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2017 DIGILAW 907 (HP)

State Of Himachal Pradesh v. Lal Singh

2017-08-03

CHANDER BHUSAN BAROWALIA, TARLOK SINGH CHAUHAN

body2017
JUDGMENT Tarlok Singh Chauhan and C.B. Barowalia, JJ. - The State has filed the instant appeal against the judgment dated 4.9.2012 passed by the learned Special Judge, Kullu, H.P. in Sessions Trial No. 25/2010 whereby the respondents/accused have been acquitted of the offences punishable under Sections 20 and 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985 ( in short, ''the Act''). 2. The prosecution story, in brief, is that on 12.3.2010, PW6 ASI Man Singh along with Constable Vijay Kumar, PW3 Constable Varun Mahant and PW4 Constable Dalip Kumar of Police Station Banjar had proceeded for reconnoitering in official vehicle bearing registration No. HP-34A-0213. At about 6.00 A.M. while they were at a place near Sai Ropa, the accused persons came from opposite site. On being stopped, their antecedents were enquired into, however, the accused persons could not give satisfactory explanation qua their presence in the area. This aroused suspicion and accordingly, Constable Vijay Kumar was directed to bring independent witnesses from Deori side, but no person was found available, upon which, the Investigating Officer associated Constable Varun Mahant and Constable Vijay Kumar to witness the proceedings. The Investigating Officer gave option to the accused persons qua search either before a Magistrate or Gazetted Officer, upon which they opted to give their search to the police present on the spot vide memos, Ext.PW3/A and Ext.PW3/B. Thereafter, the bag, which was being carried by accused Tilak Raj, was searched and charas, in the shape of sticks wrapped in polythene weighing 3 kgs, was recovered. The charas was put in the same bag in the same manner and sealed in cloth parcel with nine seals of seal impression "''D''". NCB forms, Ext.PW3/E, were filled in and seal, after drawing its sample, Ext.PW3/D, was handed over to Constable Vijay Kumar for safe custody. The case property was taken into possession vide memo, Ext.PW3/F. The accused persons were thereafter arrested vide memos, Ext. Ext.PW4/A and Ext.PW4/B and their personal search was conducted vide memos, Ext.PW3/H and Ext.PW3/J. 3. The Investigating Officer, thereafter, prepared ruka Ext.PW3/G and sent it to Police Station Banjar for registration of the case through Constable Varun Mahant. On receipt of ruka, PW5 ASI Chaman Lal registered FIR, Ext.PW5/A and made an endorsement, Ext.PW5/B on the ruka to this effect and after preparing case file, sent the same to the Investigating Officer. The Investigating Officer, thereafter, prepared ruka Ext.PW3/G and sent it to Police Station Banjar for registration of the case through Constable Varun Mahant. On receipt of ruka, PW5 ASI Chaman Lal registered FIR, Ext.PW5/A and made an endorsement, Ext.PW5/B on the ruka to this effect and after preparing case file, sent the same to the Investigating Officer. The Investigating Officer, thereafter, prepared the spot map, Ext.PW6/A and recorded the statements of the witnesses. 4. On reaching back at the Police Station, Banjar, the Investigating Officer, deposited the case property with MHC because SHO was not present at that time and MHC was officiating as SHO. The MHC entered the same in Malkhana register at Sr. No. 131 vide Ext.PW5/C. Thereafter, on 14.3.2010, the MHC sent the case property, i.e. parcel, Ext.P1 through PW4 Constable Dalip Kumar to FSL Junga along with sample seals, copies of seizure memo, FIR docket, Ext.PW2/A and other documents vide R.C., Ext.PW5/D for chemical analysis, who deposited the same with the FSL Junga and on return, deposited the R.C. bearing receipt of FSL, Ext.PW5/E to the MHC. The Investigating Officer prepared the special report, Ext.PW1/A and submitted the same before the Dy. S.P., who after making endorsement, Ext.PW1/B, on the special report, handed over it to PW1 Harbans Kumar, who in turn entered the same in the relevant register, abstract of which is Ext.PW1/C. 5. Thereafter, on receipt of chemical examiner''s report, Ext.PA, the contraband recovered was found to be the extract of cannabis and sample of charas. Final report, under Section 173 Cr.P.C., 1973 was prepared and presented in the Court with a prayer to take cognizance of the case to try the accused persons for commission of the offences. 6. Accused persons were charged under Sections 20 and 29 of the Act. 7. The prosecution examined six witnesses and upon closer of its evidence, the incriminating circumstances and evidence against the accused persons were put to them, which they termed to be incorrect and wrong. The accused persons pleaded that accused Tilak Raj had come to Dhabha of accused Lal Singh at Gosheni to stay there and on 12.3.2010 at about 5.30/6.00 A.M., they were taken by the police to Police Station Banjar, where the police foisted a false case upon them. They pleaded innocence and claimed to have been falsely implicated, however no evidence was led by the accused persons. 8. They pleaded innocence and claimed to have been falsely implicated, however no evidence was led by the accused persons. 8. The learned trial court, on the basis of the evidence so adduced before it, acquitted the respondents of the offences charged against them vide judgment dated 4.9.2012 constraining the State to file the instant appeal. 9. Learned Additional Advocate General for the State has vehemently argued that the findings returned by the learned Special Judge are totally perverse as he has discarded the entire story of the prosecution only on the basis of the bag, in which the contraband had been put, having not been proved in this case. Whereas, learned counsel for the accused persons would argue that they are innocent and have been falsely implicated. 10. We have heard the learned counsel for the parties and have also gone through the record of the case carefully. 11. It would be noticed that one of the major reasons for disbelieving and rejecting the entire story of the prosecution was that as per the testimony of the prosecution witnesses, accused Tilak Raj was carrying a bag on his shoulder and on search of the bag, the contraband was alleged to have been recovered from it. It is further case of the prosecution that the bag along with charas was repacked in the same manner in a cloth parcel and thereafter sent for chemical examination to the FSL, Junga. However, in the report of the FSL, Ext.PA, there was no mention about any bag, which according to the learned Special Judge did cast serious doubt about the entire story of the prosecution, rather indicating that the bag might have been tampered with. This position is not even disputed by the learned Additional Advocate General. However, what is more intriguing is that after the case property, alleged to have been returned to the Police Station concerned with the specimen seal of the FSL after its analysis, the bag again resurfaced and was even exhibited as Ext. P2. 12. Once this is the admitted position, then in such circumstance, no fault can be found with the findings returned by the learned Special Judge when he held that the prosecution had failed to connect the report, Ext.PA with the alleged contraband, which cast serious doubt on the entire story of prosecution story, which goes to the root of the case. 13. 13. An identical case came up before a learned Single Judge of this Court in Bhumika vs. State of Himachal Pradesh, 2012(3) Shim. L.C. 1395, wherein it was observed as under:- "13. The prosecution is obliged to prove that the stuff recovered from the accused reached the Forensic Science Laboratory intact till its examination and it was not tampered with. As already stated above, the prosecution case, the whole stuff was sealed with six seals of "A" on the spot after its recovery, in the same "Pithu-Bag" from which it was recovered. It was sealed and after using the seal it was handed over to none else than Head Constable Chaman Lal, one of the members of the police-party. The accused after her arrest, as per report, was sent to judicial lockup and the case property remained with the police and Head Constable Chaman Lal with whom seal was entrusted. He was also posted in the same Police Station. Surprisingly, when the case property reached the Forensic Science Laboratory, though the seals used on the parcel were found intact and tallied with the NCB forms. It was opened but the "Pithu-Bag" was not found in the parcel. Where it had gone, there is no explanation. The analysis report Ext.PW7/B shows the total weight of the parcel 2.010 Kg and the weight of the polythene wrappers 0.038 Kg. The actual total weight of the parcel is 1.972 Kg. Thus, if the recovered stuff, on the spot was 2 Kgs. and it was resealed in the bag by making it a parcel, then where is the "Pithu Bag"? 14. The story did not end here. The case property is stated to have been returned to the Police Station concerned with the specimen seal of the FSL after its analysis. In the statement of PW2 HHC Mast Ram the parcel was exhibited. It contained five seals of "A", five seals of "T" and five seals of FSL. As per the Court observations, there were only 18 seals impressions on the said parcel Ext.P1 and three of them were not legible. The contents of the parcel were opened on 12.9.2011 and the contents were exhibited in the statement of PW5 Constable Umesh Kumar. But, the learned trial Court did not observe the condition of the parcel nor about the seal impressions nor the learned Public Prosecutor had made any request to this effect. The contents of the parcel were opened on 12.9.2011 and the contents were exhibited in the statement of PW5 Constable Umesh Kumar. But, the learned trial Court did not observe the condition of the parcel nor about the seal impressions nor the learned Public Prosecutor had made any request to this effect. Since it was marked as Ext.P1 this parcel was produced by the learned Public Prosecutor and was allowed to be opened. On opening it, a green coloured rucksack upon which "Diesel" was printed, was found containing black substance in polythene. The "Pithu-Bag" which was not earlier found by the Assistant Chemical Examiner when the parcel sent to him was opened, it is not understandable as to how it reappeared when it was opened and exhibited to PW5 aforesaid and according to this witness these items were recovered from the possession of the accused. To the similar effect is the statement of PW6 Lady Constable Chandra Devi, but in her cross-examination she stated that the exhibited pieces of the alleged stuff were more than the quantity which was recovered for which there is no explanation how the number of the pieces had increased. After closure of evidence on 12.9.2011 the case property was resealed with the seal of the Court and handed over to Naib Court, as per zimini order dated 12.9.2011." 14. We see no reason to differ with the aforesaid view, therefore, in the given circumstances, even if it is assumed that something was recovered from the possession of the accused Tilak Raj, the same cannot be connected with the report of the FSL, Ext.PA to conclude that the same was charas, as alleged. 15. As regards the accused Lal Singh, he has simply been implicated without there being any evidence whatsoever against him. There is no evidence whatsoever led by the prosecution to prove that there was conspiracy between the accused persons. 16. In view of the foresaid discussion, we find no merit in the appeal and the same is dismissed accordingly. Pending application(s), if any, also stands dismissed. Bail bonds furnished by the accused persons are ordered to be discharged.