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2016 Supreme(HP) 1285
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Dharam Chand Chaudhary, Chander Bhusan Barowalia, JJ.
State of Himachal Pradesh - Appellant
Versus
Vijender Singh - Respondent
Cr. Appeal No. 332 of 2011
Decided on : 02-08-2016
For the Appellant :Mr. D.S. Nainta and Mr. Virender Verma, Addl. Advocates General.
For the Respondent:Mr. N.S. Chandel, Advocate.
The investigation of an offence under the NDPS Act must be conducted in a fair and impartial manner and the burden of proof lies on the prosecution to prove the case against the accused beyond all reasonable doubt.
Headnote:
NDPS ACT - SECTION 20 - SEARCH AND SEIZURE - INDEPENDENT WITNESSES - INVESTIGATION - FAIRNESS AND IMPARTIALITY - BURDEN OF PROOF - SECTION 35 AND 54 - PRESUMPTION - SECTION 58 - OFFENCE - SECTION 211 IPC - VIOLATION OF CHAPTER XI OF H.P. POLICE ACT - GUIDELINES FOR SEARCH AND SEIZURE - SECTION 41, 42, 50, 52, 53, 57 - NCB-I FORM - MALKHANA REGISTER - RC - FAIRNESS OF PROCEEDINGS - SPECIAL REPORT - PENAL ACTION - SECTION 58 NDPS ACT OR SECTION 211 IPC - DEPARTMENTAL ACTION.
Fact of the Case:
The accused was acquitted by the trial court of the charge under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1986 (NDPS Act) for recovery of 5.900 Kgs of Charas from his possession. The State of Himachal Pradesh filed an appeal against the acquittal.
Finding of the Court:
The court found that the prosecution evidence was not reliable and trustworthy. The identification of the place of recovery was contradictory in nature. The investigation was not conducted in a fair and impartial manner. The burden of proof was not discharged by the prosecution. The accused was given the benefit of doubt.
Issues: 1. Whether the prosecution evidence was reliable and trustworthy? 2. Whether the identification of the place of recovery was contradictory in nature? 3. Whether the investigation was conducted in a fair and impartial manner? 4. Whether the burden of proof was discharged by the prosecution? 5. Whether the accused was given the benefit of doubt?
Ratio Decidendi: 1. The court held that the prosecution evidence was not reliable and trustworthy as the official witnesses were not reliable and trustworthy and the evidence qua the place of recovery was contradictory in nature. 2. The court held that the identification of the place of recovery was contradictory in nature as the prosecution case was that the accused was apprehended at Khekhar Nallah or Cheel Nallah near Khekhar bridge, however, the evidence of the official witnesses was contradictory in nature. 3. The court held that the investigation was not conducted in a fair and impartial manner as the Investigating Officer did not make any effort to join some independent person to witness the search and seizure intentionally and deliberately and the evidence as recorded by the official witnesses was inconsistent and contradictory in nature. 4. The court held that the burden of proof was not discharged by the prosecution as the prosecution failed to prove the case against the accused beyond all reasonable doubt. 5. The court held that the accused was given the benefit of doubt as the prosecution failed to prove the case against the accused beyond all reasonable doubt.
Final Decision: The appeal was dismissed and the judgment of the trial court was affirmed.
Dharam Chand Chaudhary, Judge
Respondent Vijender Singh (hereinafter referred to as the ‘accused’) has been acquitted by learned Special Judge (II), Kinnaur at Rampur of the charge under Sections 20 of the Narcotic Drugs & Psychotropic Substances Act, 1986 (hereinafter referred to as “NDPS Act” in short) vide judgment dated 21.5.2011 passed in case RBT No. 24-AR/3 of 2009/2010. The State of Himachal Pradesh aggrieved by the acquittal of the accused has come up in appeal before this Court.
2. The accused belongs to District Sonipat (Haryana). He was booked by the police of Police Station, Kumarsain in a case under Section 20 of the NDPS Act registered on 15.12.2008 vide FIR No. 121/2008 with the allegations that at Kheker Nallah, when the search of the bag he was carrying on his right shoulder was conducted, Charas weighing 5Kgs 900 Grams was recovered therefrom.
3. The prosecution case as disclosed from the record in a nut shell is that on 15.12.2008 ASI Bhagat Ram (PW11), the investigating Officer was away to Sessions Court at Rampur to attend hearing in a bail application, listed there and for getting a challan prepared in some case from the District Attorney, Kinnaur at Rampur. Rapat No. 5(A) Ext.PW11/A was entered in the Rojnamcha of Police Station in this regard. On the same day, around 4:30 P.M. PW-11 asked ASI Shyam Lal PW-3 to depute two police officials in official vehicle towards Kingal-Sainj side for laying nakka. On the information so received, PW-3 has deputed Constable Suresh Kumar PW8 and HHG Naresh Kumar in the official vehicle along with its driver Constable Lachhi Ram. They were also given search light etc. Rapat No. 19(A), Ext.PW11/B to this effect was entered in rojnamcha by PW-3. PW8 and HHG Naresh Kumar went to Khekar Nallah in the official vehicle and met there to the I.O. PW11 at 4:45 P.M. PW11 laid nakka in Khekar Nallah on National High Way No. 22 with the assistance of the police officials accompanying him. At 5:30 P.M., the accused was spotted coming from Sainj side. He was holding a bag on his right shoulder. When arrived closure to the place of nakka and noticing the police party present there, he was taken to surprise and as such tried to flee away. PW-11, however, over powered him with the help of the accompanying police officials. The conduct of the accused having tried to flee away on seeing the police has raised suspicion in the mind of PW-11 that he may be carrying some drug or narcotic substance in the bag.
4. Since the accused allegedly was apprehended at an isolated place, therefore, no person could be associated to witness the search and seizure. The I.O. PW-11, therefore, associated PW-8 C. Suresh Kumar and Constable-driver Lachhi Ram as independent witnesses. The accused was given the option to exercise his legal right of being searched either before a Magistrate or Gazetted Officer orally as well as in writing. The memo prepared by PW-11 in this regard is Ext.PW8/A. As per the endorsement, the accused made in his own hand on this document, he however, opted for his search by PW-11. After obtaining the consent of the accused, PW-11 offered his own search first to the accused which the accused has taken and memo Ext.PW8/B was prepared in this regard. The red and gray coloured bag having mark ‘Impact Collection’ the accused was holding on his right shoulder was opened. One plastic bag having mark ‘Haryana Handloom House’ in English was found kept therein. In that bag, one jean pant of FOQ brand and one shirt of Levis were found kept in that bag. Beneath the pant and shirt one more blue coloured bag was found kept. On opening of that bag, some black coloured substance in the shape of round and sticks was recovered therefrom. On smelling the recovered substance the same appears to be ‘charas’ to PW-11. The accused also disclosed that the recovered substance was ‘charas’. PW-11 had weights and scale with him. The recovered ‘charas’ when weighed was found 5 KGs 900 Grams. Two samples w
