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2004 DIGILAW 144 (HP)

SANJIV KUMAR ALIAS SANJU v. STATE OF H. P.

2004-07-08

LOKESHWAR SINGH PANTA, R.L.KHURANA

body2004
JUDGMENT Lokeshwar Singh Panta, J.—This is a jail appeal filed by the appellant (hereinafter referred to as "the accused) challenging the judgment/order dated 11-1-2002 passed by learned Sessions Judge, Mandi in Sessions Trial No. 4 ot 2001. By the impugned judgment, the accused has been convicted under Section 20 of the Narcotic Drugs and Phychotropic Substances Act, 1985 ( for short "the Act") and sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs. 1,00,000/- and in default of payment of fine, to suffer rigorous imprisonment for a period of four years. 2. Briefly stated, the prosecution case is as follows:— On 1.10.2000 PW-5 Shubdra Tiwari Dy. S.P. who at the relevant time was officiating as S.H.O. Police Station Aut, District Mandi alongwith PW-9 Sub Inspector Om Prakash, PW-1 Head Constable Jagat Singh, PW-2 LHC Narpat Ram PW-9 Sub Inspector Om Prakash and some more police officials were present in village Bashan in connection with Nakabandi. The Police Party at about 5.45 A.M. noticed one parson coming from Thachi side carrying a bag on his left shoulder. On seeing the Police Party the said person tried to run away. He was apprehended on suspicion and on verification of his antecedents he disclosed his name and address. That person is the accused in the present case. He was given option to be searched in presence of the Magistrate or Gazetted Officer and when the accused expressed his option to be searched by the Dy. Superintendent of Police, PW-5 conducted search of the bag of the accused and recovered charas in the shape of battinuma therefrom. The photographs Ext.PK/1 and Bxt.PK/2 of the recovered charas were also taken. On weighment, the charas was found 3 Kgs. and 250 grams. Since the accused could not account for the same, the charas was seized in the presence of the other police officials, 50 grams charas were separated from the bulk charas out of which two samples weighing 25 grams each were drawn which were sealed in separate parcels and the balance charas of 3 Kgs. and 200 gms. alongwith bag were sealed by using seal impcesslon ‘T at six places. The seal after use was handed over to PW-1 H.C. Jagat Singh- The accused was supplied grounds of arrest vide Memo Ex. PE. PW-5 prepared Ruka Ext. and 200 gms. alongwith bag were sealed by using seal impcesslon ‘T at six places. The seal after use was handed over to PW-1 H.C. Jagat Singh- The accused was supplied grounds of arrest vide Memo Ex. PE. PW-5 prepared Ruka Ext. PG which was sent through PW-2 LHC Narpat Ram to the Police Station, Aut for registration of the case. PW-3 HC Naresh Kumar lodged the FIR Ext. PH in Police Station Aut. PW-5 prepared site plan Ext. PL and filled up NCB form Ext. PM. The sealed packets of charas and seal ‘T alongwith NCB form were handed over to PW-3 by PW-5 for safe custody in Police Malkhana. On 1.10.2000 PW-3 sent one parcel of charas alongwith specimen seal, NCB form and other docket etc. through PW-7 constable Atma Ram to the Laboratory at Kandaghat vide R.C. No. 71/2000. PW-5 recorded the statements of the witnesses and sent Special report Ext PJ through PW-6 constable Gauri Dutt to the Dy. Superintendent of Police Head Quarter, Mandi. PW-9 Sub-Inspector Om Prakash received report Ext. PN from CTL Kandaghat which revealed that the same contained charas. After completion of the investigation PW-9 submitted the chargesheet against the accused who stood his trial. 3. The accused pleaded not guilty to the charge and claimed to be tried. 4. The prosecution in support of its case has examined as many as nine witnesses. The defence plea is one of denial. In answer to question No. 26 of the statement under Section 313 Cr.P.C. the accused pleaded as under:— "On 1.10.2000 at about 2.30 a.m. the police party came to my house and told in the presence of my brother, father and member of Panchayat likam Ram that I and my brother are required by the police for investigation of a theft case and that is why we are being taken to the Police Station. While on our way to the Police Station, Lal Singh tailor master met us at village Kotdhar. On his asking from the police, he was also told that the police is taking us to the Police Station for interrogation of a theft case and they shall be released during the day time. My father came to the Police Station at about 8 a.m. and at that time he was told by the police that they have arrested me and are releasing my brother. I am, innocent. My father came to the Police Station at about 8 a.m. and at that time he was told by the police that they have arrested me and are releasing my brother. I am, innocent. I have been falsely implicated". 5. In defence, the accused examined DW-1 Hari Ram, DW-2 Tikam Ram and DW-3 Lal Singh. 6. The learned Sessions Judge on appreciation of the oral and documentary evidence on record came to the conclusion that the prosecution has proved the charge against the accused beyond reasonable doubt and accordingly convicted the accused and imposed sentence upon him as stated above. 7. Now the accused has challenged his conviction and sentence by way of this appeal filed from jail, this Court vide Order dated 2.6.2003 appointed Mr. Rakesh Jaswal as Legal Aid Counsel to defend the accused. 8. We have heard learned Counsel for the parties. Mr. Rakesh Jaswal, learned Counsel has challenged the judgment of the learned Sessions Judge on the following points. (i) That the link evidence is missing in the present case as the prosecution has failed to prove on record that contraband seized on spot by PW-5 was kept in safe custody in the Police Station. (ii) Malkhana Register was not produced before the learned trial Court by the prosecution to prove that the seized articles were entered therein nor Road Certificate was produced. (iii) That in Column No. 2 in the NCB form, FIR No. 101 is written in blue ink whereas it is written in red ink on the other documents filed on record by the prosecution which would go to show that the recovery memos, memo of grounds of arrest and NCB form were all prepared by the Investigation Officer in the Police Station and not at the spot. He placed reliance in numbers of decided cases to which reference will be made in the later part of this judgment. Per contra the learned Additional Advocate General sought to support judgment of the learned trial Court. He contended that the trial Court has appreciated the oral and documentary evidence placed on record and the accused has failed to prove that he has been falsely implicated by the police in the commission of the offence. 9. We have given our thoughtful consideration to the rival contentions of the learned Counsel for the parties. He contended that the trial Court has appreciated the oral and documentary evidence placed on record and the accused has failed to prove that he has been falsely implicated by the police in the commission of the offence. 9. We have given our thoughtful consideration to the rival contentions of the learned Counsel for the parties. On reappraisal and scrutiny of the entire material on record we find no fault whatsoever in the findings recorded and conclusion arrived by the learned trial Court warranting interference in this appeal. 10. Now we propose to deal with the contentions of the accused. Contention No. (i). It is the evidence of PW-1 SI Jagat Singh, PW-2 LHC Narpat Ram, PW-5 Ms. Shubhra Tiwari, Dy. Superintendent of Police who at the relevant period was officiating as Station House Officer, Aut that on 1.10.2000 when they ware present near village Bashan in connection with Nakabandi, at about 5.45 a.m. they noticed one person who is later on found to be an accused coming from Thachi side carrying a bag on his left shoulder. On seeing the Police Party the accused tried to run away towards down side. He was apprehended by the police officials. On enquiry made by PW-5 from the accused, he disclosed his name, parentage and address. PW-5 gave option to the accused for his search either by the Gazetted officer or by the Magistrate as she suspected that the accused was in possession of some contraband. She prepared option Memo Ex. PA which bears the signature of the accused and other witnesses, The accused gave his option to be searched by PW-5. PW-5 gave her personal search to the accused vide memo Ext. PB. On search of the bag of green colour being carried by the accused a polythene bag was recovered in which there were battinuma and round shaped tablets of black colour. On seeing and smelling the substance from the recovered bag, the bulk was found to be charas. Photographs of the recovered charas were also taken by the PW-5. On weighment bulk charas came to be 3 kgs and 250 grams. She separately taken 50 grams of charas which was divided into two samples of 25 grams each and then they were separately packed in two parcels and sealed with seal impression T at six places. Photographs of the recovered charas were also taken by the PW-5. On weighment bulk charas came to be 3 kgs and 250 grams. She separately taken 50 grams of charas which was divided into two samples of 25 grams each and then they were separately packed in two parcels and sealed with seal impression T at six places. The balance bulk of charas and the bag were sealed in separate parcel with the same seal impression. After use of the seal it was handed over to PW-1. NCB form Ext. PM was prepared at the spot by PW-5 and the parcels of samples and balance charas were seized vide Memo Ext. PD. The accused was informed in regard to his arrest vide Memo Ext. PE. On the basis of Ruka Ext. PG, FIB Ext. PH was registered by PW-3 Naresh Kumar in Police Station, Aut. The case property alongwith specimen seal and NCB form ware deposited by PW-5 with PW-3 in the Malkhana in Police Station Aut. According to PW-3 he entered the case property in Malkhana Register. PW-1, PW-2, who were acconpcuiying PW-5 at the time of Nakabandi have corroborated the evidence of PW-5. Their evidence has not been shattered or impeached by the accused in cross-examination. They have deposed in one voice that 3 Kgs. and 250 grams charas was recovered from the exclusive possession of the accused when he was apprehended by the police raiding party. 12. PW-3 HC Naresh Kumar has corroborated the evidence of PW-5 that on 1.10.2000 at about 12.35 noon the Dy. Superintendent of Police deposited with him two parcels of sanples of charas sealed with seal impression ‘T’ and one parcel of balance bulk of charas sealed with seal impression T alongwith specimen of seal and NCB form. He entered the case property in the Malkhana register. On 3.10.2000 he sent one parcel of the sample of charas alongwith specimen seal, NCB form and other docket through PW-7 constable Atma Ram to CTL Kandaghat vide R.C. No. 71/2000. PW-7 has corroborated the testimony of PW-3. PW-3 and PW-7 are categorical in their deposition that so long the sample parcels remained in their custody, they ware not tampered with nor they allowed anyone else to tamper with the case property. PW-7 has corroborated the testimony of PW-3. PW-3 and PW-7 are categorical in their deposition that so long the sample parcels remained in their custody, they ware not tampered with nor they allowed anyone else to tamper with the case property. In the teeth of the cogent and convincing evidence of PW-3, PW-5 and PW-7, the prosecution has proved that the sample parcels and seal impression T alongwith NCB form were kept in police Malkhana in safe custody. There is no iota of evidence adduced by the accused to disbelieve and discard the evidence of the prosecution witnesses on that count. Chemical Examiner H.P.C.T.L. Kandaghat, vide report Ext. PN has certified that the Seal/Seals were found intact and unbroken. It was further certified that the Seal/Seals on the sanple tallied with the specimen impression of Seal/Seals sent separately. 13. On reappraisal of the evidence of the prosecution, the contention of the learned Counsel for the accused that the seized charas was not kept in safe custody by the Authorized Officer does not merit acceptance. Contention No. (ii) 14. In support of Contention No.(ii) the learned Counsel has placed reliance in the case of A. Raghavamma and another v. A. Chenchamma and another reported in AIR 1964 Supreme Court 136, Mohd. Hashim v. State, 2000 CRI.L.J. 1510, Deep Singh v. State of Himachal Pradesh reported in 1995 (2) Shim. L.C. 256, State of H.P. v. Gurdeep Lal and another Latest HLJ 2002 (2) HP-1018, State of Rajasthan v. Manoj Kumar, 2004 CRI. L.J. NOC 95 (Rajasthan) and Kedarnath Mallik alias Kedar Mallik v. State, 2001 (2) Crimes 425 (Orissa High Court), to contend that the Malkhana register of the Police Station was not produced before the Court to show that any entry was trade therein of the seized articles, therefore, the possibility of tampering with the sample cannot be ruled out, and in such circumstances, the accused is entitled to benefit of doubt. 15. We have gone through the ratio of the said decisions. 15. We have gone through the ratio of the said decisions. We can have possibly no quarrel for this established proposition of law that if relevant documents admitted to have been in existence were not placed before Court by the party concerned, adverse inference has to be drawn against the party under Section 114 of the Evidence Act, as held by their Lordships in the case of A Raghavamma and another v. A. Chenchamma and another, AIR 1964 Supreme Court 136. 16. In Mohd. Hashims case (supra), the learned Single Judge of Delhi High Court found on the evidence led in that case by the prosecution that the prosecution had failed to prove as to where the CFSL form containing the specimen seals had remained till the sampled contraband was examined by the Chemical Examiner. The evidence of the prosecution witness about entry of contraband in Malkhana register was also found falsified. In the facts and circumstances of that case, the learned Single Judge has given benefit of doubt to the accused. 17. In Safiullah v. State (Delhi Administration) 1993(1) Crimes 204, learned Single Judge of Delhi High Court in the peculiar facts and circumstances of the case acquitted the accused as it was found that the safeguard for ensuring the sanctity of the seal would be defeated if the C.F.S.L. form containing the specimen seal was not deposited in the Malkhana together with the sealed parcel. 18. In Deep Singh v. State of Himachal Pradesh (supra) the Division Bench of this Court on reappraisal of the entire evidence on record noticed that the seal used by the Empowered Officer at the time of sealing of the samples had not been produced in the Court and as per the evidence adduced on record a different seal "H" was put on the parcel. The report of the Chemical Examiner was not found pertaining to the same material which was sealed and in those circumstances, benefit of doubt was given to the accused. 19. The Division Bench of this Court in the case of State of H.P. v. Gurdeep Lal and another (supra) dismissed the appeal of the State against the acquittal of the accused as on the basis of the evidence coming on record, relevant documents prepared by the Investigating Officer were not found reliable and convincing. 19. The Division Bench of this Court in the case of State of H.P. v. Gurdeep Lal and another (supra) dismissed the appeal of the State against the acquittal of the accused as on the basis of the evidence coming on record, relevant documents prepared by the Investigating Officer were not found reliable and convincing. In that case the case property was produced by the prosecution before learned Additional Chief Judicial Magistrate, Amb for the purpose of taking photographs and thereafter re-sealed by the Magistrate with his own seal. No evidence has come on record to show that any specimen of the seal used in sealing the samples either by the Investigation Officer or by the Magistrate was sent to the office of the Chemical Examiner in a sealed cover while sending the samples for the purpose of analysis. In the absence of the evidence, the accused was acquitted. 20. In the case of State of Rajasthan v. Manoj Kumar, 2004 CRLL J. NOC 95 (Rajasthan), learned Single Judge of the Rajasthan High Court has acquitted the accused mainly on the ground, that Malkhana Register was not produced wherefrom depositing of sealed opium could be verified and FSL report was also not exhibited by the prosecution. 21. In the case of Kedarnath Mallik alias Kedar Mallik v. State (supra), the learned Single Judge of Orissa High Court has acquitted the accused on the grounds that Brass seal used for purpose of sealing the packets and kept in Zima of a witness was not produced in the Court and further that sealed packet received by Chemical Examiner contained only 100 mgs of brown powder which on analysis was reported heroin but whereas per the prosecution case packet sent for analysis contained 500 mgs of substance. Malkhana Register of Police Station was also not produced to show that entry was made in it regarding seized articles. In those circumstances conviction of the accused was found not sustainable. 22. In the instant case as discussed above there is cogent, trustworthy and convincing evidence on record to prove that PW-5 had deposited two parcels of samples of charas and one parcel of balance charas sealed with seal impression T alongwith specimen of seal and NCB form with PW-3 on 1.10.2000 in the Malkhana of Police Station. 22. In the instant case as discussed above there is cogent, trustworthy and convincing evidence on record to prove that PW-5 had deposited two parcels of samples of charas and one parcel of balance charas sealed with seal impression T alongwith specimen of seal and NCB form with PW-3 on 1.10.2000 in the Malkhana of Police Station. The entries of the seized articles were made in Malkhana register on 3.10.2000, PW-3 sent one parcel of sample of charas alongwith specimen seals, NCB form and other docket through PW-7 to CTL Kandaghat vide S.C. No. 71/2000. 23. We have perused the NCB form Ext. PM which shows that against column No. 8 it is mentioned that two samples of seal ‘T’ were seized and six seals of seal impression T on each sample were recorded against column No. 10. A report of the Chemical Examiner Ext. PN reveals that the Seal/Seals were found intact and unbroken. Chemical Examiner also certified that the Seal/Seals on the sample tallied with the specimen impression of Seal/Seals sent separately. The evidence of PW-3 shows that he had produced FIR register, Malkhana register and daily diary register before the learned trial Court and on the basis of Malkhana register he clearly stated that he made entry of case property entrusted to him by PW-5 in the said register. The production of Malkhana register before the Court, though not exibited would prove that the prosecution has not withheld the production of Malkhana register from the Court. Thus no adverse inference can be attributed against the prosecution case. The evidence of PW-3 and PW-5 on those point cannot be discarded and discredited simply on the ground that Malkhana register was not exibited in evidence. Therefore, this contention of the accused cannot be accepted. Contention No. (iii) 24. We have perused the NCB form Ext. PM on which FIR No. 101/2k has been written in blue ink whereas on other documents it is written in red ink. In our view mere use of different ink in writing the number of the FIR, does not amount to disbelieve the correctness and authenticity of the F.I.R. registered against the accused in Police Station Aut on the basis of Ruka Ext. PG. We find no other discrepancies in conducting the investigation by PW-5 who has complied the mandatory and directory provisions of NDPS Act. PG. We find no other discrepancies in conducting the investigation by PW-5 who has complied the mandatory and directory provisions of NDPS Act. Different use of ink in giving number of FIR would not prejudice the defence of the accused. There is not an iota of evidence to prove that the FIR was ante dated or it was recorded by PW-3 Naresh Kumar after due deliberation. Ruka Ext. PG recorded by PW-5 at the spot at about 8.05 A.M. was sent to the Police Station through PW-2 LHC Narpat Ram for registration of the case against the accused. The First Information Report was recorded at about 8.55 A.M. by PW-3 without delay. In the facts and circumstances of the case, this contention of the accused cannot be sustained. 25. The accused in his defence has produced DW-1 Hari Ram, DW-2 Tikam Ram and DW-3 Lal Singh. DW-1 his brother came up with the plea that the police officials came to his house at about 2.30 A.M. and took him alongwith his brother (accused) to Police Station, Aut in connection with some theft caee. He stated that DW-2 the Ward Member was called who asked the Police party to take the accused and DW-1 in the morning but the police had refused to listen to his request. On the way they met DW-3 Lal Singh who belongs to their village. DW-2 Tikam Ram Ward Member has stated that on 1.10.2000, DW-1 came to his house at about 2.30 A.M. and told him that police had come to their house in regard to making enquiry in some theft case. When he went to the house of the accused, he was told by DW-1 that he had been sent back by the police while the accused was in the company of the police. On the next day he came to Mandi and met the Superintendent of Police who told them that the accused was apprehended in N.D.P.S. Act case. DW-3 Lal Singh stated that the police party met him on the way on the day of occurrence when he was told that the accused was being taken to the Police Station, Aut in connection with some theft case. He alongwith other persons came to Mandi on the next day and met the Superintendent of Police. DW-3 Lal Singh stated that the police party met him on the way on the day of occurrence when he was told that the accused was being taken to the Police Station, Aut in connection with some theft case. He alongwith other persons came to Mandi on the next day and met the Superintendent of Police. None of the defence witness has made any complaint to the higher Police Officer in regard to false implication of the accused by the police in the present case, the evidence of the defence witnesses is not plausible and believable to establish that the raiding party had visited the house of the accused on the day of occurrence and brought him alongwith his brother DW-1 to the Police Station on the pretext that the raiding party had gone to the village in connection with some theft case. It is not believable that the police would implicate an innocent person in such a serious case by planting a huge quantity of charas on his person. There was no enmity between the police and the accused nor one is suggested. Police had no axe to grind in implicating the accused. 26. On re-appraisal and re-assessment of the entire evidence on record, we find no sound reason to differ with the reasoning and finding recorded by the learned Sessions Judge convicting the accused for the offence proved against him. 27. No other point was urged by the learned Counsel for the parties. 28. For the abovesaid reasons, there is no merit in this appeal and it is accordingly dismissed. 29. We place on record our appreciation for the invaluable assistance rendered to us by Mr. Rakesh Jaswal, Amicus Curiae. Appeal dismissed.