Inder Singh v. State Of Haryana

-1IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRA S-3031-SB of 2016 (O&M) Date of Decision: 16.12.2016.

Inder Singh ... Appellant

Versus

State of Haryana ... Respondent CORAM :

Hon'ble Mr. Justice Jitendra Chauhan Present :

Mr. Raj Kapoor Malik, Advocate, for the appellant.

Mr. Neeraj Poswal, AAG, Haryana.

JITENDRA CHAUHAN.J.

This appeal is directed against the judgment dated 05.08.2016 and order dated 10.08.2016 passed by Additional Sessions Judge, Kaithal vide which the appellant was convicted under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short "the Act") and sentenced to undergo RI for a period of ten years and to pay fine of Rs.1 lac with default stipulation. The brief facts of the case as noticed in the judgment passed by the trial Court are as under:- "It is case of prosecution that on 01.08.2015, police party headed by Mahender Singh ASI CIA-I along with other officials was on patrolling on Kaithal Jind

-2Road at bus stand village Guliyana. There, he received a secret information that Inder Singh son of Kali Ram resident of village Guliyana was in trade of selling charas. He could be caught with huge quantity of charas in case raid was conducted immediately. On this information, raiding party was prepared, rukka was sent and notice under section 42 of Act was sent. Raiding party arrived at house of accused where he was found present. On inquiry, he disclosed his name as Inder Singh son of Kali Ram resident of village Guliyana.

3. A notice under section 50 of Act was served upon accused whereby he was told that he had legal right to get searched his house in presence of Gazetted Officer or a Magistrate. He agreed to get searched his house in presence of a gazetted officer. So DSP Headquarter was informed and requested to reach at spot. Meanwhile Shamsher Singh son of Bharthu Ram resident of village Guliyana Ex-Member Panchayat arrived there. He was included in raiding party. After some time DSP reached there. Accused was produced before him. He verified facts from accused and asked investigating officer to conduct

-3search.

4. During search of his house, Charas was recovered from a black coloured polythene. Two samples of 100 grams each were separated. Remaining Charas was weighed and it was found to be 1 K.G. 300 Grams. Sample and remainder were converted into separate parcels and were sealed and taken into police possession. Rough site plan of place of recovery was prepared. Thereafter accused, case property and witnesses were produced before Inspector/ SHO Subhash Chander, who verified facts from accused and witnesses and prepared report under section 55 of Act. One part of sample was sent to FSL, Madhuban for analysis and after receipt of the analysis report, challan under section 173 Cr.P.C. against accused was prepared and submitted before this court. On presentation of challan, copies of documents as required under Section 207 Cr.P.C were supplied to the accused, free of costs.

Charge under Section 20 of the Act was framed against the accused to which the accused did not plead guilty and claimed trial.

In order to prove its case, the prosecution examined

-4PW-1, ASI Mahender Singh, I.O., PW-2 Tekan Raj, DSP (Headquarter), PW-3, EASI Rajender Singh, PW-4 Shamsher Singh, PW-5 Sub Inspector Subhash Chander, PW-6 EHC Ram Niwas, PW-7 HC Amit Kumar, PW-8 ASI Chander Bhan, second I.O., PW-9, Munish and thereafter closed its evidence.

The statement of accused was recorded under Section 313 Cr.P.C in which all the incriminating circumstances appearing in the prosecution evidence were put to the accused to which the accused denied and pleaded false implication.

No evidence in defence was led by the accused. After appraisal of the evidence, the trial Court, vide impugned judgment dated 05.08.2016 and order dated 10.08.2016, convicted and sentenced the accused, as narrated above. Feeling aggrieved against the judgment dated 05.08.2016 and order dated 10.08.2016, passed by the trial Court, the accused has filed the instant appeal.

It is submitted by the learned counsel for the appellant that admittedly, house of the appellant is situated in Abadi and the Police conducted raid on the basis of secret information but there is no evidence with the prosecution how they reached the house of the appellant. It is further contended that house of the appellant consists of two rooms and door of the room from where the recovery was effected opens towards western side and the main entry of the

-5house is from the eastern side. The recovery was allegedly effected from western side room. The contraband was in the polythene of black colour hanging on the peg. The accused was found sitting on a cot in a separate room so, the recovery as well as conscious possession of the alleged contraband by the accused remains unproved. The prosecution has failed to prove that the house is occupied by the appellant alone. It is further contended that although, independent witness was joined by the prosecution but while appearing in the witness box, he has not supported the case of the prosecution. It is further contended that the samples were sent to FSL, Madhubhan on 04.08.2015 whereas, the recovery is stated to have been effected on 01.08.2015. There is noncompliance of Section 100 Cr.P.C as the raid was conducted at 8.20 pm i.e. after sunset.

On the other hand, the learned State counsel supports the judgment and the order passed by the trial Court. He further submits that the menace of narcotics drugs needs to be curbed with heavy hands. The appellant does not deserve any leniency in the matter. All the mandatory provisions of the Act have been complied with. A prayer has been made for dismissing the present appeal. I have heard both the learned counsel and have gone through the case file and the record.

As per the case of the prosecution, the house of the accused is situated in abadi of village Guliyana. The prosecution has

-6failed to prove how the Police reached the house of the accused and there is no evidence on record regarding the ownership of the house or identification of the house. Further, as per the case of the prosecution the house consists of two rooms and door of the room from where the recovery was effected opens towards western side and the main entry of the house is from the eastern side. The recovery of charas has been allegedly effected from the western side room. It was in a black colour polythene hanging on a peg. The accused was sitting on a cot in a separate room. The conscious possession of the contraband has not been proved by the prosecution. It has not come on the record that the appellant was the owner of the house. Even the IO did not question the other family members regarding the presence of contraband in the house.

The independent witness did not support the case of the prosecution. The same was sent to the FSL Madhuban after a lapse of 72 hours. PW-1, ASI Mahender Singh, IO has admitted in his crossexamination that CFSL form under Section 29-A of the Act was not filled at the spot. In Bhola Singh vs. State of Punjab 2005(2) RCR (Criminal) 520 (P&H) it was held that the CFSL form should be prepared at the spot and deposited in the Malkhana. Where the seal remained with the police after use and the CFSL form was neither prepared on the spot nor deposited in the Malkhana, such circumstance would be fatal to the prosecution case.

-7tampered with till its analysis by the Forensic Science Laboratory. Taking all these factors into consideration this Court is of the opinion that the prosecution has failed to prove its case against the accused. Consequently, the present appeal is allowed and the impugned judgment and the order stand set aside. The accused is acquitted of the charge framed against him. He is stated to be in custody. He be released forthwith, if not required in any other case. 16.12.2016.

(JITENDRA CHAUHAN) SN JUDGE Whether speaking/reasoned : Yes/No Whether reportable :

Yes/No