Bhumika vs State of Himachal Pradesh

Surinder Singh, J.—The appellant was found in possession of 2 Kg. stuff in the bag carried by her which contained 35.89% weight-in-weight resin of Cannabis plant, thus in terms of weight the contents of "Charas" of the recovered stuff were 717 grams, as such she was convicted for the offence punishable u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short ''the Act'' and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 70,000/-. In default of payment of fine, she was further sentenced to undergo simple imprisonment for a period of six months. The benefit of Section 428 of the Code of Criminal Procedure was also accorded. Feeling aggrieved, the present appeal has been filed by her on law and facts.

A. Contentions raised before this Court.

Shri M.S. Guleria, learned Counsel for the appellant, hereinafter to be referred as ''the accused'', vehemently argued that the learned trial Court did not appreciate the evidence on record in the right perspective and no efforts were made to associate independent witnesses by the Investigating Officer, which renders the prosecution version doubtful, even to believe official witnesses is dangerous in the fact situation. It is also argued that the entire stuff was alleged to have been sent for the chemical examination, but the report in question is not connected with the recovered stuff as the Pithu bag sent in the same parcel was not found when opened in Forensic Science Laboratory and the police officer with whom the seal was entrusted was not examined, therefore, report not showing the bag in the parcel received by the examiner makes the case a suspect.

Shri P.M. Negi, learned Deputy Advocate General, countered the above arguments that the accused came across the police-party by chance. It was a secluded place, no independent witness was available otherwise also there is no requirement of law to include independent witnesses, as the place from where the recovery was effected from the accused was an open place. The link evidence is also complete. He also referred to the observations of the learned trial Court made in the statement of PW2 HHC Mast Ram to connect the report of the analysis with the recovered stuff and submitted that there is no infirmity in the judgment, therefore, requires no interference.

I have examined the rival contentions and have reappraised the evidence on record.

B. Defence of the accused.

The trial before the learned Special Judge was commenced. The accused denied the prosecution case and took up the stand that her husband was missing since long and is suspected to have died by drowning in the river. To disinherit her from his property, her father-in-law is alleged to have planted this case against her in collusion with the police, though this defence put to the prosecution witnesses has been denied by them. But I proceed to examine the prosecution case as disclosed by its witnesses, whether it stands proved in accordance with law.

C. Prosecution Story.

Precisely, the prosecution story is that on 16.2.2010, PW7 SI/SHO Narain Singh was heading the police party consisting of SI Krishan Chand, PW8 ASI Jaspal Singh, Head Constable Chaman Lal, Constable Kishan Chand, PW5 Constable Umesh Kumar alongwith PW6 Lady Constable Chandra Devi who were on patrolling and detection of crime, in government vehicle driven by Constable Dinesh Kumar. Around 2.00 p.m., police party reached near the place known as "Jachhni" on Manikaran road in District Kullu. They spotted the accused coming from Manikaran side carrying a Pithu-bag on her shoulder. She on seeing the police party started walking briskly and ran uphill. On suspicion, she was apprehended. Thus PW7 Inspector/SHO Narain Singh directed PW8 ASI Jaspal Singh to enquire into the matter, but he alongwith SI Krishan Chand went ahead in connection with other work.

It being a secluded and lonely place, PW8 ASI Jaspal Singh associated Head Constable Chaman Lal, PW5 Constable Umesh Kumar and PW6 Lady Constable as witnesses and asked the identity of the accused to which she disclosed. She was given an option to comply with Section 50 of the Act orally as well as in writing Ext. PW5/A, she opted to be searched by the Lady Constable with them and to this effect she made an endorsement Ext. PW6/A. On personal search by lady constable no incriminating article was found from her. The accused was carrying rucksack having two strings to it imprinted with words "Diesel" and on its search, 26 packets, containing black substance in rectangular shape wrapped in polythene paper, two Kgs. in weight, were recovered. Thereafter the recovered stuff was put in the same "Pithu-Bag" in the same manner in which it was taken out. It was made in one parcel and sealed with six seals of letter "A". The sample of seal was taken separately on a piece of cloth Ext. PW5/C. The seal after its use was entrusted to Head Constable Chaman Lal (not examined). The NCB forms were filled-in on the spot, the facsimile of seal was put on it, one of such form is Ext. PW3/E. The parcel aforesaid was taken into possession vide seizure memo Ext. PW1/D.

A Ruka Ext. PW3/A was prepared and sent through PW5 Constable Umesh Kumar to Police Station for the registration of FIR. Spot map Ext. PW8/A was also prepared. The accused was arrested. She was apprised of the grounds of arrest in writing Ext. PW5/E.

Around 8.30 p.m. on reaching Police Station, the case property was produced before SI/SHO Narain Singh aforesaid and the cloth parcel sealed with seal impression "A" alongwith the sample seal and NCB forms in triplicate were also produced before him. He re-sealed the parcel with six seals of "T". Seal of sample Ext. PW7/A was also taken separately. Facsimile thereof was affixed on the NCB forms. The parcel alongwith sample seals "A". "T" and NCB forms were deposited with PW3 MHC Kartar Singh in the Malkhana.

On 17.2.2010, one parcel of the case property alongwith sample of seals, NCB forms in triplicate, copy of FIR, copy of seizure memo and docket were handed over to PW2 HHC Mast Ram for its analysis in FSL, Junga vide RC Ext. PW2/A. On its deposit, he obtained the receipt thereon and handed it over to PW3 MHC Kartar Singh. On the receipt of the report Ext. PW7/B, Challan was presented in the Court for the trial of the accused. At the end of the trial, she was convicted and sentenced as aforesaid.

E. FINDINGS OF THE COURT.

Pertinently, as per prosecution case, the police could not include independent witnesses at the time of search and seizure, as no one was available being a secluded and lonely place. If the independent witnesses are not included in the above factual backdrop it would not render the prosecution case useless and suspicious, if the statements of the official witnesses are confidence inspiring.

Now the question is whether on a close scrutiny of the testimonies of the official witnesses, the accused stands connected with the offence charged.

The prosecution is obliged to prove that the stuff recovered from the accused reached the Forensic Science Laboratory intact till its examination and it was not tampered with. As already stated above, the prosecution case, the whole stuff was sealed with six seals of "A" on the spot after its recovery, in the same "Pithu-Bag" from which it was recovered. It was sealed and after using the seal it was handed over to none else than Head Constable Chaman Lal, one of the members of the police-party. The accused after her arrest, as per report, was sent to judicial lock-up and the case property remained with the police and Head Constable Chaman Lal with whom seal was entrusted. He was also posted in the same Police Station. Surprisingly, when the case property reached the Forensic Science Laboratory, though the seals used on the parcel were found intact and tallied with the NCB forms. It was opened but the "Pithu-Bag" was not found in the parcel. Where it had gone, there is no explanation. The analysis report Ext. PW7/B shows the total weight of the parcel 2.010 Kg and the weight of the polythene wrappers 0.038 Kg. The actual total weight of the parcel is 1.972 Kg. Thus, if the recovered stuff, on the spot was 2 Kgs. and it was resealed in the bag by making it a parcel, then where is the "Pithu-Bag"?

The story did not end here. The case property is stated to have been returned to the Police Station concerned with the specimen seal of the FSL after its analysis. In the statement of PW2 HHC Mast Ram the parcel was exhibited. It contained five seals of "A", five seals of "T" and five seals of FSL. As per the Court observations, there were only 18 seals impressions on the said parcel Ext. P1 and three of them were not legible. The contents of the parcel were opened on 12.9.2011 and the contents were exhibited in the statement of PW5 Constable Umesh Kumar. But, the learned trial Court did not observe the condition of the parcel nor about the seal impressions nor the learned Public Prosecutor had made any request to this effect. Since it was marked as Ext. P1 this parcel was produced by the learned Public Prosecutor and was allowed to be opened. On opening it, a green coloured rucksack upon which "Diesel" was printed, was found containing black substance in polythene. The "Pithu-Bag" which was not earlier found by the Assistant Chemical Examiner when the parcel sent to him was opened, it is not understandable as to how it reappeared when it was opened and exhibited to PW5 aforesaid and according to this witness these items were recovered from the possession of the accused. To the similar effect is the statement of PW6 Lady Constable Chandra Devi, but in her cross-examination she stated that the exhibited pieces of the alleged stuff were more than the quantity which was recovered for which there is no explanation how the number of the pieces had increased. After closure of evidence on 12.9.2011 the case property was reseated with the seal of the Court and handed over to Naib Court, as per zimni order dated 12.9.2011.

During the hearing of the case in this Court, the case property was sought to be perused, as such it was ordered to be produced on 4.7.2012. The said parcel contained three seals of District and Sessions Judge, 6 seals of FSL, 4 seals of "A" and 4 seals of "T" and 4 seals were not readable, but when it was produced in the statement of PW2 it was having ''six'' seals of FSL as against ''five'' seals as observed in the statement of PW5. Therefore, against the aforesaid background Head Constable Chaman Lal to whom the seal was entrusted was required to be examined in order to rule out the possibility of tampering with the parcel and in the absence of the bag which was not found in the parcel for examination creates a reasonable doubt on the probity of the prosecution case and the tampering of the said parcel cannot be overruled. Thus the specific defence taken by the accused assumes importance and stands probabilised.

Therefore, for the aforestated reasons, the accused deserves to be acquitted by giving her the benefit of reasonable doubt. Accordingly, the appeal is allowed and the impugned judgment of conviction and sentence is set aside.

The accused/appellant is undergoing the sentence, she be released forthwith, if not required in any other case. Send down the record.