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HIMACHAL PRADESH HIGH COURT
Rajiv Sharma and P.S. Rana, JJ.
State of Himachal Pradesh —Appellant
versus
Anil Kumar and others —Respondents
Cr. Appeal No.91 of 2016
Decided on 14.3.2016

Advocates:
Counsel for the Parties:
For the Appellant:Mr. M.A. Khan, Additional Advocate General
For the Respondents: Nemo

IMPORTANT POINT
It was necessary to make entry in the Malkhana Register when case property was taken out from the Malkhana to be produced in the Court and entry was again required to be made in the Malkhana Register when it was received back.

Headnote:Narcotic Drugs and Psychotropic Substances Act, 1985—Section 20 and 29—Recovery of 1.150 kg of charas from a bag which was found placed near feet of accused in a vehicle jeep—Accused was sitting in front seat and other co-accused were sitting on back seat—Acquittal of all accused by trial court—State appeal—Major contradiction in evidence as to entire documentation if done in official vehicle or in vehicle of accused persons—No entry was made in Malkhana Register about case property being taken from Malkhana to court and brought back to Malkhana—Prosecution failed to prove that contraband was recovered from conscious possession of accused persons—Acquittal was not to be interfered with.
       Held: PW-1 C. Ajay Kumar in his cross-examination, as noticed herein above, has categorically deposed that the proceedings were prepared at the spot in the official vehicle by the IO. He alongwith driver of the official vehicle was standing near the vehicle of the accused. Case property was kept in the official vehicle when first document was prepared. IO/SI Virochan Negi put case property inside the official vehicle from the vehicle of the accused. Case property remained inside the official vehicle upto the Police Station. However, PW-8, HC Ravinder Kumar deposed that the seizure memo Ext. PW-8/B was prepared outside the vehicle of the accused persons by using front bonnet. Seizure memo was written by the SI Virochan Negi when documentation was done at the spot. Case property remained inside the vehicle of accused upto 5 PM.
       There is major contradiction in the statements of PW-1 Ajay Kumar and PW-8 Ravinder Kumar. PW-1 Ajay Kumar, deposed that the entire documentation was done inside the official vehicle and the case property remained inside the official vehicle upto the Police Station. However, PW-8, Ravinder Kumar deposed that the documentation was done on the bonnet of vehicle of accused persons and case property also remained inside the vehicle of accused. PW-11 SI Virochan Negi deposed that the bag upto 5 PM remained in the vehicle of accused and brought to the police station in the same vehicle. PW-2 Anil Kumar has admitted in his cross-examination that as per Malkhana register, no specimen of seal ‘X’ was deposited with him hence there is no reference of the same in the Malkhana Register. He also admitted that original of seal ‘M’ was also not deposited in the Malkhana. He also admitted that after 19.1.2015, there is no entry in the Malkhana Register about the case property being taken from the Malkhana and that there was no entry in the same regarding taking case property to the Court. Volunteered that there was Rapat in this regard.
       It was necessary to make entry in the Malkhana Register when case property was taken out from the Malkhana to be produced in the Court and entry was again required to be made in the Malkhana Register when it was received back.
       Thus, the prosecution has failed to prove that contraband was recovered from the conscious possession of the accused persons. There is no occasion for us to interfere with the well reasoned judgment of the learned trial Court. (Paras 12 to 15)
       Result: Appeal dismissed.

JUDGMENT

Rajiv Sharma, J.—The State has come in appeal against Judgment dated 23.9.2015, rendered by learned Special Judge-I, Shimla, HP in Sessions Trial No. 14-S/7 of 2015, whereby respondents-accused (hereinafter referred to as ‘accused’ for convenience sake), who were charged with and tried for offence under Section 20 read with Section 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as ‘Act’ for convenience sake), have been acquitted.

2. Case of the prosecution, in a nutshell, is that on 19.1.2015, at about 12.05 AM, a police party consisting of ASI Mast Ram, HC Ravinder Kumar, Constable Ravi Kumar, Constable Ajay Kumar and Driver HC Rajinder headed by SI Virochan Negi was present on National Highway near Tara Devi PWD workshop. A Bolero Camper jeep bearing No. HP-08A-0669 came from Shimla side which was being driven by Guru Dutt. The vehicle was stopped. Accused Anil Kumar was found sitting in front seat of the Bolero Camper and accused Rinku Chauhan and Rajinder were sitting in the rear seats of the said jeep. A rucksack bag (Pithu) of black and brown colour was found near the feet of Anil Kumar. In the said bag, another carry bag was found. It contained Charas in the form of balls and sticks, without any licence or permit. It weighed 1.150 Kgs. The charas and carry bag were repacked and sealed in a cloth parcel Ext. P-2 sealed with nine impressions of seal ‘X’. Sample of seal ‘X’ was obtained on separate piece of cloth. IO Virochan Negi filled in NCB form in triplicate, Ext. PW-9/B. Rukka Ext. PW-9/A was prepared and sent to the Police Station, Boileauganj (West), Shimla for registration of FIR through Constable Ajay Kumar. On the basis of Rukka, FIR Ext. PW-9/E was registered against accused persons. Personal search of the accused was conducted. Recovered Charas Ext. P5 was taken to Police Station Boileauganj, where it was resealed with seal impression ‘M’ by Inspector Viri Singh and sample of seal ‘M’ was also taken on separate piece of cloth Ext. PW-9/C. Resealing certificate is Ext. PW-9/D. Case property was handed over to MHC Police Station, Boileauganj, who entered the same in the Malkhana Register, copy of which is Ext. PW-2/A. IO also prepared spot map Ext. PW-11/A. Case property was sent to the FSL Junga for chemical examination vide RC Ext. PW-2/B.

3. Prosecution has examined as many as 11 witnesses to prove its case against the accused. Accused were also examined under Section 313 CrPC. According to them, they were falsely implicated. Accused were acquitted by the learned trial Court. Hence, this appeal.

4. Mr. M.A. Khan, Additional Advocate General, has vehemently argued that the prosecution has proved its case against the accused.

5. The State has produced its own record alongwith statements of witnesses. We have heard the learned counsel for the appellant and also gone through the record carefully.

6. PW-1 C. Ajay Kumar deposed that they laid a Naka near Tara Devi PWD Workshop. At 12.05 AM, one Mahindra Bolero Camper came from Shimla side. Vehicle was stopped. Name of the driver of the jeep was Guru Dutt. Accused Anil Kumar was sitting in the front seat. In the back seat of the jeep, Rinku Chauhan and Rajinder were sitting. One bag of black and brown colour was lying near the feet of Anil Kumar. It was checked. In the said bag, there was another carry bag. On opening said bag, black coloured substance was found in the shape of balls and sticks. It weighed 1.150 kgs. Substance was repacked in the carry bag in the same manner and carry bag was put into the bag and said bag was sealed with 9 seals of ‘X’. Seal was handed over to HC Ravinder Kumar. NCB form in triplicate was prepared and impression of seal ‘X’ was also put on NCB form. Sample of seal ‘X’’ was also taken separately on a piece of cloth. Seizure memo was prepared regarding sealing of cloth parcel, vehicle, documents and key. Rukka was handed over to him by IO. In the cross-examination, he has admitted that o

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HIMACHAL PRADESH HIGH COURTRajiv Sharma and P.S. Rana, JJ.State of Himachal Pradesh —Appellant versus Anil Kumar and others —Respondents Cr. Appeal No.91 of 2016 Decided on 14.3.2016

IMPORTANT POINTIt was necessary to make entry in the Malkhana Register when case property was taken out from the Malkhana to be produced in the Court and entry was again required to be made in the Malkhana Register when it was received back.

HIMACHAL PRADESH HIGH COURT
Rajiv Sharma and P.S. Rana, JJ.
State of Himachal Pradesh —Appellant
versus
Anil Kumar and others —Respondents
Cr. Appeal No.91 of 2016
Decided on 14.3.2016

IMPORTANT POINT
It was necessary to make entry in the Malkhana Register when case property was taken out from the Malkhana to be produced in the Court and entry was again required to be made in the Malkhana Register when it was received back.