rider Ashok Kumar. He did not know who has produced the case property in the Court. 12. PW-7 Kishan Chand has categorically admitted in his cross-examination that he has not deposited the case property in Malkhana in the police post since he had not faith in the officials posted there. He should have deposited the case property in the Malkhana instead of retaining the same with him. He has not made any entry in any documents except Zimnis that the case property was kept by him in his custody during the night. PW-4 Subhash Kumar has not brought the Malkhana Register. PW-7 Kishan Chand did not know who has produced the case property in the Court. PW-4 Subhash Kumar, in his examination-in-chief deposed that the parcel containing sample of recovered charas was handed over by him to Constable Sham Lal for being taken to Chemical Examiner. Sample seals were also sent alongwith. Similarly, PW-5 Constable Sham Lal testified that Subhash Kumar has handed over sample parcel for taking it to Kandaghat alongwith seal impression vide RC No. 26/95. PW-5 Constable Sham Lal, in his cross-examination, admitted that he has not stated to IO that he has taken seal impressions alongwith parcels. Sample seals were also sent alongwith. Similarly, PW-5 Constable Sham Lal testified that Subhash Kumar has handed over sample parcel for taking it to Kandaghat alongwith seal impression vide RC No. 26/95. PW-5 Constable Sham Lal, in his cross-examination, admitted that he has not stated to IO that he has taken seal impressions alongwith parcels. Similarly, PW-4 Subhash Kumar admitted that he has not stated to IO that he has sent seal impression alongwith sample parcels. Statements were recorded under Section 161 CrPC. These witnesses i.e. PW-4 Subhash Kumar and PW-5 Sham Lal have made improvements. Prosecution has not produced Malkhana Register to prove that sample parcel was accompanied by specimen seal impression. Though, as per the chemical examiner report seals were found intact, unbroken. However, Chemical Examiner has nowhere mentioned how many seals were affixed and what was the impression of seal used on the sample parcel, which was examined by him chemically. Prosecution has failed to prove that specimen seal was sent separately to the chemical examiner. IO should have deposited the case property in the Malkhana instead of retaining it with him during the night. Thus the possibility of tampering with the sealed parcel can not be ruled out. 13. Prosecution has failed to prove case against the accused under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985. Hence, there is no occasion for us to interfere with the well reasoned judgment passed by the learned trial Court. 14. Thus, the appeal is without merits, which is accordingly dismissed. All pending applications, are also disposed of. Bail bonds of the accused are discharged.