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2004 DIGILAW 100 (HP)

RAJESH BASMIYAT v. STATE OF H. P.

2004-05-18

M.R.VERMA

body2004
JUDGMENT M.R. Verma, J.—This appeal is directed against the judgment dated 2.1.2004 passed by the learned Sessions Judge, Kullu, whereby the accused-appellant (hereafter referred to as the accused) has been convicted under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (hereafter referred to as the NDPS Act) and has been sentenced to undergo rigorous imprisonment for 7 years and to pay fine of Rs. 50,000/- and in default of payment of fine to suffer further imprisonment for six months. 2. Briefly stated the case of the prosecution is that on 13.1.2003 ASI Shiv Singh (PW-7) alongwith HHC Ses Ram, constable Ram Chand (PW-6) and HHC Hukam Ram was present in Jari jungle in between Jari and Baladhi for patrolling and Nakabandi. At 4.15 a.m. the accused was noticed coming from Baladhi side carrying a plastic bag. PW-7 signalled him to stop whereby the accused got perplexed. He was apprehended by the police and his particulars verified. However, on enquiry as to what was contained in the carry bag, the accused did not give a satisfactory reply. Getting suspicious, PW-7 carried out the search of the carry bag in the presence of his companion police officials Ses Ram and PW-6 and the carry bag was found to contain 1.00 kg. of charas. After separating two samples of 25 grams each from the recovered charas, the samples and bulk charas were separately sealed with seal T and the seal sample whereof is Ext.PW-7/A after use was handed over to HHC Ses Ram. Memo, regarding recovery, drawing of sample and sealing the case property was prepared which is Ex. PW 6/C. A Ruka Ex. PW 7/B was prepared by PW-7 and was sent to the Police Station for registration of a case and as a consequence formal FIR Ex. PW 5/A was recorded at Police Station, Kullu. Since the recovered contraband was charas, therefore, PW-7 prepared and submitted special report Ex. PW 2/C to the Superintendent of Police, Kullu. The case property NCB Form and the accused were produced before SI Kamla (PW-5) who resealed the case property with seal H, sample whereof is Ex. PW 5/C. She filled up columns No. 9 to 11 of NCB form Ex. PW 4/C and deposited the case property, NCB form, sample seal and other documents with MHC Narain Singh (PW-4). One sample was handed over by PW-4 to HHC Lai Singh (PW-3). PW 5/C. She filled up columns No. 9 to 11 of NCB form Ex. PW 4/C and deposited the case property, NCB form, sample seal and other documents with MHC Narain Singh (PW-4). One sample was handed over by PW-4 to HHC Lai Singh (PW-3). On 14.1.2003 for delivery at CTL, Kandaghat where he delivered the sample on 15.1.2003. On analysis, the sample was found Charas vide report Ex. PA of the Chemical Examiner, HPCTL, Kandaghat. A charge-sheet against the accused was submitted by PW-5 and as a consequence the accused came to be tried by the learned Sessions Judge, Kullu, on a charge under Section 20 of the NDPS Act. 3. To prove the charge against the accused prosecution examined 7 witnesses. The statement of the accused was recorded under Section 313, Cr.P.C, wherein he denied the prosecution case as a whole. However, the accused did not lead any defence evidence. 4. On the basis of the evidence on record, the learned trial Judge convicted and sentenced the accused as aforesaid. Hence, this appeal. 5. I have heard the learned Counsel for the accused and the learned Deputy Advocate General for the respondent-State and have also gone through the record. 6. The learned Counsel for the accused has assailed the impugned conviction and sentence on the following grounds:— (1) That the Investigating Officer did not join any independent witnesses in the search and the evidence of police officials alone could not be relied to convict the accused; and (2) That the case property was not produced before the officer incharge of the police station and there is no link evidence to show that case property throughout remained in safe custody. Ground No. (1) : 7. It was contended by the learned Counsel for the accused that it is admitted case of the prosecution that no independent witness was joined in the search, therefore, the search being not in accordance with law the conviction based on such illegal search is vitiated. To fortify his contention the learned Counsel relied on Sandeep Kumar v. State of H.P. (2002 (2) Shim. To fortify his contention the learned Counsel relied on Sandeep Kumar v. State of H.P. (2002 (2) Shim. L.C. 224) wherein a Division Bench of this Court held that the conviction of the accused under Section 20 of the Narcotic Drugs and Psychotropic Substances Act was liable to be set aside inter alia on the ground that by not joining the independent witnesses from the locality, the process of search adopted by the police was illegal. 8. Per contra, the learned Deputy Advocate General contended that it is a case of chance recovery and it was not possible to join independent witnesses in the night hours in the jungle, therefore, non-joining of independent witnesses in the search is not fatal to the case of prosecution. 9. It is true that where search of a person or building is intended to be carried out on the basis of some prior information, the police search party or the police officer intending to carry out the search must join independent witnesses to witness the search. The failure to join independent witness can be attributable to various reasons like reluctance of the people to be witnesses in the cases, non-availability of witnesses in case of a chance recovery. Therefore, effect of the non-joining the independent witnesses has to be examined in view of the circumstances of each and every case. In case the omission to join independent witnesses is not deliberate and mala fide but because of circumstances beyond control the lapse will have least effect on the prosecution case. In any case, the Court will have to be more careful and cautious in appreciating the evidence. The omission to join independent witnesses ipso facto will not be fatal to the case of the prosecution. 10. In the case in hand the I.O. (PW-7) had mentioned in the Ruka Ext.PW-7/B itself on the basis of which the F.I.R. was recorded that the accused was apprehended in a jungle during night and no local independent witness was available. PW-6 and PW-7 both have supported the version as contained in Ext,PW-7/B. There is nothing material in their cross-examination to show that without any prior information during the night hours any independent witness could be procured in a path in the jungle. The omission to join independent witness in the search is duly and satisfactorily explained and has no adverse bearing on the prosecution case. The omission to join independent witness in the search is duly and satisfactorily explained and has no adverse bearing on the prosecution case. In Sandeep Kumars case (supra), it was found that independent local witnesses were not joined in the search despite such witnesses being available. Thus, it was a deliberate omission of not joining the independent witnesses in the search, therefore, the ratio of Sandeep Kumars case is not applicable to the facts and circumstances of the present case. 11. It was further contended by the learned Counsel that the conviction is based entirely on the evidence of the police officials interested in the success of the case, therefore, such a conviction is bad in law. 12. On the other hand, the learned Deputy Advocate General contended that the evidence of the police officials in this case is cogent and reliable, therefore, has rightly been accepted and acted upon by the trial Court. 13. There is no rule of law to support the contention that testimony of police officials associated in the investigation or investigated the case should not be acted upon or believed. The police officials are as competent witnesses as any other witnesses. It is a rule of caution that while appreciating their evidence the Court has to be more cautious and careful and will look into other corroboratory circumstances if any to assess their evidence. In case such evidence is corroborated by other corroborative evidence and inspires confidence, there is no reason to discredit an official witness simply because he is official witness. 14. In Fredric George v. State of Himachal Pradesh (2002 Cr.L.J.4600), a Division Bench of this Court while dealing with the question of reliability of the official witnesses held as under:— "Nothing has been brought out from the witnesses to show that they are in any way inimical towards the appellants. Therefore, only because of the fact that other independent witnesses have not supported the prosecution case, the evidence of the official witnesses including PW-3 who can be treated as an independent witness cannot be discarded. There is no reason to suspect the evidence adduced by an official witness only because of the fact that he is an officer of the department. His evidence can very well be accepted to maintain a conviction, if the same is otherwise found reliable.” 15. There is no reason to suspect the evidence adduced by an official witness only because of the fact that he is an officer of the department. His evidence can very well be accepted to maintain a conviction, if the same is otherwise found reliable.” 15. In State of Kerala v. M.M. Mathew, (AIR 1978 SC 1571) while dealing with the subject, the Honble Supreme Court held as under:— "It is true that Courts of law have to judge the evidence before them by applying the well recognised test of basic human probabilities and that some of the observations made by the Sessions Judge especially one to the effect that the evidence of officers constituting the inspecting party is highly interested because they want that the accused are convicted cannot be accepted as it runs counter to the well recognised principle that prima facie public servants must be presumed to act honestly and conscientiously and their evidence has to be assessed on its intrinsic worth and cannot be discarded merely on the ground that being public servants they are interested in the success of their case." 16. In State of H.P. v. Vinod Kumar (2003 (1) S.L.J. 174), this Court while dealing with the subject as in hand, has held as under:— "7. The entire case of the prosecution is based on the statements of police officials and there is no independent witness. However, it cannot be said to be a case of deliberate and intentional non joining of the independent witnesses because it is a case of chance recovery on the way. There is no rule of law that statements of police officials must be disbelieved simply for the reason that they are police officials. In law they are as good witnesses as any independent witness. It is, however, a rule of caution that the statements of the official witnesses must be read with due care and caution. The statements of the witnesses in the case therefore, are required to be examined with care and caution and if found to be cogent and reliable, a conviction can be based on their statements, but if there is any doubt about their voracity or if any other legal lapse is found to have been committed on the basis of the material on record, the acquittal order has to be maintained." 17. In Raj Pal v. State of H.P. (2003 (1) S.L.J. 688), this Court took the similar view while holding as under:— "13. It is true that the evidence of the prosecution to prove the search of the accused and the recovery of Charas from his possession consists of the statements of PW-4, PW-5 and PW-6 who are all police officials. However, there is no rule of law that the police officials are incompetent witnesses and their statements should not be relied upon to convict a person. On the contrary, if the statements of the official witnesses are cogent, reliable, trustworthy and confidence inspiring, their statements can be acted upon and conviction can be based thereon." 18. In Rajesh Kumar v. State of H.P. (Cr. Appeal No. 547 of 2001) decided on 10.7.2003 and Soni v. State of H.P. (Cr. Appeal No.182 of 2001) decided on 11.6.2003, this Court has taken similar view. 19. In the case in hand, the version contained in the RLR. Ext.PW-5/A and the contents of the search and seizure memo Ext.PW-6/C are fully supported and proved by the evidence of PW-6 and PW-7. There is nothing in their cross-examination which may create any doubt about their truthfulness. There is no allegation/suggestion that the police had any motive to falsely implicate the accused in the case. Their evidence is further corroborated by recovery of 1 Kg of Charas which is not such a quantity which is likely to be procured to plant with a view to falsely implicate the accused. It is not the case of the accused that he was not arrested from the spot. The circumstance that the accused was travelling during night hours and had no satisfactory explanation for doing so lends further support to the prosecution version. Thus, in view of the evidence led by the prosecution its version regarding search, recovery and seizure of the contraband is proved beyond any reasonable doubt. Therefore, the contentions raised for the accused under this ground are not sustainable. Ground No. (2) : 20. It was contended by the learned Counsel for the accused that after the alleged seizure the case property was not produced before the S.H.O. It was submitted that an officiating S.H.O. is not the S.H.O. and production of case property before him does not satisfy the requirement of Section 55 of the NDPS Act. Ground No. (2) : 20. It was contended by the learned Counsel for the accused that after the alleged seizure the case property was not produced before the S.H.O. It was submitted that an officiating S.H.O. is not the S.H.O. and production of case property before him does not satisfy the requirement of Section 55 of the NDPS Act. Therefore, contended the learned Counsel, there has been breach of the mandatory provision which is fatal to the case. 21. Per contra, the learned Deputy Advocate General contended that the case property was produced before the S.H.O. who resealed the case property and caused it to be kept in safe custody in the Malkhana. Thus, there is no question of non-compliance as alleged for the defence. 22. Be it stated that by now it is well settled in view of the various judgments of this Court and the Apex Court that provisions of Section 55 of the NDPS Act are not mandatory but are directory. The effect of non-compliance of these provisions ipso facto is not fatal to the case of prosecution but it effects the appreciation of evidence. 23. In the case in hand, the contention had been raised only to be rejected. It is in the evidence of PW-7 that he produced the case property, NCB form, sample seal Ext.PW-7/B and the accused before the S.H.O. His statement on this count is corroborated by S.I. Kamla (PW-5) who has stated that on 13.1.2003 she was officiating as S.H.O. and PW-7 had produced before her the case property sealed with seal T, seal sample and NCB form and she resealed the property with her seal H. 24. It may be pointed out that any person who is officiating as Incharge of a Police Station has all the powers of such incharge to conduct the official business of the police station. Since PW-5 was at the relevant time officiating as S.H.O., therefore, was the officer incharge of the police station for all intents and purposes. The production of the case property etc. before her by PW-7 and her sealing the case property with her seal and depositing it with MHC for safe custody fully meets the requirements of the provisions of Section 55 of the NDPS Act. 25. It was further contended by the learned Counsel for the accused that link evidence in this case is missing. before her by PW-7 and her sealing the case property with her seal and depositing it with MHC for safe custody fully meets the requirements of the provisions of Section 55 of the NDPS Act. 25. It was further contended by the learned Counsel for the accused that link evidence in this case is missing. It was submitted that the seals used for sealing the case property were not produced and the report of the Chemical Analyst does not mention the seal impressions in his certificate which renders the report highly suspicious and incapable of providing the link between the sample and the case property. 26. As already stated hereinabove PW-7 produced the sealed samples, bulk Charas, NCB form duly filled in up to Column 8 and the sample seal to PW-5 who in turn after resealing the sample and bulk Charas and after filling the remaining columns of NCB form and taking a sample of seal used by her, entrusted all these articles to MHC. The then MHC (PW-4) has corroborated the version of PW-5 regarding handing over of the sealed articles to him by PW-5 and has further stated, that on 14.1.2003 he sent the sample etc. through HHC Lai Singh (PW-3) to CTL Kandaghat and till the case property remained with him no body tampered with the same. PW-3 has corroborated the version of PW-4 regarding handing over of the sample etc. to him and stated that he delivered the sample in CTL Kandaghat on 15.1.2003 and till the case property remained with him it was not tampered with. The report Ext. PA certifies that the sample was received in the Lab on 15.1.2003 through PW-3 and the seals were intact. It is further certified that the seals on the sample tallied with the specimen impressions of the seal sent to him separately. When produced in the Court, as per observations of the Court, the seals on the case property were found intact. There is nothing in the statements of the PWs as discussed hereinabove which may create any doubt whatsoever about safe custody of the case property. 27. It is though true that the seals used for sealing the case property have not been produced at the trial yet the specimen impressions of such seals Exts.PW-5/A and PW-7/A have been produced and proved. 27. It is though true that the seals used for sealing the case property have not been produced at the trial yet the specimen impressions of such seals Exts.PW-5/A and PW-7/A have been produced and proved. In any case there is no law or rule which makes it mandatory to produce the seal in evidence at the trial. 28. In Fredric Georges case (supra), this Court while dealing with a similar question held as under:— "It is a fact that the seals used for sealing and re-sealing the bulk case property and the samples have not been produced at the trial. In Manjit Singhs case (supra) while dealing with the effect of non-production of the seal, this Court held as under:— In the absence of any mandatory provision in the law/Rules of procedure relating to sealing of the case property, that the seal used in sealing the case property must be produced at the trial, it cannot be said that failure to produce such seal at the trial will be fatal to the case of the prosecution. It will depend on the facts and circumstances of each case whether by non production of the seal at the trial any doubt is raised about the safe custody of the case property or not.’ In view of the above position in law; and the conclusion we have already arrived at hereinabove that there is unchallenged and trustworthy evidence that the case property was not tampered with at any stage, the non production of the seals used for sealing and re-sealing of the bulk case property of the samples is also of no help to the accused.” 29. In Hira Giri @ Hardev Giri v. State of H.P., [2003 (2) Shim. LC 350], this Court took a similar view and has held as under:— "36. The seals used for sealing the case property, specimen thereof and second samples retained by the investigating agency, have admittedly not been produced in the trial Court. However, in view of the evidence led by the prosecution, as already discussed hereinabove, such non-production is not fatal to the case of the prosecution. The seals used for sealing the case property, specimen thereof and second samples retained by the investigating agency, have admittedly not been produced in the trial Court. However, in view of the evidence led by the prosecution, as already discussed hereinabove, such non-production is not fatal to the case of the prosecution. Production of the seals and its specimen impressions at the trial is not the requirement of law but only a circumstance to reinforce the prosecution evidence and in case there is other cogent and reliable evidence like contemporaneous records supported by confidence inspiring evidence of witnesses, such non-production will be rendered inconsequential.” 30. In view of the above legal position and the cogent and confidence inspiring evidence on record the non-production of the seals used for sealing the case property is rendered inconsequential. Therefore, the contentions raised under this ground are devoid of any merit and substance. 31. It was urged as an alternate plea that the accused at the time of the commission of the offence was less than 18 years of age, therefore, he may be released on probation. To support his contention the learned Counsel relied on Raj Mohammad alias Raja v. State of H.P. (2000 (2) SLJ 267) wherein this Court had held that if the accused is below 18 years of age at the time of commission of any offence under the NDPS Act he is entitled to be released on probation. 32. Section 33 of the NDPS Act which enables the Court to release on probation a person found guilty of the commission of offence under the NDPS Act reads as under:— "33. Application of Section 360 of the Code of Criminal Procedure, 1973 and of the Probation of Offenders Act, 1958. Nothing contained in Section 360 of the Code of Criminal Procedure, 1973 or in the Probation of Offenders Act, 1958 shall apply to a person convicted of an offence under this Act unless such person is under eighteen years of age or that the offence for which such person is convicted is punishable under Section 26 or Section 27." 33. Nothing contained in Section 360 of the Code of Criminal Procedure, 1973 or in the Probation of Offenders Act, 1958 shall apply to a person convicted of an offence under this Act unless such person is under eighteen years of age or that the offence for which such person is convicted is punishable under Section 26 or Section 27." 33. On a bare reading of the aforesaid provisions it is clear that a person convicted of an offence under the NDPS Act if below IS years of age or is convicted for the offence punishable under Section 26 or Section 27 of NDPS Act benefit of Section 360 of the Code of Criminal Procedure, 1973 or the Probation of Offenders Act, 1958 can be granted to him i.e. he can be released on probation. In the case in hand, there is no evidence to show that at the time of the commission of the offence the accused was below 18 years of age. On the contrary, his Parcha Shanakhat as is available on the record shows that at the time of the commission of offence he was 18 years of age. His conviction is not under Section 26 or Section 27 of the NDPS Act, therefore, the benefit of probation cannot be extended to the accused. 34. In view of the above discussion, the charge against the accused is fully proved and his conviction and sentence under Section 20 of the NDPS Act as awarded by the trial Court does not call for any interference by this Court. 35. As a result, this appeal merits dismissal and is accordingly dismissed.