Research › Search › Judgment

Uttarakhand High Court · body

2020 DIGILAW 443 (UTT)

Beenu @ Vinesh v. State Of Uttaranchal

2020-11-06

N.S.DHANIK

body2020
JUDGMENT N. S. Dhanik, J. - This appeal is directed against the judgment and order dated 20.11.2006, passed by the Special Judge, Uttarkashi in Special Sessions Trial No. 2/2006, whereby the appellant has been held guilty for the offence under Section 8 read with Section 20(b)(ii)(C) of The Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'the Act') and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of rupees one lakh. 2. In brief, the prosecution case is that on 23.10.2005, the SO, PS Purola Virendra Singh along with SI Man Singh Rawat, Constable Tikam Singh, Constable Pradeep Sing and Constable Driver Prem Singh Negi were busy in checking of vehicles at Police Chowki Damta. Meanwhile, information was received from the informant that about 200 metres ahead towards Purola on the road leading to village Dhuik, a person is carrying illegal charas. On this information, the police party reached at the spot and after using necessary force, caught that person at about 5 PM on that day. He disclosed his name as Beenu @ Vinesh. He was apprised of his right that he can give his search before a Gazetted Officer or a Magistrate, but the suspect chose to be searched by the police party itself. On the search, two kilograms charas was recovered from the bag which he was hanging on his left shoulder. The illegal charas was kept in a white polythene, which was kept in a blue polythene in that bag. Sample was taken out from the recovered charas and these were sealed along with the seal. Recovery memo was prepared at the spot by SI Man Singh on the dictation of SO Virendra Singh. On the basis of the recovery memo, case was registered against the accused appellant and necessary entries were made in the G.D. Investigation of the case was done by SO Sanjay Singh Garbiyal, who after completion of the investigation submitted the chargesheet against the accused appellant. 3. On the basis of the recovery memo, case was registered against the accused appellant and necessary entries were made in the G.D. Investigation of the case was done by SO Sanjay Singh Garbiyal, who after completion of the investigation submitted the chargesheet against the accused appellant. 3. To prove its case, the prosecution examined PW1 SO Virendra Singh, who was leading the police party; PW2 Constable Atar Singh, who was the member of the police party and who allegedly brought the balance and weights to weigh the illegal charas; PW3 SO Sanjay Singh Garbiyal, who investigated the case and submitted the chargesheet; PW4 Head Constable Dhanram Sharma, who registered the case and prepared the Chick FIR; and PW5 Constable Mohan Chand, who carried the sample of illegal charas to FSL, Agra and brought it back when the same was not accepted by the laboratory as the seal of the police station on the same was not affixed. 4. Thereafter statement of the appellant/accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to him in question form, who denied the allegations made against him and stated that he has falsely been implicated in this case. 5. After appreciating the evidence and after hearing learned Counsel for the parties, learned Special Judge convicted and sentenced the accused appellant, as stated hereinabove. 6. Pw1 SO Virendra Singh, in his deposition, narrated the incident as mentioned in the recovery memo. He stated that on 23.10.2005, he along with other members of the police party, was checking the vehicles at Police Chowki Damta. Meanwhile, he received the information from the informant that a person, standing about 200 metres ahead towards Purola-Dhuik Road, was carrying illegal charas. Thereafter the police party arrived at the spot and after using the necessary force, arrested and interrogated him. He was apprised that he can be searched before any Gazetted Officer or the Magistrate, but he asked the police party to conduct his search. Two kilograms charas were recovered from the possession of the appellant. The accused appellant was carrying the illegal charas in a white polythene, which was again kept inside a blue polythene and this polythene was kept in a bag, which was hanging on the right shoulder of the accused appellant. Two kilograms charas were recovered from the possession of the appellant. The accused appellant was carrying the illegal charas in a white polythene, which was again kept inside a blue polythene and this polythene was kept in a bag, which was hanging on the right shoulder of the accused appellant. Sample of 50 grams was prepared out of the recovered contraband and all these packets were sealed along with the seal and the recovery memo was prepared at the spot and a copy of the same was given to the accused appellant. He has also stated that in the personal search of the accused, a mobile phone and some money were also recovered from the possession of the accused appellant. After informing the higher officers, the accused and the case property were brought to the police station and case was registered. In the cross-examination, this witness has admitted that in the recovery memo, he did not mention about the mobile phone and the money found during the personal search of the accused appellant. He also admitted that the bag in which the polythene containing charas was kept was not taken into possession. He has further stated in his cross-examination that he along with the case property and the accused came straight to the Police Station Purola and arrived there at 9-10 o'clock in the evening. 7. Pw2 is Constable Atar Singh, who was the member of the police party. In examination-in-chief, he has narrated the same thing as is written in the recovery memo. However, the bag was hanging on the left shoulder of the accused appellant. In his cross-examination, he has admitted that Station Officer, PS Purola along with two constables and a driver had arrived at about 12 o'clock at the Police Chowki Damta for checking of vehicles, but he had not issued any challan on that day. This witness has also stated that he had not departed from the Police Station Purola, rather he and SI Man Singh were asked to accompany the police party at the Police Chowki Damta, where he was posted. In his chief examination, this witness has stated that the colour of the bag was kaththai (brown), but in his cross, he has stated that its colour was slaty (grey). After the recovery, he returned to the Police Chowki Damta and others went to the Police Station Purola. In his chief examination, this witness has stated that the colour of the bag was kaththai (brown), but in his cross, he has stated that its colour was slaty (grey). After the recovery, he returned to the Police Chowki Damta and others went to the Police Station Purola. This witness has also stated that Damta is a Reporting Police Chowki, but the FIR was not registered there. 8. Pw3 is SO Sanjay Singh Garbiyal, who conducted the investigation of the case. He has stated that he recorded the statements of the witnesses, inspected the place of occurrence, sent the sample of illegal charas to the FSL, Dehradun and after completion of the investigation, submitted the chargesheet against the accused appellant. In his cross-examination, he has admitted that he did not weight the sample of illegal charas prior to sending it for the chemical analysis. 9. Pw4 is Head Constable Dhanram Sharma, who has stated that on the basis of the recovery memo, he had registered the case crime and made the necessary entries in the G.D. On 13.12.2005, the sample was sent through Constable Mohan Chand to the FSL, Agra, but the sample was returned by the FSL as the sample of seal of the police station was not affixed on it. Thereafter on 7.1.2006, the sample was sent to the FSL, Dehradun. In his cross- examination, he has admitted that neither any bag nor any recovery memo was recovered from the possession of the accused appellant when he was brought in the police station. This witness has admitted that there is overwriting on the G.D. (Ex. Ka-13) pertaining to the deposit of case property. 10. Pw5 is Constable Mohan Chand, who had carried the sample of alleged charas to the FSL, Agra on 13.12.2005. This witness has stated that the FSL, Agra returned the sample stating that the same does not contain the seal of the police station and thereafter he came back and deposited the sample in the PS Purola on 19.12.2005. 11. Learned Counsel for the appellant/accused argued that appellant has been falsely implicated in this case and no recovery was made from his possession. Learned Counsel further contended that the compliance of necessary and mandatory provisions of Sections 41, 42 and 50 of the Act have not been made in the present case. 11. Learned Counsel for the appellant/accused argued that appellant has been falsely implicated in this case and no recovery was made from his possession. Learned Counsel further contended that the compliance of necessary and mandatory provisions of Sections 41, 42 and 50 of the Act have not been made in the present case. Learned Counsel for the appellant argued that there is contradiction as to whether the alleged contraband was kept in one bag or two bags and whether the bag in which the polythene containing the alleged contraband was kept was slaty or kaththai in colour. Learned Counsel further contended that as per the prosecution story, the bag was returned to the accused but it has come in the evidence that when the accused was brought in the police station, no bag was recovered from him. The same is the position with regard to the copy of recovery memo, allegedly given to the accused. Learned Counsel for the appellant also contended that link evidence regarding the safe custody of the case property and carrying the sample of contraband to the FSL is missing. Learned Counsel for the appellant also contended that alleged recovery was made near the Police Chowki Damta, which happens to be a reporting police chowki, but the report was not lodged there and the same was lodged in the PS Purola, which happens to be situated at the distance of nearly 50 kilometres from the place of occurrence. Learned Counsel for the appellant also contended that as per the evidence, the police party returned to the police station at 9-10 PM, but the FIR is shown to have been registered at 7 PM, which creates serious doubt in the prosecution story. 12. Learned Counsel for the appellant placed reliance on the verdicts of the Hon'ble Apex Court rendered in the case of State of Rajasthan v. Parmanand & Anr., (2014) 5 SCC 345 , and in Sarju @ Ramu v. State of U. P., (2010) 2 SCC(Cri) 1510 . 13. Learned State Counsel argued that the prosecution has successfully proved its case by adducing credible and sufficient evidence and there is no illegality in the impugned judgment and order. 13. Learned State Counsel argued that the prosecution has successfully proved its case by adducing credible and sufficient evidence and there is no illegality in the impugned judgment and order. Learned State Counsel further argued that compliance of Section 50 of the Act was not necessary in the present case as the recovery was made from the bag and not from the personal search of the accused appellant even though the personal search was conducted. Learned State Counsel argued that there are some minor discrepancies regarding colour of the bag, etc. Learned State Counsel placed reliance on the judgments of the Hon'ble Apex Court rendered in State of Punjab v. Balinder Singh & Another, (2019) 10 SCC 473 , and Ravindran alias John, (2007) 6 SCC 410 . 14. Having heard the rival submissions and on perusing the evidence on record, I am of the view that the prosecution has not conclusively proved its case against the appellant/accused for the following reasons: (i) That the prosecution has not produced the evidence to prove that the recovered contraband was kept intact in the malkhana from the alleged date of its recovery and link evidence to prove the same is missing. (ii) That the personal search of the appellant was not conducted before a Magistrate or any Gazetted Officer. There is no consent letter of the accused appellant to conduct his personal search by the police party itself. (iii) That it has come in the evidence that the place of occurrence is a busy area, yet there is no independent witness of the alleged recovery. (iv) That there is no evidence on record to prove that the information was given to the higher officers forthwith or within a very short time after the alleged incident. (v) That as per the statement of PW5 Constable Mohan Chand, he received the sample on 13.12.2005 and deposited it back in the police station on 19.12.2005. However, no evidence has been produced to show that during this period the sample was kept intact and no tampering was done with it, which creates serious doubt in the prosecution (vi) That the person who subsequently carried the sample to FSL, Dehradun has not been examined before the trial court. However, no evidence has been produced to show that during this period the sample was kept intact and no tampering was done with it, which creates serious doubt in the prosecution (vi) That the person who subsequently carried the sample to FSL, Dehradun has not been examined before the trial court. (vii) That the alleged recovery was made near the Police Chowki Damta, which is a reporting police chowki, but the report was not lodged there and the same was lodged in the PS Purola which is situated at the distance of nearly 50 kilometres from the place of occurrence. (viii) That it has come in the evidence that the police party returned to the police station at 9-10 PM, but the FIR is shown to have been registered at 7 PM, which creates serious doubt in the prosecution story. (ix) That there is no evidence on the point as to from where and from whom, the balance was procured. (x) That it is the admitted case of the prosecution that a mobile phone and some money was recovered from the personal search of the accused appellant but the details of the same have not been mentioned in the recovery memo nor the same could be found in the possession of the accused appellant in the police station. (xi) Personal search of the accused was conducted, but the compliance of necessary and mandatory provisions of the Act in this regard were not made. (xii) PW2 Constable Atar Singh has stated that had not departed with the police party on the date of occurrence and he accompanied the police party from the Police Chowki Damta on the instructions of PW1 Station Officer Virenda Singh, who was leading the police party. 15. In the case of Arif Khan @ Agha Khan, (2018) 4 Supreme 492 , the personal search of the accused was not conducted in the presence of any Magistrate or a Gazetted officer and the Hon'ble Apex Court observed that in order to make the search and recovery of the contraband articles from the body of the suspect, the search and recovery has to be in conformity with the requirements of Section 50 of the Act. 16. So far as the authorities relied upon by the learned State Counsel, the same are not attracted in the present case. 16. So far as the authorities relied upon by the learned State Counsel, the same are not attracted in the present case. In State of Punjab v. Balinder Singh, the contraband was recovered from the vehicle and the Hon'ble Apex Court held that the mandate of Section 50 of the Act is confined to "personal search" and not to search of vehicle or container or premises. In case of Ravindran alias John, the Hon'ble Apex Court held that non-examination of independent witness to search is not fatal to prosecution case, but where such witness is not examined in the course of trial, the evidence of the official witnesses may be approached with suspicion and corroboration may be insisted upon. 17. In view of my foregoing discussion, it is evident that there are a number of discrepancies in the statements of official witnesses and considering the circumstances in which the alleged recovery is shown to have been made, the non-examination of independent witness is also fatal to the prosecution case and if a cumulative view of the entire scenario is taken, it must be held that the case of the prosecution is lacking in credibility. 18. Consequently, the appeal is allowed. Impugned judgment and order is set aside. Conviction and sentence imposed on the appellant is quashed. Appellant is on bail. He need not surrender unless wanted in connection with any other case. 19. Let a copy of this judgment, along with LCR, be sent to the Court below. Trial court to also ensure compliance of Section 437-A of the CrPC.