State of H.P. vs Deen Mohammed

Deepak Gupta, J.—This appeal by the State is directed against the judgment dated 3rd April, 1999 delivered by the learned Sessions Judge, Chamba in Sessions Trial No. 28 of 1998, whereby the accused has been acquitted of having committed an offence punishable u/s 20 of the Narcotic Drugs and Psychotropic Substances Act.

The prosecution story in brief is that on 19th March, 1998, PW-9 HC Budhi Prakash of Police Post Tunu Hatti had laid a Naka at Tunu Hatti barrier alongwith HC Rajesh Kumar, HC Rakesh Kumar, HC Hoshiara Ram and Constables Mohinder Singh and Mazid Mohammed. At about 7.45 a.m. they saw one person coming from Naini Khud side. On seeing the police personnel, the said person tried to run away. This aroused the suspicion of the police officials, who apprehended that person. The said person was carrying a bag on his left shoulder. PW-9 Budhi Parkash suspected that the accused may be carrying some contraband substance. He associated two independent witnesses Prem Kumar and Gauri Shankar. The accused was given an option whether he wanted to be searched before a Magistrate or a Gazetted Officer. The accused, after disclosing his name, opted to be searched by the police officials themselves.

On search of the bag, one polythene bag was found inside. This polythene bag was opened and inside this another polythene bag was found, which contained Charas. Weights and scale were arranged from a shop nearby and the Charas was weighed and found to be 4.750 kgs. Two samples of ten grams each were drawn. The two samples and the remaining bulk Charas were sealed in three separate parcels with seal ''T''. The seal after use was handed over to witness Prem Kumar. The Charas was seized vide memo Ex. PB. The accused was informed about the ground of arrest vide memo Ex. PE. Wireless message Ex. PT was sent to the SDPO Dalhousie and Superintendent of Police, Chamba and Ruka Ex. PE was sent to the Police Station through Constable Mazid Mohammed, on the basis of which FIR Ex. PF was recorded. PW-9 Budhi Parkash prepared the site plan and completed other codal formalities on the spot. The same day, he produced the case property before SHO Rajinder Sharma, who after resealing the said parcels, deposited the same in the Malkhana. Special Report Ex. PK was also sent to the SDPO Dalhousie. Thereafter, one sample was sent to the Chemical Examiner, CTL Kandaghat, who opined that the sample was of Charas and the resin content was 36.59 per cent.

On the basis of the aforesaid material, the accused was challaned with having committed an offence punishable u/s 20 of the Narcotic Drugs and Psychotropic Substances Act. He pleaded not guilty and claimed trial. The prosecution examined nine witnesses and after trial the accused was acquitted. Hence, the present appeal by the State.

The grounds, which weighed with the learned trial Court for acquitting the accused, were (1) that the accused was not made aware of his right to be searched before a Magistrate or a Gazetted Officer and, therefore, there is violation of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, (2) that the prosecution had failed to prove beyond reasonable doubt that the recovery had been effected from the accused. In this regard the trial Court noted four contradictions, one was that according to PW-9 Budhi Parkash the colour of the bag being carried by the accused was black, whereas PW-1 Karam Singh had stated that the accused was carrying a polythene bag on his shoulder, and second is that PW-9 Budhi Parkash stated that he had sealed the parcel with seal ''T'' but PW-1 Karam Singh stated that the parcel was sealed with seal ''K''. The third contradiction was that whereas according to PW-1 Karam Singh it had taken three to four hours to complete the proceedings, but according to PW-9 it took 1.15 hour to complete the proceedings and PW-2 Prem Kumar stated that it took 10 to 15 minutes to complete the proceedings. The fourth contradiction noted by the trial Court was that the place of occurrence is different. Whereas according to PW-1 and PW-9 the recovery had taken place on the road, PW-2 stated that the proceedings had taken place in the Police Post.

We have heard Mr. Rajesh Mandhotra, learned Deputy Advocate General, for the State-appellant and Mr. B.C. Negi, Advocate, learned Counsel for the respondent-accused.

Mr. Mandhotra contends that Section 50 of the Narcotic Drugs and Psychotropic Substances Act is not applicable since the contraband has not been recovered as a result of personal search of the accused but from the search of the bag. He also argued that the contradictions are very minor. On the other hand, Mr. B.C. Negi, Advocate, submitted that apart from the contradictions noted above, there is delay in lodging the FIR, there is cutting in the document Ex. PB and witness Mazid Mohammed has been withheld.

We have given careful consideration to the arguments of the parties and have carefully perused the other evidence on record.

At the outset, we may notice that Section 50 of the Narcotic Drugs and Psychotropic Substances Act is not applicable to the facts of the present case, since the recovery of the contraband substance was made from a bag being carried by the accused and not as a result of his personal search. In this behalf, reference may be made to the law laid down by the Apex Court in State of Himachal Pradesh v. Pawan Kumar Latest HLJ 2004 (2) (SC) 1247.

The Investigating Officer (PW-9) has supported the prosecution case and, therefore, it is not necessary to repeat his statement. The witness has been confronted with Ex. DB, which is the memo with regard to the personal search of the accused. He admitted that there is a cutting in the memo, with regard to the quantity of Charas seized but according to him this cutting was made due to the fact that a mistake had occurred while noting down the quantity. He further stated that witness Prem Kumar was standing near the forest barrier and witness Gauri Shankar was present in his shop. He denied the fact that the accused was taken to the Police Post. He admitted that there is an Excise and Taxation Officer at Tunu Hatti but volunteered that at that time the ETO was not there as he used to come at 10 a.m.

PW-1 Karam Singh has also supported the prosecution version. He has stated that the accused was carrying a polythene bag on his left shoulder. He further states that when the bag was searched, one another polythene bag of while colour was found inside and inside that bag another polythene bag of sky blue colour was found. From the third bag the Charas weighing 4.750 kgs. was recovered. According to him, the case property was sealed with seal ''K''. The witness has admitted that witness Gauri Shankar has a shop near the Police Post and that Prem Kumar also resides at Tunu Hatti, in connection with his business. He has also stated that it took about three to four hours to complete the proceedings on the spot.

PW-2 Prem Kumar is the independent witness. He used to work as Checker in Truck Operators'' Union, Banikhet. According to him, the accused was apprehended by the police and the police checked the bag and took the same to the Police Post and on search of the bag Charas was recovered. Two samples were drawn from the Charas. He stated that the seal after use was given to him but he has lost the same. He also denied that the weights and scale were got from the shop of Gauri Shankar. According to him, it took about 10 to 15 minutes to check the recovered Charas and thereafter he went to the place of his duty. He admits that he has good relations with the police but according to him he has never appeared as a witness for the police, except in the present case.

PW-6 Rajinder Kumar stated that he was working as Wireless Operator at Tunu Hatti Check Post and at 10.30 a.m., he received a message copy of which is Ex. PJ from PW-9 Budhi Prakash. He transmitted the same to the SDPO, Dalhousie. PW-3 Rajinder Sharma stated that on 9th March, 1998 he received ruka Ex. PE through Constable Mazid Mohammed, on the basis of which he recorded the FIR. He stated that on the same day at about 4 or 5 p.m., PW-9 Budhi Prakash brought one parcel and two sample parcels duly sealed with seal ''T''. He resealed the aforesaid parcels with his own seal ''K'' and he also affixed his seal on the three parcels as well as on the seal impression and memo Ex. PG was prepared in this behalf. He thereafter deposited the case property in the Malkhana.

PW-4 Rajesh Kumar stated that at the relevant time he was working as MHC in Police Station Dalhousie and PW-3 deposited with him three parcels sealed with seals ''T'' and ''K'' alongwith seal impression of the seal. On 20th March, 1998, he sent one sample parcel to the Chemical Examiner, CTL Kandhaghat through Constable Kako Ram (PW-5) vide RC No. 24 of 1998 alongwith sample seal impressions, who after depositing the same returned with receipt on the RC itself. He also produced the original record. There is virtually no cross-examination of this witness.

PW-5 Kako Ram stated that he took one sample having three seals of ''T'' and one of ''K'' to the Chemical Examiner alongwith sample seal impressions and deposited the same on 23rd March, 1998 and brought back the receipt.

PW-7 and PW-8 are the formal witnesses, who have received the wireless message and the special report.

From the oral evidence as well as the documents on record, it stands proved that 4.750 kgs. of Charas was recovered from the accused. The stand of the accused that there is delay in lodging the FIR is not correct. The occurrence took place at 7.45 a.m. and the FIR was lodged at 10.40 a.m. The wireless message, as noted above, was sent at 10.30 a.m. and the ruka had been sent in the meanwhile and the FIR had been lodged at 10.40 a.m. It has been urged on behalf of the accused that there is delay in reporting the matter to the ACJM, Dalhousie. It appears that the matter was reported to the ACJM, Dalhousie at 9.10 p.m. There may be delay in this part but no question was put to any witness as to why the FIR was not taken to the concerned Magistrate immediately.

In fact the contradictions have been magnified by the trial Court. PW-9 Budhi Parkash had stated that the bag being carried by the accused was of black colour, whereas PW-1 Karam Singh stated that it was a polythene bag. A polythene bag can also be of black colour. Therefore, this by itself is no contradiction. The second contradiction with regard to the seals is very minor. The occurrence took place on 9th March, 1998 and the evidence of PW-1 Karam Singh was recorded on 18th March, 1999, after one year. Therefore, there is nothing very serious if the witness had forgotten that the seal ''T'' was fixed by the Investigating Officer and seal ''K'' was fixed by the SHO.

Even with regard to the time, the contradiction is not very serious. Karam Singh stated that it took about three to four hours to complete the proceedings, whereas Budhi Prakash stated that it took 1.15 hour to complete the proceedings. What is the meaning given to word "proceedings" depends upon approach of each witness. Apparently, Karam Singh took the "proceedings" to mean the time from the apprehension of the accused till the wireless message was sent and FIR recorded, whereas PW-9 Budhi Prakash took the "proceedings" to mean the time till the search etc. of the accused had been completed. On the other hand, according to PW-2 Prem Kumar, the proceedings took 10 to 15 minutes, but he admits that what he meant by "proceedings" is the search of the bag and weighment of the Charas, which took 10 to 15 minutes. Therefore, this is no contradiction at all.

There is only one minor contradiction. According to the official witnesses, the recovery was made on the road, whereas according to PW-2 Prem Kumar the recovery took place in the Police Post.

We are dealing with the case where 4.750 kgs. of Charas was recovered. It is not the case of the defence that the police had any enmity with the accused. This amount of Charas could not have been planted on the accused. Therefore, we are of the considered view that the learned trial Court gravely erred in acquitting the accused. Accordingly, we hold that the prosecution has proved beyond reasonable doubt that 4.750 kgs. of Charas was recovered from the accused. Since the resin content in the recovered stuff is 36.59 per cent following the law laid down in Dharam Pal v. State of H.P. and Anr. appeal Latest HLJ 2007 (HP) 827, it means that the amount of Charas was 1.738 kgs.

Accordingly, the appeal is allowed and the accused is convicted of the offence punishable u/s 20 of the Narcotic Drugs and Psychotropic Substances Act. The bail bonds of the accused are cancelled. He is directed to be arrested and produced before us on 9th September, 2010, so that he can be heard on the question of quantum of sentence.