CR.A/39/2013 on 4 May 2015

1. Cr. Appeal No. 452/2012 Sashi Kumar and another …Appellants Versus State of Himachal Pradesh …Respondent

2. Cr. Appeal No. 39/2013 State of Himachal Pradesh …Appellant Versus Shashi Kumar and another …Respondents _______________________________________________________

Coram:

Hon’ble Mr. Justice Rajiv Sharma, Judge Hon'ble Mr. Justice Sureshwar Thakur, Judge Whether approved for reporting?1 Yes. ----------------------------------------------------------------------------------------- For the Appellant(s) : Mr. Lakshay Thakur and Mr. Abhi Raj Guleria, Advocates, in Cr. Appeal No. 452/2012.

Mr. M.A. Khan, Additional Advocate General, in Cr. Appeal No. 39/2013.

For the Respondent(s): Mr. Lakshay Thakur and Mr. Abhi Raj Guleria, Advocates, in Cr. Appeal No. 39/2013.

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

Mr. M.A. Khan, Additional Advocate General, in Cr. Appeal No. 452/2012. _______________________________________________________

Justice Rajiv Sharma, Judge.

Since both the appeals have arisen out of the same judgment, the same were taken together and are being disposed of vide this common judgment.

2. These appeals are instituted against Judgment dated 8.10.2012 rendered by learned Special Judge, Kullu, Himachal Pradesh in Sessions Trial No. 29 of 2012, whereby appellants in Criminal Appeal No. 452/2012 (hereinafter referred to as 'accused' for convenience sake), who were charged with and tried for offence under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'Act' for convenience sake), were convicted and sentenced to undergo rigorous imprisonment for one year and to pay a fine of `20,000/-, in default of payment of fine, to further undergo simple imprisonment for three months. The State has come in appeal bearing No. 39/2013, for enhancement of the sentence dated 8.10.2012.

3. Case of the prosecution in a nutshell is that on 4.5.2011, PW-7 SHO Tenzin (IO) alongwith HC Bala Ram was on patrolling duty near Larji. At about 4.00 am, a vehicle bearing No. HP01H-6009 came from Larji side. It was signalled to stop. Driver of the vehicle and other occupants disclosed their identification. Search of the vehicle was taken. One packet kept in the dashboard was recovered. On checking Charas was recovered and it weighed 500 gms. It was wrapped in the same manner in the packet and sealed with six seals of impression ‘P’. Samples of seals were prepared on separate piece of cloth. IO filled NCB form at the spot. Possession memo was prepared. Rukka was prepared at the spot and sent to the police station, Bharari through HHC Bala Ram alongwith case property alongwith NCB form. NCB form in triplicate, sample seal ‘P’ and copy of seizure memo were handed over to SHO Balbir Singh. He lodged FIR. SHO Balbir Singh resealed case property with 5 impressions of seal ‘W’. He also filled up column Nos. 9 to 11 of the NCB form and deposited case property with PW-5 Parkash Chand. Case property was entered in the Malkhana register at Sr. No. 46. He sent the sealed parcels vide RC Ext. PW-1/B to FSL Junga through PW-1 Bala Ram. He deposited the same in laboratory and obtained receipt. Thereafter, codal formalities were completed and challan was put up in the Court.

4. Prosecution, in all, examined 7 witnesses to prove its case against the accused. Accused were also examined under Section 313 CrPC. According to them, they were innocent and were falsely implicated. Accused were convicted and sentenced as noticed above. Hence, these two appeals, one by the accused against their conviction bearing Cr. Appeal No. 452/2012, and another by the State bearing Cr. Appeal No. 39/2013, for enhancement of sentence.

5. Mr. Lakshay Thakur, Advocate has vehemently argued that the Prosecution has failed to prove its case against the accused.

6. Mr. M.A. Khan, Additional Advocate General has also argued that accused should have been given maximum punishment of 10 years being in possession of Charas.

7. We have heard the learned counsel for the parties and also gone through the judgment and record carefully.

8. PW-1 Bala Ram has deposed that on 4.5.2011, he alongwith SHO Tenzin and team was on patrolling and excise duty. They reached near Larji. At about 4.00 am, one vehicle came from Larji side which was stopped by the police and checked. Identities of the occupants of the vehicle were established. Search of the vehicle was conducted. During search, one pack kept on dashboard was recovered. It contained 500 gms charas. IO prepared Rukka and handed over to him for registration of case vide Ext. PW-1/A. On 5.5.2011, MHC handed over to him case property alongwith record of the case vide RC No. 30/11 Ext. PW-1/B. He deposited the same with FSL Junga and handed over receipt to MHC.

9. PW-2 and PW-3 are formal witnesses.

10. PW-4 deposed that he lodged FIR Ext. PW-4/B on the same day. Bala Ram produced/ handed over case property alongwith documents. He resealed the parcel with ‘W’ and affixed 5 seals over parcel vide Ext. PW-4/D. Sample of seal is Ext. PW-4/E. He filled up columns No. 9 to 11, which is Ext. PW-4/F and affixed three impressions of seal ‘W’. MHC thereafter handed over case property to MHC Parkash Chand.

11. PW-5 Parkash Chand deposed that on 4.5.2011 SI Balbir Singh handed over case property i.e. one parcel resealed with five seals of ‘W’, which he entered in the Malkhana register at Sr. No. 46. He proved abstract of Malkhana register Ext. PW-5/A. On 5.5.2011, sealed parcel alongwith other record was sent to FSL Junga through PW- 1 HC Bala Ram.

12. PW-6 ASI Rajesh Kumar deposed the manner in which accused were apprehended, search and sealing process was completed at the spot. Case property was produced in the Court. While recording statement of PW-6 Rajesh Kumar, the trial Court has observed as under: “On opening the parcel Ex. P1, it contains another sealed parcel Ex. P2 sealed with seal P six in numbers. Seals are intact. On opening Ex. P2, it contains charas Ex. P3, cello tape and polythene wrappers Ex. P4 are the same which were taken in possession from the vehicle of the accused.”

13. PW-7 SHO Tenzin was leading the patrol party. He also deposed the manner in which vehicle was stopped, accused were apprehended and vehicle was searched. He prepared NCB form. He also prepared Rukka Ext. PW-1/A. He sent the same through HHC Bala Ram alongwith case property, NCB form, sample seal ‘P’, copy of seizure memo to Police Station Bharari. He also prepared rough spot map.

14. Mr. Lakshay Thakur has drawn the attention of the court to Ext. PW-5/A i.e. Malkhana Register. According to PW-5, he entered in the Malkhana Register at Sr. No. 46 property deposited on 4.5.2011. He sent the same to FSL Junga through PW-1 HC Bala Ram. Bala Ram carried case property to FSL Junga vide RC Ext. PW1/B. According to Ext. PX, the report was signed by Assistant Director on 11.5.2011. After examination of the extract, original cloth parcel containing remnants of the exhibit were resealed. Case property was produced before the Court. While recording statement of PW-6, on opening of parcel Ext. P1, it contained another sealed parcel Ext. P2, sealed with seal impression ‘P’ six in number. Seals were intact. Seal ‘P’ six in number were put when the contraband was seized and thereafter 5 seals of ‘W’ were put by the PW-4 Balbir Singh. Parcel was supposed to be reopened for the purpose of analysis by FSL Junga. Five seals of ‘W’ and six seals of ‘P’ were bound to be removed in order to take the contraband out for the purpose of analysis from the pocket. Analysis was carried and thereafter property was put in the same parcel and sealed with FSL seals. However, when the property has been produced before the Court all the 6 seals of ‘P’ were found intact. The trial Court has not noticed whether seals of FSL were on the packet when produced before the Court. There is no entry also in the malkhana register Ext. PW-5/A when the property was taken out from Malkhana for production before the Court. Case property was to be taken out after making entry in Malkhana and after recording same in daily diary report. Case property was to be re-deposited in the Malkhana register and daily diary was to be prepared. Thus, it casts doubt whether the case property, which was sent to FSL Junga and the property produced before the Court, was the same which was seized from the accused coupled with the fact that six impression of ‘P’ were found intact as per the observations made by the Court, while recording statement of PW-6 when the case property was produced before the Court and opened. These seals were bound to be removed when the sample was examined as alleged. It creates doubt in the version of the prosecution and, thus, prosecution has failed to prove case against accused beyond reasonable doubt. There is no reference of FSL seals. Statement of PW-6 was recorded on 21.8.2012 and as noticed by us, Ext. PX is dated 11.5.2011.

15. In Punjab Police Rules, applicable to the State of Himachal Pradesh, Malkhana registered is assigned serial number-19. It is in a tabular form. There are different columns like who has deposited the case property and when it was taken out and deposited back. These details are very material and every deposit made in the Malkhana /Store Room is to be recorded and also at the time when it is re- deposited.

16. In this case, there is no evidence who has brought the case property from Malkhana at the time of production before the Court and who has taken it back to the Malkhana. Generally, case property is taken from the Malkhana after recording entry. It is sent by MHC through some Constable and handed over to Naib Court and returned in the same manner to be deposited back in the Malkhana/Store Room.

17. Accordingly, Cr. Appeal No. 452/2012 preferred by the accused is allowed. Judgment dated 8.10.2012

rendered by learned Special Judge, Kullu, Himachal Pradesh in Sessions Trial No. 29 of 2012 is set aside. Accused be released forthwith, if not required in any other case by the Police. Fine amount, if already deposited, be also refunded to them. Registry is directed to prepare the release warrant of the accused and send them to the Superintendent of Jail concerned immediately.

18. In view of above, Cr. Appeal No. 39/2013 preferred by the State is dismissed being without any merits. Pending applications, if any, in both the appeals are disposed of.

(Justice Rajiv Sharma) Judge

(Sureshwar Thakur) Judge 4.5.2015 vikrant

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA.

Cr. Appeal No. 452/2012 with Cr. Appeal no. 39/2013 Reserved on: 1.5.2015 _______________________________________________________

1. Cr. Appeal No. 452/2012 Sashi Kumar and another …Appellants Versus State of Himachal Pradesh …Respondent

2. Cr. Appeal No. 39/2013 State of Himachal Pradesh …Appellant Versus Shashi Kumar and another …Respondents

_______________________________________________________

Judgment for consideration please.

(Justice Rajiv Sharma) Judge

I agree/I do not agree.

(Justice Sureshwar Thakur) Judge

List for pronouncement of judgment on 4.5.2015

(Justice Rajiv Sharma) Judge

Court master .