Rajiv Sharma, J.@mdash1. This appeal has been instituted against Judgment dated 20.11.2015 rendered by learned Special Judge-II, Kangra at Dharamshala, District Kangra (HP) in Session Case No. 15-D/VII/2014, whereby appellant and another co-accused were charged with and tried for offence under Sections 20 and 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as ''Act'' for convenience sake). The appellant-accused (hereinafter referred to as ''accused'' for convenience sake) has been convicted and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1.00 Lakh, in default of payment of fine, to further undergo rigorous imprisonment for a period of two years for offence under Section 20 of the Act. Co-accused Gani Mohammad was acquitted of offence under Section 29 of the Act.
2. Case of the prosecution, in a nutshell, is that on 8.1.2014 ASI Ajit Kumar, In charge, Police Post Kandwal was on patrolling duty alongwith other police officers. He was checking traffic at Pail Lodhwan. At about 4.40 pm a car No. PB-35B-5642 came from Bhadroya side and was stopped. Surjeet Singh and Suvinder Singh were sitting in the car and while their documents were being checked, a silver coloured Maruti 800 Car No. HP-39A-1944 came from Kandwal side. Accused, Farid Deen was driving the car. Car was stopped and its documents were demanded. A bag was found lying under the driver seat and on checking the bag in the presence of Surjeet Singh and Suvinder Singh. Charas in the shape of sticks and balls was found, which weighed 2.200 kgs. It was sealed in a cloth parcel with 5 seals of ''A''. Seal after use and obtaining specimen seal was handed over to Surjeet Singh. Investigating Officer filled up the NCB form. Charas was taken into possession in the presence of witnesses. Investigating Officer thereafter prepared Rukka and sent the same through HHC Naresh Kumar to Police Station Nurpur for registration of case. FIR was registered at Police Station Nurpur. Investigating Officer prepared spot map. Accused alongwith Charas was produced before SI Tilak Singh, SHO PS Nurpur, who resealed the Charas with four seals of ''K'' and filled up relevant columns of NCB form in triplicate and deposited the Charas alongwith relevant documents with MHC, Police Station, Nurpur. Contraband was sent for chemical examination. Investigation was completed and Challan was put up in the Court after completing all codal formalities.
3. Prosecution has examined as many as 20 witnesses to prove its case against the accused. Accused was also examined under Section 313 CrPC. He pleaded innocence. Learned trial Court convicted and sentenced the accused as noticed herein above. Hence, this appeal.
4. Mr. Rajesh Mandhotra, Advocate has vehemently argued that the prosecution has failed to prove case against the accused.
5. Mr. Ramesh Thakur, Assistant Advocate General, has supported the judgment dated 20.11.2015.
6. We have heard the learned counsel for the parties and also gone through the judgment and record carefully.
7. PW-1 Suvinder Singh deposed that the traffic Naka was laid by police at Lodhwan. Their vehicle was stopped for checking. Thereafter, they went from the spot. Nothing was recovered from the accused in his presence. He did not remember his statement was recorded by police and he has put his signatures. He was declared hostile and cross-examined by the learned Public Prosecutor. In his cross-examination, he has admitted that on 8.1.2014, at about 5.40 pm, they were stopped by the police for checking. Documents were demanded by the police. These were checked. He did not remember car bearing registration No. HP-39A-1944 came on the spot and it was checked. He did not know whether one person was sitting in the car. He did not know that bag was recovered from the car and on opening the bag, Charas was found. He did not know car driver told his name as Farid Deen. He did not know Charas was weighed in his presence alongwith Surjeet Singh and it weighed 2.200 kgs. He denied that contraband was sealed on the spot and car alongwith accused was taken into possession and sealed with seal impression ''A'' and that the specimen of seal impression was taken on a separate piece. He denied that NCB form was filled at the spot. He admitted his signatures on mark X alongwith signatures of Surjeet Singh. He also admitted that mark A was related to recovery of Charas weighing 2.200 kgs alongwith Car No. HP-39A-1944 alongwith documents and driving licence and key of the car. He also admitted his signatures on specimen of seal impression mark A alongwith signatures of Surjeet Singh. He admitted that parcel of Charas bears his signatures alongwith signatures of Surjeet Singh. In his cross-examination by the defence counsel, he has admitted his signatures alongwith signatures of Surjeet Singh were obtained by the police in the police post Kandwal. He signed on the alleged parcel of Charas at the instance of the police.
8. PW-2 Surjeet Singh deposed that traffic Naka was laid at Lodhwan. Their vehicle was stopped for checking. One bag was recovered from the car. He did not know what was in the bag. His statement was not recorded by the police but his signatures were obtained. He was declared hostile and cross-examined by the learned Public Prosecutor. In his cross-examination, he has admitted that on 8.1.2014, at about 5.40 pm, their vehicle was stopped for checking. In the meantime, car bearing registration No. HP-39A-1944 came on the spot. It was checked and bag was found in it. He admitted that a person was sitting in it. He did not know car driver told his name was Farid Deen. He did not know Charas was weighed in his presence and Suvinder Singh and that it weighed 2.200 kgs. He denied that contraband was sealed on the spot and car alongwith documents was taken into possession and sealed with seal impression ''A'' and specimen impression of seal was also taken on a separate piece of cloth. He denied that police prepared NCB form at the spot. He admitted his signatures on memo mark X alongwith signatures of Suvinder Singh and accused. He denied that mark X was related to recovery of Charas weighing 2.200 kgs alongwith car No. HP-39A-1944. He admitted his signatures no mark A and also of Suvinder Singh and accused Farid Deen. He admitted that parcel of Charas bears his signatures. He admitted that he puts his signatures after reading and thinking. He denied that accused Farid Deen put his signatures in their presence on the memo. He admitted that PW-1 Suvinder Singh put his signatures in his presence. He admitted that they put their signatures. He admitted that they went from the spot and never met the police in the police post. In his cross-examination by the defence counsel, he admitted that he had put signatures over the memo and seal sample at the instance of the police.
9. PW-3 Bhav Deen deposed that Gani Mohammad never met him and nothing was handed over to Farid Deen by Gani Mohammad in his presence. He was declared hostile and cross-examined by the learned Public Prosecutor. He denied that on 7.3.2014, at 6-7 pm, Gani Mohammad met him at Bammota. He denied that Gani Mohammad asked him to deliver one bag at Pathankot containing Charas. He denied that police apprehended accused Farid Deen alongwith Charas. He denied that statement under Section 164 CrPC was recorded before Judicial Magistrate 1st Class, Nurpur. He did not remember that any statement had been recorded before JMIC on 9.4.2014. He admitted that there are two thumb impressions of his on statement of Mark N. He denied that he stated before JMIC that accused asked him to deliver packet of Charas at Pathankot and he refused to do so. He denied that on his refusal, Gani Mohammad handed over Charas to driver of Maruti Car, who was present in the Court. He admitted that on Mark N there are thumb impression and signatures of Magistrate at two places. Volunteered that he was illiterate. He has put thumb impression at the instance of police. According to him, he has not given correct statement before JMIC Nurpur. In his cross-examination by the defence counsel, he deposed that police has got recorded his statement Mark N by pressurizing him before the Magistrate. He denied that he met Gani Mohammad or that he has shown him bag containing Charas. He denied that the bag was handed over to any driver in his presence.
10. PW-4 Deen Mohd. deposed that he was Pradhan of Gram Panchayat Shalela Bari. He did not know about the case. Police usually met him. His statement was recorded by the police in the case. He was declared hostile and cross-examined by the learned Public Prosecutor. He denied that accused Farid Deen gave statement before police regarding the spot where Charas was handed to the driver of the vehicle. He admitted his signatures on mark K. He did not know whether memo mark K bears signatures of accused Farid Deen and Roshan. In his cross-examination by the defence counsel, he admitted that he went to the police station for personal work and at the instance of police he put his signatures on memo K.
11. PW-7 Roshan Deen deposed that he is an agriculturist. He did not know anything about the case. Police sought his signatures when he was present at Colony Mor alongwith his wife on the way to Hospital. He was declared hostile and cross-examined by the learned Public Prosecutor. He denied that on 12.1.2014, he remained associated in police investigation. He denied that accused Farid Deen disclosed in his presence to the police and demarcated the place at Colony Mor where he had taken 2.200 kgs Charas in his Maruti vehicle for sale towards Kandwal Pathankot. He denied that police prepared mark K. It was signed by him. He admitted his signatures on mark K in red circle ''A''. He denied that accused Farid Deen has also appended his signatures on the memo. In his cross-examination by the learned defence counsel, he deposed that he did not know anything about the case. He did not know what was written by police. No identification memo was prepared in his presence. He did not know Farid Deen neither he saw him at the place where police had written in the demarcation memo. Wrong identification memo was prepared by the police without his knowledge. His signatures were obtained from him at Colony Mor, when he was going to the hospital.
12. PW-8 HHC Naresh Kumar deposed that they were checking traffic at Lodhwan. At about 5.40 pm, a car No. PB-35B-5642 came from Bhadroya side which was signalled to stop. In the meantime, another Maruti car bearing registration No. HP-39A-1944 of silver colour came from Kandwal side and it was signalled to stop. On checking, one bag was found under the driver seat. On enquiry, driver disclosed his name as Farid Deen. IO also conducted videography. Bag was checked by Investigating Officer. It contained black coloured substance in the shape of sticks and balls. It smelt like Charas. Investigating Officer directed Bir Singh to bring weights and scale. Charas weighed 2.200 kgs. Charas was sealed in a parcel and seal impressions of ''A'' five in number were affixed. Investigating Officer prepared NCB form and specimen was taken on separate cloth. Seal after use was handed over to Surjeet Singh. Investigating Officer prepared Rukka and same was sent through him to be delivered for registration of FIR. He delivered the same and on the basis of same, FIR No. 6/14 dated 8.1.2014 was registered. Case property was produced while recording examination-in-chief of the PW-8 HHC Naresh Kumar. In his cross-examination by the defence counsel, he deposed that the recovery memo Mark X was prepared thereafter by Ajeet Kumar.
13. PW-9 Bir Singh deposed the manner in which vehicle was stopped. Charas was recovered. Rukka was prepared and sent to the Police Station. NCB form was filled up. Search, seizure and sampling proceedings were completed at the spot.
14. PW-10 Rakashpal Singh deposed that on 8.1.2014, SI SHO Tilak Raj deposited one sealed parcel of Charas sealed with seal impression ''A'' and ''K'' alongwith reseal sample seal and NCB form. He entered the same in register of Malkhana. Parcel of Charas, NCB form and specimen impression etc. were sent to the FSL for chemical examination through constable Nasib Singh. He proved abstract of Malkhana Register Ext. PW-10/A, copy of RC Ext. PW-10/B. In his cross-examination, he has admitted that he has not brought Malkhana Register in the Court.
15. PW-12 Constable Nasib Chand deposed that he took the case property to FSL Junga.
16. PW-15 Tilak Singh deposed that on 8.1.2014, ASI Ajeet Singh produced a parcel containing Charas weighing 2.200 kgs, which was sealed by him with 5 seal impressions of seal ''A'' alongwith NCB form for resealing. He resealed the parcel with four seal impressions of ''K'' in the presence of Rachpal Singh. He prepared memo Ext. PW-15/A. He filled in NCB form and affixed seal impression ''K''. Thereafter he sealed the parcel and deposited the same with MHC Police Station, Nurpur.
17. PW-17 Ajeet Kumar also deposed the manner in which vehicle was stopped. Charas was recovered. Search, seizure and sampling proceedings were completed at the spot. He prepared Rukka Ext. PW-17/B and sent the same to Police Station through HHC Naresh Kumar. FIR Ext. PW-16/A was registered. He presented the parcel containing Charas, NCB form to SI Tilak Raj for resealing the same. Parcel of Charas was resealed by him. Thereafter accused Farid Deen was produced in the court. Accused Farid Deen disclosed to the police that Charas and Car No. HP-39A-1944 belonged to Gani Mohammad On 12.1.2014, accused Farid Deen gave demarcation of the place where Gani Mohammad handed over Charas to him. He prepared memo Ext. PW-17/F. He also prepared Ext. PW-17/G i.e. site plan. In his cross-examination by the defence counsel, he categorically admitted that he did not know about the destination of Suvinder Singh and Surjeet Singh. In his cross-examination, he has admitted that in the site plan Ext PW-17/G he has recorded in column No. 2 that other accused had received the Charas at that place from unknown person. There was no mention Ext PW-17/G that Charas was received by Farid Deen from Gani Mohammad He could not say who identified PW-4 Bhav Deen in the Court.
18. Statement of Bhav Deen PW-4 was recorded by PW-19 Sandip Sihag, Judicial Magistrate 1st Class Manali. He proved Ext. PW-19/A. He has admitted in his cross-examination that in the statement Ext. PW-19/A, there was no warning that he was not bound to make statement, though it was mentioned in the zimni orders Ext. PW-19/B and also in the endorsement appended to Ext. PW-19/A. He also admitted that in statement Ext. PW-19/A, it is not recorded that the witness was identified by IO who accompanied the witness before him. Volunteered that after recording the statement, endorsement of the IO in record to identification has been obtained overleaf Ext. PW-19/A. He has also admitted that he has not explained the zimni order to Bhav Deen in Hindi language.
19. PW-20 Sanjay Kumar deposed that he has a shop at Damtal and owns car No. HP-39A-1944. He sold the car to one Shri Sumeet Kumar son of Subash Chander. He denied that he has sold the car to Gani Mohammad as per affidavit Mark-Z.
20. PW-1 Suvinder Singh and PW-2 Surjeet Singh, are the independent witnesses. Both of them have not supported the prosecution case. They were declared hostile and cross-examined by the learned Public Prosecutor. According to PW-1 Suvinder Singh, nothing was recovered in his presence. He did not remember that his statement was recorded by the police, on which he put his signatures. In his cross-examination he specifically deposed that he did not remember Car No. HP-39A-1944 came to the spot and was checked. He did not endorse that the bag was recovered from the car and on opening bag, it was found to contain Charas. He denied even filling of NCB form on the spot. He has identified his signatures on the memo mark X alongwith signatures of Surjeet. PW-2 Surjeet Singh has also deposed that though one packet was recovered from the bag but he did not know what was in the bag. In his cross-examination he deposed that he did not know that bag was recovered from car and on opening the bag, it was found containing Charas. He identified the signatures on mark X. He denied that the memo mark X was recorded and recovered Charas weighed 2.200 kgs. According to the PW-1 Suvinder Singh and PW-2 Surjeet Singh, they have put their signatures on the seizure memo at the instance of the police. PW-3 Bhav Deen has also not supported the case of the prosecution. According to him, accused Gani Mohammed never met him and nothing was handed over to Farid Deen by Gani Mohammed in his presence. It belies the case of the prosecution that the contraband was handed over to accused Farid Deen by Gani Mohammed. He was also declared hostile and cross-examined by the learned Public Prosecutor. In his cross-examination by the learned Public Prosecutor, he denied that Gani Mohammed gave packet of Charas to accused Farid Deen to be delivered at Pathankot. PW-4 Deen Mohd. has also not supported the prosecution case. He was declared hostile and cross-examined by the learned Public Prosecutor. He denied that accused Farid Deen gave statement before the police regarding the spot where Charas was handed over to the driver of the car. PW-7 Roshan Deen has also not supported the case of the prosecution. He was declared hostile. He also denied that accused Farid Deen had disclosed in his presence to the police and demarcated the place at Colony Mor, Tehsil Churah and that he had taken 2.200 kgs Charas in Maruti vehicle to sell the same towards Kandwal, Pathankot. PW-17 ASI Ajeet Kumar has deposed in his cross-examination that he did not know about the exact destination of Suvinder and Surjeet. Statement of Bhav Deen under Section 164 CrPC has not been recorded in accordance with law. PW-19, Sandip Sihag, Judicial Magistrate admitted that in his statement Ext. PW-19/A, that there is nothing to suggest that any warning was given to the maker of statement that he was not bound to make the statement. He also admitted that certificate Ext. PW-19/C was written by him after recording the statement of witness. He also admitted that warning to the maker of the statement was not written prior to recording of statement Ext. PW-19/A. PW-20 Sanjay Kumar has denied that he has sold the vehicle as per affidavit Mark Z to Gani Mohammad son of Dhiana. He was also declared hostile.
21. Case of the prosecution has not been supported by the independent witnesses PW-1 Suvinder Singh, PW-2 Surjeet Singh, PW-3 Bhav Deen, PW-4 Deen Mohd., PW-7 Roshan Deen and PW-20 Sanjay Kumar. According to PW-1 Suvinder Singh and PW-2 Surjeet, nothing was recovered in their presence. Version of the prosecution that contraband was supplied to accused Farid Deen by Gani Mohammad, has also not been proved.
22. Case property was produced during the statement of PW-8 HHC Naresh Kumar. Who has brought the case property from Malkhana to the Court has not been examined. Entry in the Malkhana register to the effect that who has taken the property to the Court, is necessary as per Punjab Police Rules, 1934. Para 22.70 of the Punjab Police Rules, 1934, as applicable to the State of H.P., reads as under:
"22.70. Register No. XIX- This register shall be maintained in Form 22.70.
With the exception of articles already included in register No. XVI every article placed in the storeroom shall be entered in this register and the removal of any such article shall be noted in the appropriate column.
The register may be destroyed three years after the date of the last entry."
The register is to be maintained in Form 22.70. It reads as under.
"FORM No. 22.70.
POLICE STATION ________
____DISTRICT
Register No. XIX.-Store-Room Register (Part-I)
Column 1.- Serial No.
2. No. of first information report (if any), from whom taken (if taken from a person), and from what place.
3. Date of deposit and name of depositor.
4. Description of property.
5. Reference to report asking for order regarding disposal of property.
6. How disposed of and date.
7. Signature of recipient (including person by whom dispatched).
8. Remarks.
(To be prepared on a quarter sheet of native paper)."
23. It is necessary that as and when case property is taken out from Malkhana, necessary entry is required to be made in the Malkhana Register and also at the time when case property is redeposited in the Malkhana. Case property in NDPS cases is required to be kept in safe custody from the date of seizure till its production in the Court. It is also necessary that when case property is taken out from Malkhana, DDR is made and also at the time when case property is redeposited in the Malkhana. Thus, it casts doubt whether it is the same case property which was recovered from the accused and sent to FSL or it was case property of some other case.
24. Sub-rule (2) Rule 22.18 of Punjab Police Rules, reads as under:
"(2) All case property and unclaimed property, other than cattle, of which the police have taken possession shall, if capable of being so treated, be kept in the store-room. Otherwise the officer in charge of the police station shall make other suitable arrangements for its safe custody until such time as it can be dealt with under sub-rule (1) above. Each article shall be entered in the store-room register and labelled. The label shall contain a reference to the entry in the store-room register and a description of the article itself and, in the case of articles of case property, a reference to the case number. If several articles are contained in a parcel, a detail of the articles shall be given on the label and in the store-room register.
The officer in charge of the police station shall examine Government and other property in the store-room at least twice a month and shall make an entry in the station diary on the Money following the examination to the effect that he has done so."
25. Rule 27.18 of Punjab Police Rules, reads as under:
"27.18. Safe custody of property.--(1) Weapons, articles and property sent in connection with cases shall on receipt be entered in register No. 1 and shall (excluding livestock) be properly stored in the store-room of the head of the prosecuting agency, or the police station. See Rule 22.18. When required for production in court such articles shall, at headquarters, be taken out in the presence and under the personal order of an officer of rank not less than prosecuting sub-inspector and an entry made in the register of issue from and return to the prosecuting agency''s store-room, which register shall be maintained in Form 27.18(1).
Animals sent in connection with cases shall be kept in the pound attached to the police station at the place to which they have been sent, and the cost of their keep shall be recovered from the District Magistrate in accordance with Rule 25.48.
(2) In all cases in which the property consists of bullion, cash, negotiable securities, currency notes or jewellery, exceeding in value Rs. 500 the Superintendent shall obtain the permission of the District Magistrate, Additional District Magistrate or Sub-Divisional Officer to make it over to the Treasury Officer for safe custody in the treasury.
(3) All cash, jewellery and other valuable property of small bulk, which is not required under sub-rule (2) above to be sent to the treasury, shall be kept in a locked strong box in the store-room. Each court orderly shall be provided with a strong lock-up box in which he shall keep all case property while it is in his custody in the court to which he is attached. Case property shall invariably be kept locked-up in such box except when it is actually produced as an exhibit in the course of proceedings. After being so produced it shall be immediately replaced in the lock-up box. Boxes shall be provided from funds at the disposal of the District Magistrate.
(4) Property taken out of the main store-room for production in court shall be signed for by the court orderly concerned in register No. 2 and the prosecuting officer authorizing the removal shall initial this entry. Such officer shall similarly, after personal check, initial the entry of return of the property to the main store-room on the closing of the courts.
(5) Every day, when the courts close, an officer of the prosecuting branch of rank not less that of sub-inspector shall personally see that the articles produced in court are returned to the store-room, restored to their proper places in the shelves, cup-boards or strong box and registered as required by sub-rule (4) above. The opening of the storeroom in the morning and its closing in the evening shall invariably be in the presence of the police officials named in this rule. Animals brought from the pound shall be repounded under the supervision of a head constable."
26. Thus, it is evident from rule 22.18 that the case property is required to be kept in store room and each article is to be entered in store room, registered and labelled and label shall contain a reference to the entry in the store-room register and a description of the article itself and, in the case of articles of case property, a reference to the case number. If several articles are contained in a parcel, a detail of the articles is required to be given on the label and in the store-room register. Similarly, it is provided in Rule 27.18 that Weapons, articles and property sent in connection with cases shall on receipt be entered in register No. 1 and shall (excluding livestock) be properly stored in the store-room of the head of the prosecuting agency, or the police station. The case property when required for production in court such articles shall, at headquarters, be taken out in the presence and under the personal order of an officer of rank not less than prosecuting sub-inspector (now APP/PP) and an entry made in the register of issue from and return to the prosecuting agency''s store-room, which register shall be maintained in Form 27.18(1). Property taken out of the main store-room for production in court is required to be signed for by the court orderly concerned in register No. 2 and the prosecuting officer authorizing the removal shall initial this entry. Such officer similarly, after personal check, is required to initial the entry of return of the property to the main store-room on the closing of the courts. It is further provided in this Rule that every day, when the courts close, an officer of the prosecuting branch of rank not less that of sub-inspector shall personally see that the articles produced in court are returned to the store-room, restored to their proper places in the shelves, cup-boards or strong box and registered as required by sub-rule (4) above. The opening of the storeroom in the morning and its closing in the evening shall invariably be in the presence of the police officials named in this rule. In case property is required to be committed to the higher Court, then under Rule 27.19, the parcel shall be sealed with the seal of the court and made over to the head of the police prosecuting agency, who shall produce it with unbroken seals before the superior court, or, if so ordered by competent authority, shall make it over to some other officer authorized so to produce it.
27. In this case, there is nothing on record to suggest that these Rules were followed while producing case property in the Court and on returning the same. These Rules have been framed to ensure that case property from its initial stage of seizure till production in the Court remains safe/intact and is restored to store room in the presence of senior police officer. Property taken out of the main store-room for production in court is required to be signed by the court orderly concerned in register No. 2 and the prosecuting officer authorizing the removal is required to initial this entry. Such officer shall similarly, after personal check, initial the entry of return of the property to the main store-room on the closing of the courts.
28. The prosecution has failed to prove case against the accused under Section 20 of the Act.
29. In view of the discussion and analysis made herein above, the appeal is allowed. Judgment dated 20.11.2015 rendered by learned Special Judge-II, Kangra at Dharamshala, District Kangra (HP) in Session Case No. 15-D/VII/2014 is set aside. Accused is acquitted of the offence under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985. He is ordered to be released forthwith, if not required by the police in any other case. Fine amount, if any, paid by the accused, be also refunded to him. Registry is directed to prepare and send the release warrant of the accused to the Superintendent of Jail concerted, forthwith.
