Research › Search › Judgment

Uttarakhand High Court · body

2020 DIGILAW 545 (UTT)

Khim Giri @ Khushal v. State Of Uttaranchal

2020-12-08

N.S.DHANIK

body2020
JUDGMENT N.S. Dhanik, J. - This appeal is directed against the judgment and order dated 7.4.2007, passed by the Special Judge, Almora in Special Sessions Trial No. 16/2005, whereby the appellant has been held guilty for the offence under Section 8 read with Section 20 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'the Act') and sentenced him 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 26.7.2005, SHO Ganga Singh along with Constable Subhash Chandra Pant, Ram Singh and driver Dan Singh departed from the police station for searching intoxicating substances and were on the way to village Bhatkot. When they reached near Laxmi Hotel, they found two persons going on the road towards Hanuman Mandir Block having bags on their heads. Thereafter the police patrolling party immediately apprehended after chasing them at about 14.50 hours on 26.7.2005. The appellant was informed of his right of being searched before a Gazetted Officer or a Magistrate, but he declined the offer. SHO Ganga Singh took his search in presence of Head Constable Kalyan Ram. The appellant was found carrying 20 kg ganja in a plastic bag, whereas the co-accused was found carrying 25 kg ganja in a bag. The contraband was seized. Two samples of 500 grams ganja each were prepared at the spot and remaining ganja was kept intact in the bags. Thereafter the accused persons were arrested and they along with the recovered contraband were brought to the police station, where the FIR was registered. After completing the investigation, the police submitted the chargesheet against the accused persons. 3. To prove its case, the prosecution examined SHO Ganga Singh as PW1, Sub Inspector Kalyan Ram as PW2 and the Investigation Officer S.O. Kunwar Singh Rawat as PW3. 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. In defence, accused appellant got examined Madan Singh as DW1. 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. In defence, accused appellant got examined Madan Singh as DW1. 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. (Here, it would be pertinent to mention that the co-accused was also convicted by the trial court in a separate trial (Special S.T. No. 15/2005) and the appeal preferred by the co-accused against the said conviction was allowed by this Court vide judgment and order dated 28.3.2008 and the co-accused was acquitted.) 6. Having heard learned Counsel for the parties and on perusal of the evidence on record, I find that there are many flaws in the prosecution evidence and the recovery itself is doubtful and the manner in which the entire proceedings have been conducted by the prosecution creates serious doubt on the prosecution story. 7. Pw1 SHO Ganga Singh, who was leading the police party on the date of alleged incident, has reiterated the averments made in the recovery memo. In his examination-in-chief, he has deposed that on 26.7.2005 he along with Constable Ram Singh and Subhas Pant departed from the PS Dwarahat at 12.20 PM vide G.D. Rapat No. 14 on duty of raiding and searching the narcotic substances. In the way, this witness took along HCP Kalyan Ram and went towards the place of occurrence where the recovery of the alleged contraband was made from the accused appellant in the manner as stated in the recovery memo. In the cross-examination, this witness has admitted that copy of the G.D. vide which he departed from the police station on the date of alleged incident is not on record. He further admitted that the place of occurrence is very busy place but he could not procure any independent witness and this thing has not even been mentioned in the recovery memo. This witness has also admitted that he neither weighed the recovered contraband at the place of occurrence nor in the police station and sealed the same at the spot itself. He has also admitted that he did not prepare the memo of arrest of the accused at the spot which requires to be sent to the higher officers. 8. Pw2 S.I. Kalyan Ram was also the member of the police patrolling party. This witness has prepared the recovery memo on the dictation of PW1 SHO Ganga Singh. He has also admitted that he did not prepare the memo of arrest of the accused at the spot which requires to be sent to the higher officers. 8. Pw2 S.I. Kalyan Ram was also the member of the police patrolling party. This witness has prepared the recovery memo on the dictation of PW1 SHO Ganga Singh. In his examination-in-chief, this witness has reiterated the prosecution story as narrated by the PW1. In this crossexamination, PW2 admitted that no written or otherwise information of the arrest of the accused persons was given to the higher officers. PW2 further admitted that the accused persons were not asked to be searched as per their rights under the NDPS Act. G.D. of the departure is not on the record. In his cross-examination, this witness also stated that it takes an hour in going to the place of occurrence from Chaukhutia (where he joined the police party) and PW1 met him at Chaukhutia Police Chowki at 2.30 PM. This witness has also admitted that the contraband was not weighed at the spot and its weight has been mentioned on guess. PW2 pleaded ignorance as to whether the contraband was weighed in the police station or not. 9. Pw3 is SO Kunwar Singh Rawat who has conducted the investigation. In his examination-in-chief, PW3 has submitted that he recorded the statements of the witnesses, prepared the site plan on the pointing out of the complainant (PW1) and on completion of the investigation submitted the chargesheet against the accused appellant. In his cross-examination, this witness has stated that he did not see the contraband recovered from the appellant, neither did he see the sample nor the malkhana register. 10. 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 any 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. There is no evidence as to when the contraband was deposited in the malkhana and when it was taken out from malkhana and by whom it was taken out. (ii) That malkhana register was not produced before the trial court nor the Malkhana Moharrir was examined. There is no evidence as to when the contraband was deposited in the malkhana and when it was taken out from malkhana and by whom it was taken out. (ii) That malkhana register was not produced before the trial court nor the Malkhana Moharrir was examined. (iii) That there is no evidence on record as to when and who took the sample of the contraband to the laboratory for chemical analysis. (iv) 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. In fact, PW2 in his cross-examination has admitted that accused appellant was not asked to be searched as per his rights under the provisions of the Act. (v) That it has come in the evidence that the place of occurrence is highly busy area and hotel and temple are situated in its close vicinity, yet there is no independent witness of the alleged recovery. (vi) That evidence on record shows that information of arrest was not given to the higher officers. (vii) That except two witness of the police party, none other has been examined nor the witnesses who made the GD entries and lodged the FIR could be examined. (viii) That it is the admitted case of the prosecution that on the date of alleged incident, the police party departed from the police station in search of narcotic substances, yet no independent witness could be procured nor the police party had any weighing scale. Even the GD of departure has not been produced on the record. (ix) That it is the admitted case of the prosecution that the recovered contraband was not weighed at any point of time and there is no whisper anywhere whether even any attempt to procure the weighing scale was made or not. (x) That PW2 has stated in his cross-examination that it takes an hour in going to the place of occurrence from Chaukhutia (where he joined the police party) and PW1 met him there at 2.30 PM. However, the recovery has been shown to have been made at 2.50 PM, which also creates serious doubt in the prosecution story. (x) That PW2 has stated in his cross-examination that it takes an hour in going to the place of occurrence from Chaukhutia (where he joined the police party) and PW1 met him there at 2.30 PM. However, the recovery has been shown to have been made at 2.50 PM, which also creates serious doubt in the prosecution story. (xi) That DW1 Madan Singh has deposed that on the date of alleged incident, he was having his meal in Laxmi Hotel and the accused appellant, who is known to him, was also dining on the nearby table at about 1.30 PM. Meanwhile, two policemen came who insisted that they will smell the mouth of the accused appellant to find out whether he is under the influence of alcohol or not. On this issue, discussions took place between them and the police party took him along in the jeep and no recovery of any contraband was made from the accused appellant. This witness could not be shaken in his cross-examination. 11. Thus, it becomes evident from the evidence on record that the compliance of the necessary and mandatory provisions of the Act has not been done in the present case. Provisions of the Act are very stringent and the same has been made to safeguard the accused from false implication and, therefore, it is obligatory on the part of the prosecution to comply with the same. 12. In view of my foregoing discussion, it is evident that there are serious discrepancies and flaws in the prosecution story and the evidence produced in support of the same and considering the circumstances in which the alleged recovery is shown to have been made, the nonexamination 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 completely lacking in credibility. 13. 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. 14. 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.