State of Himachal Pradesh vs Gurmeet Singh

Rajiv Sharma, J.—This appeal is directed against the judgment, dated 31.12.2007, passed by the learned Additional Sessions Judge, Fast Track Court, Solan, District Solan, H.P. in Case No. 10 FTN/7 of 2007, whereby the respondent, who was charged with and tried for offences punishable under Sections 15 and 18 of The Narcotic Drugs and Psychotropic Substances Act, 1985, has been acquitted. Case of the prosecution, in a nut-shell, is that on 18.09.2006 at about 7:30 a.m., while a police party headed by S.I. Kamal Kishore (PW-14), was present at Rajpura, a secret information was received to the effect that the respondent-accused, resident of Jagatkhana, was indulging in the trade of sale of Bhuki and opium. The secret information was reduced into writing. A copy of the same was sent to S.D.P.O., Nalagarh through Constable Gurnaib Singh. PW-14, Inspector Kamal Kishore constituted a raiding party. PW-3, Balwant Singh and PW-5, Shyam Lal were associated as independent witnesses. The house of the respondent was searched. A polythene packet containing opium was recovered from the kabar kept in the gallery of the residential house. One tappa, containing Bhuki was also found to be kept near the kabar. Thereafter, the police party conducted the search of another house of the accused, which was under construction. During search, one boru (sack) was recovered. On search of the boru, 17 packets containing Bhuki were also found. The recovered opium was weighed. It weighed 100 grams. Two samples of 25 grams each were separated from opium. The sample packets were sealed and marked as S-1 and S-2. The remaining opium was also sealed and packet was marked as Ex.-P1. The Bhuki was also weighed. It weighed 24 kgs. Out of the recovered 1 Kg, 4 Kgs. and 19 Kgs. Bhuki, six samples of 250 grams each were drawn, i.e., two samples from 1 kg Bhuki, two samples from 4 kgs. Bhuki and two samples from 19 kgs. Bhuki. The samples were parceled and sealed. The balance Bhuki was also parceled and sealed. The samples and recovered Bhuki were taken into possession by the police. A ruka was sent to the police station, on the basis of which, an FIR was registered. The case property was re-sealed by Shri Som Dutt, SHO, Police Station, Nalagarh and deposited in the malkhana. A special report was also sent to Superintendent of Police, Solan. The case property was produced before the learned Judicial Magistrate, 1st Class, Nalagarh and a certificate to this effect was obtained. As per the report of chemical examination, it was opined that the substance was opium and Bhuki. Thereafter, the challan was put up against the accused in the Court.

The statement of the accused was recorded u/s 313, Cr. P.C. He pleaded not guilty. He also tendered in defence evidence jamabandi for the year 2001-2002.

Mr. Ramesh Thakur, learned Assistant Advocate General has vehemently argued that the prosecution has proved the case against the accused.

Mr. Ramakant Sharma, learned counsel for the respondent has supported the judgment of the learned trial Court.

The alleged recovery has been effected in the presence of two independent witnesses, namely, Balwant Singh (PW-3) and Shyam Lal (PW-5). PW-3, Balwant Singh has testified that he was summoned by the police from his house. He was taken to the house of accused. According to him, he was told by the police that they had recovered Bhuki from the house of accused, which was lying outside the residential house of accused. He alongwith police party never went inside the house of accused. The Bhuki was weighed out-side the house of the accused. It weighed 24 kgs. He did not see any opium on the spot neither any opium was weighed in his presence. According to him, Sham Lal (PW-5) was also there. Sham Lal has reached the spot prior to him. He went to his house. The only proceeding completed in his presence was that the contraband was weighed in his presence. No documents were prepared in his presence on the spot. He was summoned by the police at Jagatkhana where his signatures were obtained on some papers. Sealing etc. was not done by the police in his presence. His statement was not recorded by the police. He was declared hostile.

Similarly, PW-5 Shyam Lal has also not supported the case of the prosecution. According to him, he was told by the police that they have recovered Bhuki etc. from the house of accused. When he reached at Jagatkhana, the accused was not present at that time. However, accused reached there later on. Neither any recovery was effected in his presence nor Bhuki was shown to him by the police. The police did not carry out any proceeding. However, his signatures were obtained by the police on some papers at Bus Stand, Jagatkhana. The police has not taken him to the house of accused. The police did not conduct raid of the house of accused in his presence. The police did not effect any recovery of Bhuki etc. in his presence. The police did not effect any recovery from the house which was under construction. He knew Balwant Singh. He was not accompanying him on that day. He was also declared hostile.

It has also come in the statement of PW-14, Inspector Kamal Kishore that there were residential houses near the house of the accused, but no independent witness was associated from the locality. In view of this, the recovery of the contraband is doubtful. According to the prosecution 100 grams and 1 kg. Bhuki was recovered from the gallery of the residential house of the accused. The wife and children of the accused were also residing with him as per the statement of PW-14, Inspector Kamal Kishore. The prosecution has not led any tangible evidence to establish the ownership of the house. It has come in the statement of PW-14 that the house which was under construction, was without doors and windows. In view of this, it can safely be said that the house was accessible to all and the possibility that somebody else has placed the contraband in the house cannot be ruled out, as rightly held by the learned trial Court.

The other glaring lacunae in the prosecution case is that the recoveries were effected on 18.09.2006 and the samples were sent after 42 days for chemical examination on 01.112006. The prosecution has not explained this delay. In this case, the link evidence is missing the manner in which the samples were sent for chemical examination. According to PW-6, MHC Vishesh Kumar, it was not stated in the RC that samples seals were sent alongwith the samples to the Laboratory. In his cross-examination, he has also admitted that it was not mentioned in the Malkhana register that sample seals were deposited with him alongwith samples. In view of this, the prosecution has miserably failed to prove the case against the accused. There is no scope of interference by us in the well reasoned judgment of the trial Court. Accordingly, there is no merit in this appeal and the same is dismissed. Bail bonds are ordered to be discharged.