TaxTMI 
TaxTMI 
2015 (2) TMI 1294
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.... 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 registered. It is alleged by prosecution that SI Bahadur Singh joined the witnesses namely Balvinder Singh and Neeraj in police party and proceeded to the shop situated at Jassur. It is alleged by prosecution that accused was informed that he has legal right to be searched before gazetted officer or Magistrate. It is alleged by prosecution that accused consented that he should be searched before the police officials. It is further alleged by prosecution that police officials were also searched and memo Ext.PW1/A was prepared. It is alleged by prosecution that s....
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.... C.Susheel Kumar PW10 C. Sudarshan Singh PW11 C. Pawan Kumar PW12 HC Bir Singh PW13 HC Subhash Chand PW14 Inspector Nathu Ram PW15 SI Bahadur Singh 4.1 Prosecution also produced following piece of documentary evidence in support of its case:- Sr.No. Description: Ex.PW1/A. Search Memo Ex.PW1/B. Consent memo Ex.PW1/C Search Memo Ex.PW1/D Fard Ex.PW1/E Seizure memo Ex.PW1/F Seizure memo Ex.PW1/G Memo Ex.PW2/A Information Ex.PW2/B Ruka Ext.PW2/C. NCB Form Ext.PW2/D Sample of seal Ext.PW5/A Affidavit Ex.PW5/B Affidavit Ext.PW5/C Registration copy Ext.PW5/D Memo Ext.PW8/A Copy of report Ext.PW11/A Road certificate Ext.PW12/A FIR Ext.PW12/B Endorsement Ext.PW13/A Endorsement Ext.PW13/B Extract Ext.PW15/A Nakal Rapat No.6 Ext.PW15/B Site plan Ext.PW15/C Statement of Mohinder Singh under Section 161 Cr.P.C. for contradiction purpose. Ext.PA Examination report 5. Learned trial Court acquitted accused qua offence punishable under Section 22 of ND&PS Act. Feeling aggrieved against the judgment pass....
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....s stated that accused was not owner of scooter in question. He has stated that on all papers he affixed his signatures at police station. He has stated that owner of scooter was called to police station on the same day. He has stated that dickey of scooter was unlocked. 8.2 PW2 ASI Hoshiar Singh has stated that since 2005 he was posted as I.O. in P.S. Nurpur and on dated 16.9.2006 he accompanied SI Bahadur Singh and other police officials on patrolling. He has stated that when they reached at Baur secret information was received by SI Bahadur Singh that accused deals in contraband in his shop. He has stated that thereafter information was sent to DSP through C. Nirmal Singh the copy of which is Ext.PW2/A. He has stated that thereafter ruka Ext.PW2/B was sent through C. Gurdeep to police station and thereafter they proceeded to Jassur chowk and associated Balvinder Singh and Nirmal in investigating team. He has stated that accused was found present in shop and his consent Ext.PW2/C was obtained. He has stated that accused had given the consent to be searched before police officials. He has stated that consent memo bears his signatures and also bears the signatures of witnesses Bal....
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....ecuted affidavit Ext.PW5/B. He has stated that RC remained in his name which is Ext.PW5/C because full price was not paid by Ravinder. He has stated that on dated 19.9.2006 Ext.PW5/A to Ext.PW5/C were handed over to police vide memo Ext.PW5/D in presence of Rajneesh and Purshottam. He has stated that he has no concern with scooter. 8.6 PW6 Ravinder Singh has stated that on dated 11.9.2006 he had purchased scooter No. PB-08-2906 in consideration amount of ` 2000/- (Rupees two thousand only) vide affidavits Ext.PW5/A and Ext.PW5/B. He has stated that RC remained in name of Pawan Kumar. He has stated that on dated 16.9.2006 one cousin of accused took the scooter informing him that accused had demanded the scooter as he had to go to somewhere. He has stated that later on he came to know that contraband was recovered from the scooter. Witness was declared hostile. He has stated that accused is personally known to him. He has stated that shop of accused is situated in front of his shop. He has denied suggestion that being neighbourer he is deposing falsely to save the accused. 8.7 PW7 HC Sushil Kumar has stated that since 2003 to July 2007 he remained posted as Reader to Dy.S.P. Nurpu....
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....egistered FIR Ext.PW12/A. He has stated that file was sent through C. Gurdeep and on the same day SI Bahadur Singh deposited four parcels sealed with seal 'D' Ext.P1 to Ext.P4 having six seals each. He has stated that parcels Ext.P3 and Ext.P6 were sealed with seal 'D' at three places. He has stated that impression of seal Ext.PW2/D along with NCB forms in triplicate was also deposited with him. He has stated that on dated 19.9.2006 two sample parcels along with NCB form were sent to CTL Kandaghat through Sushil Kumar vide RC No. 225/06 who returned the parcels because same were not accepted by CTL Kandaghat. He has stated that again on dated 5.11.2006 these parcels were sent through C. Darshan Kumar vide RC No. 272/06 to FSL Junga and he also returned the parcels and deposited with him. He has stated that again on dated 26.1.2007 parcels were again sent to FSL Junga vide RC No. 15/07 through C. Pawan Kumar and deposited the same on dated 27.1.2007 along with sample of seal and one NCB form and on return he deposited the receipt and RC with them. He has denied suggestion that Ext.PW2/A and Ext.PW12/A were prepared subsequently to create false evidence against the ac....
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.... thereafter sealed. He has stated that witnesses have also signed the parcels. He has stated that NCB form in triplicate was prepared and impression of seal Ext.PW2/D was obtained and further stated that seal was handed over to Balvinder Singh after use. He has stated that seizure memo Ext.PW1/B was prepared and copies were supplied to accused. He has stated that thereafter case property was deposited in police station with MHC. He has stated that spot map was also prepared and original notes of spot map are in his hand. He has stated that thereafter Pawan Kumar owner of scooter was called who produced his affidavits Ext.PW5/A and Ext.PW5/B and RC Ext.PW5/C and same took into possession vide memo Ext.PW5/D in presence of Rajnish Sharma and Purshottam Kumar on dated 19.9.2006. He has stated that thereafter special report Ext.PW8/A was sent to S.P. Kangra at Dharamshala through C. Kripal Singh and he also recorded statements of prosecution witnesses as per their versions. He has stated that capsules Ext.P6 600 in number are the same and bottles Ext.P5 seven in number are same which were recovered from possession of accused. He has stated that cousin of accused was not interrogated. H....
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....accused. Prosecution did not examine the cousin of accused in order to prove that cousin of accused had handed over the possession of scooter to accused. Non-production of original seal in Court is also fatal to prosecution 10.4. In present case it is proved on record that original seal after use was handed over to PW1 Balvinder Singh. But PW1 Balvinder Singh did not produce original seal in Court for comparison purpose. We are of the opinion that non-production of original seal for comparison purpose is also fatal to the prosecution. It was held in case reported in Latest HLJ . 2011 HP 1195 (DB) titled Nanha vs. State that if original seal is not produced then conviction could not be recorded. (See (1998)8 SCC 449 titled State of Rajasthan vs. Gopal) Non-examination of another independent witness Neeraj Thakur is also fatal to the prosecution 10.5 It is proved on record that another independent witness Neeraj Thakur was present in Court on dated 24.10.2007 but he was not examined by learned Public Prosecutor Mr. N.S. Verma to avoid repetition. We are of the opinion that non-examination of another independent witness on behalf of prosecution is also fatal to prosecution despite t....
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....ent in present case. Eye witnesses of search and seizure memo are Balvinder Singh, Neeraj Thakur and ASI Hoshiar Singh. PW1 Balvinder Singh has specifically stated in positive manner when he appeared in witness box that he does not remember the registration number of scooter. He has specifically stated that accused was not owner of scooter in question and he has further stated that he has signed all memos in police station. He has also stated that dickey of scooter was unlocked. PW1 Balvinder Singh did not support the prosecution story as alleged by prosecution. Prosecution did not examine another independent witness of seizure memo namely Neeraj Thakur although he was present in Court on dated 24.10.2007 and he was given up by Mr. N.S. Verma learned Public Prosecutor being repetitive in nature. Although ASI Hoshiar Singh posted in police station Nurpur has supported the prosecution story but two views have emerged in present case. ASI Hoshiar Singh has supported the prosecution story as alleged by prosecution and PW1 did not support the prosecution story as alleged by prosecution. It is well settled law that when two views are possible then view favourable to accused should be a....