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2016 DIGILAW 533 (HP)

State of Himachal Pradesh v. Pritam Chand

2016-04-22

CHANDER BHUSAN BAROWALIA, SANJAY KAROL

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JUDGMENT : Chander Bhusan Barowalia, J. The present appeal is maintained by the State of Himachal Pradesh, under Section 378 of Cr.P.C, against the judgment of acquittal dated 18.8.2009, passed by the learned Special Judge (Fast Track Court), Kangra at Dharmashala in Sessions Trial No. 7/2009 on the grounds that the findings of acquittal arrived at by the Court below are based upon surmises, conjecture and hypothesis. The Court below has arrived at wrong conclusion without appreciating the evidence on record to its true perspective. 2. The facts giving rise to the present appeal are that on 9.12.2008, as per prosecution case, ASI Nirmal, Incharge of Police Post, Gaggal and Inspector Pratap Singh the then SHO, Police Station Kangra were on patrolling duty at Gaggal Chowk. Inspector Pratap Singh received a secret information that accused persons were two in number and are staying in Nivia Hotel and are in possession of Charas. This information was reduced into writing by Inspector Pratap Singh and was sent to SDPO, Kangra. He also sent one Ruka to Police Station, Kangra. A raiding party was constituted after associating two independent witnesses i.e. Pramodh Singh and Dev Raj and Room No. 202 of Nivia Hotel was searched, in which both the accused persons were staying. After obtaining the consent memo of the accused persons, their personal search was carried-out after the police officers got themselves searched. On personal search of the accused persons, nothing was recovered. However, one green bag kept by the accused persons on the table in the room, was searched in the presence of both the witnesses and accused persons, candle shaped charas was recovered. On weighing the same, it was found to be 5Kg.500gms. The Investigating Officer took two samples of 25 grams each from the bulk charas and both the samples were separately sealed and seal ‘N’ was separately drawn. The aforesaid charas was taken into possession vide separate recovery memo and spot map was prepared. The extract of the hotel register was taken into possession and special report was sent to Superintendent of Police, Kangra. 3. The Investigating Officer at 2.30 AM on 10.12.2008 during midnight deposited the sealed case property with SI Megh Nath in Police Station, Kangra, who re-sealed the same and deposited it alongwith NCB forms, in triplicate, already filled-in by the Investigating Officer on the spot. 3. The Investigating Officer at 2.30 AM on 10.12.2008 during midnight deposited the sealed case property with SI Megh Nath in Police Station, Kangra, who re-sealed the same and deposited it alongwith NCB forms, in triplicate, already filled-in by the Investigating Officer on the spot. One sealed sample alongwith NCB Form, recovery memo and copy of FIR was sent to FSL, Junga by the MHC Police Station, Kangra, after making an entry of the case property in the malkhana register. During investigation of the case, report of the Chemical Examiner was received and the same was tagged with the case file. The statements of the witnesses were recorded and the challan was prepared and presented in the Court. 4. In order to prove the liability of both the accused persons, the prosecution examined fourteen witnesses. 5. The learned Additional Advocate General argued that the findings of the Court below are against the law and without appreciating the prosecution evidence to its true perspective and an unrealistic standard has been evolved to evaluate the prosecution evidence. The Court below has not appreciated the fact of PW5 Dev Raj, who is an independent witness, has fully supported the case of the prosecution and the other independent witness, who was though hostile, has admitted his presence on the spot. 6. Learned Counsel appearing for the respondents has argued that the prosecution has failed to bring the guilt of the accused and the case against the accused persons is highly doubtful and there is no evidence to connect the accused persons with the alleged recovery and the judgment of the Court below requires no interference. 7. To appreciate the arguments of the learned Additional Advocate General and the learned counsel appearing for the respondents, we have gone through the record in detail. The owner of the Nivia Hotel is Promod Singh, who appeared as PW-1 who was declared hostile as he did not support the prosecution story. He has specifically stated that in his presence no recovery was effected neither anything was recovered nor charas was recovered. After declaring him hostile, he was cross examined at length, but nothing favourable to the prosecution has come out. However, in cross-examination, he has specifically stated that the entry qua Room No.202 in the name of Pritam Ram was caused by the police officials. He denied the suggestion that the accused were staying in the Hotel. After declaring him hostile, he was cross examined at length, but nothing favourable to the prosecution has come out. However, in cross-examination, he has specifically stated that the entry qua Room No.202 in the name of Pritam Ram was caused by the police officials. He denied the suggestion that the accused were staying in the Hotel. He denied that in his presence room No.202 was searched. He also denied that the bag of the accused was searched in his presence and the charas was recovered. He though admitted that the accused persons signed register after taking Room No.202, but self stated that the police officials had made the accused to sign the register in their presence. He specifically stated that he had no idea from where the accused were brought by the police. 8. PW2 Constable Ranjit Singh is the person who had taken the Special Report. PW3 Constable Sham Lal is the person who took the Ruka. PW4, Megh Nath Inspector, SHO, who is the Incharge, Police Station, Kangra had received the case property from the SHO during night hours and re-sealed it. PW5 Dev Raj is the other independent witness, has stated that he was associated by the Police on 09.12.2008, alongwith PW1 and Room No.2 was searched and both the accused were found present in the room and one bag was recovered from the room and another plastic bag Ex.P8 was found in which charas Ex.P9 was kept and in his presence the charas was weighed which was found to be 5Kg.500 gms. Two samples were taken as per this witness from the bulk charas and sealed into two parcels and thus remaining bulck charas was sealed in separate parcel and separate seal was affixed. He exhibited the sample seal as Ex. P4. He proved the recovery memo. Ext. PW1/A, which is signed as per this witness by him and PW1. He stated that both the accused were present in the room. He could not say in cross-examination, when he went to Nivia Guest House. He has stated that in his presence SHO did not telephone any Gazetted Officer at Dharamshala or Kangra nor telephone was made to any Magistrate at Kangra. No document as to the ground of belief to search the room of accused was prepared before entering into the room. He has stated that in his presence SHO did not telephone any Gazetted Officer at Dharamshala or Kangra nor telephone was made to any Magistrate at Kangra. No document as to the ground of belief to search the room of accused was prepared before entering into the room. PW6 Constable Suneel Kumar and PW 14, Inspector Partap Singh Thakur have specifically stated all the facts of the prosecution story. PW9 HHC Bhagwant Singh was working as Reader to the Deputy Superintendent of Police, Kangra and he was examined to prove the Special Report Ex. PW8/A. PW10 Constable Vijay Kumar was examined to prove Ex. PW10/A. PW11, HHC Som Raj was examined to prove three Rojnamchas Ex.PW11/A, Ex.PW11/B and Ex.PW11/C, respectively of Police Station Kangra. PW13, HC Kuldip Singh was examined to prove that the FIR was registered upon Ruka Ex. PW13/A and S.I. Megh Raj has deposited one big parcel and two sample sealed parcels alongwith NCB forms and sample seal. He further stated that on 10.12.2008, he sent one sample parcel NCB forms, recovery memo, copy of FIR to FSL, Junga vide RC No.380/08, which is Ex. PW13/D and he entered the case property in the Malkhana Register. From the evidence on record, it is clear that the independent witness, the owner of the Hotel has denied the recovery made by the police from the accused persons. He further denied that the consent of the accused was obtained in his presence for search before the police officials. He also denied that two samples each of charas, in question, was drawn in his presence. He has stated that the police has informed that the Charas has been recovered. PW5 has stated that the accused have denied that the charas belongs to them. He has denied that he do not know whether there was any table in the room and stated that the bag was on the bed. This shows that this witness had not seen the bag inside the room. In these circumstances both the independent witnesses have not supported the prosecution case. The prosecution story that the accused have given their consent for search by the police officials only is belied when the only independent witnesses PW2 who was not declared hostile has stated that no telephone was made to the Magistrate or Gazetted Officer by the Investigating Officer in his presence. The prosecution story that the accused have given their consent for search by the police officials only is belied when the only independent witnesses PW2 who was not declared hostile has stated that no telephone was made to the Magistrate or Gazetted Officer by the Investigating Officer in his presence. However, there is nothing in the consent memo Ex. PW 14/A to show that the accused had availed such option. There is a fluid over Gazetted Officers, which goes to suggest that from the word ‘Non-gazetted’, Gazetted has been made by applying fluid. Consent memo does not disclose that any option was asked from the accused persons. So, a strict compliance of Section 50 of the N.D.P.S. Act has not been made by the prosecution. 9. Further, the Malkhana, Ex. PW13/E, the register does not reveal that the NCB Form in triplicate were also deposited with MHC and the sample was sent to FSL alongwith NCB Forms. The statement of PW 13, HC Kuldip Singh and PW7 HHC Jagdev Chand, it is clear that the sample was taken to FSL, Junga on 11.12.2008 but received back with certain objections and after removing the objections, it was again sent on 14.12.2008 and deposited with FSL, Junga on 15.12.2008. There is nothing on record to prove this fact whether these objections were raised by the FSL, Junga on 11.12.2008. This is admitted by the MHC PW 13. He could not say who remained in possession of the samples of the case property between 11.12.2008 to 14.12.2008. The Investigating Officer could not produce any document to show that the specimen seal in sealed cover was separately sent to FSL Junga. 10. To conclude, it is clear that PW1 does not support the prosecution case. The statement of PW2 is full of doubt and the statements of rest of the witnesses are also full of doubts. The prosecution has tried to suppress the genesis of the occurrence and the story of the prosecution involving the accused is highly doubtful. 11. In these circumstances, we find that the trial Court had rightly dealt with the evidence and found the same to be not worthy of credence. We, thus find no merit and substance to interfere with the well reasoned judgment, passed by learned Special Judge, Fast Track Court, Kangra at Dharamshala and the appeal is accordingly dismissed.