State of H.P. vs Kewal Ram and Another

Surjit Singh, J.—This is State''s appeal against the judgment of acquittal, dated 31st August, 1999, delivered by learned Additional Sessions Judge, Shimla, whereby respondents Kewal Ram and Birsi Singh alias Birgha Singh, who were tried for an offence u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, have been acquitted.

Prosecution''s case is that on 25th March, 1999, some Panchayat elections were taking place in village Balghar. HC Mool Raj (PW-7) and LHC Subhash Chand (PW-6) had been deputed to maintain law and order during that election. When they were present near the Panchayat Ghar, where the elections were going on, PW-7 HC Mool Raj received information from some informer that two persons, present in a nearby rain shelter, were having Charas. HC Mool Raj then accompanied by PW-6 LHC Subhash Chand and some local persons went towards the rain shelter, which was at a distance of 30 feet only. On seeing the police people approaching them, respondents Kewal Ram and Birsi Singh, who were present in the rain shelter, tried to escape. Before that respondent Kewal Ram took away a bag, which respondent Birsi Singh was carrying. He ran towards a nullah, in one direction, and Birsi Singh ran in another direction, i.e. towards the bridge. Respondent Kewal Ram was given a chase by HC Mool Raj, while respondent Birsi Singh was chased by PW-6 LHC Subhash Chand. Both of them were captured and brought to the rain shelter. Respondent Kewal Ram, on enquiry, told that the bag, which he was carrying, contained Charas. It may be stated that according to the prosecution when respondent Kewal Ram ran towards nullah, he fell down and sustained injury. HC Mool Raj, who was chasing respondent Kewal Ram, also fell down and he too sustained an injury on his head.

After the two respondents had been brought to the rain shelter by the abovenamed police officials, report Ex. PW-6/A was drawn up by PW-7 HC Mool Raj and sent to Police Station for formal registration of case. FIR Ex. PW-6/B was registered at the Police Station.

After registration of FIR, SHO Gurdial Singh (PW-8) went to the spot. He conducted search, after informing the respondents that they had a right to be searched in the presence of a Magistrate or a Gazetted Officer and on their saying that they were prepared to be searched on the spot. In the course of that search, Charas, weighing 1 kg 50 grams was recovered, out of which two samples, each weighing 12.5 grams, were separated. The samples and the bulk Charas were made into three separate parcels and sealed with a seal that produced the impression of letter ''S'' of English alphabet. Search and seizure memo was drawn. One of the sample parcels was sent to the Chemical Examiner, who vide report Ex. PW-8/C reported that the sample was of Charas, as it contained 25.25 per cent resin of cannabis plant.

Respondents were challaned. Trial Court charged them with offence, u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, to which they pleaded not guilty. Prosecution examined eight witnesses to bring the charge home to the respondents. Respondents took the plea that there had been a clash between two groups, when the elections were going on and in that clash HC Mool Raj sided with one group and sustained injuries. They stated that respondent Kewal Ram sustained injuries in the clash, when assaulted by HC Mool Raj (PW-7) and so when he (respondent Kewal Ram) threatened to take legal action, he alongwith the other respondent was involved in the present case.

Trial Court acquitted the respondents, holding that there was non-compliance of mandatory provisions of Sections 42, 50, 52 and 57 of the Narcotic Drugs and Psychotropic Substances Act. Another reason given by the trial Court for acquittal is that the independent witnesses did not support the prosecution version. One more reason given by the trial Court is that report of the Chemical Examiner Ex. PW-8/C does not stand linked to the stuff, allegedly recovered from the respondents.

We have gone through the record and heard learned Senior Additional Advocate General as also learned Counsel for the respondents and examined the evidence.

This was not a case of search of a building or an enclosed place. Respondents were alleged to be present at a rain shelter. Rain shelters are in the form of sheds, which do not have walls on all the four sides. Also, rain shelter is a public place. Therefore, Section 42 of the Narcotic Drugs and Psychotropic Substances Act was not attracted in the present case and if that is so question of non-compliance of provision of Section 42 does not arise. Rain shelter being a public place, Section 43 of the Narcotic Drugs and Psychotropic Substances Act was applicable.

Similarly, view taken by the learned trial Court that mandatory provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act having not been complied, accused were entitled to acquittal, is also not correct. Section 50 comes into play, when person of an accused is sought to be searched. Here, it was not the person of the respondents that was searched, but it was the bag carried by one of them, namely Kewal Ram, which was searched and, hence, Section 50 was also not attracted.

Sections 52 and 57 of the Narcotic Drugs and Psychotropic Substances Act are directory in nature and not mandatory and, therefore, acquittal of the respondents, on account of non-compliance or deficient compliance of these provisions, can also not be upheld.

However, we find from the record that the testimony of police officials, namely PW-7 HC Mool Raj, PW-6 LHC Subhash Chand and PW-8 SHO Gurdial Singh, does not inspire confidence and the independent witnesses, namely PW-1 Narinder Singh and PW-2 Anant Ram, did not support the prosecution case. According to the testimony of PW-7 HC Mool Raj, information was received by him around 12.30 p.m. Report Ex. PW-6/A, for registration of case, was drawn by him at 2.30 p.m. and sent to the Police Station, through PW-6 LHC Subhash Chand. Formal FIR Ex. PW-6/B records the time of receipt of information at the Police Station as 4.35 p.m. This time has been re-written. Initially, the time recorded was 3.35 p.m. No explanation has been put forward by the prosecution for changing the time nor has anybody initialed the cutting and re-writing.

Distance between the Police Station and the place of occurrence is stated to be 25 kms, in the FIR. Though the time of FIR, after re-writing, is shown to be 4.35 p.m., PW-8 SHO Gurdial Singh says that he reached the spot at 4.45 p.m. or say within ten minutes of the receipt of the information at the Police Station. FIR is quite lengthy. Its recording must have taken not less than 20 minutes. Now, if the information was received at the Police Station at 4.35 p.m. and Anr. 20 minutes were spent on recording the FIR, which is signed by PW-8 SHO Gurdial Singh himself, how could he have reached the spot at 4.45 p.m.

Also, the fact of PW-7 HC Mool Raj having sustained injuries on the head, as per deposition of PW-3 Dr. Seema Rani, and the medico legal certificate Ex. PW-3/A, and respondent Kewal Ram also having a number of injuries, per medico legal report Ex. PW-3/B, renders the prosecution story doubtful and probabilises the defence plea, as noticed hereinabove.

Above stated position apart, link evidence to connect report Ex. PW-8/C with the stuff allegedly recovered from the respondents is lacking. PW-8 SHO Gurdial Singh did not say that he had deposited the parcel containing the case property and the sample parcels with MHC (Moharrar Head Constable). MHC Hem Raj (PW-4) also did not say that anybody deposited the case property and the sample parcels with him. He stated that he sent one parcel, through Constable Narinder Kumar (PW-5) to the Chemical Laboratory at Kandaghat. He did not say what was the seal impression on the parcel nor did he say that any specimen impressions of the seal were sent alongwith the parcel. Similarly, PW-5 Constable Narinder Kumar did not say anything about the description of the seal impression. He also did not say that he carried anything other than the sample parcel to the Laboratory. The docket portion of report Ex. PW-8/C does not bear the facsimile of the seal. It simply gives the description of seal by letter ''S'' written in hand. In view of the abovestated position, it cannot be said that the sample, which was analysed at the Laboratory, pertained to the case in hand.

For the foregoing reasons, appeal is dismissed.