LAWS(HPH)-2013-6-88

ROHTASH Vs. STATE OF H.P.

Decided On June 19, 2013
ROHTASH Appellant
V/S
STATE OF H.P. Respondents

JUDGEMENT

(1.) LEARNED Special Judge -II, Kinnaur at Rampur Bushahr vide judgment dated 13.05.2011 in Sessions Trial No. 8 -AR/3 of 2007/2010, impugned before this Court in the present appeal, has convicted the appellant (hereinafter referred to as the 'Accused') under Section 20(b) (ii) (B) of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'Act' in short) and sentenced him to undergo rigorous imprisonment for three years and to pay a fine of Rs. 25,000/ -. On his failure to deposit the amount of fine, to undergo simple imprisonment for a period of six months. The legality and validity of the impugned judgment has been questioned on the grounds inter -alia that the same is based on surmises and conjectures, as the Court below allegedly has failed to appreciate the evidence on record, in its right perspective. The conviction of the accused based on the sole testimony of PW -2 HHC Santosh Kumar, PW -4 HHC Gulab Singh and PW -5 ASI Rajinder Kumar, none else but police officials is stated to be not legally sustainable. Otherwise also, there being contradictions/improvements and inconsistencies as well as infirmities in the prosecution evidence, no findings of conviction could have been recorded against the accused and that he was entitled to be acquitted by giving him benefit of doubt. It is further pointed out that the evidence as has come on record by way of testimony of the prosecution witnesses, particularly, qua the manner in which the accused was apprehended and search and seizure taken place is completely at variance and contradictory from the evidence available on record. There is no iota of evidence suggesting that it is that very sample drawn out of the contraband allegedly recovered from the accused was sent to Forensic Science Laboratory for chemical examination. No explanation as to why the sample was sent for analysis twice is forth coming. There is no iota evidence that NCB forms were also handed over to the MHC along with the contraband allegedly recovered from the accused for the safe custody in the 'Malkhana'. The factum of non -joining of independent witnesses either from Village Nagan or Haripur to the search and seizure is also erroneously ignored. The Court below has also failed to appreciate that variation in weight when the case property was weighed in the Laboratory was fatal to the prosecution case. It has, therefore, been submitted that there was no legal and acceptable evidence warranting the conviction of the accused. In order to decide the fate of this appeal, it is desirable to take down the facts, in brief, as emerges from the perusal of the record.

(2.) ON 13.12.2006 vide Rapat Rojnamcha Ext. PW8/G PW -5 ASI/SHO Rajinder Kumar, Police Station, Anni, Distt. Kullu accompanied by PW -2 HHC Santosh Kumar, PW -4 HHC Gulab Singh and PW -5 HC Pushp Dev was on general patrol duty and checking traffic also. When around 10.15 a.m. police party was present near Nagan Moar, accused Rohtas was spotted to be coming from Nagan side and going towards Luhari. He was having a rucksack (bag) with him. On seeing the police party, he got scared. On suspicion of possession of Narcotic substance he was apprehended and PW -5 informed the accused that his personal as well as search of bag is required to be conducted. Also that, if he so desire, his search could be arranged to be conducted in the presence of a Magistrate or a Gazetted Officer, for which he is legally entitled. Such information was given not only orally but in writing also vide memo Ext. PW4/A. The accused has made an endorsement under his signature on Ext. PW4/A and consented for his personal search and search of the rucksack by the police. This has led in giving his own search first by PW -5, who had conducted the search of the former, as is apparent from memo Ext. PW4/B. Thereafter, PW -5 had searched the bag of the accused and contraband allegedly charas weighing 950 Grams was recovered therefrom. Two samples 25 Grams each were separated from the bulk and sealed in two parcels with seal 'X'. The remaining bulk was also sealed separately with the same seal. The sample parcels and the parcel containing recovered charas were taken in possession vide recovery memo Ext. PW4/C in the presence of the witnesses Head Constable Pushp Dev and HHC Gulab Chand. NCB forms were filled in triplicate. The IO thereafter prepared a rukka Ext. PW2/A and handed over the same to PW -2 HHC Santosh Kumar for being taken to the Police Station for registration of the case. On the basis of rukka Ext. PW2/A ASI Lal Singh had recorded FIR Ext. PW2/B and after making the endorsement Ext. PW2/C on the rukka, prepared the file and it was sent to the IO on the spot. During the course of further investigation conducted by the IO on the spot, he had prepared site plan Ext. PW5/C and thereafter arrested the accused. He was apprised about the grounds of arrest in writing vide memo Ext. PW5/D. The personal search of the accused was also conducted vide memo Ext. PW5/E. Thereafter, IO left the spot for the Police Station along with accused and also the case property. He handed over the case property along with sample parcels and parcel containing recovered charas to PW -8 ASI Lal Singh, the then MHC, Police Station, Anni, who made an entry thereof at Serial No. 134 of the Malkhana register Ext. PW8/A and retained the same in his safe custody. On 19.12.2006, PW -8 forwarded one of the sample parcels to Forensic Science Laboratory, Chandigarh through HHC Nihal Chand No. 234 vide R.C. No. 78/2006 Ext. PW8/B. Endorsement to this effect is also in the remarks column of the abstract of Malkhana register Ext. PW8/A. Rapat No. 25 in rapat rojnamcha dated 19.12.2006 pertains to departure of HHC Nihal Chand to Forensic Science Laboratory, Chandigarh along with the sample parcel. The rapat No. 23 Ext. PW8/E dated 22.12.2006 pertains to arrival of HHC Nihal Chand in Police Station after depositing the sample parcel in the Laboratory. Endorsement on the reverse of RC Ext. PW8/B reveals that along with the sample parcel copy of FIR, recovery memo, NCB -I forms in triplicate along with sample seal and C.F.S.L. forms were also sent to the Laboratory, where it was duly received on 20.12.2006. The report received from F.S.L. Chandigarh is Ext. PW5/F, which reveals that exhibit forwarded for analysis was a sample of charas.

(3.) ON completion of the investigation, charge sheet under Section 20 of the Act was filed against the accused in the trial Court. The accused pleaded not guilty to the charge and claimed trial. Consequently, the prosecution has examined eight witnesses in all to sustain the charge against him. The statement of accused under Section 313 Cr.P.C. was also recorded.