High Court of H.P.\IN THE HIGH COURT OF HIMACHAL PRADESH,

SHIMLA.

Cr.A. No. 519 of 2008

alongwith Cr.A. No. 26/2009

Reserved on: 16.5.2014

Decided on:22.5. 2014

___________________________________________________

1. Cr. Appeal No. 519/2008

Mohinder Pal and another. …Appellants.

Versus

State of Himachal Pradesh. …Respondent.

2. Cr.A. No. 26/2009

Surender Pal. …Appellant.

Versus

State of Himachal Pradesh. …Respondent.

________________________________________________________

Coram:

Hon’ble Mr. Justice Rajiv Sharma, Judge.

Hon’ble Mr. Justice Sureshwar Thakur, Judge.

Whether approved for reporting?

1

Yes

For the Appellants : Mr. Anup Chitkara, Advocate.

For the Respondent: Mr. P.M. Negi, Dy.A.G.

_____________________________________________________

Per Justice Rajiv Sharma, Judge.

Both these appeals are instituted against a common

judgment dated 31.7.2008 rendered by the Special Judge,

Chamba Division, Chamba in Sessions Case No. 4 of

2008, whereby the appellants-accused (hereinafter

1

Whether reporters of the local papers may be allowed to see the judgment? yes

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referred to as “accused” for convenience sake), who were

charged with and tried for offence punishable under

section 20 of the Narcotic Drugs and Psychotropic

Substances Act, 1985, have been convicted and sentenced

to undergo rigorous imprisonment for ten years each and

to pay a find of ` one lakh each and in default of payment

of fine, they were ordered to suffer simple imprisonment of

one year each.

2. Case of the prosecution, in a nutshell, is that

on 20.10.2007, ASI Ranjit Singh, Incharge, CIA Staff,

Chamba alongwith other police officials was present at

place Saun Morh. At about 9.10 A.M., the policy party

spotted two persons coming down from the hill side.

These persons, on seeing the policy party, got perplexed

and tried to flee away. They were carrying polythene bags

in their hands. The police party headed by ASI Ranjit

Singh nabbed them. Bags were checked and the same

were found to be containing some solid and sticks like

narcotic substance. The contraband found to be charas.

The recovered contraband on weighing was found to be 1

kg 500 grams each from the two bags, which the accused

were carrying in their hands. The codal formalities were

completed. The I.O. separated two samples of 25 grams

each from each of the recovered contraband. The samples

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and the bulks thereafter were sealed with seal ‘T’ and the

seal after use was handed over to witness Ramesh Kumar.

The I.O. prepared rukka and sent the same to the Police

Station for registration of the case. Thereafter, the case

property alongwith accused was produced before the

S.H.O. He re-sealed the same with seal ‘A’ and the case

property was kept in the Police Malkhana. After the

receipt of report of Forensic Science Laboratory, challan

was prepared and submitted before the court for trial.

3. Prosecution examined as many as 12 witnesses

in all to prove its case against the accused. Statements of

accused were recorded under section 313 of the Code of

Criminal Procedure. They denied the entire prosecution

case and took the defence of false implication. The Special

Judge, Chamba Division, Chamba , as noticed

hereinabove, has convicted and sentenced the accused.

4. Mr. Anup Chitkara has vehemently argued that

the prosecution has failed to prove its case against the

accused.

5. Mr. P.M. Negi, learned Deputy Advocate

General, has supported the judgment passed by the

Special Judge.

6. I have heard the learned counsel for the parties

and have perused the records carefully.

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7. PW-1 Vijay Kumar and PW -2 Ramesh Kumar

have not supported the case of the prosecution and they

were declared hostile.

8. PW-1 Vijay Kumar has deposed that he did not

remember the date and month, but in the year 2007, he

was replacing the punctured tyre of his vehicle at place

Gate. One policeman came to him and took him to a shop

and asked him to put signatures on blank papers and

plain pieces of clothes. Nothing was recovered in his

presence from the accused. He was declared hostile. He

was cross-examined by the learned Public Prosecutor. In

his cross-examination, he has deposed that neither his

statement was recorded nor he made any statement to the

police. He has denied the contents of mark ‘A’. He has

denied the suggestion that the contraband was taken into

possession vide Mark ‘B’. However, he has identified his

signatures on it in circle red. He has denied the suggestion

that 1 kg 500 gms charas was recovered from accused

Mohinder Pal and 1 kg 500 gms charas was recovered

from accused Surender Pal. He has denied the suggestion

that police separated samples from the bulks. He has also

denied that bulks and sample parcels were separately

sealed with seal ‘D’. He has also denied that specimen

sealed impressions were taken on pieces of cloth and after

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filling the NCB form, the seal was handed over to him. The

police has obtained his signatures on the plain pieces of

clothes. He has denied the suggestion that his signatures

were taken on the bulk as well as on the sample parcels.

He has identified his signatures on both the bulks parcels

Mark ‘C’ and ‘D’ and sample parcels ‘E’, ‘F’, ‘G’ and ‘H’

encircled red. He also identified his signatures on Marks

‘J’ and K encircled red. Again reiterated that he has put

his signatures on plain pieces of clothes. He has also

denied that accused were present on the spot.

9. PW-2 Ramesh Kumar in his examination-in-

chief has deposed that one year back 3-4 policemen came

to his shop and asked him to sign on blank papers and

pieces of plain white clothes as they had recovered charas.

He was declared hostile by the p rosecution. Learned

Public Prosecutor was permitted to cross-examine him. He

has denied the suggestion that he was summoned by the

police to Saun Morh, where the police weighed the charas,

recovered in two separate polythene envelopes. He has

also denied the suggestion that the recovered contraband

was weighed in his presence, which was found to be 1.5

kg each, wrapped in polythene bags. He has denied the

contents of mark ‘L’. According to him, he has not made

such statement to the police. He has denied th e

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suggestion that two samples of 25 gms each were taken in

his presence. He has also denied the suggestion that bulk

and parcels were sealed in his presence by the police with

seal ‘T’. He has also denied that the recovered contraband

was taken into possession vide seizure memo Mark ‘B’. He

has admitted his signatures. He has denied that bulks

and samples were sealed in his presence. He has

identified his signatures on bulks marks ‘C’ to ‘D’ and

samples marks ‘E’ to ‘H’. According to him, signatures

were obtained by the police on the pieces of clothes.

10. PW-3, Surinder Kumar has testified that on

20.10.2007, he alongwith ASI Ranjeet Singh, HC Tilak Raj,

Constables Daya Singh, Manohar Lal and Raj Kumar was

present at Soun Nallah at about 10.00 AM. In the

meantime, two persons came from the hill side. They were

carrying polythene bags in their hands. They were stopped

and their bags were checked. They were directed to open

the bags carried by them. ASI Ranjeet Singh found charas

in the shape of sticks in the bags. On weighing, 1 kg 500

gms charas was found in each bag. Two samples of 25

gms each were taken. ASI Ranjeet Singh sealed the parcels

in different packets. Bulks were separately sealed. The

contraband was sealed with seal ‘T’. After filling the NCB

form, seal was given to Ramesh Kumar. The bulks and

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samples were taken into possession vide memo mark ‘B’.

Thereafter, ASI Ranjeet Singh prepared Rukka. He handed

over the same to him. He took the same to police station

Chamba. FIR was registered. In his cross-examination, he

has deposed that they left Chamba at 1.00 a.m.

(midnight). They went on foot upto Sultanpur and from

Sultanpur, they went in a vehicle. According to him,

firstly, the accused were noticed by ASI Ranjeet Singh.

Firstly, accused Mohinder Pal was apprehended. The

police had no suspicion that the accused were carrying

charas. Police had no prior information about

transportation of charas. The I.O. had not given his search

to the accused or witnesses before conducting the search

of the accused. Self stated that I.O. had not searched the

accused but accused Mohinder Pal, voluntarily opened the

bag. Constable went to arrange for weights and scales at

9.10 A.M. and he came back within half an hour. He did

not know the time, when Rukka was drafted by the I.O. He

took Rukka at 10.45 A.M. and reached the police station

at 11.40 A .M. He did not remember the time when he

reached back at Saun Nallah. They came back from the

spot at 6-7.0 p.m.

11. PW-4 Manohar Lal, has deposed that two

persons came to the spot from the hill side. They were

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carrying polythene bags in their hands. ASI checked the

bags carried by the accused and the same were found to

be containing charas. Codal formalities were completed.

The bulks and samples were duly sealed. Rukka was

prepared. Copy of Rukka was sent to Chamba for

information. He took the rukka and delivered it to the

Reader of Superintendent of Police, Chamba on the same

day. In his cross-examination, he has deposed that firstly

accused Mohinder Pal was stopped by the A.S.I. Both of

them were simultaneously spotted. Firstly , accused

Mohinder Pal was apprehended. A.S.I. had suspicion that

accused might be carrying charas. A.S.I. had not asked

the accused if they wanted to give their search to some

Gazetted Officer/Magistrate or to the police. A.S.I. had

given his search to the accused and witnesses before

searching them. Firstly, accused Mohinder Pal was

searched. Constable went to arrange for weights and

scale at 9.15 A.M. and also to summon the witnesses. He

came back within 20-25 minutes alongwith weights, scale

and witnesses. Rukka was prepared at 10.45 A.M. and

delivered the same in the office of Superintendent of

Police, Chamba at 11.40 A.M.

12. PW-5 Deepak Kumar has testified that on

20.10.2007, ASI Ranjit Singh of C.I.A. Staff produced two

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big parcels, four small parcels and NCB form before

S.H.O. Jatinder Kumar. These parcels were duly sealed

with seal impression ‘T’. S.H.O. Jatinder Kumar re-sealed

these samples as well as bulk parcels with seal ‘A’ and the

seal after use was handed over to him. The reseal memo

Ex.PW-5/A was drawn. He signed the same. The S.H.O.

Jatinder Kumar obtained specimen seal impression on a

piece of cloth Ex.PW-5/B. He also signed the same. In

his cross-examination, he has stated that ASI Ranjit Singh

produced the case property before the S.H.O. Jatinder

Kumar at 7.30 P.M. Seal ‘A’ was made of lakh. He has

not brought the seal, which was handed over to him by

the Inspector/S.H.O.

13. PW-6 Constable Om Parkash has deposed tha t

on 20.10.2007, Constable Manohar Lal had brought copy

of Rukka Ex.PW-6/A at 11.40 A.M. He produced it before

the-then S.P. Shivpal Singh Verma.

14. PW-7 Ramesh Chand had brought the

Malkhana, Daily Diary, R.C. and F.I.R. register. According

to him, Surinder Kumar brought Rukka Ex.PW -7/A to the

Police Station. F.I.R. Ex.PW -7/B was registered.

Inspector/S.H.O. Jatinder Kumar deposited with him two

bulk parcels, four small sample parcels duly sealed with

seal ‘T’ and ‘A’, NCB forms, recovery memo, sample seal

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impression, which were entered by him in the Malkkhana

register at serial No. 473. On 21.10.2007, two sample

parcels, two sample seal impressi ons, N.C.B. form,

recovery memo and copy of F.I.R. were sent by him

through constable Mehar Singh No. 295 v ide R.C. No.

165/2007. He returned the same vide Ex.PW-7/C.

15. PW-8 Constable Mehar Singh has deposed that

on 21.10.2007 he had given him two sample parcels, NCB

forms, copy of FIR, seizure memo, sample seal impression

for depositing the same with Forensic Science Laboratory,

Junga vide R.C. No. 165/2007. He deposited the same on

23.10.2007 and returned the R.C. to MHC.

16. PW-9 Inspector Jatinder Kumar has testified

that on 20.10.2007, Constable Surinder Kumar brought a

Rukka Ex.PW-7/A. He registered t he FIR Ex.PW-7/B.

Thereafter, he made endorsement on the Rukka Ex.PW -

9/A and returned the case file to him. On the same day,

at 7.30 P.M. ASI Ranjit Singh produced before him, two

bulk parcels containing 1 kg 450 grams, charas each

sealed with seal ‘T’, four sample parcels duly sealed with

seal ‘T’, eight specimen seal impressions, six NCB forms.

He re-sealed all the parcels with his seal in presence of

Constable Deepak Kumar vide reseal memo Ex.PW -5/A.

The seal after use was handed over to Constable De epak

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Kumar. He also took impression of his seal on the NCB

forms and made entries in the NCB form regarding re -

sealing vide Ex.PW-9/B. He signed the same. In his

cross-examination, he has deposed that it took ten

minutes in re-sealing the same. After r e-sealing, he

deposited the case property with MHC. However, he did

not remember its time.

17. PW-10 SI Diwan Chand has testified that on

10.1.2008, the case file was produced before him by ASI

Ranjit Singh. He has prepared the challan and presented

the same in the court.

18. PW-11 ASI Ranjit Singh was the Investigating

Officer. According to him, on 20.10.2007, he alongwith

HC Tilak Raj, Constables Surinder Kumar, Raj Kiran,

Daya Singh and Manohar Lal was on patrolling duty.

When they reached Saun Mo rh at about 9.10 A.M. two

persons were spotted coming from hill side. They were

carrying polythene bags in their hands. They got

perplexed. He nabbed them with the help of other police

officials. He opened the bags carried by the accused. He

found the same to be containing charas in the shape of

sticks. He deputed constable Raj Kiran to arrange for

local witnesses as well as weights and scale . After

sometime, constable Raj Kiran came back alongwith

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independent witnesses, namely, Ramesh Kumar and Vijay

Kumar. The contraband as contained in the bags was

weighed separately. It weighed 1½ kgs each. Thereafter,

he took two samples each from the recovered contraband.

Both the bulk parcels as well as four sample parcels were

sealed with seal ‘T’. He also o btained specimen seal

impressions on a piece of cloth. The seal after use was

handed over to PW Ramesh Kumar. He prepared Rukka

Ex.PW-7/A. It was sent to police Station, Chamba for

registration of case. He also prepared site plan Ex.PW-

11/B. The accused were informed about the grounds of

arrest. He filled column Nos. 1 to 8 and the remaining

columns were filled in by S.H.O. Police Station, Chamba

except column No.12. In his cross-examination, he has

deposed that he noticed the accused from a distance of

about 30 feet. Accused were nabbed by the police party

due to their abnormal behaviour. Firstly, police party

nabbed accused Mohinder Pal and thereafter Surinder Pal

was nabbed. It took about three hours to complete the

investigation. Self-stated that the entire proceedings were

completed at about 12.30 in the noon. The police party

returned back to Police Station, Chamba at about 7.30

P.M. alongwith case property and accused. The seal ‘T’

was in the shape of ring and it was made of silver.

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19. PW-12 Constable Raj Kiran has deposed that

on 20.10.2007, he alongwith ASI Ranjit Singh and other

police officials was on patrolling duty. At about 9.10 A.M.,

two persons came from hill side. They on seeing the police

party, tried to run away. They were carrying bags in their

hands. The police party nabbed them. The codal

formalities were completed by the Investigating Officer.

The recovered contraband weighed 1 kg 500 grams each.

In his cross-examination, he has deposed that the accused

were firstly noticed by the ASI. When the accused tried to

run away, it did not raise suspicion. Firstly, accused

Mohinder Pal was nabbed. He went to arrange for weights

and scale.

20. What emerges from the discussion of the

evidence of the prosecution witnesses is that PW-1 Vijay

Kumar and PW-2 Ramesh Kumar, independent witnesses,

have not supported the case of prosecution at all.

According to them, the police has obtained their

signatures on blank papers and pieces of plain white

clothes. PW-1 Vijay Kumar has denie d that the

contraband was taken into possession vide memo mark

‘B’. He has also denied that the police has weighed the

charas in his presence. He has denied the suggestion that

1 kg 500 of charas was recovered from accused Mohinder

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Pal and 1 kg 500 grams of charas was recovered from

accused Surinder Pal. He has also denied the suggestion

that the police has separated the samples from the bulks.

He has denied that the bulks and samples were sealed

with seal ‘T’. He has denied the suggestion that after re-

sealing the bulks and parcels, he put his signatures on

them. Similarly, PW-2 Ramesh Kumar has denied the

suggestion that he was called by the police on 20.10.2007

to Saun Morh. He has also denied that the contraband

was weighed in his presence and was found to be 1 kg 500

grams each wrapped in polythene envelopes. He has also

denied that from each of the bulk, police took two samples

of 25 grams each in his presence. He has admitted his

signatures encircled red at point B-1, on bulks marks ‘C’

and ‘D’ and sample parcels marks ‘E’ to ‘H’. However,

both the witnesses have categorically stated that their

signatures were obtained on plain papers and pieces of

clothes.

21. According to PW-3 Constable Surinder Kumar,

two persons came from hill side. They were carrying

polythene bags in their hands. They were stopped and

their bags were checked by ASI Ranjit Singh. They were

directed to open the bags. PW-4 Constable Manohar Lal

has also deposed that two persons came from the hill side.

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They were carrying polythene bags in their hands. ASI

checked the bags of the accused and the same were found

to be containing charas. PW-11 ASI Ranjit Singh has

deposed that two persons were spotted coming from hill

side. They were carrying polythene bags in their hands.

On seeing the police party, they got frightened and tried to

flee away. He nabbed them with the help of police

officials. PW-11 ASI Ranjit Singh, in his cross -

examination, has deposed that he noticed them from a

distance of about 30 feet. The accused were nabbed by

the police due to their abnormal behaviour. Firstly, police

nabbed accused Mohinder Pal and thereafter accused

Surinder Pal was nabbed. PW-12 Constable Raj Kiran has

deposed that two persons were seen coming from the hill

side, who on seeing the police party, tried to run away.

They were carrying polythene bags in their hands. The

police party nabbed them. According to PW-3 and PW-4,

accused were stopped and checked by ASI Ranjit Singh,

however, as per the statements of PW -11 and PW-12,

accused tried to run away from the spot and were nabbed

by the police personnel. PW-4 Manohar Lal has admitted

that the I.O. had not given his search to the accused or

witnesses before conducting the search of the accused ,

though he volunteered that I.O. had not searched the

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accused but accused Mohinder Pal, voluntarily opened the

bag. According to PW-5 Constable Deepak Kumar, the

parcels were duly sealed with seal impres sion ‘T” and

S.H.O. Jatinder Kumar re-sealed the samples as well as

bulk parcels w ith seal ‘A’ and the seal after use was

handed over to him. The reseal memo Ex.PW -5/A was

drawn. He signed the same. However, he has not brought

the seal, which was handed over to him by the S.H.O.

PW-7 Constable Ramesh Chand has testified that on

20.10.2007 at about 8.00 P.M. Inspector/S.H.O. Jatinder

Kumar deposited with him two bulk parcels, four small

sample parcels duly sealed with seal ‘T’ and ‘A’ , NCB

forms, recovery memo and sample seal impressions, which

were entered by him in the Malkhana register at Sr. No.

473 of Malkhana register. PW-9 Inspector Jatinder Kumar

has stated that ASI Ranjit Singh produced before him two

bulk parcels containing 1 kg 450 grams of charas each

sealed with seal ‘T’, four sample parcels duly sealed with

seal ‘T’, eight specimen seal impressions, six NCB forms.

He re-sealed all the parcels with his seal in presence of

Constable Deepak Kumar vide reseal memo Ex.PW -5/A.

The seal after use was handed over to Constable Deepak

Kumar. But as already noticed hereinabove, PW-5

Constable Deepak Kumar has not produced the seal.

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PW-9 Inspector Jatinder Kumar has not deposed that he

has put his seal ‘A’. He has only deposed that he re-

sealed the parcels in the presence of Constable Deepak

Kumar.

22. It is settled law by now that conviction can be

made on the basis of statements of official witnesses in

case their statements inspire confidence. In the present

case, the prosecution case has not been supported by

PW-1 Vijay Kumar and PW-2 Ramesh Kumar. According

to the prosecution, contraband was recovered from the

accused in the presence of PW-1 Vijay Kumar and PW-2

Ramesh Kumar and the sealing process was also

completed in their presence. However, t hey have been

declared hostile. There are major contradictions, as stated

hereinabove, in the statements of PW -3 Constable

Surinder Kumar, PW-4 Constable Manohar Lal, PW-11

Ranjit Singh and PW-12 Constable Raj Kiran, the manner

in which the accused were nabbed at Saun Maor at 9.10

A.M.

23. Accordingly, in view of the discussion a nd

analysis made hereinabove, the appeals are allowed. The

judgment dated 31.7.2008 rendered by the learned Special

Judge, Chamba Division, Chamba in Sessions Case No. 4

of 2008 is set aside. Accused are acquitted of the charges

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framed against them. Fine amount, if already, deposited

be released to the accused. Accused be released

forthwith.

24. We place on record our appreciation for the

assistance rendered by Mr. Anup Chitkara, Advocate.

(Justice Rajiv Sharma),

Judge.

(Justice Sureshwar Thakur),

Judge.

22.5. 2014

*awasthi*

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