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2004 DIGILAW 170 (HP)

Tejbir Singh v. State Of Himachal Pradesh

2004-07-23

LOKESHWAR SINGH PANTA, R.L.KHURANA

body2004
JUDGMENT : Lokeshwar Singh Panta, J. Tejbir Singh appellant (hereinafter referred to as `the accused') has been convicted by the learned Sessions Judge, Kinnaur, Sessions Division at Rampur Bushahr in N.D.P.S. Case No.1 of 2001 for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short) NDPS Act). By the impugned judgment and order dated 27.12.2001 the accused has been sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 1,00,000/- and in default of payment of fine amount to further undergo simple imprisonment for a period of one year. 2. The prosecution case against the accused was that 29.12.2000 at about 11.35 P.M. Ram Rattan (PW-12) Inspector/SHO, Police Station Rampur had received secret information that one person aged about 21 years wearing blue shirt, green pant and sleeveless sweater was going from District Kullu to Rampur Bushahr through Bazaar Bawadi, bridge on river Satluj in between Rampur, Bushahr and Nogli carrying some contraband in his haverback (Pithu). On receipt of the information, PW-12 recorded report No.11 marked as PW-5/A in the daily diary of the Police Station. He passed on the said information to Sh. Krishan Gopal (PW-2). Deputy Superintendent of Police, Jhakri (Rampur Bushahr). PW-12 formed a raiding party consisting of himself, Dhani Ram (PW13), Sl. Addl. SHO, constable Roop Chand, Constable Rakesh Kumar and constable Prem.Chand. The raiding party proceeded from Police Station, Rampur Bushahr to Bazeer Bawadi in police vehicle No. HP-06-0020. At about 2.50. P.M. one person matching the description given in the secret information was noticed coming from Kullu District towards Rampur crossing Bazaar Bawadi bridge of river Satluj. Police party tried to nab that person but he had run away towards Nogli side. The Police party chased that person running on National Highway No.22. PW-3 Lalit Kumar Thakur who was coming from Rampur side driving Maruti Van No. HP-02-2651, helped the police officials in ` apprehending the said person. During interrogation, that person was found to be Tejbir Singh the present accused. The accused was carrying a `Pithu Ex.P- 6 on his shoulder. PW-12 served a notice Ext./PW-3/A under Section 50 of the NDPS Act to the accused asking him to give an option if he wanted to be searched before a Magistrate or the Gazetted Officer. The accused consented to be searched by Gazetted Officer. The accused was carrying a `Pithu Ex.P- 6 on his shoulder. PW-12 served a notice Ext./PW-3/A under Section 50 of the NDPS Act to the accused asking him to give an option if he wanted to be searched before a Magistrate or the Gazetted Officer. The accused consented to be searched by Gazetted Officer. PW-12 sent constable Rup Singh to request Sh Krishan Gopa (PW-2) Dy. Superintendent of Police, Rampur to carry out the search of the accused. PW-2 telephonically requested Sh. A.K. Shukla Sub Divisional Magistrate, Rampur Bhushar (PW-1) to proceed to the spot for conducting the search of the accused. The Sub Divisional Magistrate and Dy. Superintendent of Police both reached the spot at about 3.40 p.m. They found the accused carrying a `Pithu' Ext P-6 on his shoulder. PWs 1 and 2 had offered themselves for personal search to the accused in the presence of PW-3 and one Gopal Singh independent witnesses. The independent witness and other police officials of the raiding party were searched by the accused and search memos Ext.PW-3/D and PW-3/E were prepared but nothing incriminating was recovered from their personal search. On search of the Pithu Ext.PW-6 of the accused by PW-2 in the presence of the witnesses, `charas' Ext. P-1 in the shape of billets was found. On weighment of the charas it was found to be 1kg and 375 Gms. Out of the recovered `charas' two samples of 25 Gms, each were taken and the remaining charas were put in three sealed packets which were sealed with seal impression "T. Memo Ext. PW-1/D relating to recovery of charas was also prepared at the spot. PW-12 prepared Rukka Ex.PW-11/A which was sent to Police Station, Rampur Bhushahr through constable Rakesh Kumar for registration of formal First Information Report. On the basis of Rukka, ASI Karam Singh (PW-11) registered the First Information Report Ext. PW-11/E in the Police Station at about 5.45 P.M. A-copy of the First Information Report was sent to PW-12 for investigation. The accused was arrested by PW-13 Dhani Ram. SI/Addl.SHO Rampur Bhushar on the spot after having apprised him of the grounds of arrest. The case property was taken to Police Station by PW-12 who resealed the packets of charas of other packets with seal impression `S'. Three packets were handed over to constable Ramesh Chand (PW-5) for safe custody in the Malkhana. SI/Addl.SHO Rampur Bhushar on the spot after having apprised him of the grounds of arrest. The case property was taken to Police Station by PW-12 who resealed the packets of charas of other packets with seal impression `S'. Three packets were handed over to constable Ramesh Chand (PW-5) for safe custody in the Malkhana. On 5.1.2001, PW-5 sent one sealed packet of sample to the Chemical Examiner, Kandaghat through PW-6 constable Dalip Kumar who in turn deposited the same in the laboratory vide RC No. 189/2001. PW-12 prepared Special Report Ext.PW-8/A which was submitted to Dy. Superintendent of Police, Theog on 31.12.2000 through constable Prem Lal as the Dy. Superintendent of Police, Theog was holding the additional charge of Dy. Superintendent of Police Rampur Bhushar in the absence of Krishan Gopal, Dy. Superintendent of Police, Rampur Bhushar, NCB form Ext.PX was also prepared. On analysis of the sample, the contents thereof were found to be `charas' vide Chemical Examiner report Ext.PX. On completion of the investigation, PW-12 submitted a charge-sheet against the accused. He came to be tried on a charge under Section 20 of the N.D.P.S. 3. To prove its case against the accused, the prosecution examined as many as 13 witnesses. The statement of the accused under Section 313 Cr.P.C. , was recorded wherein he denied the prosecution case as a whole. He pleaded that he was present at Nogli on 29.12.2000 at about 2 P.M. in connection with sale of bed sheets. DW-1 Balbir Singh, Senior Assistant working in the office of State Transport Authority, Shimla was examined in defence. 4. The learned Sessions Judge upon consideration of the evidence led before him, found the accused guilty of the commission of the offence under Section 20 of the N.D.P.S. Act and accordingly convicted and sentenced him as aforesaid. Hence, the accused has challenged his conviction and sentence in this appeal 5. We have heard the arguments advanced by the learned counsel for the parties. The learned counsel for the accused contended that there is no link evidence to connect the bulk of the allegedly seized contraband with the sample which was analyzed by the Chemical Examiner, Kandaghat and therefore possibility of tampering with the case property was not ruled out. He next contended that the presence of PW-1 and PW-3 witnesses on the spot is doubtful and therefore, no reliance can be placed on their testimony. He next contended that the presence of PW-1 and PW-3 witnesses on the spot is doubtful and therefore, no reliance can be placed on their testimony. In opposition to the contention of the learned counsel for the accused, the learned Addl. Advocate General has supported the judgment passed by the learned Sessions Judge. He contented that the learned Sessions Judge has rightly appreciated and considered the evidence on record and the evidence of the police officials cannot be disbelieved merely on the ground that they are official witnesses. 6. We have given our thoughtful consideration to the respective contentions of the learned counsel for the parties. 7. It was the specific case of the prosecution that on search of `pithu' Ext.P-6 of the accused, PW-2 recovered `charas' therefrom in the shape of billets wrapped in a polyethyene-ene paper in the presence of PW-1, Sub Divisional Magistrate, PW-3 Lalit Kumar Thakur the independent witness, PW-12 Ram Rattan who was heading the raiding party and PW-13 Dhani Ram Sl/Addl, SHO. On weighment of the charas' it was found 1kg and 375 Gms. Two samples of 25 Gms has been drawn from the charas' recovered from the accused and the balance bulk charas was separately sealed in three separate packets at the spot with seal impression `T'. The recovery memos prepared were witnessed by PW-3 and other official witnesses duly attested by PW-1 the Sub Divisional Magistrate on the spot. PW-2 thereafter entrusted the samples packets and balance bulk of charas to PW-12 for further necessary action. The accused was apprehended by the police with the help of PW-3 who was going from Rampur Bhushar to Nogli driving the Maruti Van. PW-3 at the relevant time was student of B.A. 1st Year of Govt. Degree College, Rampur. PW-12 resealed the packets of the case property with his seal impression `S' and prepared document Ext.PW-4/A. The sample packet of the charas and the remaining three packets, were resealed by PW-12 with his seal impression `S' and handed over to PW-5 Constable Ramesh Chand for keeping them in safe custody in Malkhana. PW-6 constable Dalip Kumar deposited the sealed packet sample duly sealed with seal S' in the office of Chemical Examiner, Kandaghat on 5.1.2001. Both PW-5 and PW-6 have made categorical deposition before the court that during the period the case property remained in their custody, it was not tampered with by anyone. PW-6 constable Dalip Kumar deposited the sealed packet sample duly sealed with seal S' in the office of Chemical Examiner, Kandaghat on 5.1.2001. Both PW-5 and PW-6 have made categorical deposition before the court that during the period the case property remained in their custody, it was not tampered with by anyone. PW-5 has placed on record a Photostat copy of relevant abstract of the Malkhana Register to prove that sample packets and remaining three sealed packets were entered by him in the Malkhana register after they were entrusted to him by PW-12. NCB form Ext. PX was prepared by the Station House Officer on 5.1.2001 in which one sample parcel with seal impression `S' containing six seals was sent to Chemical Examiner, Kandaghat. 8. We have perused the original report of the Chemical Examiner which would prove that when the sample parcel of charas was checked by the Assistant Chemical Examiner, it was found containing six seals of seal impression `S' The sample seal was also attached therewith. On opening of the sample parcel, one more parcel was found in it containing five seals of seal impression T and sample of seal was also attached therewith. The Assistant Chemical Examiner certified that all the seals were found intact and unbroken. The weight of the sample charas was recorded as 25.594 Gms. The contention of the learned counsel for the accused that as the weight of the charas was found more than 25 Gms by the Chemical Examiner, the possibility of the tampering with the sample of charas could not be ruled out, in our view does not merit acceptance. The prosecution has proved on record that the case property has remained in safe custody of PW-5 in Police Malkhana when it was entrusted to him by PW-12 and sample packet of the charas was found intact by the Chemical Examiner when it was entrusted to him by PW-6. The seals of the sample charas was found unbroken. The prosecution has proved on record that the case property has remained in safe custody of PW-5 in Police Malkhana when it was entrusted to him by PW-12 and sample packet of the charas was found intact by the Chemical Examiner when it was entrusted to him by PW-6. The seals of the sample charas was found unbroken. If very small quantity of charas was found by the Chemical Examiner in excess of 25 Gms drawn by the Investigating Officer on spot from the bulk charas, the small quantity of excess charas' by itself would not amount to tampering with the case property by the prosecution when the oral evidence of PWs 1,2,3,4,5,6,12 and 13 is reliable cogent and trust worthy corroborated by the documentary evidence Ext.PVSI-5IA and NCB form-cum-report of the Chemical Examiner Ext.PX. We find no sound and cogent ground to hold that the prosecution case suffers from any illegality or infirmity. The learned Sessions Judge has appraised and examined the entire evidence on record and we do not see any fault in the judgment calling for interference. 9. The ratio of the decision in State of H.P. v. Hanacho alias Stewart Latest HLJ 2004(HP) (DB) 642 does not help the defence of the accused as in that case on scrutiny of the evidence, link evidence was found by the trial Court as well as by this Court highly doubtful. 10. The learned counsel for the accused then contended that the presence of PW-1 A.K. Shukla, Sub Divisional Magistrate and independent witness PW-3 Lalit Kumar on the day of occurrence at the spot is doubtful. We have reappraised and scrutinised the entire evidence of both these witnesses. PW-1 was requested by PW-2 Krishan Gopal, DY Superintendent of Police, Jhakri to accompany the later to the place of the occurrence. PW-1 and PW-2 went together from their respective office and reached at Bazeer Bawadi at National Highway No.22. The accused was found present there carrying a `Pithu'. The officials of the raiding party were also present there. The accused was searched in the presence of PW-1 and PW-2. Despite lengthy cross-examination by the defence counsel the testimony of PW-1 has remained intact and unshattered. The accused has not brought on record an iota of evidence to disbelieve and discredit -the testimony of the PW-3 and independent witness. The officials of the raiding party were also present there. The accused was searched in the presence of PW-1 and PW-2. Despite lengthy cross-examination by the defence counsel the testimony of PW-1 has remained intact and unshattered. The accused has not brought on record an iota of evidence to disbelieve and discredit -the testimony of the PW-3 and independent witness. PW-3 on 29.12.2000 was on his way from Rampur to his bouse at Nogli driving his Maruti Van, He helped the police in apprehending the accused who had fled away on seeing the police party. The testimony of this witness is consistent, trust-worthy and unblemished. He has corroborated the other witnesses on all material points. He has produced seal which was handed over to - him by the Investigating Officer at the time of sealing of the sample packets. 11. The learned counsel for the accused pointed out that there is discrepancy in the versions of PW2 and PW-3 in regard to the make of the seal impression T. It is no doubt true that PW-2 stated that seal T used for sealing the case property was made of `lead' whereas it was the version of PW-3 that seal T was made of iron. This discrepancy is hardly of any significance when the evidence as noticed above is clear and positive that seal impression T was used for sealing fie sample packets which was produced by PW-3 in the court during trial of the case. 12. It is well settled that mere fact that the prosecution witnesses are police officials is not enough to discard their evidence in the absence of their hostility to the accused. The accused has not shown that PW-1 the Sub Divisional Magistrate, PW-3 the independent witness and other police officials of the raiding party were in any manner inimical towards him and have tried to implicate him in a false case. The Empowered Officer has complied with the mandatory as well as the directory Provisions of NDPS Act. 13. The accused has examined DW-1 Balbir Siungh, Sr.Assistant in the office of State Transport Authority, Shimla. He has only stated that as per the record of the State Transport Authority one Jang Bahadur Negi was the owner of Marnti vehicle No.HP-02-2651. The Empowered Officer has complied with the mandatory as well as the directory Provisions of NDPS Act. 13. The accused has examined DW-1 Balbir Siungh, Sr.Assistant in the office of State Transport Authority, Shimla. He has only stated that as per the record of the State Transport Authority one Jang Bahadur Negi was the owner of Marnti vehicle No.HP-02-2651. This witness was examined by the accused mainly to establish that PW-3 made false statement that one Lattu was the owner of the Maruti Vehicle which he drove on the day of occurrence. If PW-3 has stated that Maruti Vehicle belonged to one Lattu but in the record of the State Transport Authority the ownership is shown in the name of Jang Bahadur, this statement in our view will not be a sound reason to disbelieve and discredit the evidence of PW-3 who was driving the vehicle on the day of occurrence. 14. No other point was urged by the learned counsel for the parties. 15. For the foregoing reasons, the appeal is dismissed. The conviction and sentence imposed/Upon the accused by learned Sessions Judge, Kinnaur Sessions Division at Rampur is upheld.