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2018 DIGILAW 2054 (HP)

State of Himachal Pradesh v. Sushil Kumar

2018-11-21

AJAY MOHAN GOEL, SURYA KANT

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JUDGMENT : Surya Kant, J. 1. This Criminal Appeal has been preferred by State of Himachal Pradesh assailing the order dated 19th December, 2008, passed by learned Special Judge, Fast Track Court, Kullu, HP, acquitting the respondent in a case under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act' in short). Facts:- 2. The case of the prosecution is that on 30th September, 2006, at about 6:30 a.m., Head Constable Sham Lal alongwith Home Guard Ram Chand and two independent persons, namely, Bishan Chand and Ramesh Kumar were present on a pedestrian path at Bhulang curve on Dobhi-Fozal road in connection with 'NAKABANDI' and detection of crime, when they saw a pedestrian carrying green coloured bag in his right hand, who, on seeing the police party stopped all of a sudden. On suspicion, the person, namely, the respondent was overpowered. He was allegedly apprised of his right to be searched in the presence of a gazetted Officer or a Magistrate to which the respondent gave consent to be searched by the police. The consent memo to this effect was prepared. The bag being carried out by the respondent was searched and it was found containing Charas in the shape of sticks, which were weighed and found to be 800 grams. Two separate samples of 25 grams each were taken from the recovered Charas and sealed in separate parcels. Remainder of the Charas was put in the same bag and was sealed in a separate parcel. Three seal of impression 'M' were affixed on each parcel and samples of the seal impression 'M' were obtained separately. Seal after use was handed over to the independent witness Bishan Chand. Search and seizure memo were prepared on the spot by Head Constable Sham Lal, which were duly signed by the respondent as also the independent witnesses Bishan Chand and Ramesh Kumar. 3. A 'RUKKA' was prepared on the spot and sent to Police Station, Manali, for registration of FIR through Home Guard Ram Chand. The rukka was handed over personally at Police Station, Manali, on which, FIR No. 224/2006 was registered. S.I. Rup Singh prepared the case file and handed over the same to Home Guard Ram Chand. Site plan of the occurrence was also prepared by HC Sham Lal. The rukka was handed over personally at Police Station, Manali, on which, FIR No. 224/2006 was registered. S.I. Rup Singh prepared the case file and handed over the same to Home Guard Ram Chand. Site plan of the occurrence was also prepared by HC Sham Lal. The respondent was arrested and informed of the commission of offence punishable under the NDPS Act. Thereafter, Head Constable Sham Lal went to Police Station, Manali alongwith the accused and case property, which was handed over to SI Rup Singh for the purpose of re-sealing. Case property was resealed by SI Rup Singh and deposited in the Malkhana. Other requisite formalities as prescribed under the NDPS Act were also completed, besides sending the samples to CFSL, Chandigarh through Constable Mahender Pal. The said sample was not accepted as it was not sent in triplicate. The objection was removed and sample was re-deposited with CFSL, Chandigarh and as per the report received from the said Laboratory, the sample contained Charas. 4. It is also a matter of record that S.I. Rup Singh moved an application under Section 52-A of the Act on 07.02.2007 before learned Judicial Magistrate 1st Class, Manali, for taking representative sample. The bulk parcel of Charas as well as sample were produced before Judicial Magistrate 1st Class, Manali and thereafter the representative sample was prepared and sealed separately and a requisite certificate to this effect was issued by the Magistrate. The bulk parcel was apparently got destroyed as per the procedure. 5. After investigation, the Challan was presented and charges under Section 20 of the NDPS Act were framed and the respondent was put to trial. 6. In his statement under Section 313 of the Code of Criminal Procedure, the respondent claimed to be innocent and pleaded false implication, as no Charas was allegedly recovered from him and that he was apprehended while going to Fozal in connection with his personal work. 7. Before the learned Special Judge, two issues arose for consideration, namely:- (i) whether on 30.09.2006, the respondent was found in exclusive and conscious possession of 800 grams of Charas at Bhulang curve? (ii) whether the link evidence in the instant case is complete to connect the sample analyzed in the Laboratory with the recovered stuff? 8. 7. Before the learned Special Judge, two issues arose for consideration, namely:- (i) whether on 30.09.2006, the respondent was found in exclusive and conscious possession of 800 grams of Charas at Bhulang curve? (ii) whether the link evidence in the instant case is complete to connect the sample analyzed in the Laboratory with the recovered stuff? 8. Learned Special Judge answered Point No. 1 against the prosecution for the reasons that the star witness, namely, independent witness Ramesh Kumar (PW-7) did not support the prosecution case and was declared hostile. The other independent witness, namely, Bishan Chand, for the reasons best known to the prosecution, was given up and was not examined. The prosecution case rested on the statements of two remaining witnesses, namely, Ram Chand (Home Guard PW-8) and Head Constable Sham Lal (PW-10), which could not be relied upon for want of corroborative evidence. 9. Learned Special Judge found and rightly so that the testimony of Ram Chand (PW-8) was self contradictory on material particulars, especially with regard to the contents of search and seizure memo Ext. PU. While the search and seizure memo Ext. PU suggested that two samples of Charas, 25 grams each, were separated from the recovered Charas and were put in 'Gold Flake Packets' and sealed in separate parcels but the search memo did not indicate that remainder of the Charas was put back in the same recovered bag. Rather, it suggested that the remainder Charas weighing 750 grams had been sealed in a separate piece of cloth. It thus stood established that two samples of Charas 25 grams each, were separated from the recovered Charas and were put in Gold Flake packets, whereas the remainder of the Charas was not put in the same bag, rather it was sealed separately. 10. On the other hand, the story as revealed in the FIR or in Challan was to the effect that remainder of the Charas was put in 'same green coloured bag'. The Special Judge further found that PW-8 Ram Chand (Home Guard) had introduced a new story in respect to the sealing of the two samples or of the remainder of the Charas and thus his version was not inspiring confidence. Still further, the search and seizure memo Ext. PU did not suggest that Ram Chand (Home Guard) was present on the spot at the time of recovery of the incriminating article. Still further, the search and seizure memo Ext. PU did not suggest that Ram Chand (Home Guard) was present on the spot at the time of recovery of the incriminating article. The document Ext. PU did not contain, name, address and signature of Ram Chand (PW8). 11. As regards to the testimony of Head Constable Sham Lal, learned Special Judge found his version about conducting of proceedings on the spot lacking confidence, in view of the glaring inconsistencies in his testimony. Head Constable Sham Lal stated on oath that two samples of Charas 25 grams each, were separated from the recovered Charas and were sealed in separate parcels, but he did not say that same were put in 'Gold Flake Packets' or that the same were sealed in separate parcels. According to him, the remainder of Charas was put in the same bag and sealed in a separate parcel. He contradicted PW-8 Ram Chand with regard to the manner in which the remainder of the Charas was sealed in a cloth parcel. 12. It has also come in evidence that the case property was not produced before the Court, for on an application to the learned Judicial Magistrate 1st Class, Manali under Section 52-A of the NDPS Act for disposal of the seized narcotic drug, for the said application does not reveal that the bulk parcel bearing five seals with impression 'M' and three other seals with the impression of 'T' were ever produced before the Judicial Magistrate 1st Class, Manali. 13. 13. From the cumulative effect of the facts on record, it stands established that the prosecution has failed to bring the respondent's guilt to home beyond a reasonable doubt for the reasons that (i) the only independent witness examined by the prosecution, namely, Ramesh Kumar (PW7) has not supported the prosecution case and was declared hostile; (ii) Bishan Chand, the other independent witness, has not been produced and was given up by the prosecution for undisclosed reasons; (iii) there are material contradictions between the statement of PW8 (Ram Chand, Home Guard) vis-a-vis the statement of Head Constable Sham Lal (PW-10); (iv) the case property was not produced and relevant proceedings from the Court of JMIC, Manali, Re: destruction of case property were also not summoned; (v) there are contradictory versions with regard to the 'sealing process' of the remainder of Charas and/or getting it destroyed of under the orders of the competent Court. 14. In the light of these infirmities, learned Special Judge rightly concluded that the prosecution has failed to establish its case beyond shadow of doubt. Thus, no case to interfere with the judgment dated 19.12.2008, passed by learned Special Judge, Fast Track Court, Kullu, is made out. Accordingly, the instant appeal is dismissed, Pending miscellaneous applications, if any, also stand disposed of.