Niranjan Singh Alias Naranjan Chand vs State Of Himachal Pradesh

 Anoop Chitkara, J

Challenging his conviction and sentence under Section 20 of Narcotic Drugs and Psychotropic Substances, Act (hereinafter referred to as “the

Actâ€), for possessing 650 grams of Charas, whereby he has been sentenced to undergo rigorous imprisonment for one year and to pay a fine of

Rs.4000/- with default clause, the appellant has come up before this Court under Section 274 of Cr.P.C.

The facts of the case are that on 18.02.2008, police party headed by Inspector Jitender Kumar (PW-14) and other police officials were patrolling in

the jurisdiction of aforesaid police station to detect crimes of excise, NDPS Act, Forest Act, etc. Daily diary entry to this effect was made in the

concerned police station vide Ex.PW-7/A.

When the police officials were present at a place known as Chattarpur, then at around 9:00 a.m. they had laid a Naka there. The police officials

noticed that one person was walking from the side of link road. On seeing the police officials, said person became perplexed and started running

towards a pagdandi, which was leading towards Punjab boundary. It raised suspicion in the mind of the investigator that this person might be carrying

some arms or ammunition. In the presence of Pradhan, Bakshi Ram (PW-1) and Up-Pradhan Som Nath (PW-2), police officials nabbed the said

person, who on inquiry revealed his name Niranjan Singh, petitioner herein. The police officials conducted his search. He was wearing a waist band

and there were three pockets in the same and police recovered packets containing some substance from those pockets. On opening the packets, the

police found the substance to be charas. After that the investigator deputed Constable Gopal Singh (PW-4) to bring weight and scale. After weighing

the charas, it measured 560 grams. Subsequently, the investigator separated two parcels of 25 grams each and put them in an empty four square

cigarette box and sealed it with four seals of seal ‘H’ and remaining charas was put in the polythene alongwith band and sealed the same with

ten seals of seal impression ‘H’. The investigator also took the seal impression on a piece of cloth, Ex.WP-9/C and handed over the seal after

use to Bakshi Ram (PW-1). The investigator filled in NCB forms in triplicate.

The police officials prepared a seizure memo, Ex.PW13/A, and obtained signatures of independent witnesses on the same. Even the accused and

the investigator also signed it.

The investigator prepared Ruka, Ex.PW-12/A, and sent the same to the aforesaid police station for registration of FIR through Constable Gurdial

(PW-5). After that the investigator completed other investigation on the spot and arrested the accused.

On receipt of Ruka, the concerned police station registered FIR as mentioned above and after that sent its number back to be conveyed to the

investigator.

The investigator reached at the police station alongwith accused and produced the same before the officiating SHO, ASI Karam Chand (PW-9),

who resealed the case property and affixed seal of seal impression ‘K’ on the samples as well as bulk and handed over the seal to Constable

Krishan Chand. After that ASI Karam Chand (PW-9), deposited the case property with HC Ramesh Cahnd (PW-10), who was posted as Malkhana

in-charge. HC Ramesh Chand entered the case property in the Malkhana and entry in this regard was made in register No.19 and prepared road

certificate and sent sample packets alongwith specimen seals to FSL Junga through Constable Gurmail Singh (PW-11).

PW-11, Gurmail Singh, deposited the case property to with FSL Junga. The investigator also prepared report under Section 57 of the Act and sent

the same to his superior officer through PW-12, HC Randhir Singh on 20.02.2008.

The FSL after testing the samples vide report, Ex.PW-8/A, found the same to be of charas. Based on this evidence, the officer-in-charge of the

concerned police station launched prosecution by filing report under Section 173(8) Cr.P.C.

Vide order dated 14.07.2008, the learned Special Judge, Una charged the accused under Section 20 of the NDPS Act for possessing 650 grams of

charas. The accused did not plead guilty and claimed trial.

The prosecution examined independent witness Bakshi Ram (PW-1), who did not support the case of the prosecution and was declared hostile.

Similarly, the second independent witness Som Nath (PW-2) also did not support the case of the prosecution and was also declared hostile. The

common stand of the independent witnesses is that the police called them in the police station, where they were made to put their signatures on the

papers. The other official witnesses of the spot, namely, Gopal Singh (PW-4), Constable Gurdial Singh (PW-5), ASI Vishwas Kumar (PW-13) and

Inspector Jinteder Kumar (PW -14) testified in the terms of the evidence collected during investigation.

In the statement under Section 313 of Cr.P.C, the accused denied all the circumstances as incorrect. However, he did not lead any evidence in his

defense.

Vide the aforesaid judgment, the learned Special Judge accepted the prosecution evidence and held the accused guilty for the commission of

offence under Section 20 of the Act and convicted and sentenced as aforesaid.

Challenging the conviction and sentence, the appellant has come up before this Court by filing the present appeal under Section 374 of Cr.P.C.

I have heard the learned counsel for the parties and have gone through the record of the case with utmost care.

The foremost document prepared by the prosecution after detecting crime, is seizure memo, Ex.PW-13/A. After this seizure memo, the

investigator prepared Ruka, Ex.PW-12/A, and sent the same to SHO of the concerned police station for registration of FIR. A perusal of Ruka

reveals that Inspector Jitender Kumar (PW-14), along with police officials was on patrolling in the official vehicle. On 18.02.2008 at 9:00 a.m., they

had erected a check post near link road and at that point of time, they noticed one person walking from the side of link road, who on seeing the police

officials, became perplexed and started running away. The report further reveals that the action of the said person running away raised suspicion that

he might be carrying some arms or ammunition. After that Dy.SP in the presence of independent witnesses PW-1 and PW -2, who were already

talking with Dy.SP, nabbed the accused. A perusal of the sequence of this order reveals that it never came in any document that what attempt did

Dy.SP made and these two persons had also nowhere stated that what they were doing at that point of time. It is not the case of the prosecution that

these two independent witnesses are residents of nearby locality. In their testimony, both PW1 and PW-2 stated that they were called in the police

station, where their signatures were obtained on the papers. The analysis of entire evidence qua the presence of independent witnesses at the spot is

highly suspicious. Thus, the version of PW-1 and PW-2 appeared to be more probable than the version set-up by the police. Given this, the entire

prosecution fails even on this premise. However, there is another aspect of the matter.

A perusal of seizure memo, Ex.PW-13/A, explicitly depicts that the investigator had sealed the bulk charas by affixing ten seals of seal impression

‘H’ and samples by affixing four seal impressions of seal ‘H’. When the case property was produced for resealing before the officiating

SHO, ASI Karam Chand, (PW-9), then he further in compliance to Section 55 of the Act, resealed the case property by affixing two seals of seal

impression ‘K’ on bulk charas as well as samples vide Ex.WP-6/A. In the report of laboratory, Ex.PW-8/A, the description of parcels reads as

under:-

“Description of the parcel: - One sealed cloth parcel exhibit bearing three seals of “H†and resealed with three seals of “K. The seals were

intact and tallied with the seal impression sent by the SHO, PS Haroli.â€​

Thus, this description clearly reads that initially when four seals of “H’ were affixed then how the laboratory noticed only three seals. One

possibility is that such seals might have loosen from the cloth. However, the laboratory also noticed three seals of seal impression ‘K’, whereas,

only two seals were affixed by ASI Karam Chand (PW-9) then how laboratory did found three seals on it. PW-9, ASI Karam Chand, in his

examination-in-chief probably knew about this contradiction and simply stated that he resealed the case property with seal “K’ and did not

mention the number of seal impression affixed.

Given this, the description of seals mentioned in the resealing memo, Ex.PW-6/A, would prevail, where under it was clearly stated that the parcel

was affixed with two seals of seal impression ‘K’. Thus, the possibility of tampering with the case property cannot be ruled out.

Once the samples are placed in the security, sealed parcels, the supply chain to the laboratory must be secure, full proof and fully documented. In

the present case, supply chain is suspicious and the link evidence broke. Thus, the prosecution fails.

Given above, the present appeal is allowed, the aforesaid conviction and sentence imposed upon the petitioner by the learned Special Judge is set -

aside and bail bonds are discharged.

The appeal is allowed.