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2015 Supreme(HP) 927
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Rajiv Sharma & Sureshwar Thakur, JJ.
Nihal Singh - Appellant
Versus
State of H.P. - Respondent
Cr. Appeal No. 366 of 2014
Decided On : 21-08-2015
Advocate Appeared:
For the appellant:Mr. Ramesh Sharma, Advocate
For the respondent: Mr. M.A.Khan, Addl. AG
The prosecution must prove the authenticity of case property and follow proper procedures to avoid prejudice to the accused.
Headnote:
Narcotic Drugs and Psychotropic Substances Act - Conviction under Section 20 - 1985 - [ND & PS Act, Section 20] - The court found that the prosecution failed to prove the case against the accused beyond reasonable doubt for the commission of the offence punishable under Section 20 of the ND & PS Act. The judgment of conviction and sentence was set aside, and the accused was acquitted of the charges framed against him by giving him the benefit of doubt.
Fact of the Case:
The accused was charged with and tried for an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The prosecution alleged that the accused was found in possession of charas, but the accused claimed to be falsely implicated by the police.
Finding of the Court:
The court found that the prosecution failed to prove the case against the accused beyond reasonable doubt for the commission of the offence punishable under Section 20 of the ND & PS Act.
Issues: The key issues revolved around the possession of charas by the accused, the conduct of the police during the apprehension, search, seizure, and sealing proceedings, and the lack of independent witnesses during the proceedings.
Ratio Decidendi: The court emphasized the necessity for the prosecution to prove the authenticity of the case property, including its handling, production in court, and re-deposit in the malkhana register. The lack of proper documentation and procedures caused serious prejudice to the accused.
Final Decision: The judgment of conviction and sentence was set aside, and the accused was acquitted of the charges framed against him by giving him the benefit of doubt. Any fine amount already deposited by the accused was ordered to be refunded, and the accused was to be released forthwith if not required in any other case.
Rajiv Sharma, J.
This appeal is instituted against the judgment dated 2.9.2014, rendered by the learned Special Judge-I, Sirmaur at Nahan, H.P, in Sessions Trial No. 67-ST/7 of 2013, whereby the appellant-accused (hereinafter referred to as the accused), who was charged with and tried for offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ND & PS Act), has been convicted and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs. 1,00,000/- and in default of payment of fine, to further undergo simple imprisonment for one year.
2. The case of the prosecution, in a nut shell, is that on 30.1.2013, PW-7 SI Ankush Dogra, PW-1 Const. Anil Kumar, HC Jagir Singh and others left the Police Station in an official vehicle driven by Const. Vicky Kumar for patrolling. The police was present at a place 1 km ahead towards Neri Pul at about 5:20 PM. The accused was spotted coming from opposite direction. The accused, on seeing the police party got perplexed and tried to flee away. He was overpowered by the police. The place was secluded one. The accused was holding a pithu bag, which was checked in the presence of police officials. On search of the pithu bag, pink coloured cloth bag was found containing nine envelopes, in which charas in the shape of sticks, was found. The charas, so recovered from the possession of the accused, was weighed. It weighed 2 kg 250 grams. The charas was re-packed in the same manner and kept in cloth parcel, which was sealed with seal “I”. NCB forms in triplicate were prepared and seal impression Ext. PW-2/B was drawn. The seal was handed over to Const. Vicky Kumar. The case property was taken into possession vide seizure memo Ext. PW-2/B. The I.O. prepared “rukka” Ext. PW-1/A and sent the same to the Police Station through Const. Anil Kumar. FIR Ext. PW-1/B was registered. The spot map Ext. PW-7/C was also prepared. The statements of the witnesses were recorded. The I.O. deposited the case property in the malkhana with PW-3 HC Purshotam Singh. PW-3 HC Purshotam Singh, made entry in the malkhana register at Sr. No. 250 vide Ext. PW-3/B. The case property alongwith the sample of seal and other relevant documents were sent to SFSL, Junga through Const. Anil Kumar PW-6 vide RC Ext. PW-3/C. The report of the FSL is Ext. PW-7/E. The investigation was completed and the challan was put up after completing all the codal formalities.
3. The prosecution, in order to prove its case, has examined as many as 7 witnesses. The accused was also examined under Section 313 Cr.P.C. According to him, he was falsely implicated in the case by the police. The learned trial Court convicted and sentenced the accused, as noticed hereinabove.
4. Mr. Ramesh Sharma, Advocate, appearing on behalf of the accused, has vehemently argued that the prosecution has failed to prove its case against the accused. On the other hand, Mr. M.A.Khan, learned Addl. Advocate General for the State has supported the judgment of the learned trial Court dated 2.9.2014.
5. We have heard learned counsel for both the sides and gone through the judgment and records of the case carefully.
6. PW-1 Const. Anil Kumar, deposed that at about 5:20 PM on 30.1.2013 when they were going from Jagher towards Neripul side, accused was coming on foot from Neripul side at a place 1 km. from Jagher. On seeing the police party, the accused got perplexed. He tried to run away. He was overpowered. The place was secluded one and there was no habitation nearby. The accused was holding a pithu bag. It contained charas. It weighed 2 kgs. 250 grams. The S.I. took the photographs. Thereafter, the charas was put into the same polythene envelopes and then put into the same pithu bag. The parcel was sealed with seal bearing impression “I”. The specimen of seal was obtained and seal was handed over to Const. Vicky Kumar. Seizure memo was prepared which was witnessed by HC Jagir and
