STATE OF HIMACHAL PRADESH Vs. RAI SINGH

JUDGEMENT

(1.) By way of this appeal, the State challenged the judgment passed by the Court of learned Special Judge-I, Sirmaur at Nahan, in Sessions Trial No. 34-ST/7 of 2011, dated 26.09.2011, vide which, learned Trial Court has acquitted the present respondent/accused (hereinafter referred to as 'accused') for commission of offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances, Act (in short 'NDPS Act').

(2.) The case of the prosecution in brief was that on 27.02.2011, at about 6:55 p.m., at place Haripur Dhar, accused was found in conscious and exclusive possession of 3.7 kgs. of charas by a police party comprising of PW8 Inspector Meenakshi Bhardwaj, SI Balbir Singh, ASI Kalyan Singh, ASI Pratap Singh, HC Balbir Singh, HC Bhoom Prakash, HHC Laik Ram and Constable Naginder. This police party was present at Haripur Dhar village in connection with patrolling of contrabands etc. and went there in two vehicles bearing registration Nos. HP-07B-0324 and HP-07B-0407, which were being driven by drivers Brij Lal and Ramesh Kumar respectively. It was further the case of the prosecution that at Haripur Dhar, PW8 SI Meenakshi Bhardwaj received a secret information that one person namely Rai Singh indulged in illegal sale of contraband and that said person had proceeded towards Sangrah side about 20-25 minutes ago for sale of contraband and he was wearing black coloured Loiya and Kurta-Pajama and was carrying a bag, on which word 'OM' was scribed. It was further the case of the prosecution that this information was reduced into 'reasons of belief' by PW8 vide memo Ext. PW7/A, which was handed over to Constable Nagender for being taken to DSP, CID, Shimla. Thereafter the police party proceeded towards Sangrah and at about 6:55 p.m. when the said police party reached about 2-3 kilometres away from Haripur Dhar towards Sangrah side, one person was found standing on the road who was wearing a black coloured Loiya and while this person was looking towards the police vehicle, he was overpowered by the police party. It was further the case of the prosecution that no private witness was available at that time as it was Jungle there and the entire area was surrounded by snow. The said person on asking revealed his name as Rai Singh and PW8 informed him that she had information against him that he may be in possession of some contraband article. Rai Singh (accused) was apprised about his right to get his personal search effected in the presence of a Magistrate or a Gazetted Officer by PW8, but he (Rai Singh) agreed to get his person search done by the police officials at the spot and said consent of his was reduced into writing vide memo Ext. PW1/A. Further as per the prosecution, before personal search of the accused was conducted, PW8, the Investigating Officer as well as other police officials gave their personal search to the accused qua which memo Ext. PW1/B was prepared. Thereafter personal search of the accused was effected on the spot and he was found carrying a bag on his shoulder underneath the Loiya and from inside said bag, black coloured substance in the shape of sticks was recovered which on smelling was found to be charas. Further as per the prosecution, the Investigating Officer prepared identification memo of charas Ext. PW1/C and the charas was weighed with the help of scale, which was being carried by her (Investigating Officer) in the I.O. Kit which on weighing was found 3.700 kgs. The charas so recovered was put into a parcel and sealed with eight seals of impression 'N'. Search and seizure memo Ext. PW1/D was prepared and the material was also taken into possession and NCB forms in triplicate were prepared. Seal after use was handed over to PW1. Search and seizure memo was witnessed by PW1 and ASI Pratap Singh. Rukka Ext. PW8/A was prepared on the spot by the Investigating Officer and the same was sent to Police Station, Bharari through SI Balbir Singh along with sample seal, parcel of contraband, NCB form and seizure memo for registration of the case, on the basis of which FIR Ext. PW6/A was registered at Police Station, State CID, Shimla. Site plan etc. were also prepared by the Investigating Officer and case property i.e. charas Ext. P-1 and bag Ext. P-2, was produced before SI Rattan Singh at Police Station, State CID, Bharari, Shimla, who resealed the same with seal impression 'P'. It was further the case of the prosecution that thereafter case property along with sample seals and NCB forms was deposited with MHC, Prakash Chand at Police Station, State CID, Shimla. Thereafter, the case property after entering in the Malkhana was sent to SFSL, Junga for chemical analysis. As per the report of the Chemical Examiner Ext. PW8/D, sample was found containing the contents of charas. After the completion of investigation, challan was filed in the Court and as a prima-facie case was found against the accused, accordingly, he was charged for commission of offence punishable under section 20 of the NDPS Act, to which he pleaded not guilty and claimed trial.

(3.) Learned trial Court vide its judgment under challenge acquitted the accused of the charge framed against him by holding that the prosecution had failed to prove its case against the accused beyond reasonable doubt. While concluding so, learned trial Court held that though it is not that on account of non-association of independent witnesses by the Investigating Officer, the testimony of the police officials can be discarded, however, in the case at hand, place Haripur Dhar was located at a distance of two kilometers from the site where the accused was apprehended and there was ample time with the Investigating Officer to have had associated independent witnesses in the proceedings relating to search and seizure of the contraband. Learned trial Court took note of testimonies of PW1 and PW2 in this regard who interalia deposed that Haripur Dhar was at a distance of two kilometers from the place where accused was apprehended and there was number of government offices and residential houses at Haripur Dhar. Learned trial Court further held that Investigating Officer had stated in her cross examination that she had received secret information of accused being allegedly in possession of the contraband at Haripur Dhar market which was open at that time and a number of people were available there. On these bases, it was held by the learned trial Court that non-association of independent witnesses engineers the inference that the proceedings were ridden with suspicion and hence were unreliable or suspicious. Learned trial Court further held that accused has propounded the defence that police officials had nabbed two other persons namely Kuldeep and Kewal Ram and that the contraband was allegedly recovered from them by the police party headed by the Investigating Officer and the contraband was planted upon him. Learned trial Court held that it was necessary that any vestige of truth which the contention of the defence so carried was dispelled by the prosecution. It further held that in the case at hand, one of the Police Officer i.e. Investigating Officer was a lady and it disbelieved the contents of the search memo Ext. PW1/B wherein it was mentioned that the personal search of the police party was conducted by the accused on the ground that it was improbable that the personal search of a Lady Officer was done by the accused. On these bases, it was concluded by the learned trial Court that the contents of the personal search memo Ext. PW1/B could not be believed. It further held that as no lady was associated for the purpose of conducting personal search of the Investigating Officer, it gave credence to the contention of the accused that the contraband might have been planted against him. Learned trial Court further held that the Investigating Officer had admitted in her cross examination that on the night of 27th and 28th of February, 2011, the police officials stayed at Police Station Renuka Ji. Learned trial Court held that it had come in the statement of PW1 during his cross examination that Police Station, Sangrah and Police Station, Renuka Ji were situated in close proximity to the place where accused was nabbed, despite this, Rukka was sent to Police Station, State CID, Shimla, which was at a distance of 145 kilometres from the place of occurrence. This according to the learned trial Court was not in consonance with the mandate of sections 52 and 53 of the NDPS Act. Learned trial Court also held that 'reasons of belief' Ext. PW7/A, Special Report Ext. PW7/C and Rukka Ext. PW8/A respectively were sent through different police officials to Police Station, State CID, Shimla and were received there at different times on 28.02.2011, which invited the inference that they were not prepared simultaneously but were prepared at different times. On these bases, learned trial Court held that the prosecution had failed to prove its case against the accused beyond reasonable doubt.