Nanda Bhadur vs State Of Himachal Pradesh

Sabina, J

Appellant has filed the appeal challenging the judgment/ order dated 30.12.2017/4.01.2018, whereby he has been convicted and sentenced as under:-

Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985

Rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/- (Rs. One lac only). In default of payment of fine, he shall further undergo simple imprisonment for one year.

Prosecution story, in brief, is that on 15 th February, 2016, Investigating Officer SI Ajit Singh (PW-12) along with other police officials were present in the area for patrolling and traffic duty. At about 12.30 a.m., police party was present at Tutikandi bus stand, near police assistance room. A male Nepali and female Nepali, on seeing the police had tried to escape. On suspicion, both the said persons were stopped. The Male Nepali disclosed his name as Nanda Bahadur (appellant) and the female Nepali disclosed her name as Parvati. Both the said persons were apprised of their right that they were to be searched on account of suspicion and had a right to get their search effected in the presence of a gazetted officer or a Magistrate. Both of them executed consent memo to the effect that their search could be conducted by the police party. Thereafter, the police party gave their personal search to both the accused and in this regard a memo was prepared. On personal search of the appellant, one bag was found tied to his waist. On opening the bag, seven plastic packets were recovered and the said plastic packets contained charas. On weighment, the contraband came to 4 Kilograms 900 grams, without bag and plastic packets. Weight of the bags and plastic packets was 240 grams. Appellant could not produce any licence or permit for carrying the contraband. Satish Kumar Thakur was joined as an independent witness. The recovered contraband was put in the same plastic packets and was sealed in a white cloth parcel with 15 seals bearing impression ‘Z’. The said parcel was taken in police possession. The investigating officer filled-up NCB-I form in triplicate. From search of accused Parvati, nothing was recovered. Rukka was sent to the Police Station for registration of FIR.

On the basis of rukka, formal FIR No.59 dated 16th February, 2016 was registered at Police Station West, Shimla District Shimla under Sections 20 and 29 of the NDPS Act.

After completion of investigation and necessary formalities, challan was presented against the accused under Sections 20 and 29 of the NDPS Act.

Charges were framed against the accused under Sections 20 and 29 of the NDPS Act. Accused did not plead guilty of the charges framed against them and claimed trial.

In order to prove its case, during trial, prosecution examined 13 witnesses.

After the close of prosecution evidence, appellant when examined under Section 313 of the Code of Criminal Procedure, prayed that he was innocent and had been falsely involved in this case being a Nepali.

Appellant did not examine any witness in his defence.

Vide impugned judgment/order dated 30th December, 2017/4th January, 2018, appellant was convicted and sentenced as mentioned in para 1 of the judgment. However, accused Parvati was acquitted of the charges framed against her by the trial Court vide judgment dated 30th December, 2017. Hence, the present appeal by the appellant.

Learned counsel for the appellant has submitted that the prosecution had miserably failed to prove its case against the appellant. There had been violation of provisions of Section 50 of the NDPS Act. A perusal of the photographs of the parcel of the case property Ex.PW-12/B taken at the spot reveal that the said parcel did not bear the signature of the accused as well as witness HC Prakash. As per the prosecution story the recovered contraband was in seven plastic packets, whereas, a perusal of the report of the Forensic Science Laboratory reveals that it had received the contraband in the seven transparent poly packets along with three transparent and yellow cellotape packets, one brown cellotape packet and three hindi newspaper packets externally lined with transparent cellotape and pinkish white colored marking cloth torn bag with strings. The independent witness had not supported the prosecution case during trial.

Learned Deputy Advocate General, on the other hand, has opposed the appeal and has submitted that the prosecution had been successful in proving its case. The official witnesses were acting in discharge of their official duties and had no reason to falsely involve the appellant in this case. The fact that independent witness had not supported the prosecution story did not render the testimonies of the official witnesses doubtful.

Present case relates to recovery of 4 kilograms 900 grams of Charas.

The Investigating Officer, SI Ajit Singh, while appearing in the witness- box as PW-12, has deposed as per the prosecution story. His testimony has been duly corroborated by PW-2 HC Prakash Chand, PW-3 Constable Ram Nath, PW-6 LC Lata with regard to recovery of the contraband from the appellant.

PW-13, Inspector Viri Singh deposed that on 16th February, 2016, rukka was brought by Constable Ram Nath and on the basis of the same, formal FIR Ex.PW-13/A was registered. On the same day, at about 7.04 a.m. ASI Ajit Singh produced before him one sealed parcel bearing 15 seals of impression ‘Z’ containing 4 kilograms 900 grams of charas along with sample seals and NCB form in triplicate. After checking the parcels that all seals were intact, he kept the said parcel in another cloth parcel and resealed the same with 12 seals of seal bearing impression ‘A’. He deposited the case property with MHC HC Krishan Singh. After completion of the investigation challan was prepared.

A perusal of the statements of recovery witnesses reveal that the appellant was carrying the contraband in a bag, which was tied on his body. When the bag was opened, it contained seven plastic packets containing Charas. On weighment, the contraband came to 4 kilograms 900 grams. It is specific case of the recovery witnesses that Pithu bag and seven plastic packets on weighment came to 240 grams.

Ex. PW-1/A is the recovery memo. A perusal of the same also reveals that contraband was recovered from seven plastic packets and the recovered contraband was again kept in the seven packets and the same were put in cloth parcel and were sealed with 15 seals bearing impression ‘Z’.

The report of the Forensic Science Laboratory is Ex.PW-12/G. Paragraph 10 of the said report reads as under:-

“10. On opening the sealed cloth parcel marked as X another sealed cloth parcel was found and on opening the second sealed cloth parcel, the exhibit stated as charas, in the form of fused balls, was found in seven transparent poly packets along with three transparent & yellow cellotape packets, one brown cellotape packet & three hindi newspaper packets externally lined with transparent cellotape and pinkish white colored markin cloth torned bag with strings. On weighing the exhibit stated as charas on electronic balance, the weight was found to be:

Total weight of exhibit with transparent poly packets = 4.900Kg

Weight of transparent poly packets (07 Nos.) = 0.036Kg

Actual weight of exhibit = 4.864Kg”

Thus, a perusal of the report of the Forensic Science Laboratory reveals that when the cloth parcel was opened, it contained seven transparent poly packets along with three transparent and yellow cellotape packets, one brown cellotape packet and three hindi newspaper packets externally lined with transparent cellotape and pinkish white colored marking cloth torn bag with strings. However, the recovery witnesses have not deposed with regard to taking in possession of three transparent and yellow cellotape packets, one brown cellotape packet, three hindi newspaper packets externally lined with transparent cellotape and pinkish white colored marking cloth torn bag with strings. It is not the case of the recovery witnesses that the said articles, which were found by the Forensic Science Laboratory along with seven transparent poly packets had also been taken in possession and had been sealed in the cloth parcel. This fact is a major discrepancy and makes the prosecution case doubtful. The possibility that the case property was tampered with, cannot be ruled out.

Provisions under the NDPS Act provide harsh punishment. Consequently, the responsibility on the prosecution is higher to prove its case by leading cogent and convincing evidence. However, the fact that some more packets were also found in the parcel sent to the Forensic Science Laboratory, than the articles kept by the Investigating Officer in the cloth parcel at the time of recovery of the contraband, renders the prosecution story doubtful.

In view of the above discussed discrepancy, the fact that the case property as shown in photographs Ex.PW-12/B does not bear the signature of the accused also gains significance. As per the Investigating Officer the photographs were taken at the spot.

It is a settled preposition of law that the prosecution is required to prove its case against an accused by leading cogent and convincing evidence. Whenever, a doubt arises in the prosecution story, the benefit of the same has to be extended to the accused.

In the present case, since the prosecution case is rendered doubtful vis-à-vis sample sent for chemical analysis, the appellant is entitled for acquittal.

Accordingly, the appeal is allowed and the judgment of conviction dated 30th December, 2017 and order of sentence dated 4th January, 2018, passed in Sessions Trial Number 26-S/7 of 2016 by the Special Judge (II), Shimla, H.P., are set aside. Appellant is acquitted of the charges framed against him. Appellant be set at liberty forthwith, if not required in any other case.

In view of the provisions of Section 437 -A Code of Criminal Procedure, 1973, appellant Nanda Bhadur, is directed to furnish a personal bond in the sum of Rs.25,000/ -, and a surety in the like amount, before the Registrar (Judicial) of this Court, which shall be effective for a period of six months, with stipulation that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellant aforesaid, on receipt of notice thereof, shall appear before the Supreme Court.