CRLA/130/2007 of CHOTE LAL PATHAK Vs STATE OF UTTARAKHAND on 31 December 2020

JUDGMENT

Hon’ble Ravindra Maithani, J.(Oral)

Instant appeal is preferred against judgment and order dated 21.03.2007, passed in Special Sessions Trial No. 3 of 2005, State Vs. Chote Lal Pathak, by the court of Special Sessions Judge, Champawat (for short “the case”). By the impugned judgment and order, the appellant has been convicted under Section 8 (c) read with 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the Act”) and sentenced to rigorous imprisonment for a period of ten years with a fine of Rs.1,00,000/- . It is also directed that in case of default of payment of fine, the appellant shall undergo rigorous imprisonment for a period of one year.

2. Briefly stated, according to the prosecution case, on 08.07.2005, when the Police Sub Inspector PW1 Chandan Singh Kanyal alongwith PW2 Satish Babu and PW3 Ishwari Dutt Sharma, both Constables were patrolling, they got an information that a person is having prohibited injections and he is waiting for some vehicle. Believing it, Police party reached at the spot, intercepted the appellant, who confessed to have large quantity of injections with him. He was given an option for search before any Gazetted Officer, but according to the case, the appellant consented for his search by the Police party. Upon search having been made a large number of injections, namely, Promephazine Hydrocloride injection 225 in number Buprenorphine injection 225 in number and Ampoules Buprenorphine injection total 275 injections were recovered. The investigation was carried out. Recovered injections were sent for forensic examination and a report was received. After investigation, charge sheet was submitted against the appellant. Cognizance was taken. On 17.10.2005, charge under Section 8 (c) read with 22 of the Act, was framed to which, the appellant denied and claimed trial.

3. Prosecution, in order to prove its case, examined in all six witnesses, namely, Sub Inspector PW1 Chandan Singh Kanyal, PW2 Satish Babu and PW3 Ishwari Dutt Sharma, PW4 Laxman Chand, PW5 Bhuwneshwar Singh and PW6 Vipin Chandra Pant. The appellant was examined under Section 313 of the Code. According to him, the Police called him at the Police Station and he has been falsely implicated in the case. Learned court below by the impugned judgment and order, convicted and sentenced the appellant, as stated hereinbefore. Aggrieved by it, the appeal has been preferred.

4. Heard learned counsel for the parties through Video Conference and perused the record.

5. Learned counsel for the appellant would raise following points in his arguments:- points in his arguments:- 1Samples of the injections were not taken at the spot. 2If a copy of the recovery memo was given to the appellant at the time of alleged recovery, it was not subsequently, found in his personal search at the Police Station. It doubts the prosecution case. 2If a copy of the recovery memo was given to the appellant at the time of alleged recovery, it was not subsequently, found in his personal search at the Police Station. It doubts the prosecution case.

3In the recovery memo and the consent memo, it is stated that the appellant revealed the number of injections before search was made, but it has not been stated by any of the witnesses. stated that the appellant revealed the number of injections before search was made, but it has not been stated by any of the witnesses.

4The allegedly recovered injections carry specific details like, batch number, expiry date etc., but it is not so mentioned in the recovery memo, whereas, it is so mentioned in the Forensic Science Laboratory report. It doubts as to whether the same injections were recovered, which were sent for forensic examination. details like, batch number, expiry date etc., but it is not so mentioned in the recovery memo, whereas, it is so mentioned in the Forensic Science Laboratory report. It doubts as to whether the same injections were recovered, which were sent for forensic examination. 5The alleged recovery was made on 08.07.2005, whereas, it was taken for forensic examination on 15.07.2005, but there is no evidence that during this period, the allegedly recovered injections were kept in the safe custody; there is no link evidence; maalkhana Mohrir or register has not been proved. In addition to it, if the articles were taken by PW5 Bhuwneshwar Singh for forensic examination on 15.07.2005, why it was submitted at Forensic Science Laboratory on 18.07.2005. Where were it kept during that period of three days. There is no evidence to it. whereas, it was taken for forensic examination on 15.07.2005, but there is no evidence that during this period, the allegedly recovered injections were kept in the safe custody; there is no link evidence; maalkhana Mohrir or register has not been proved. In addition to it, if the articles were taken by PW5 Bhuwneshwar Singh for forensic examination on 15.07.2005, why it was submitted at Forensic Science Laboratory on 18.07.2005. Where were it kept during that period of three days. There is no evidence to it.

6There is no independent witness;

7The person whom, according to the prosecution, request was made to witness the recovery has denied of having ever approached by the Police. request was made to witness the recovery has denied of having ever approached by the Police.

8Statements of Police personnel itself is self contradictory. contradictory.

9PW2 Satish Babu and PW3 Ishwari Dutt Sharma were on a duty at Sharda Bairaj till 3:00 in the afternoon on that date, as deposed and proved by DW2 Sub Inspector Harish Chandra Joshi, but PW2 Satish Babu tells in the court that he had left the Police Station on that date for patrolling at 1:30 PM. It creates a big dent in the prosecution case. on a duty at Sharda Bairaj till 3:00 in the afternoon on that date, as deposed and proved by DW2 Sub Inspector Harish Chandra Joshi, but PW2 Satish Babu tells in the court that he had left the Police Station on that date for patrolling at 1:30 PM. It creates a big dent in the prosecution case.

6. In support of his contentions, learned counsel placed reliance upon the principles of law, as laid down in the cases of State of Rajasthan Vs. Gurmail Singh, 2005 SCC (Cri) 641, State of Rajasthan Vs. Bher Singh, (2009) 16 SCC 293, Gurbax Singh Vs. State of Haryana, (2001) 3SCC 28. Mohan Lal Vs. State of Punjab, 2018 SCC Online SC 974.

7. In the case of Gurmail Singh (supra), the Hon’ble Supreme Court upheld an order of acquittal recorded by the High Court. In that case, the High Court observed that the maalkhana register was not produced and it was also not proved that sample of seal was ever sent alongwith the article for forensic examination.

8. In the case of Bher Singh (supra), the Hon’ble Supreme Court observed that if there is no evidence that the seal remained intact throughout, the prosecution cannot be said to have proved its case.

9. In the case of Gurbax Singh (supra,) the Hon’ble Supreme Court, in para 9 of its judgment observed that the provisions of Sections 52 and 57 of the Act, are directory. The violation of these provisions could not ipso facto vitiate the trial or the conviction. But, the IO cannot totally ignore these provisions and such failure will have a bearing on appreciation of the evidence regarding arrest of the accused or seizure of the articles.

10. In the case of Mohan Lal (supra), in para 10, the Hon’ble Supreme Court referred to the standing order no. 1 of 1988 issued by Narcotic Control Bureau, which gives the timeline of 72 hours for dispatching the sample. On this ground it is argued that in this case sample was sent much after the alleged recovery.

11. On the other hand, learned State counsel would submit that it is a case of recovery of large number of prohibited articles under the Act; the recovery was made on an information; recovery memo was promptly prepared and when the accused alongwith articles was taken to Police custody, the general diary entry makes reference to it that the allegedly recovered articles were lodged in the maalkhana; all the witnesses of recovery have proved the factum of recovery; there is no major contradiction, which may create any doubt in the prosecution case; on 15.07.2005, PW5 Constable Bhuwneshwar Singh took the sample for its deposition in the Forensic Science Laboratory. He has proved it. There is no evidence to show that there was any tampering of the seal or the seal was not intact. Therefore, it is argued that the prosecution has been able to prove its case beyond reasonable doubt. The learned court below rightly convicted and sentenced the appellant. There is no merit in this appeal and it deserves to be dismissed.

12. PW1 Chandan Singh Kanyal is the Sub Inspector, who was leading the Police party on that date, when the alleged recovery was made. He has reiterated the version of recovery memo in his statement. According to him, on 08.07.2005, he alongwith PW2 Satish Babu and PW3 Ishwari Dutt Sharma was busy in the patrolling. They got an information from the informer that the appellant is waiting for some conveyance at a place having the prohibited injections with him. The police party tried to get some independent witnesses, but nobody was agreeable to do so. The police party alongwith the informer proceeded to the spot and as indicated by the informer, the appellant was intercepted, who on questioning, revealed his name and also admitted that he was carrying the prohibited injections. At that time also, according to this witness, they tried to get some witnesses, but they could not do so. Nobody was agreeable to be a witness. Thereafter, an option was given to the appellant to get himself searched before the Gazetted Officer. But, he denied to it and said that the Police may search him. Thereafter, a consent letter Ex. A1 was prepared and a search was made and injections were recovered from the appellant. Recovery memo was prepared. This witness proved the recovery memo and the recovered articles as well.

13. PW2 Satish Babu and PW3 Ishwari Dutt Sharma have in their examination-in-chief corroborated the statement of PW1 Chandan Singh Kanyal. PW4 Laxman Chand is the formal witness, who lodged the case and recorded chik FIR.

14. PW5 Constable Bhuwneshwar Singh states that on 15.07.2005, under the order of Special Sessions Judge, Champawat, he took the articles, which were sealed and deposited them in the Forensic Science Laboratory, Agra on 18.07.2005. According to him, in an intact condition, he deposited the articles.

15. PW6 Vipin Chandra Pant is the Investigating Officer. He has proved the documents prepared by him during the course of investigation. He proved the charge sheet and other documents.

16.

16. On behalf of the appellant, in defence, two witnesses were examined namely, DW 1 Bansidhar Kapri, who according to the prosecution witnesses, was approached to witness the recovery. He has expressed ignorance of any such incident. DW2 Harish Chandra Joshi is the Police Officer. He has proved general diary entries of Sharda Bairaj, Police Chowki Banbasa on 08.07.2005. According to him, on that date PW2 Satish Babu and PW3 Ishwari Dutt Sharma were at Sharda Bairaj Police Chowki till 3:00 PM and thereafter, there was an entry in the general diary that they were called by the Station House Officer.

17. An argument has also been raised that the place of incident was a busy street and there is no independent witness. The independent witness, who was allegedly approached by the prosecution witnesses has denied of any information about the alleged incident.

18. Admittedly, the place of incident is a busy street. The site plan, which has been proved is on record, which is Ex. A8. The alleged recovery was made from near a temple. The prosecution witness PW1 Chandan Singh Kanyal in page 12, bottom of his statement categorically stated that the place of alleged recovery was about 200 meters from the Police Station and there were shops at that place also.

19.

19. PW2 Satish Babu, in page 8, bottom of his statement tells that the place of alleged recovery was crowded. It is roadways bus stand and there were a lot of shops as well. There is no independent witness. In fact, there is no rule that in the absence of independent witness, the prosecution case may not be believed. A witness cannot be discarded merely on the basis that he belongs to the police force. The witnesses of recovery, if they are police personnel can definitely be believed, if they transpire confidence. But, of course, if it is shown that the incident occurred at a very crowded place, it is expected that some independent witness may join the police, If there is no public witness, as a rule of prudence, it is required that in such cases the evidence may be scrutinized with a little more care and caution.

20. According to the consent letter Ex. A1, by which the appellant was offered a choice to be searched before the Gazetted Officer, he had revealed the number of injections with their names before search. Similar is the case, as recorded in the recovery memo. It is also true that witnesses have not stated categorically that when intercepted the appellant told it to them that which injection, in what quantity, he was having. But, it does not make any difference as such. It is not the case that some different number is given by the witnesses. Arguments given on this point have less force.

21. When did the police party leave the Police Station? It is very important. Because as stated, the alleged place of recovery is 200 meters from the police station and PW1 Chandan Singh Kanyal tells in his evidence that they took ten minutes to reach at the place of incident. He tells in page 12 of his statement that they took ten minutes to reach Patni Tiraha from Police Station. Patni Tiraha is the place where according to the prosecution for the first time informer informed the police party about appellant having injections with him. In the recovery Ex. A1 no time is mentioned as to at what time police had left. There is no reference to any general diary entry in the recovery memo. Why it is so? If police party leaves for patrolling they must enter their movement in the general diary and if any recovery is made, it should, unless the time gap is so long that the police may not remember the general diary entry, find place in the recovery memo. It is not in this case. In fact, the time of leaving the police station is not marked in this recovery memo. When questioned, PW1 Chandan Singh Kanyal in page 12 of his statement tells that they left the police station at 5:00 PM. PW2 Satish Babu also in page 7 opening lines of his cross examination would tell that they left the police station at 5:00 PM. But, PW3 Ishwari Dutt Sharma in page 6 of his statement would tell that they had left the police station 1:30 in the afternoon. Now two police witnesses tells that they left the police station at 5:00 PM, whereas, another police person tells that they left the police station at 1:30 in the afternoon. This is great variation. Generally in criminal law these variations are always relative to the situation. A villager may sometimes give a long gap in their assessment of correct time. But, when police party leaves police station for patrolling, it is expected that there must be some consistency. This variation in the statement of PW3 Ishwari Dutt Sharma definitely doubts the prosecution case. This is one aspect of the matter. There is another aspect also.

22. It is argued that, in fact, PW2 Satish Babu and PW3 Ishwari Dutt Sharma were not present at the place of recovery. The entire recovery is false because they were on duty at Sharda Bairaj, which they left at 3:00 PM. Reference has been made to the statement of DW 2, Sub Inspector Harish Chandra Joshi, who has proved the General Diary entry of Sharda Bairaj Police Chowki, which reveals that on the date of incident, till 3:00 PM PW2 Satish Babu and PW3 Ishwari Dutt Sharma were at Sharda Bairaj. If it is so, how could PW3 Ishwari Dutt Sharma proceeded from the Police Station for patrolling at 1:30 PM, it definitely doubts his presence and his statement. It’s effect is definitely on the prosecution case. It doubts the prosecution case. In fact, on this aspect, when questioned, PW2 Satish Babu admitted that on the date of incident he was at Sharda Bairaj, but he did not reply any question as to when did he return from Sharda Bairaj, he did not tell as to how long did he stay at Sharda Bairaj Police Chowki on that day; for how long was he at the Police Station on the date of incident before leaving for patrolling (page 8 para 1 of his statement).

23. PW2 Satish Babu and PW3 Ishwari Dutt Sharma have also stated that at the time of incident they approached Bansidhar Kapri to be a witness of recovery. It has not been stated by PW1 Chandan Singh Kanyal and more interestingly, when appeared as a defence witness, DW 1 Bansidhar Kapri tells that he runs a PCO shop near Purnagiri Temple. He does not know as to whether appellant was arrested on that date at 5:15 PM by the police or not. He denied to have approached by the police on that date.

24. PW5 Constable Bhuwneshwar Singh is the witness who tells that on 15.07.2005, he took the article for forensic examination. On 08.07.2005, according to the prosecution, the articles were recovered. The GD entry of lodging of the case makes mention that the articles were kept in the maalkhana. From that date, till it was produced before the court was it safely kept? If so, who kept it? By whose order it was removed from the maalkhana? What was the movement in the maalkhana? The register has not been proved. In fact, that is a very important link evidence. After all it has to be proved beyond reasonable doubt that the articles which were sealed and packed remained intact from that time till it was placed before the Forensic Science Laboratory. It is not done in this case.

25. Having considered all these rival submissions, under the facts and circumstances of the case, this Court is of the view that in fact prosecution has not been able to prove the charge beyond reasonable doubt against the appellant. The appellant ought to been acquitted of the charge under Section 8 (c) read with 22 of the Act. Accordingly, the appeal deserves to be allowed.

26. The appeal is allowed. 27. The impugned judgment and order dated 21.03.2007 is set aside. The appellant is acquitted of the charge under Section 8 (c) read with 22 of the Act.

28. Appellant is on bail. His bail bonds cancelled and sureties discharged.

29. The appellant shall immediately furnish personal bond and two sureties, each of the like amount to the satisfaction of the court concerned under Section 437 A of the Code of Criminal Procedure, 1973.

30. Let a copy of this judgment along with Lower Court Record be transmitted to the Court below for compliance.

Jitendra

(Ravindra Maithani, J.)31.12.2020