TMI Blog2015 (2) TMI 1294X X X X Extracts X X X X X X X X Extracts X X X X ..... rned Additional Sessions Judge Fast Track Court Kanga at Dharamshala under Narcotic Drugs and Whether reporters of the Local papers are allowed to see the judgment?. Yes. Psychotropic Substances Act in Sessions Trial No. 9-N/VII of 2007 titled State of Himachal Pradesh vs. Atul Sharma. BRIEF FACTS OF THE PROSECUTION CASE: 2. Brief facts of the case as alleged by prosecution are that on dated 16.9.2006 police officials conducted the search of motor cycle of accused bearing No. PB-08-2906 near his confectionery shop at Jassur and it is further alleged by prosecution that on checking of dickey 610 capsules of Parvon Spas and eight bottles of corex were found. It is alleged by prosecution that secret information was received by SI Bahadur Singh that accused deals in Charas and other offending articles in his shop situated at Jassur. It is alleged by prosecution that report Ext.PW15/A was prepared and same was sent to DSP Nurpur through C. Nirmal Singh the copy of which is Ext.PW2/A. It is alleged by prosecution that ruka Ext.PW2/B was prepared by SI Bahadur Singh and was sent to police station through C. Gurdeep for registration of FIR on the basis of which FIR Ext.PW12/A was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m police station which was received by Reader working there and entry was made in relevant register Ext.PW13/D. 3 Learned trial Court framed charge against the accused under Section 22 of Narcotic Drugs and Psychotropic Substances Act. Accused did not plead guilty and claimed trial. 4. The prosecution examined the following witnesses in support of its case:- Sr.No. Name of Witness PW1 Balvinder Singh PW2 ASI Hoshiar Singh PW3 C.Nirmal Singh PW4 C.Gurdeep Singh PW5 Pawan Kumar PW6 Ravinder Singh . PW7 HC Susheel Kumar PW8 HC Kripal Singh PW9 C.Susheel Kumar PW10 C. Sudarshan Singh PW11 C. Pawan Kumar PW12 HC Bir Singh PW13 HC Subhash Chand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erly appreciate oral as well as documentary evidence placed on record and whether learned trial Court had committed miscarriage of justice as mentioned in memorandum of grounds of appeal. ORAL EVIDENCE ADDUCED BY PROSECUTION: 8.1. PW1 Balvinder Singh has stated that on dated 16.9.2006 he remained with police during investigation. He has stated that they went to the shop of accused and police gave their personal search in presence of accused. He has stated that Neeraj Thkaur was also present during the search process. He has stated that memo Ext.PW1/A was prepared which was signed by him and witness Neeraj Thakur. He has stated that police officials have also signed the same in addition to accused. He has stated that accused was given option whether he wanted to be searched by gazetted officer or magistrate but accused gave in writing that he wanted to be searched by police officials. He has stated that consent memo Ext.PW1/B was prepared which was signed by him and Neeraj Thakur and also signed by accused in red encircle at point 'A'. He has stated that personal search of police officials was conducted in his presence and in presence of Neeraj Thakur and nothing was f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ext.P5. He has stated that capsules were 610 and bottles were 8 in number. He has stated that thereafter 10 capsules were took out and sealed separately and one bottle was also packed and sealed in a piece of cloth. He has stated that remaining 7 bottles of corex were also packed in parcels and thereafter sealed. He has stated that site plan was also prepared at the spot. He has denied suggestion that all documents were prepared in police station. He has denied suggestion that signatures of independent witnesses were also obtained in police station. He has denied suggestion that accused did not provide the keys of scooter. He has denied suggestion that scooter was lying in the open. 8.3 PW3 C.Nirmal Singh has stated that since the year 2004 he remained posted at P.S. Nurpur and on dated 16.9.2006 he was accompanying the police party headed by S.I. Bahadur Singh. He has stated that at about 12.15 Noon when they reached at Baur chowk they received secret information. He has stated that copy of secret information was sent and handed over to SDPO Nurpur at 12.50 PM. He has denied suggestion that no report was taken by him to SDPO Nurpur and also denied suggestion that report was ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubsequently. 8.8 PW8 HC Kripal Singh has stated that since July 2006 he was posted in police station Nurpur and on dated 18.9.2006 MHC P.S. Nurpur handed over to him special report to be handed over to S.P. Dharamshala and he had given the same to the Reader to S.P. He has denied suggestion that special report was prepared subsequently. 8.9 PW9 C. Sushil Kumar has stated that since September 2006 he was posted in police station Nurpur. He has stated that parcels were handed over to him by MHC Bir Singh sealed with seal 'D' along with NCB form and he deposited the same in CTL Kandaghat on dated 20.9.2006. He has stated that parcels were returned from the office of CTL Kandaghat informing that they were unable to conduct the test. He has stated that on return he deposited the parcels with MHC on dated 23.9.2006. 8.10 PW10 C. Sudershan Singh has stated that since November 2005 he remained posted in police station Nurpur till December 2006 and on dated 5.11.2006 MHC Bir Singh handed over to him two sealed parcels to be deposited in FSL Junga vide RC No. 272/2006. He has stated that parcels were not accepted by office of FSL Junga and thereafter he returned and deposite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er him. He has stated that extract of register No. 18 is Ext.PW13/B. He has denied suggestion that document Ext.PW8/A was received later on and same was fabricated against the accused. 8.14 PW14 Inspector Nathu Ram has stated that he remained posted in P.S. Nurpur from 2004 to August 2007 and on conclusion of investigation he prepared challan after receipt of FSL report Ext.PA and presented in Court. 8.15 PW15 SI Bahadur Singh has stated that in the year 2006 he was posted as I.O. in police station Nurpur. He has stated that on dated 16.9.2006 he along with other police officials was on patrolling. He has stated that at Bohar secret information was received that accused deals in charas in his shop at Jassur. He has further stated that information was sent to SDPO Nurpur which is Ext.PW2/A and ruka Ext.PW2/B was sent to P.S. Nurpur through C. Gurdeep and on the basis of which FIR Ext.PW12/A was registered. He has stated that after receipt of file investigation was conducted. He has stated that Balvinder and Neeraj were joined in police team and when they reached near the shop accused was found present in shop. He has stated that accused was informed whether he intended to be s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. Submission of learned Additional Advocate General appearing on behalf of State that learned trial Court did not properly appreciate the oral as well as documentary evidence placed on record and caused miscarriage of justice to the appellant-State is rejected being devoid of any force for the reasons hereinafter mentioned. Testimony of PW1 Balvinder Singh is fatal to the prosecution 10.1. In the present case it is the case of prosecution that PW1 Balvinder Singh is independent witness and he participated in search and seizure proceedings. PW1 Balvinder Singh when appeared in witness box has specifically stated that he does not remember the registration number of scooter from which 610 capsules Parvon Spas and 8 bottles of corex were recovered.PW1 Balvinder Singh did not prove the registration number of scooter in positive cogent and reliable manner. PW1 has specifically stated in positive manner that accused was not owner of scooter in question and further stated that dickey of scooter was unlocked. He has also stated that he has signed memo in police station. Above stated testimony of this prosecution witness creates doubt in the mind of Court. Non-registration of sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng process kept blank in NCB form is also fatal to the prosecution and miscarriage of justice has been caused to the accused. Recovery of scooter in open public place is also fatal to the prosecution 10.7 It is the case of prosecution that contraband was recovered from the scooter which was standing upon the public place situated outside the shop of accused. It is not proved on record that scooter was recovered from the place which was in exclusive and conscious possession of accused. Recovery of scooter from public place as shown in site plan Ext.PW15/B placed on record has also created doubt in the mind of Court Entire investigation conducted by complainant himself is also fatal to the prosecution 10.8 In present case it is proved on record that complainant is SI Bahadur Singh as per FIR Ext.PW12/A and it is proved on record that entire investigation has been conducted by complainant himself and there is no evidence on record in order to prove that investigation was handed over to some other independent Investigating Officer. It is not the case of prosecution that no other independent Investigating Officer was available to conduct impartial investigation. We are of the opin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B) titled Anjlus Dungdung vs. State of Jharkhand that suspicion however strong cannot take place of proof. It was again held in case AIR 1979 SC 1382 titled State (Delhi Administration) vs. Gulzarilal Tandon that suspicion however grave and strong cannot take place of proof. (Also see AIR 1984 SC 1622 titled Sharad Birdhichand Sarda vs. State of Maharashtra, See: AIR 1983 SC 906 titled Bhugdomal Gangaram and others vs. the State of Gujarat See: AIR 1985 SC 1224 titled State of U.P. vs. Sukhbasi and others) 12. Another submission of learned Additional Advocate General appearing on behalf of State that PW1 Balvinder Singh has admitted his signatures on seizure memo and on this ground accused be convicted is rejected being devoid of any force for the reasons hereinafter mentioned. It is well settled law that admission of signatures in document does not mean that signatory had admitted the contents of document. PW1 Balvinder Singh when appeared in witness box has specifically denied the contents of search and seizure memo placed on record. It is well settled principle of law that if two reasonable conclusions are possible on the basis of the evidence on record the appellate Court sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
