State of H.P. vs Hukam Chand alias Moharu

R.B. Misra, J.—The present criminal appeal has come up for consideration after the leave to appeal has been granted u/s 378(3) of the Code of Criminal Procedure, in reference to judgment dated 7.9.2001 passed by learned Sessions Judge, Mandi, in Sessions Trial No. 29 of 2000, thereby acquitting the Respondent/ accused for the offence under Sections 20 of ''The Narcotic Drugs and Psychotropic Substances Act, 1985'' (in short called ''ACT'').

The prosecution story, in brief, is that on 16.9.2000 PW.12 Virender Kumar, Dy.S.P, while on patrolling alongwith ASI Rajender Kumar and other police officials, intercepted a Maruti vehicle carrying timber and was investigating the case. He received a secret information that the accused deals in the sale of ''charas''. Such information was reduced in to writing and was sent to the Additional S.P. PW.11 Rajender Kumar went to the shop of the accused, associating PW.1 Narender Kumar, Ward Member as well as PW.2 Jalam Singh and went to the shop of accused. Accused-Respondent was apprised of his right of being searched and accused gave his consent to be searched before a Gazetted Officer, then Head Constable Gambhir Singh was sent to invite PW.12 Virender Kumar Dy.S.P. to the spot. During search of the shop of the accused, 30 grams of charas was recovered. Two samples of 10 grams each were taken out of the recovered charas and thereafter sample as well as remaining charas were sealed in the presence of the witnesses. Accordingly, FIR was lodged. After completion of investigation, accused/Respondent was charged for the aforesaid offence.

In order to prove its case, prosecution has examined as many as 12 prosecution witnesses, whereas accused through his statement u/s 313 Cr.PC has denied the prosecution case.

PW.1 Narender Kumar, Ward Member of Gram Panchayat, has stated that he was summoned telephonically by the police but no search of the shop of the accused was carried out in his presence. As such, PW.1 was declared hostile. PW.2 Jalam Singh is a formal witness and gave his statement in a casual manner. This witness was declared hostile.

PW.12 Sh. Virender Kumar, Dy.S.P.(Probationer) in his endeavour to support the prosecution case has stated that on 16.9.2000 a secret information received by him was reduced into writing (Ex.PO) and the same was sent to the Additional S.P. through Constable Lekh Ram.

PW.11 ASI Rajender Kumar deputed by PW.12 Virender Kumar, Dy.S.P., to search the shop, went there and since accused opted to be searched before the Gazetted Officer, PW.11 called PW.12 Virender Kumar Dy.S.P. to the spot, later on had conducted the search. Rukka (Ex.PG) prepared was sent to the police station for registration of the case. Spot map (Ex.PM) was prepared. NCB form (Ex.PK) was also filled-up.

PW.3 Head Constable Gambhir Singh, a member of the raiding party has materially corroborated the statements of PW.11 ASI Rajender Kumar and PW.12 Virender Kumar.

PW.4 Head Constable Moti Ram received a Rukka (Ex.PG) from ASI Rajender Kumar through Pratap Singh, in that sequence he recorded FIR Ex.PH.

PW.7 Head Constable Prem Chand posted as A.M.H.C. at police Station, Sadar, Mandi, received the case property on 17.9.2000 and entered the same in the Malkhana register and kept it safely. On 19.9.2000 PW.7 sent one sample of charas alongwith ''NCB form'' through Jalam Singh to CTL Kandaghat, who deposited the same and gave him receipt thereof on return.

PW.9 Head Constable Neelmani has stated that on 16.9.2000 Sh.V.K. Dhawan Additional S.P., gave him special report and after making endorsement on the special report (Ex.PJ), he identified the signatures of the Additional S.P. on the same.

On analysis of the prosecution witnesses and materials on record, we notice that two independent witnesses associated in the raiding party, were not supported the prosecution case. So much so, they have stated that no search was made in their presence. PW.12 Virender Kumar, Dy.S.P. has deposed that he reproduced the said information into writing and had sent it to the Additional S.P. through Constable Lekh Ram. PW.12 has further stated that carbon copy of the information is Ex.PO which bears his signatures. PW.5 has stated that he handed over the copy Mark ''C'' at the office of the Additional S.P. Mandi and thereafter he returned to police post Darang. Thereafter, case property was deposited with PW.5 by ASI Rajender Kumar after some time.

On, Ex.PO, a carbon copy of letter sent to the Additional S.P. under the signatures of Dy.S.P., on which no time is mentioned as to when this information was received by the Dy.S.P. and when it was sent to Additional S.P. Further, Ex.P.O. does not bear the receipt of the office of Additional S.P. to show that who had received the information, when it was received and under whose signatures it was kept on the record. Ex.PO also does not indicate, how it was received in the office of Additional S.P. In absence of any date, time or receipt or diary, it cannot be inferred that this information was ever received in the office of Additional S.P. In these circumstances, an adverse inference could be drawn that this information was never reduced into writing and was not sent to the Additional S.P. In these circumstances, possibility of preparing such document Ex.PO at this subsequent stage cannot be ruled out.

According to Sub-Section 42(2) of the Act, where an officer takes down any information in writing u/s 42(1) of the Act or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate superior officer.

In view of the aforesaid facts and circumstances, learned Sessions Judge has rightly found that the mandatory requirement of Section 42(1) and 42(2) of the ''Act'', has not been complied with. For non compliance of mandatory requirement of Section 42(1) and 42(2) of the ''Act'', search becomes doubtful, more so, when independent witnesses have not supported the search and recovery of the contraband good. In such background, we also find that testimony of PW.5 is also not trustworthy. In our considered view, the learned Sessions Judge has rightly arrived at the finding that the prosecution has failed to prove its case beyond reasonable doubt. In our considered view, prosecution has not been able to bring home guilt to the accused/Respondent successfully. Therefore, we find no scope for interference in the impugned judgment of the learned Sessions Judge. Accordingly, the criminal appeal, being devoid of any merit, is dismissed.

The bail bonds, furnished by the accused/ Respondent, are discharged.