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2016 DIGILAW 714 (HP)

State of Himachal Pradesh v. Dhani Ram

2016-05-07

RAJIV SHARMA, VIVEK SINGH THAKUR

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JUDGMENT : Rajiv Sharma, J. This appeal is instituted at the instance of the State against the judgment dated 25.7.2007, rendered by the learned Special Judge Chamba, H.P., in Sessions trial No. 35/07/06, 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 18.11.2005 ASI Abhey Singh (PW-12) along with HC Roop Singh, Const. Parbhat Nahar, Const. Mazid Mohammad, Const. Gajinder Singh and Const. Sanjay Kumar was on patrol duty. When they were present at Zero Point, Goli, accused came from Chauhra side at about 2:10 PM. He tried to escape. He was apprehended. The charas was recovered from the accused which was concealed by him in the socks. ASI Abhey Singh (PW-12) called independent witnesses Hans Raj and Parkash Chand to the spot. The charas was recovered. It weighed 950 grams. Out of the recovered charas, two samples of 25 grams each were separated. The sample parts of the charas were put in empty cigarette cases which thereafter were wrapped and sealed by affixing seal impression “A”. The remaining charas was put in the same socks and parcel was prepared and sealed by affixing seal impression “A”. The rukka Ext. PD was prepared and sent to the Police Station Dalhousie through Const. Gajinder Singh. FIR Ext. PW-6/A was registered. The site plan was also prepared. The case property was produced before Addl. SHO Swaru Ram for resealing. He resealed the same with seal impression “S”. The case property was deposited in the malkhana on 18.11.2005. It was sent for chemical examination. The investigation was completed and the challan was put up before the Court after completing all the codal formalities. 3. The prosecution, in order to prove its case, has examined as many as fifteen witnesses. The accused was also examined under Section 313 Cr.P.C. His case is of denial simplicitor. The learned trial Court acquitted the accused, as noticed hereinabove. Hence, this appeal. 4. Mr. Neeraj K. Sharma, learned Dy. Advocate General for the State has vehemently argued that the prosecution has proved its case against the accused. 5. We have heard the learned Dy. The accused was also examined under Section 313 Cr.P.C. His case is of denial simplicitor. The learned trial Court acquitted the accused, as noticed hereinabove. Hence, this appeal. 4. Mr. Neeraj K. Sharma, learned Dy. Advocate General for the State has vehemently argued that the prosecution has proved its case against the accused. 5. We have heard the learned Dy. Advocate General for the State and have also gone through the judgment and records of the case carefully. 6. PW-1 Parkash Chand testified that he was present in his house located near Zero Point, Goli. At about 10:00 AM, one Constable came to his house to call him. He took him to Zero Point, Goli and made him to stand there for an hour. In the meantime, a bus which was going from Jhajha-Kothi to Pathankot came. 5-6 police persons who were present at Zero Point, Goli boarded the bus to check it. The accused was made to get down from the bus. Nothing was recovered from him. Later on, a Constable brought an envelope and told that it was lying on the seat on which the accused was sitting. Charas was present in that envelope. It weighed 950 grams. No sample was drawn by the police in his presence. He was declared hostile and cross-examined by the learned Public Prosecutor. In his cross-examination, he deposed that he had not seen that the accused was wearing the socks. He denied the suggestion that charas was recovered from the socks which the accused was wearing. He admitted that charas weighed 950 grams. He admitted that parcels of charas were prepared by the police on the spot and then he signed the same. He admitted that in the sample parcels, charas 25 grams each was packed. He admitted that the big parcel Ext. P-1 and small parcel Ext. P-2 had been signed by him as a witness. He admitted his signatures on Ext. PA. 7. PW-2 Const. Gajinder Singh deposed that the police party was on patrolling duty at Zero Point, Goli. A person came from Chauhra side. He tried to flee. He was caught by the police. The person of the accused was searched. The accused was wearing blue coloured socks. The charas was recovered from the socks. It weighed 950 grams. Out of the recovered charas, two samples of 25 grams each were separated. A person came from Chauhra side. He tried to flee. He was caught by the police. The person of the accused was searched. The accused was wearing blue coloured socks. The charas was recovered from the socks. It weighed 950 grams. Out of the recovered charas, two samples of 25 grams each were separated. The sample parts of the charas were put into two empty cigarette cases which were wrapped and sealed by affixing seal impression “A”. ASI Abhey Singh scribed the rukka. It was handed over to him. 8. PW-3 Constable Parbhat Nahar also deposed the manner in which the accused was apprehended and charas was recovered from him. The personal search of the accused was also carried out. 9. PW-4 Kulwant Singh deposed that on 18.11.2005 at 2:25 PM, Const. Sanjay Kumar came to his shop and demanded the weights and scale from him. He handed over the same to him. After 15-20 minutes, the weights and scale were returned to him. 10. PW-6 HC Mohinder Pal deposed that he was posted as I.O., Police Station Dalhousie. HC Ramesh Chand was posted as MHC. Since MHC Ramesh Chand was on leave, he was officiating as MHC, Police Station Dalhousie from 18.11.2005 to 25.11.2005. On 18.11.2005 at 9:00 PM, SI Swaru Ram Addl. SHO, Police Station Dalhousie deposited a big parcel and two small parcels containing charas sealed with seal impressions “A” and “S” along with the sample seals and NCB form with him. He made the entries in the malkhana register. On 19.11.2005, one part of the sample along with the sample seal, NCB form, copy of recovery memo, copy of FIR and docket were sent by him for chemical examination to CTL, Kandaghat through Const. Tilak Raj vide RC No. 64/05. Since the sample part could not be deposited in CTL, Kandaghat, the same were redeposited with him by Const. Tilak Raj on 25.11.2005. 11. PW-7 Const. Tilak Raj deposed that on 19.11.2005, MHC Mohinder Pal handed over a parcel of charas, copy of FIR, copy of recovery memo and NCB form to him vide RC No. 64/05 for being deposited at CTL, Kandaghat. Kandaghat people refused to receive the sample and asked him to take it to Chandigarh. The sample part was sealed with seal impressions “A” and “S”. Kandaghat people refused to receive the sample and asked him to take it to Chandigarh. The sample part was sealed with seal impressions “A” and “S”. He came back to Police Station Dalhousie on 25.11.2005 and returned the sample along with relevant documents to MHC Mohinder Pal. 12. PW-8 Const. Chaman Singh deposed that on 18.11.2005 at about 9:00 PM, HC Roop Singh produced a big parcel and two small parcels duly sealed with seal impression “A” before SI Swaru Ram. All the parcels were resealed by SI Swaru Ram by affixing two seals each of seal impression “S”. 13. PW-9 Const. Madan Singh deposed that on 30.11.2005, MHC Ramesh Chand handed over a parcel duly sealed with seal impressions “A” and “S”, recovery memo, copy of FIR, NCB form and sample seals to him vide RC No. 74/05. He deposited the same on 1.12.2005 at CTL, Kandaghat against proper receipt. 14. PW-10 HC Ramesh Chand deposed that he was posted as MHC, Police Station Dalhousie. From 18.11.2005 to 25.11.2005, he was on leave. HC Mohinder Pal was officiating as MHC in his absence. When he joined his duties on 25.11.2005, MHC Mohinder Pal handed over the case property relating to this case to him as per register No. 19. On 30.11.2005, vide RC No. 74/05, he sent one sample parcel of charas sealed with seal impressions “A” & “S”, sample seal, NCB form, copy of recovery memo and copy of FIR to CTL, Kandaghat through Const. Madan Singh. 15. PW-11 SI Swaru Ram, testified that he re-sealed the case property with seal impression “S” in the presence of Const. Chaman Singh. 16. PW-12 ASI Abhey Singh testified the manner in which the accused was apprehended, search, seizure and sealing proceedings were completed on the spot. He checked the person of the accused. He filled in NCB form vide Ext. PW-12/B in triplicate. He scribed the rukka. It was sent to the Police Station Dalhousie through PW-2 Const. Gajinder Singh. In his cross-examination, he deposed that when he checked by touching legs of the accused, he found that the accused was wearing socks. 17. PW-15 HC Roop Singh deposed the manner in which the accused was apprehended while he was coming from Chauhra Dam side. The personal search of the accused was carried out. The charas was recovered from him. The statements of the witnesses were recorded by him. 18. 17. PW-15 HC Roop Singh deposed the manner in which the accused was apprehended while he was coming from Chauhra Dam side. The personal search of the accused was carried out. The charas was recovered from him. The statements of the witnesses were recorded by him. 18. The case of the prosecution, precisely, is that the accused was apprehended at Zero Point, Goli, while he was coming from Chauhra side. He tried to run away. He was apprehended. The personal search of the accused was carried out. Charas was recovered from his socks. It weighed 950 grams. All the codal formalities were completed on the spot. The charas was sent for chemical examination. 19. PW-2 Const. Gajinder Singh, PW-3 Constable Parbhat Nahar, PW-12 ASI Abhey Singh and PW-15 HC Roop Singh have categorically deposed that the personal search of the accused was carried out when the charas was recovered from his socks. However, the fact of the matter is that the accused was not given option to be searched before the nearest Gazetted Officer or nearest Magistrate. The prosecution has not placed any consent memo on record. It is not the case of the prosecution that the accused was apprised of his legal right even orally. Section 50 of the ND & PS Act is mandatory. The non compliance of Section 50 of the ND & PS Act has vitiated the trial. 20. The case of the prosecution has also not been supported by PW-1 Parkash Chand who was an independent witness. He has given different version by saying that the accused was traveling in a bus. He was got down from the bus by the police officials, though the case of the prosecution is that accused was apprehended while he was coming at Zero Point, Goli from Chauhra side. 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 25.7.2007. 21. Accordingly, there is no merit in this appeal and the same is dismissed.