Kishan Chand vs State Of Haryana

2. Upon appeal, the judgment of the Trial Court was affirmed by the High Court as it was of the opinion that the judgment of the Trial Court did not warrant any interference. Thus, by its judgment dated 22nd April, 2008, the High Court sustained the conviction and sentence of the accused. Aggrieved from the judgment of the Division Bench of the High Court, the accused filed the present appeal.

3. Before we dwell upon the merit or otherwise of the contentions raised before us, it will be appropriate for the Court to fully narrate the facts resulting in the conviction of the appellant. On 19th July, 2000, a secret information was received by Sub-Inspector Kaptan Singh, PW7 who at the relevant time was the Station House Officer of Police Station, Cheeka and was present near the bus stand Bhagal in relation to investigation of a crime. Assistant Sub-Inspector Mohinder Singh was also present there. According to the information received the accused/appellant Kishan Chand and Ramphal, the other accused, used to smuggle opium on their Scooter No. HR 31 B 1975. On that day, they were coming on Kakrala-Kakrali Road and were on their way to Bhagal. It was further informed that upon nakabandi, they could be caught red handed and a large quantity of opium could be recovered from the scooter. Kaptan Singh, PW7, then reached T-Point, turning Theh Banehra and made the nakabandi. After 20-25 minutes, both the accused came on scooter from the side of Kakrala-Kakrali. Accused Kishan Chand was driving the scooter, whereas accused Ramphal was the pillion rider. Suspecting the presence of narcotic substance in the scooter of the accused, a notice under Section 50 of the Act, Ext. PC was given to both the accused and they were asked to get the scooter searched in the presence of a Gazetted Officer or a Magistrate. Ext. P C, was signed by both the accused which was also signed by Assistant Sub-Inspectors Manohar Lal (PW6) and Mohinder Singh. The accused vide their reply Ext. PD opted to give the search in the presence of a Gazetted Officer. Ext. PD was also signed by the witnesses in addition to the accused.

4. Thereafter, the investigating officer called for Subhash Seoran PW5, Tehsildar-cum-Executive Magistrate, Guhla on the spot, who then directed PW7 to conduct the search of the scooter. The scooter was having a Diggi (Tool box) and upon checking the same, opium was recovered which was wrapped in a polythene. From the recovered opium, 50 grams opium was separated for the purposes of sample and a separate parcel was made of the same. On weighing, the residue opium was found to be 3 kg and 750 grams. It was sealed in a separate parcel with the seals SS of Tehsildar, Subhash Seoran, PW5 and KS of the investigating officer, Kaptan Singh, PW7.

5. Kaptan Singh handed over his seal KS to ASI Manohar Lal, PW6 whereas PW5 retained his seal with him. The case property, sample parcel, specimen seal impressions were taken into custody by recovery memo Ext. PG, along with the scooter. It was attested by the Tehsildar and other witnesses. A rukka, Ext. PA was sent to the police station, where on the basis of the same, a formal First Information Report Ext. PA/1 was recorded. Rough site plan, Ext. PF was also prepared by the Investigating Officer. Thereafter, the accused were arrested. The statements of the witnesses under Section 161 of the Code of Criminal Procedure, 1973 (for short “CrPC”) were recorded. After completion of the investigation at the spot, the case property was deposited with the MHC along with the scooter and seal impressions on the same day. A report under Section 57 of the Act Ext. PG was also sent to the higher officer. After completing the investigation, a report under Section 173 CrPC was prepared by PW7 and submitted before the court of competent jurisdiction.

6. The prosecution examined eight witnesses including Shri S.K. Nagpal, Senior Scientific Officer, FSL, Madhuban. The accused in his statement under Section 313 CrPC refuted all allegations of the prosecution levelled against them and pleaded innocence. Accused Kishan Chand stated that ASI Balwan Singh was resident of his village and there was a dispute regarding land between the two families. The possession of the land had been taken by the family of the accused from ASI Balwan Singh. Thereafter, he had gone to see Sarpanch Bansa Singh of Village Bhoosla in connection with some personal work and at about 4 p.m., he was going towards Village Kalar Majra and on the way, Joginder, son of Dewa Singh met him at the Buss Adda Bhagal and when they were taking tea in a shop, then two police officials came in a civil dress and asked them to go to police post Bhagal as he was required by ASI Mohinder Singh Incharge Police Post Bhagal and, thus, a false case was planted against him.

7. As already noticed, the Trial Court acquitted accused Ramphal, but convicted Kishan Chand and the conviction was upheld by the High Court giving rise to the filing of the present appeal.

29. Resultantly, the present appeal is accepted. The accused is acquitted of the offence under Section 18 of the Act and is directed to be set at liberty forthwith. The case property be disposed of in accordance with the provisions of the Act.