STATE OF HARYANA Vs. RAM PRASHAD

JUDGEMENT

(1.) This petition filed under Section 401 of the Code of Criminal Procedure, 1973 (for brevity, 'the Code') challenges order dated 17-8-2004, passed by the learned Additional Sessions Judge, Sonepat, dismissing an application of the State filed under Section 311 of the Code for re-examination of P.W. 3 Anil Sharma, City Magistrate, who was examined on 27-2-2004 in Sessions Case No. 31 of 2003 in respect of Case FIR No. 59 dated 16-4-2003 registered under Section 20 NDPS Act, 1985, P.S. Sadar, Sonepat.

(2.) Brief facts of the case are that the accused-respondent was produced before Shri Anil Sharma, City Magistrate P.W. 3, when he had opted to be searched by a Gazetted Officer in accordance with the provisions of Section 50 of the NDPS Act. The City Magistrate Shri Anil Sharma appeared before the trial Court on 27-2-2004. In order to appreciate the controversy regarding the time of producing the accused before Sh. Anil Sharma it would be necessary to refer to his statement in extenso and the same reads as under :- On 16-4-2003 I was posted City Magistrate, Sonipat. On that day SI Mehar Singh has produced the accused present in the Court today. Accused was having a blue coloured bag. I made inquiries from the accused. I directed SI Mehar Singh to effect search of the bag. On opening of the bag, SI Mehar Singh recovered 7 packets from inside the bag. Those packets were opened and found to contain Charas in each packet. Each packet was weighing one kilogram. In total it was found to be 7 kgs. Upon my inquiry the accused had told that he brought the Charas from Una (HP). SI Mehar Singh took out two samples of 10 gms each from the recovered charas and sealed the samples and the remainder into three separate sealed parcels with the seal bearing inscription Ms. My seal bearing inscription RP was affixed on the samples and the remainder. The remainder i.e. all the 7 packets were sealed in one bag. All the three sealed parcels i.e. samples and the remainder were taken into possession vide recovery memo Ex. PC which was signed by Jagmendar, ASI Satbir and also attested by me. Accused-Ram Parsha4 was produced before me at my residence at 7 p.m. by SI Mehar Singh. The case property was weighed by the weighing scale which was made of brass. The case property was weighed seven times. Each packet was weighed separately. There were two three weights including 1 kg. 250 gms. 10 gms. etc. The weights and weighing scale were already with the Investigation Officer. No telephonic message was conveyed to me prior to producing the accused before me. One of witness Jagmender was with the Investigating Agency. There were 5-6 police officials in the Govt. jeep when they came to me. I cannot say who was holding the bag when they came to me at my residence. In my presence the I.O. did not offer himself for his search to the accused. I did not give anything in writing containing direction to the Investigation Officer. The notice served upon by the I.O. was read by me. I do not remember at this stage as to what was the reply of the accused on the notice served upon the accused by the I.O. It is wrong to suggest that City Magistrate does not fall within the definition of a Magistrate according to the Cr. P.C. I do not remember the total number of seals affixed on sample as well as on remainder. However, the seal bearing inscription of MS and RP were affixed. I keep the seal bearing the inscription of RP whereas my initials are AS. I did not have my seal on that day and, therefore, I took the seal from one of the police officials. I do not remember his name. After use the said seal was handed over to Jagminder P.W. I do not remember whether prepared any memo regarding handing over the said seal to Jagminder. The seal was never returned to me. Police Personnel remained with me for about an hour. It became dark. I do not remember whether any Ram Gopal Lambardar was also present on that day. I do not remember whether any person wearing Dhoti Kurta was present at the time of search. The colour of the recovered contraband was blackish brown. The charas was wrapped in a piece of cloth of different colour. I do not know outer cover colour of those packets. I do not remember as to who was the person who completing the writing work. I cannot say whether Mehar Singh IO completed the same. In my presence Mehar Singh IO did not send any special report. I do not remember whether accused was handcuffed or not. It is wrong to suggest that the packets or the bag was already opened. Police recorded my statement. The fact that accused disclosed upon my inquiry that he bring the contraband from Una was not stated by me before the police in my statement. The ruqa was not sent by the IO to the Police Station in my presence. I do not. known as to from where the police people along with the accused came to my residence. It is correct that on the way there are residence of Judicial Magistrate also if one enter from Gohana road to reach my house. It is incorrect to suggest that nothing was recovered from the possession of the accused in my presence or that I am deposing falsely. I do not know about the news item published in Dainik Bhaskar Part Sonipat Bhaskar dated 17-4- 2003 that any protest was raised by the public on 16-4-2003 in the working hours before the office of S.P. Sonipat. It is wrong to suggest that recovery memo was falsely prepared later on. (At this stage. It is submitted by the learned P.P. that according to ruqa Ex. PA which was sent by SI Mehar Singh on 16-4- 2003 at 7.45 a.m. and FIR was recorded on 16-4-2003 itself at 8.30 a.m. in which it finds mentioned that the accused was produced before the Citv Magistrate in the morning hours. However, the witness has deposed that accused was produced before me at 7 p.m. Therefore, in order to clear the ambiguity he submitted that the witness be declared hostile. However, the said request is declined but following Court question is put to the witness). C.Q. Whether police/Investigating Agency produced before you the accused with the contraband in' the morning hours or in the evening hours. If you remember what was the time? Ans. I exactly remember that the accused was produced before me in the evening hours at 7 O'clock and this fact I noted in my official diary also. RO & AC Special Judge, Sonipat 27-2-2004."

(3.) It is evident from the statement made by the City Magistrate that there was some controversy with regard to the timing of production of the accused before him. A request made by the prosecution for declaring the prosecution witness Shri Anil Sharma as hostile was not accepted and instead the Court itself had put a question to him. In answer to the question, the witness had stated that it was evening hours at 7 O'clock and this fact he had noted in his official diary also.