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2016 DIGILAW 936 (HP)

State of Himachal Pradesh v. Sanjeev

2016-05-26

CHANDER BHUSAN BAROWALIA, RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. This appeal is instituted at the instance of the State against the judgment dated 31.8.2012, rendered by the learned Special Judge (FTC), Kullu, H.P., in Sessions trial No. 11/2011, whereby the respondents-accused (hereinafter referred to as the accused), who were 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), have been acquitted. 2. The case of the prosecution, in a nut shell, is that on 22.12.2010, HC Nand Lal along with other police personnel was on patrolling duty in official vehicle. They spotted the accused at Ruara bridge sitting by the side of the road. The accused tried to abscond. They were apprehended. The bag was also lifted and brought to the vehicle. Word ‘COASTER’ was inscribed on the red coloured bag. The place was solitary and no independent person was available on the spot. The I.O. sent Const. Om Prakash (PW-7) to search for independent witnesses, however, he could not trace any independent witnesses. The I.O. associated Const. Om Prakash (PW-7) and Const. Bhupinder Singh as witnesses and checked the bag. On checking, stick and pancake like charas was recovered from the bag and some of the sticks were found to be wrapped in a polythene. The charas was weighed with the help of electronic scale. It weighed 1 kg. 500 grams. The charas was repacked in the same bag and bag was sealed in a cloth parcel with three seals of seal impressions “A”. The specimen of seal was obtained separately. Seal after use was handed over to Const. Om Prakash (PW-7). The I.O. filled in the NCB-I form in triplicate. Thereafter, I.O. prepared rukka. It was sent to the Police Station. FIR Ext. PW-2/B was registered. The I.O. prepared the spot map and handed over the case property for resealing to ASI Naresh Chand (PW-2). He resealed the same with three seals of seal impression “T” and filled in column nos. 9 to 11 of NCB-I form. On 23.12.2010, I.O. prepared the special report and produced the same before Dy. S.P. Kullu. ASI Naresh Chand deposited the parcel containing charas sealed with seal “A” and resealed with seal impression “T” along with NCB-I form in triplicate with MHC Chaman Lal, PW-1. He made necessary entry in the relevant register at Sr. No. 149. On 23.12.2010, I.O. prepared the special report and produced the same before Dy. S.P. Kullu. ASI Naresh Chand deposited the parcel containing charas sealed with seal “A” and resealed with seal impression “T” along with NCB-I form in triplicate with MHC Chaman Lal, PW-1. He made necessary entry in the relevant register at Sr. No. 149. The case property was sent to FSL, Junga. The report of the FSL is Ext. PX. 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 eight witnesses. The accused were also examined under Section 313 Cr.P.C. They denied the case of the prosecution. 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. Bimal Gupta, Sr. Advocate, has supported the judgment of the trial Court dated 31.8.2012. 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. MHC Chaman Lal, PW-1 testified that he was discharging the duties of MHC on account of leave of MHC Tara Chand on 22.12.2010. ASI Naresh Chand deposited one parcel allegedly containing 1 kg 500 grams of charas sealed with seal “A” and resealed with seal “T” with three seals each along with NCB-I form in triplicate with him. He entered the same in Malkhana Register No. 19 at Sr. No. 149. On 23.12.2010 vide RC No. 136/10, he sent the case property through Const. Chander Kiran to FSL, who deposited the receipt with him on his return. He admitted in his cross-examination that Sr. No. 148 to 149 are tampered with blue ink. He also admitted in his cross-examination that there was no mentioning in RC regarding sending of the case property. Volunteered that it was mentioned in the docket. 7. Const. Chander Kiran, PW-5 testified that he was deputed on 23.12.2010 by MHC Chaman Lal to hand over the case property vide RC No. 136/10 Ext. PW-1/B at FSL, Junga. He deposited the same in the laboratory and handed over the receipt to MHC. 8. Const. Volunteered that it was mentioned in the docket. 7. Const. Chander Kiran, PW-5 testified that he was deputed on 23.12.2010 by MHC Chaman Lal to hand over the case property vide RC No. 136/10 Ext. PW-1/B at FSL, Junga. He deposited the same in the laboratory and handed over the receipt to MHC. 8. Const. Om Parkash, PW-7 testified that they were present at Ruara bridge at about 9:00 PM. When they reached on the other side of the bridge, two persons were sitting on the right side of the road. They had kept bag on the ground. When I.O spotted torch towards the accused, they ran away towards Hurla side. The accused were nabbed and taken to the vehicle and their bag was lifted. The place was solitary. No independent witness was available on the road. I.O. associated him and Const. Bhupinder Singh as witnesses. I.O. checked the bag of red colour. From the bag, stick shaped and pancake like substance was recovered which was wrapped in a polythene. It was found to be charas. It weighed 1 kg 500 grams. The recovered charas was packed in the same bag and sealed in a cloth parcel and parcel was sealed with seal “A” with three seals. IO prepared sample seal Ext. PW-7/A. I.O. also prepared rukka. It was handed over to him at 10:30 PM. He handed over the rukka to ASI Naresh Chand on the basis of which FIR was registered. He had gone towards Hurla side to search the witnesses up to a Nallah. It took him about 15-20 minutes to search the witnesses. The bag was checked and then he went to search the witnesses. He denied the suggestion that there was a HPSEB Guest House near the spot. He also denied that there was colony of HPSEB near the bridge. 9. HC Nand Lal, PW-8 also deposed the manner in which the accused were apprehended. According to him, the accused were brought to the vehicle of the police and then both the accused were taken to the spot. The bag was also lifted and brought to the vehicle. The place was solitary and no independent person was available on the spot. The contraband was recovered from the bag. He prepared rukka Ext. PW-2/A and handed over to Const. Om Prakash. In his cross-examination, he reiterated that he lifted the bag from the spot. The bag was also lifted and brought to the vehicle. The place was solitary and no independent person was available on the spot. The contraband was recovered from the bag. He prepared rukka Ext. PW-2/A and handed over to Const. Om Prakash. In his cross-examination, he reiterated that he lifted the bag from the spot. The bag was checked in the vehicle. In his cross-examination, he also admitted that in search memo Ext. PW-7/B, it is stated that the accused were nabbed nearby the place where they were sitting with bonfire and their bag was checked and then they were brought to the vehicle. 10. According to rukka Ext. PW-2/A, the accused tried to flee away. They were nabbed. They had left one bag behind. The bag was brought to the vehicle. The place was secluded and thus no independent witness was available. HC Nand Lal, PW-8 testified that the bag was also lifted from the spot and brought to the vehicle. The place was solitary and no independent witness was available on the spot. He had associated Const. Om Prakash and Constable Bhupinder as witnesses. Const. Om Prakash, PW-7 has also deposed that the accused were nabbed and taken to the vehicle and the charas was recovered. The place was solitary and no independent witness was available on the spot. He along with Const. Bhupinder was associated as witness. The learned trial Court has erroneously termed memos Exts. PW-8/B and PW-8/C as consent memos. Ext. PW-8/B and Ext. PW-8/C are memos of arrest. It was a chance recovery, since the accused were found across the bridge. Section 42 of the ND & PS ACT was not at all applicable in the present case. 11. The learned trial Court has also relied upon the decision in the case of Sunil vs. State of Himachal Pradesh and other connected matters, reported in Latest HLJ 2010 (HP) 207, while acquitting the accused. This decision has been overruled by the Full Bench of this Court in the case of State of H.P. vrs. Mehboon Khan and analogous matters, reported in Latest HLJ 2014 (HP) (FB) 900. Since the charas was recovered from the bag, Section 50 of the ND & PS Act was not applicable. It was a chance recovery, thus Section 42 of the ND & PS Act was not applicable. 12. Mehboon Khan and analogous matters, reported in Latest HLJ 2014 (HP) (FB) 900. Since the charas was recovered from the bag, Section 50 of the ND & PS Act was not applicable. It was a chance recovery, thus Section 42 of the ND & PS Act was not applicable. 12. In NCB-I form, the weight of the contraband has been shown to be 1 kg. 500 grams, though, in Ext. PX report of the FSL, Junga, the net weight was found to be 1.502 kg. This is a minor variation and on that basis also the accused could not be acquitted. 13. The case property has reached FSL, Junga intact with three seals of impression “A” and three seals of impression “T”. The seals were tallied with the NCB-I form. The parcel was kept in safe custody. Merely that there is no mention of Ext. P-2 and Ext. P-3 in Ext. PX, report of the FSL, will not amount to any illegality. There is a reference of one packet in RC Ext. PW-1/B. The weight has been shown to be 1 kg 500 grams. It was sent along with the NCB-I form. The contraband remained in the safe custody and it was taken to FSL, Junga by Const. Chander Kiran, PW-5. Thus, the prosecution has duly proved that the contraband was recovered from the exclusive possession of the accused. 14. Accordingly, the appeal is allowed. The judgment of acquittal rendered by the learned trial Court in Sessions Trial No. 11 of 2011 dated 31.8.2012 is set aside. The accused are convicted under Section 20 of the ND & PS Act. The accused be heard on quantum of sentence on 20.6.2016. Production warrants be issued accordingly.