Vikesh Kumar vs State of Himachal Pradesh

Surinder Singh, J.—The challenge by the appellant hereinafter referred to as ''the accused'' in this appeal is to the judgment of conviction passed by the learned trial Court in Sessions trial No. 7 of 2011, decided on 29.5.2012, for the offence punishable u/s 20 (b)(ii)(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short ''the Act'' for allegedly keeping in this possession 54 grams of Charas based upon the percentage of resin contents found in the recovered stuff of 238 grams, thereby imposing sentence to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 50,000/-and in default of payment of fine to further undergo simple imprisonment for a period of six months. In short, prosecution story can be stated thus. On 19.3.2011, around 4.10 p.m. The police party headed by PW8 ASI Jai Dev was on a routine patrolling in the area falling in his jurisdiction. Around 6.10 p.m., they spotted the accused coming on foot, on Kuthera- Ree-Bhalana road, who on seeing the police had tried to escape. The police got suspicious and overpowered him. His identity was asked. Suspecting the contraband in his possession, PW8 ASI Jai Dev gave him an option orally as well as in writing Ext.PW1/A to be searched before a Magistrate or a Gazetted Officer being his legal right, in turn the accused gave his consent to be searched by the police party present there. To this effect, he made an endorsement on the consent memo in his hand and under his signatures. Thereafter, ASI Jai Dev rendered himself to be searched by the accused, but no incrimination article was found in his possession. To this effect, a memo was prepared. Thereafter PW8 ASI Jai Dev conducted the personal search of the accused in the presence of constables PW1 Manohar Lal and PW2 Ramel Singh as no independent witness was available on the spot. On his personal search, the police discovered one red coloured small bag with two strings tied against his belly near the naval portion beneath the pants worn by him which contained the stuff in the shape of small sticks and Chapatis. It was photographed, removed and weighted on electronic scale, which came to be 238 grams. The recovered stuff was packed in the same manner, in which it was recovered and sealed with seal impression ''J'' at 5 places. The facsimile of seal was also taken on NCB forms on the spot in triplicate. The seal impression was also stated to have been taken on a separate piece of cloth and after its use the seal was entrusted to PW2 Ramel Singh and seizure memo Ext.PW1/C was prepared on the spot in the presence of the official witnesses aforesaid

(ii) A Ruqa Ext.PW8/C was sent through PW1 C. Manohar Lal for the registration of the case to the Police station concerned on the basis of which formal FIR Ext.PW5/A was registered.

(iii) The Investigating Officer arrested the accused and grounds of arrest were informed to him in writing. Site plan of the alleged place of recovery Ext.PW8/D was also prepared.

(iv) Accused and the sealed parcel were produced before PW5 Inspector/ SHO Anant Ram. He resealed the said parcel with his own seal impression ''O'' and took its impression on all the three NCB forms and issued a certificate Ext.PW5/C to this effect. Thereafter he deposited the aforesaid parcel with PW6 MHC Ravi Guleria alongwith copy of FIR, NCB forms, seizure memos two samples of seal, which were entered by him in the Malkhana register, the copy whereof is Ext.PW6/A.

(v) On 21.3.2011, PW6 MHC Ravi Guleria sent the said parcel alongwith aforesaid documents for its analysis through PW7 HHC Mohan Lal vide RC Ext.PW6/B, who on its deposit in the laboratory, obtained received and handed over back with the MHC aforesaid. On its examination, the Assistant Director and Assistant Chemical Examiner of NDPS Division of the State Forensic Science Laboratory, vide report Ext.PW8/F inter-alia found the quantity of 22.94% weight-in-weight and in his opinion, it was an extract of Cannabis and sample of Charas.

(vi) The report with respect to the search and seizure was also sent to the officer superior by the Investigating Officer within the statutory time.

After completing the investigation, challan was presented in the Curt against the accused for his trial. He was accordingly charge-sheeted for the offence aforesaid to which he pleaded not guilty and claimed trial. To prove its case, prosecution examined its witnesses and heavily relied upon the statements of the Investigating Officer, PW1 Constables Manohar Lal and PW2 Ramel Singh. The accused was also examined u/s 313 of the Code of Criminal Procedure. His case was denial simplicitor and he alleged false implication being an activist of ABVP in the College in those days, however, no evidence in defence was led.

Learned trial Court after completing the trial, disbelieved the defence taken by the accused, but while banking upon the testimonies of the official witnesses aforesaid, convicted and sentenced the accused as aforesaid, hence the present appeal.

4 Mr. M.S. Guleria, learned counsel for the accused vehemently argued that there has been non-compliance of Section 50 of the Act and further highlighted the contradictions in the statements of the prosecution witnesses, which in his opinion were material in nature causing dent in the prosecution case qua its authenticity.

Contra Shri P.M. Negi, learned Deputy Advocate General has meticulously argued about the compliance of section 50 of the Act and ventilated that the Investigating Officer as well as the official witnesses categorically stated in their examination-in-chief about the compliance of the said section. In case there is slight contradiction appearing in their cross-examination to this effect, that stands abridged by the option document Ext.PW1/A which satisfies the mandatory requirement of Section 50 of the Act and the accused was made fully aware of his right to be searched before the Magistrate or a Gazetted Officer. He further submitted that the minor contradictions appearing in the examination of the official witnesses are bound to occur because of the time gap between the date of recovery and the statements of the witnesses recorded in the Court, therefore, much importance cannot be attached to the alleged contradictions.

I have given my thoughtful consideration to the rival contentions of the parties and have carefully, reappraised the evidence on record.

To evaluate the contentions raised, I venture to explore the prosecution evidence. PW8 ASI Jai Dev Investigating Officer is categoric in his statement that on seeing the conduct of the accused, when he tried to escape, he suspected him having some contraband in his possession. The accused was overpowered and an option was given for his search by him or before a Gazetted Officer but pertinently omitted to inform that he had a right to be searched before the Magistrate. On this option, the accused gave his consent for his personal search to him. Thus, this option is not complete compliance of Section 50 ibid.

Further, ASI Jai Dev stated that with respect to the consent, a memo Ext.PW1/A was prepared which was signed by the officials witnesses Constables PW1 Manohar Lal and PW2 Ramel Singh and the consent memo was signed by the accused. It was thereafter, he rendered himself to be searched by the accused and nothing incriminating was found and a memo Ext.PW1/B was prepared to that effect. Thereafter he conducted the personal search of the accused in the presence of the witnesses aforesaid and recovered the stuff as stated herein before. In cross-examination, he stated that the memo of option Ext.PW1/A was written by PW2 C. Ramel Singh and he had only signed the same. He also stated when the accused was arrested, a memo Ext.PW8/A was also prepared, which was written by Ramel Singh aforesaid. As against this, PW2 C. Ramel Singh made altogether a contrary statement with respect to option and the preparation of the documents as also regarding availability of the independent witnesses. In cross-examination, he has given altogether a different story what he stated in his examination-in-chief. In his cross-examination, he stated that police spotted the accused at a distance of 200 meters and further stated that he as well as PW1 C. Manohar Lal nabbed the accused and searched him. On search, they discovered that the accused was having Charas, thereafter the Investigating Officer reached there and prepared all the memos.

Almost in similar situation in Myla Venkateswarlu v. The State of Andhra Pradesh [JT 2012 (4) SC 111] the apex Court dealt with the factual aspect with respect to the compliance of Section 50 of the Act. In that case, according to two PWs when the accused was apprehended, the accused had already taken out the ''Ganja packet'' and it was thereafter the option was given to the accused in terms of Section 50 of the Act. In this background, it was held that if the accused voluntarily took out the Ganja packet, there was no question to be searched before the Gazetted Officer or a Magistrate, but assuming that this right can be communicated to a suspect after the seizure and assuming the evidence of the said witness to be true, it still does not indicate that the requirement of Section 50(1) of the Act was fulfilled and there was no clear communication to the accused that the accused had a right to be searched in the presence of a gazetted office or a Magistrate. But in the instant case, the Investigating Officer omitted to mention the name of Magistrate though find mentioned in the memo. In my opinion such a recovery looses its importance for want of proper compliance as held in Vijaysinh Chandubha Jadeja Vs. State of Gujarat, and the prosecution cannot be said to have proved its case beyond doubt.

Precisely when the search was already conducted and recovery was effected, then there is no use of giving option to the accused to satisfy the provisions of Section 50 of the Act.

Further PW2 aforesaid denied having written the memos by him, rather he categorically stated that he did not write any of the documents, but were prepared by PW8 the Investigating Officer, whereas PW8 stated that these were written by PW2 aforesaid. His statement thus has shattered the entire prosecution case.

Another contradiction is that PW1 C. Manohar Lal in his statement stated about having taken the Rukka from the spot to the Police Station for the registration of the FIR and also stated that on his return he met the Investigating Officer in Hamirpur Bazaar and handed over the case file to him, whereas PW2 stated that said constable reached the spot of the alleged recovery alongwith the file. According to PW1, Rukka was prepared by the Investigating Officer. He took Rukka and at Kuthera road for reaching the Police Station, he took lift on motorcycle, whereas, PW2 in his cross-examination stated that the Constable Manohar Lal did not go alone to the Police Station, even the accused was also sent on the motorcycle with him, whereas, the Investigating Officer stated that only a Rukka was transmitted to the Police Station through PW1, thereafter the accused was interrogated and arrested on the spot and the grounds of arrest were informed to him. These contradictions appearing in the statements of official witnesses make the prosecution story a farce.

For the aforesaid reasons, I find a good deal of substance in the arguments advanced by the learned counsel for the accused, therefore, in my considered opinion, the accused deserves to be acquitted by giving him the benefit of doubt. As such the impugned judgment of conviction and sentence is hereby setaside, consequently the appeal is allowed.

The accused is undergoing sentence, he be released forthwith. The Registry of this Court is hereby directed to issue release warrant to the concerned jail, in case the detention is not required in any other case. Send down the records.