Research › Search › Judgment

Himachal Pradesh High Court · body

2016 DIGILAW 523 (HP)

State of Himachal Pradesh v. Poshu Ram

2016-04-21

CHANDER BHUSAN BAROWALIA, RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. This appeal is instituted at the instance of the State against the judgment dated 30.9.2008, rendered by the learned Sessions Judge, Solan, H.P., in case No. 4-S/7 of 2008, 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 on 9.12.2007 at around 10:50 PM, Dharampur police had laid nakka in front of the Police Station for checking of the vehicles. The Nakka party comprised of Insp./SHO Brijesh Sood, SI Mehar Chand, ASI Ram Chand and others. At about 12:15 AM, one HRTC Karsog Delhi bus arrived at the spot. It was signaled to stop. SI Mehar Singh entered the bus for checking from the front window and ASI Ram Chand entered the bus from the rear window along with SHO Brijesh Sood. The other police officials remained on the road. These officials started cheking the belongings of the passengers. A bag was found in the rack about seat No. 9 which was not claimed by anyone. On seat No. 9, the accused was found sitting. On seat No. 7 PW-1 and on seat No. 8 his contractor were sitting. When no one claimed the bag ASI Mehar Singh called the SHO inside the bus. He made inquiry from the accused. The accused told that he was going to meet his sister at Samlkhana. Suspecting the accused of not telling the truth, the SHO asked the accused and the occupants sitting on seat Nos. 7 & 8 to accompany him to the Police Station. While getting down from the bus, the accused pushed the police officials who were standing near the door of the bus and jumped below the road into the bushes and escaped in the darkness. The police, passengers and the driver and conductor of the bus tried to search for the accused in the bus lights but he could not be traced. The SHO along with the police officials, driver and conductor then returned to the bus and checked the bag. It was found having two yellow plastic packets containing charas in it. The bag was then carried to the Police Station. The SHO along with the police officials, driver and conductor then returned to the bus and checked the bag. It was found having two yellow plastic packets containing charas in it. The bag was then carried to the Police Station. The bus passengers were also taken to the Police Station. The charas was weighed. It weighed 2 kg. 650 grams. Two samples of 50 grams were taken after mixing the charas of both the packets. The samples were put in separate cloth parcel and sealed with seal “D”. The remaining charas along with the bag and packets was also sealed in a separate cloth parcel with the same seal. The SHO filled in the NCB form. On 12.2.2008, the police searched the accused and he was arrested on 13.2.2008. 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. According to him, he was falsely implicated. The learned trial Court acquitted the accused, as noticed hereinabove. Hence, this appeal. 4. Mr. Parmod Thakur, learned Addl. Advocate General for the State has vehemently argued that the prosecution has proved its case against the accused. On the other hand, Mr. B.R. Sharma, Advocate for the accused has supported the judgment of the learned trial Court dated 30.9.2008. 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 Liaq Ram testified that he along with his contractor Soni were occupying seats No. 7 & 8 in Karsog-Delhi bound bus. The accused was sitting on seat No. 9. At about 12:15 Am, the bus was stopped at Dharampur by the police. Two police officials entered the bus, one from the front window and another from the rear window. They started checking the belongings. One bag which was kept above seat No. 9 in the rack was not claimed by anyone. Then the accused was asked about his belongings. The accused was interrogated. The accused was taken out of the bus by the police officials. They started checking the belongings. One bag which was kept above seat No. 9 in the rack was not claimed by anyone. Then the accused was asked about his belongings. The accused was interrogated. The accused was taken out of the bus by the police officials. While the accused was being taken out from the bus, the accused pushed the police and ran away by jumping into the bushes below the road. He was not traced despite the attempt made by the police with the help of the bus light. The bag was opened. It contained some substance in the form of balls. It was found to be charas. It weighed 2 kg. 650 grams. Two samples of 50 grams each were taken out and sealed in separate parcels in an empty dhoop packet. The parcels were sealed with seal “D”. The remaining charas was also sealed in a cloth parcel with the same seal. The case property was produced while examining this witness in the Court. In his cross-examination, he deposed that when nobody claimed the bag, then SHO was called from the Police Station and he came inside the bus. He did not know the SHO earlier. The police officials were in uniform. However, the SHO was not in the uniform. 7. PW-2 Chand Kishore deposed that Const. Kamal Nath came to his shop to fetch weights and scale. He gave the same to him. 8. PW-3 HC Kamal Chand deposed that on 9.12.2007 at 11:00 PM, he was deputed on Nakka duty. At about 12:15 AM, Karsog Delhi bound HRTC bus arrived on the spot. It was stopped. He remained standing outside the bus near the front window. SI Mehar Singh entered the bus for checking from the front window to check it. When he was checking seat No. 9 inside the bus he asked him to call the SHO. SHO also entered the bus and they started making inquiry from the occupants of seat Nos. 8 & 9 with respect to one bag kept about seat No. 9. The occupants of seats No. 8 & 9 were brought down from the bus. The occupant of seat No. 9 came down and ran away from the spot. He was sent to fetch weighing scale and weights. 9. 8 & 9 with respect to one bag kept about seat No. 9. The occupants of seats No. 8 & 9 were brought down from the bus. The occupant of seat No. 9 came down and ran away from the spot. He was sent to fetch weighing scale and weights. 9. PW-4 HC Bhagi Rath testified that on 10.12.2007 at 10:45 AM, SHO Brijesh Sood deposited with him three sealed parcels sealed with seal D along with NCB form, copy of recovery memo and sample seal impression. These were entered by him at Sr. No. 467 in malkhana register vide Ext. PW-4/A. He sent the same along with docket, copy of FIR and recovery memo vide RC No. 122/07 through Const. Kamal Kumar to FSL Junga. 10. PW-8 Const. Kamal Kumar deposed that on 11.12.2007 MHC of the Police Station Dharampur handed over to him parcel sealed with seal D alongwith related documents for taking the same to FSL, Junga vide RC No. 122/07. He deposited the same at FSL, Junga under receipt. 11. PW-9 HC Dharmesh Dutt testified that the bus was enroute from Karsog to Delhi. It was stopped at Dharampur. SI Mehar Singh entered the bus for checking from the front window and ASI Ram Chand entered the bus from the rear window for checking it. He was standing in front of front window with HHC Kamal Chand. SI Mehar Chand asked Kamal Chand to call the SHO who was also on the road. He called the SHO, who entered the bus. When the occupant of seat No. 9 was asked about his belongings, he told that he had no belongings. The SHO then brought the accused down from the bus along with the occupants of the adjoining seat Nos. 7 & 8. As soon as the occupant of the seat No. 9 got down from the bus, he pushed him and ran away towards railway line by jumping into the bushes below the road. The bag was searched. It contained charas. It weighed 2 kg. 650 grams. The accused was arrested by them. In his cross-examination, he admitted that after the arrest he did not record the statement of any witness. No identification parade of the accused was carried out. According to him, he along with SHO and HHC Kamal were in the nakka party from the very beginning. 12. It weighed 2 kg. 650 grams. The accused was arrested by them. In his cross-examination, he admitted that after the arrest he did not record the statement of any witness. No identification parade of the accused was carried out. According to him, he along with SHO and HHC Kamal were in the nakka party from the very beginning. 12. PW-10 SHO Brijesh Sood testified that on 9.12.2007 at 10:50 PM, he along with SI Mehar Chand, ASI Ram Chand, ASI Narain Singh, HC Dharmesh, HHC Kamal and HHC Ravinder had put up nakka in front of the Police Station for checking of the vehicles vide rapat Ext. PW-10/A. At 12:15 AM, one HRTC Karsog Delhi bound bus came on the spot. SI Mehar Singh entered the bus for checking from front window and ASI Ram Chand entered the bus from rear window. He along with other staff remained standing on the road near the bus. After about 10 minutes, he was called by SI Mehar Singh inside the bus. He went inside the bus. A bag was kept over seat No. 9, which was not claimed by anyone, including the occupant of seat No. 9. All the passengers, except occupant of seat No. 9 were having one or the other kind of belongings. The occupant of seat No. 9 could not reply to the questions put to him. The accused was made to get down from the bus. Thereafter, he ran away. He could not be apprehended. Then he came back to the bus along with driver and conductor of the bus and took out the unclaimed bag from the rack above seat No. 9. The bag was checked. It contained charas. In his cross-examination, he admitted that the place where they had put nakka was National Highway and it was a busy place. However, during night hours, the flow of traffic and public was less. They had checked 14 vehicles and the bus was the 15th. He did not associate occupant of seat No. 7 in the investigation as a witness. However, he made inquiry from him as to his name and from where he had come and where he was going. In his further cross-examination, he deposed that except seat No. 9, other passengers had belongings and they accounted for the same. He did not associate occupant of seat No. 7 in the investigation as a witness. However, he made inquiry from him as to his name and from where he had come and where he was going. In his further cross-examination, he deposed that except seat No. 9, other passengers had belongings and they accounted for the same. He admitted that during investigation, no passengers had told him that this bag had been kept at the place by the accused. He also admitted that he did not find any mark etc. which could link the bag to the accused. After arrest of the accused, driver, conductor and PW-1 Liaq Ram were not associated to establish the identity of the accused. No identification parade of the accused was got conducted. They had checked the bus for about 15 minutes. 13. PW-10 SHO Brijesh Sood has deposed that the police had set up a nakka on 9.12.2007 at 10:50 PM. SI Mehar Chand, ASI Ram Chand, ASI Narain Singh, HC Dharmesh, HHC Kamal and HHC Ravinder were with him in the nakka in front of the Police Station for checking of the vehicles. At 12:15 AM, one HRTC Karsog Delhi bound bus came on the spot. He along with other staff remained standing on the road near the bus. SI Mehar Singh entered the bus for checking from front window and ASI Ram Chand entered the bus from rear window. However, PW-1 Liaq Ram, in his cross-examination has specifically deposed that the accused ran away after pushing the police officials and when nobody claimed the bag, SHO was called from the Police Station and he came inside the bus. Thus, according to PW-1 Liaq Ram, SHO was called from the Police Station, but PW-10 SHO Brijesh Sood has deposed that he was standing on the road along with other police officials. 14. PW-9 HC Dharmesh Dutt deposed that he was standing in front of front door with HHC Kamal Chand. SI Mehar Chand asked Kamal Chand to call the SHO who was also on the road. The place where the nakka was put up was in front of the Police Station. PW-10 SHO Brijesh Sood, in his cross-examination, has admitted that the place where they had put up the nakka was National Highway and it was a busy place. However, during night hours, the flow of traffic and public was less. The place where the nakka was put up was in front of the Police Station. PW-10 SHO Brijesh Sood, in his cross-examination, has admitted that the place where they had put up the nakka was National Highway and it was a busy place. However, during night hours, the flow of traffic and public was less. They had checked 14 vehicles and the bus was the 15th. The police ought to have examined independent witnesses either from the bus or from the nearby houses/shops, including the occupants/owners of the vehicles which crossed the road at the moment. PW-10 SHO Brijesh Sood has also admitted in his cross-examination that during the investigation, no passenger had informed him that the bag was kept by the accused on the rack. He also admitted that he did not find any mark etc. which could link the bag to the accused. He did not know the accused before that date. After arrest of the accused, driver, conductor and PW-1 Liaq Ram were not associated to establish the identity of the accused. No identification parade of the accused was got conducted. PW-9 HC Dharmesh Dutt has also admitted that they had checked 14 vehicles on 9.12.2007. He also admitted that after the arrest he did not record the statement of any witness. No identification parade of the accused was carried out. He was not aware of the number of the vehicle in which they had gone. They had paid Rs. 500/- but no receipt was obtained. 15. The prosecution has failed to link the bag which was lying in the rack with the accused. The police ought to have made the inventory of the entire luggage carried by the passengers in order to fasten the liability to establish that except accused others had their belongings and they accounted for the same. The accused was not carrying bag on his person but it was lying on the rack above seat No. 9. Only one occupant of the bus i.e. PW-1 Liaq Ram has been cited as a witness. The person accompanying PW-1 Liaq Ram who was sitting on seat No. 8 was not associated as a witness by the prosecution. The prosecution could at least associate driver and conductor of the bus as witnesses to give authenticity to the search and seizure proceedings on the spot. 16. The person accompanying PW-1 Liaq Ram who was sitting on seat No. 8 was not associated as a witness by the prosecution. The prosecution could at least associate driver and conductor of the bus as witnesses to give authenticity to the search and seizure proceedings on the spot. 16. The case property was produced while recording the statement of PW-1 Liaq Ram. 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).” 17. 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. 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. 18. 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.” 19. 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). 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. 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. (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 re-pounded under the supervision of a head constable.” 20. 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. 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. 21. 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 re-deposited. 22. 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. 23. 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. 23. 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 30.9.2008. 24. Accordingly, there is no merit in this appeal and the same is dismissed.