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2019 DIGILAW 1869 (HP)

Majeed v. State Of Himachal Pradesh

2019-12-06

ANOOP CHITKARA

body2019
JUDGMENT Anoop Chitkara, J. - Challenging the judgment of conviction dated 30.12.2016, passed in NDPS Act Sessions Trial Filing No.3245/2013 (Computer Regd. NDPS No.71/2013), titled as State of Himachal Pradesh vs. Majeed, whereby learned Special Judge-II, Chamba, District Chamba, H.P., has convicted the appellant-accused for possessing 650 grams of Charas, under the provisions of Section 20 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (after now called as ''the NDPS Act''), the convict has come up before this Court by filing this appeal. 2. The gist of facts apposite to adjudicate, and to arrive at a just conclusion, traces its origin to G.D. Entry No.59-A dated 12.11.2013, recorded at 11:10 p.m., in the Police Station, Sadar Chamba, District Chamba (Ex.PW7/R), wherein SHO Tilak Raj (PW5) noted that he had deputed a police party comprising of H.C. Pawan Kumar (PW-7), HHC Maan Singh (PW-3), HHC Gurmail Singh (not examined), C. Vinod Kumar (PW-2), Home Guard Amit Kumar (not examined), HHC Desh Raj (not examined), alongwith IO Kit, search light, arms and etc. to erect check posts at places known as Pukhri, Koti and Kandala etc. 3. On reaching Kotipul, the police party erected a check post near Shiv Mandir adjacent to a bridge on Chamera river. At around 3:40 a.m., on 13.11.2013, the police party noticed one person walking on the bridge and coming towards Chamba. The moment this person noticed the presence of police party, he became perplexed, turned back and started to run away. This arose suspension in the mind of HC Pawan Kumar (PW-7). The police party apprehended the said person just a few steps away. On inquiry, the person revealed his name as Majeed, resident of Chamba, aged about 23 years, the appellant herein. 4. Investigating Officer, HC Pawan Kumar (PW-7) informed that he is in possession of some narcotic drugs or psychotropic substance and, as such, he wants to conduct his personal search. He further informed him that he has a legal right under Section 50 of the NDPS Act to get himself searched in the presence of some Magistrate or a gazetted officer. To this effect, the Investigating Officer (PW-7) Pawan Kumar filled in a printed performa (Ex.PW3/A). As per the contents of this performa, the accused opted that the police party may search him. The accused also put his signature on the consent memo (Ex.PW3/A) at Mark ''B''. 5. To this effect, the Investigating Officer (PW-7) Pawan Kumar filled in a printed performa (Ex.PW3/A). As per the contents of this performa, the accused opted that the police party may search him. The accused also put his signature on the consent memo (Ex.PW3/A) at Mark ''B''. 5. Thereupon, the police party offered their personal search to the accused. After this, the police conducted search of the body of Majeed. He was wearing jacket and from inside that, the police recovered a carry bag. On opening this bag, the police noticed another polythene bag and inside this polythene, police noticed presence of black coloured sticks. After smelling the same and on the basis of experience, the police party prima facie deducted these sticks to be the Charas. 6. The police party took out electronic weighing machine from the Investigating Officer Kit and on weighing the contraband, it was found to be 650 Grams. After this, the Charas was placed back in the same manner as it was taken out. The main bag was placed in a cloth parcel which was sealed by affixing six seals of impression "A". The Investigating Officer also obtained specimen impression of seal "A" on a cloth piece. He also filled in NCB form (Ex.PW5/C), and affixed the seal on three copies of NCB form. After use, the Investigating Officer, handed over the seal to H.C. Maan Singh (PW3). Subsequent to this, the Investigating Officer prepared the search memo (Ex.PW3/D). The police took signatures of accused on the seizure memo, and prepared one Rukka (Ex.PW6/A). The Investigating Officer forwarded this Rukka to the Police Station through C. Vinod Kumar (PW-2) for registration of the FIR. 7. On the spot, the Investigating Officer, HC Pawan Kumar (PW-7) conducted the search. He took photographs, prepared spot map (Ex.PW7/B), recorded statements of witnesses under Section 161 of the Code of Criminal Procedure, and completed other procedural requirements. The Investigating Officer also arrested the accused. 8. 7. On the spot, the Investigating Officer, HC Pawan Kumar (PW-7) conducted the search. He took photographs, prepared spot map (Ex.PW7/B), recorded statements of witnesses under Section 161 of the Code of Criminal Procedure, and completed other procedural requirements. The Investigating Officer also arrested the accused. 8. On receipt of Rukka (Ex.PW6/A) in the Police Station, SHO Tilak Raj (PW-5), registered FIR No.252/2013, dated 13.11.2013 (Ex.PW5/A), for the commission of offence punishable under Section 20 of the NDPS Act, in the file of Police Station, Sadar Chamba, District Chamba, H.P. The Investigating Officer reached the Police Station alongwith accused and the case property, and handed over the same in the custody of SHO Tilak Raj (PW-5); who re-sealed the case property with three seals of impression "O", and deposited the same with MHC Neeraj Kumar. The police also recorded G.D. Entry No.12- A (Ex.PW5/D) to this effect. On the same day, i.e. 13.11.2013, MHC Neeraj Kumar (PW-1) sent the case property for chemical analysis, through HHC Krishan Lal (PW-4), vide RC No.243/2013 (Ex.PW1/D). 9. Hhc Krishan Lal deposited the case property in FSL, Junga, on 14.11.2013. After receipt of the report of the Chemical Examiner (Ex.PX), which declared the substance as Charas with resin quantity of 13.69% w/w, the SHO prepared the police report, under Section 173 of the Code of Criminal Procedure, and filed it before the Special Judge, Chamba, seeking prosecution of the accused. 10. Vide order dated 24.3.2014, learned Special Judge, framed charge under Section 20 of the NDPS Act against accused Majeed for possessing 650 grams of Charas. The accused did not plead guilty and claimed trial. After recording of the prosecution evidence, the Court put incriminating circumstances to the accused under Section 313 of the Code of Criminal Procedure, to which he denied all the circumstances and in answer to question No.24, claimed innocence, and stated to be falsely implicated. However, he did not lead any evidence in defence. 11. Vide judgment dated 30.12.2016, passed in NDPS Act Sessions Trial No.71/2013, learned Special Judge-II, Chamba, held the accused guilty, and sentenced him to undergo rigorous imprisonment for a term of six years, and to pay a fine of Rs.10,000/-. In default of payment of fine to undergo further simple imprisonment for one year under Section 20 of the NDPS Act. 12. In default of payment of fine to undergo further simple imprisonment for one year under Section 20 of the NDPS Act. 12. Challenging the conviction and sentence, the convict has come up before this Court, by fining the present criminal appeal. 13. I have heard Shri N.K. Thakur, learned Senior Advocate alongwith Shri Karanveer Singh Thakur, on behalf of the appellant and Shri Narender Guleria and Shri Nand Lal Thakur, learned Additional Advocates General, for the respondent/ State, and have also waded through the entire record. DISCUSSIONS AND REASONINGS 14. Shri N.K. Thakur, learned Senior Advocate, ably assisted by Mr. Karanveer Singh Thakur, learned Advocate, submits that there are material contradictions and discrepancies in the statements of the witnesses. The independent witnesses were not associated though they were available and there is non-compliance of Section 50 of the NDPS Act. DISCUSSIONS ON S. 50 OF NDPS ACT: 15. In this case, since the accused was allegedly carrying the bag containing charas in his hands, as such, the search was not from his person. The law to the said effect is well settled in the pronouncements of larger benches of the Supreme Court. A threemember bench of Supreme Court in State of Himachal Pradesh v. Pawan Kumar, (2005) 4 SCC 350 , has extensively dealt with this aspect, and the law is no more res Integra. 16. Another three Judges Bench of Supreme Court, in S K Raju @ Abdul Haque @ Jagga v. State of West Bengal, (2018) 9 SCC 708 , holds:- 2. The facts of the case are as follows. On 15 November 2011, Sub-Inspector Prasanta Kr. Das, Narcotics Cell, DD (PW-2) received information that a drug dealer would be in the vicinity of Tiljala Falguni Club, 138B/1, Picnic Garden Road, near Tiljala Police Station to supply narcotic drugs in the afternoon. PW-2 sought permission from the Assistant Commissioner of Police, Anti-Narcotics Department, DD to organize a raid (Exhibit-2). Permission was granted by the superior officer on the same day and a raiding team consisting of PW-2 and others reached the spot at about 12.50 pm. At around 1.40 pm, the source of the information pointed out to the appellant who was coming along Picnic Garden Road. The appellant was intercepted and detained immediately by the raiding party in front of Falguni Club. At around 1.40 pm, the source of the information pointed out to the appellant who was coming along Picnic Garden Road. The appellant was intercepted and detained immediately by the raiding party in front of Falguni Club. The appellant was informed about the reasons for his detention and the identities of the raiding party were disclosed to him. Subsequently, the appellant also disclosed his identity to the raiding party. PW-5 was one of the two independent witnesses who agreed to be a witness to this search. The appellant was informed about his legal right to be searched either in the presence of a magistrate or a gazetted officer (Exhibit-3). The appellant opted for being searched by a gazetted officer. A gazetted officer, Inspector Joysurja Mukherjee ("PW-4"), arrived on the scene at about 3.20 pm. He provided the appellant with a "second option". The appellant was asked by PW-4 whether he wished to be searched in the presence of a gazetted officer or a magistrate (Exhibit-4). Once again, the appellant consented to be searched in the presence of a gazetted officer. PW-4 then inquired of the appellant whether he wanted to search PW-2 before the latter would carry out his search. The appellant agreed to search PW-2 before his own search was carried out by PW-2. No narcotic substance was recovered from the person of PW-2. PW-2 recovered nineteen "deep brown/blackish broken rectangular sheets" from a black polythene packet which was inside a biscuit colour jute bag, which the appellant was carrying in his right hand. The sheets were tested by PW-2 on the spot with the help of a test kit. The substance was found to be charas. The substance was also weighed using a weighing scale. The appellant was found to be in possession of 1.5 kilograms of charas. 11. As evidenced by Exhibit-3, a first option was given to the appellant. PW-2 informed him that it was his legal right to be searched either in the presence of a magistrate or in the presence of a gazetted officer. The appellant was then asked to give his option by indicating whether he wanted to be searched by a magistrate or a gazetted officer. The appellant indicated that he wanted the search to be carried out in the presence of a gazetted officer. When PW-4 arrived, he was introduced to the detainee as a gazetted officer. The appellant was then asked to give his option by indicating whether he wanted to be searched by a magistrate or a gazetted officer. The appellant indicated that he wanted the search to be carried out in the presence of a gazetted officer. When PW-4 arrived, he was introduced to the detainee as a gazetted officer. As evidenced by Exhibit-4, PW-4 then gave the appellant a second option. He inquired of him again, whether he wanted to be searched in the presence of a gazetted officer or in the presence of a magistrate. The appellant reiterated his desire to be searched in the presence of a gazetted officer. Before the search of the appellant commenced, the gazetted officer asked the appellant whether he wanted to search PW-2 before his own search was carried out by PW-2. The appellant agreed to search PW-2 before the latter carried out his search. On conducting the search, only personal belongings of PW-2 were found by the appellant. On the search of the appellant in the presence of the gazetted officer, a biscuit colour jute bag was recovered from the appellant, and L 2,400/- cash in the denomination of 24 notes of L 100/- each was found in the left pocket of the appellant''s trouser. When the bag was opened, a black polythene cover containing nineteen rectangular broken sheets of a blackish/deep brown colour weighing 1.5 kilograms was recovered. The sheets were tested and were found to be charas. PW-2 conducted a search of the bag of the appellant as well as of the appellant''s trousers. Therefore, the search conducted by PW-2 was not only of the bag which the appellant was carrying, but also of the appellant''s person. Since the search of the person of the appellant was also involved, Section 50 would be attracted in this case. Accordingly, PW-2 was required to comply with the requirements of Section 50(1). As soon as the search of a person takes place, the requirement of mandatory compliance with Section 50 is attracted, irrespective of whether contraband is recovered from the person of the detainee or not. It was, therefore, imperative for PW-2 to inform the appellant of his legal right to be searched in the presence of either a gazetted officer or a magistrate. It was, therefore, imperative for PW-2 to inform the appellant of his legal right to be searched in the presence of either a gazetted officer or a magistrate. From Exhibit-3, it can be discerned that the appellant was informed of his legal right to be searched in the presence of a magistrate or a gazetted officer. The appellant opted for the latter alternative. Exhibit-4 is a record of the events after the arrival of PW-4 on the scene. After the arrival of PW-4, the appellant was once again asked by him, whether he wished to be searched in the presence of a gazetted officer or a magistrate. This was the second option which was presented to him. When he reiterated his desire to be searched before a gazetted officer, PW-4 inquired of the appellant whether he wished to search PW-2 before his own search was conducted by PW-2. The appellant agreed to search PW-2. Only the personal belongings of PW-2 were found by the appellant. It was only after this that a search of the appellant was conducted and charas recovered. Before the appellant''s search was conducted, both PW-2 and PW-4 on different occasions apprised the appellant of his legal right to be searched either in the presence of a gazetted officer or a magistrate. The options given by both PW-2 and PW-4 were unambiguous. Merely because the appellant was given an option of searching PW-2 before the latter conducted his search, would not vitiate the search. In Parmanand, in addition to the option of being searched by the gazetted officer or the magistrate, the detainee was given a ''third'' alternative by the empowered officer which was to be searched by an officer who was a part of the raiding team. This was found to be contrary to the intent of Section 50(1). The option given to the appellant of searching PW-2 in the case at hand, before the latter searched the appellant, did not vitiate the process in which a search of the appellant was conducted. The search of the appellant was as a matter of fact conducted in the presence of PW-4, a gazetted officer, in consonance with the voluntary communication made by the appellant to both PW-2 and PW-4. There was strict compliance with the requirements of Section 50(1) as stipulated by this Court in Vijaysinh. The search of the appellant was as a matter of fact conducted in the presence of PW-4, a gazetted officer, in consonance with the voluntary communication made by the appellant to both PW-2 and PW-4. There was strict compliance with the requirements of Section 50(1) as stipulated by this Court in Vijaysinh. Since Section 50 did not attract in the facts of the present case, there is no need to discuss the legality of the memo, Ext PB, which relates to its compliance." DISCUSSIONS ON CONTRADICTIONS: 17. Regarding contradictions, learned Senior Counsel, submits that as per the versions of PW-2 (Vinod Kumar), he had received the Rukka from PW-7, HC Pawan Kumar at 3:40 a.m. This is in total contradiction to the time mentioned in Rukka (Ex.PW6/A), as 4:35 a.m. The answer to this submission lies in the fact that the police had prepared this Rukka on 13.11.2013, whereas PW-2 testified in the Court on 7.10.2014, i.e. after a gap of around 11 months. This contradiction gets explained by the statement of PW-3 (Maan Singh), who stated in his cross-examination that PW-2 ( C. Vinod Kumar) had left the spot at 5:15 a.m. Even otherwise, this contradiction is inconsequent unless it demolishes the presence of police party on the spot, or contradicts the search of the accused, or recovery of contraband from him. Therefore, this contention fails. 18. According to learned Senior Advocate, there is another contradiction regarding the time of leaving the spot with Rukka. As per the testimony of PW-7 (Pawan Kumar), Rukka was carried out by Vinod Kumar and he left the spot at 5:00 a.m. As explained that the time is 4:45 a.m. and certainly after 15-20 minutes, he would have left, as such, it is not a contradiction. 19. As per the learned Senior advocate, the next contradiction is in the statement of PW-2 (C. Vinod Kumar), when he stated that it took him 20-25 minutes to reach the Police Station, Chamba, whereas PW-1 (HC Neeraj Kumar) as well as PW-7 (Pawan Kumar) stated that they had reached the Police Station at 8:15 a.m. To answer this contention, the fact is that the distance from the spot to the Police Station is 28 Kilometers as is mentioned in Rukka (Ex.PW6/A)) itself. In the cross-examination, PW-2 (Vinod Kumar) explained that he had taken lift upto the Police Station, Chamba. In the cross-examination, PW-2 (Vinod Kumar) explained that he had taken lift upto the Police Station, Chamba. In the morning hours, the traffic is less, and it is not impossible to cover the distance of 28 Kilometers within a span of 20-25 minutes. Even otherwise, this time is tentative and not exact. Needless to say PW-2, told about the time after 11 months of the incident. As such, the possibility of some assumptions crippling in, and guesswork substituting the truth, would always be there. Thus, this anomaly is neither a contradiction nor a discrepancy. 20. According to learned Senior Advocate, the next contradiction is that as per PW-3 (Maan Singh), the Police had recorded his statement under Section 161 of the Code of Criminal Procedure at Police Station, Chamba, whereas PW-7 (IO Pawan Kumar), he had recorded the statement of HHC Maan Singh (PW-3) in the Police Post. Even if that being so, such statement was recorded after the seizure and sampling. It would hardly dent the case of the prosecution. 21. According to the learned Senior Advocate, another contraction is the time of the arrest of the accused. He submits that as per the testimony of PW-3 (Maan Singh), the police had arrested him at 4:30 a.m., whereas as per the documents, the time of arrest is shown as 5:45 a.m. Admittedly, the police arrested the accused after search and seizure. The purpose of mentioning the time of arrest is to rule out the third degree investigation. In this case, it won''t, because it is not the case of the accused in statement under Section 313 of the Code of Criminal Procedure that the Police beaten him. Thus, even this contention fails to dent the evidence. 22. The Counsel further pointed out that PW-7 (IO), mentioned in his testimony that the bag was only of having two colours, wheres the bag was multi coloured. The description of the bag finds mention in initial seizure memo (Ex.PW3/D). The bag is green coloured with blue, yellow and red prints on it. What Mr. N.K. Thakur, learned Senior Advocate, wants to point out is that when Investigating Officer, PW-7 appeared in Court, he testified that on the search of the accused, he recovered a blue and yellow coloured carry bag. The bag is green coloured with blue, yellow and red prints on it. What Mr. N.K. Thakur, learned Senior Advocate, wants to point out is that when Investigating Officer, PW-7 appeared in Court, he testified that on the search of the accused, he recovered a blue and yellow coloured carry bag. To clarify this position, it would be appropriate to refer to the statement of PW-3 (Maan Singh) during whose testimony, the prosecution produced the case property in the Court. As per the observation of the trial Court, after opening the sealed parcels, which contained six impressions of seal "A", three impressions of seal "O", and four impressions of FSL, there was a bag inside it, which was of red, blue and green colour. Admittedly, the Court did not notice the yellow colour in the bag, but even as per the seizure memo, this bag has imprints of green, blue, yellow and red colour. The bag had English words "Mohsen" printed on it. Now, in cross-examination, the defence never disputed this. Therefore, the argument that the bag was changed after seizure, and that is why there is a contradiction in the colours, is devoid of any merits. Although, initial burden is always on the prosecution to prove its case, but once the prosecution discharged its initial burden, then the burden shifts upon the defence to dispute it by resorting to cross-examination, which was missing in this case. NON ASSOCIATION OF INDEPENDENT WITNESSES: 23. Mr. N.K. Thakur, learned Senior Advocate, further submits that although the independent witnesses could have been easily associated, but they were not intentionally associated. To answer this contention, undoubtedly, the law is no more res-integra that when independent witnesses are available, then their non-examination creates serious dent about the time and place of search and seizure. 24. In the present case, PW-3 (Maan Singh) told in the crossexamination that at a distance of 400-500 meters, there was a switch yard of Electricity Board, where guards are employed 24 hours and still they were not associated. He also admitted that there is a house of one Dr. Kailash, which is at a distance of 1 Kilometer from the spot. PW-3 further stated that there is a temple (Shiv Mandir) on the spot and he explained that the police party did not check the said temple. He also admitted that there is a house of one Dr. Kailash, which is at a distance of 1 Kilometer from the spot. PW-3 further stated that there is a temple (Shiv Mandir) on the spot and he explained that the police party did not check the said temple. The Investigating Officer (PW-7) contradicts the version by stating that at that time the temple was under lock and key. Thus, the stand taken by the Investigating Officer is contradicted by the other police official namely Maan Singh (PW-3) who specifically stated that the police never searched for Shiv Mandir. 25. I.O. (PW-7) also stated that there is an Animal Husbandry Hospital nearby and he was not aware that there was a Chowkidar deployed there. I.O. admitted that on the spot, they were used to ply on the road, and they did not try to associate any independent witnesses because they did not want to disturb any person. 26. Admittedly, the time of search as per the police was 3:40 a.m., on 13.11.2013. It is also the case of the prosecution that they had prepared the Rukka at 4:35 a.m., and the Rukka was sent through PW-2 at around 5:00 a.m. The Investigating Officer further admits that he reached the Police Station at 8:15 a.m., whereas the distance was 28 Kilometers, and they had a vehicle. It means that the police party would have left the spot at around 7:30 to 7:35 a.m. Thus, even if initially the prosecution did not associate any witness, but the police party could have waited for the day to break, and at least they should have associated some witness to prove the presence of the accused and Charas on the spot, on a particular date and time. 27. The Supreme Court in Krishan Chand vs. State of Himachal Pradesh, (2018) 1 SCC 222 , holds as under:- "21. From the evidence which has come on record, it is quite clear that the place, where the accused is alleged to have been apprehended, cannot be said to be an isolated one as the house of Govind Singh DW-2 is situated on the edge of Patarna Bridge. Thus the version of the complainant PW-6 that independent witnesses could not be associated as it was an isolated place does not inspire confidence. Thus the version of the complainant PW-6 that independent witnesses could not be associated as it was an isolated place does not inspire confidence. Moreover, from the evidence of Govind Singh PW-2 the case of the prosecution regarding apprehension of the accused, at Patarna bridge, while being in possession of bag containing 7 kgs of charas, becomes highly doubtful because had he been so apprehended, by the police, this fact was to come to his notice, for the reason, that his house is situated at the edge of the bridge in which he resides, along with his family." 28. Learned Senior Advocate placed great reliance upon the fact that although the police party had reached the spot in an official vehicle, still the police party did not tender in evidence, the log book of the vehicle to prove the departure of the police, the time and place, as alleged. Undoubtedly, the police was under obligation to place on record the log book, which the police did not. The act of non-placing of the log book on record, is to be seen in the light of other evidence available on the record. In isolation, merely because the prosecution did not tender in evidence the log book and its extracts, this omission alone is hardly sufficient to throw away the entire case of the prosecution. 29. In the present case, the absence of log-book, to prove traveling and non-association of non police witnesses, to prove the presence of police, accused and Charas at the spot, on the date and time, as claimed, is not established. 30. In view of the aforesaid discussions and evaluation of the evidence, the prosecution has failed to prove that the evidence produced by the prosecution is not irrefutable and is not proved beyond reasonable doubt. Resultantly, the appeal is allowed. Impugned judgment dated 30.12.2016, passed in NDPS Act Sessions Trial Filing No.3245/2013 (Computer Regd. NDPS No.71/2013), titled as State of Himachal Pradesh vs. Majeed, is set aside and appellant is acquitted of all the charges. The appellant shall be released only after he furnishes the bail bonds in terms of Section 437-A of the Code of Criminal Procedure. All pending application(s), if any, also stand disposed of.