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2005 DIGILAW 469 (AP)

Poshu Ram v. State of H. P.

2005-06-08

V.M.JAIN

body2005
JUDGMENT V.M. Jain, J. — This Criminal Appeal has been filed by the accused-appellant against the judgment and order dated 18.3.2005 passed by the Sessions Judge, Kullu vide which the accused-appellant was convicted under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as NDPS Act) and was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 30,000/- and in default of payment of fine to further undergo rigorous imprisonment for 1-1/2 years. 2. As per the case of the prosecution, on 11.12.2003 ASI Ringchen Gialchen alongwith Head Constable Chaman Lal and lady Constable Geeta Devi, was on patrol duty towards Parla Bhunter and at about 7.30 p.m. when they were patrolling near the office of National Hydro Power Corporation (NHPC), accused-appellant Poshu Ram was spotted coming from the side of Senior Secondary School, Bhunter with a bag on his shoulder. On seeing the police party he retreated and started running but was overpowered by the police party. Sher Singh PW-1 was joined in the investigation and in his presence accused-appellant disclosed his name as Poshu Ram. The bag, which accused-appellant Poshu Ram was carrying on his shoulder, was checked and on checking, it was found to contain a polythene packet in which Charas was found wrapped. The said Charas was weighed and it was found weighing 850 gms. Two samples of 25 gms. each were separated, packed and sealed and thereafter the remaining charas was also duly sealed and the said parcels along with bag were taken into possession vide recovery memo, Ex.PW-1/A. One copy of the recovery memo was given to appellant Poshu Ram. Ruka was sent to the Police Station for registration of the case and the accused-appellant was formally arrested in this case and rough site plan was prepared on the spot and the statements of witnesses were recorded under Section 161 Cr.P.C. On reaching the Police Station, ASI Ringchen Gialchen produced the case property alongwith sample seal and the forms etc. before SI Kamla who resealed the parcels with his seal, completed the formalities and also took out sample. Thereafter, the case property was depos ited with the MHC alongwith forms and the sample seals. One sample alongwith sample seals and form in triplicate, was sent for chemical analysis. In the meanwhile, on 12.12.2003 the Investigating Officer handed over special report to the Dy. Thereafter, the case property was depos ited with the MHC alongwith forms and the sample seals. One sample alongwith sample seals and form in triplicate, was sent for chemical analysis. In the meanwhile, on 12.12.2003 the Investigating Officer handed over special report to the Dy. S.P. Headquarter in his office. On receipt of the report of the Chemical Examiner opining that the sample was found to contain Charas, final report under Section 173 Cr.P.C. was prepared and the challan was submitted in the Court. 3. The accused was challaned under Section 20 of the NDPS Act, to which charge, he pleaded not guilty and claimed to be tried. The prosecution produced various witnesses besides documentary evidence and thereafter closed the prosecution evidence. The statement of the accused under Section 313 Cr.P.C was recorded in which he denied the prosecution allegations against him and stated that he was innocent and had been falsely implicated in this case. The accused was called upon to lead his evidence in defence, but he did not produce any evidence in defence. 4. After hearing both sides and perusing the record, the learned Sessions Judge convicted and sentenced the accused-appellant, as stated above, vide judgment and order dated 18.3.2005. Aggrieved against the same, accused-appellant filed the present appeal in this Court. 5. I have heard the learned counsel for the parties and have gone through the record carefully. 6. On the question of conviction, learned counsel appearing for the accused-appellant raised three points before me. The first point raised by him was that the prosecution had failed to prove that there was sufficient light at the spot at the time when the alleged recovery took place, considering that it was at 7.30 p.m. on 11.12.2003 when the alleged recovery had taken place. The second point raised was with regard to the stitching of the parcels at the spot. The third point was that there were contradictions in the statements of prosecution witnesses with regard to the distance and as such no reliance could be placed on their testimony. However, I find no force in these submissions of the learned counsel for the appellant. 7. So far as the question of light is concerned, it is no doubt true that the recovery in this case had taken place at 7.30 p.m. on 11.12.2003. However, I find no force in these submissions of the learned counsel for the appellant. 7. So far as the question of light is concerned, it is no doubt true that the recovery in this case had taken place at 7.30 p.m. on 11.12.2003. It is also true that the prosecution evidence is silent with regard to the existence of light at the spot at the time of recovery of charas from the possession of the accused-appellant. However, in my opinion, the absence of any evidence by the prosecution regarding light would be of no relevance, on the facts and circumstances of the present case. A perusal of the site plan Ex.PW-3/E prepared by ASI Ringchen Gialchen would clearly show that the recovery had taken place from the possession of accused-appellant Poshu Ram from the main road which is in front of a hotel and on the other side of the road was the office of NHPC and also various shops whereas by the side of the said hotel was the NHPC colony, the said site plan would further show that all this happened just by the side of Parla Bhunter Bazar and Government Senior Secondary School of Parla Bhunter was on the other hand. Thus, it would be clear that the recovery had taken place from the road which was passing through the residential colony of NHPC, shops, office of NHPC and Government Senior Secondary School. Under such circumstances, the case of the prosecution could not be thrown away merely on the ground that the prosecution had failed to produce evidence on the record to show that there was enough light at the spot, especially when no question was put to the prosecution witnesses as to in what manner the recovery was effected from the possession of the accused-appellant and in what manner the writing work was done at the spot and what was the source of light nor any suggestion was given to the prosecution witnesses that there was no light at the spot at the time of the arrest and recovery. 8. 8. With regard to the stitching of the packets, even if the prosecution witnesses had stated that the packets were hand-stitched with the aid of needle whereas on two sides the packet was found to machine stitched, in my opinion, would not make any difference inasmuch as only on one side of the packet the stitching was required to be done at the spot, which was done with the aid of needle whereas the other two sides of the packet could be machine stitched. Thus, on the basis of this alleged discrepancy the case of the prosecution case could not be thrown away. 9. With regard to the other contradiction regarding distances, in my opinion, no case is made out for throwing away the case of the prosecution on account of these contradictions nor any case is made out for doubting the evidence of the prosecution witnesses on account of these contradictions regarding distance. In my opinion, these contradictions are only minor in nature and the case of the prosecution cannot be thrown away on that account, especially when their statements were recorded after almost one year of the recovery of Charas from the possession of the accused-appellant. It is now well-settled that such minor discrepancies are bound to occur in the statements of truthful witnesses and the case of the prosecution cannot be thrown away on account of such minor discrepancies especially when these do not go to the root of the matter. 10. It was then submitted before me by the learned counsel for the accused-appellant that the sentence awarded to the accused-appellant is on the higher side. Reliance was placed on Nadgender v. State of Himachal Pradesh1, on the other hand, learned counsel appearing for the State submitted before me that the learned Sessions Judge had already taken a lenient view in the matter and that no case for reducing the sentence any further, is made out. Reliance has been placed on Union of India v. Kuldeep Singh.2 11. After hearing learned counsel for the parties and perusing the record, in my opinion, it cannot be said that the sentence awarded to the accused-appellant is on the higher side nor any case is made out for reducing the sentence as awarded by the learned Sessions Judge. In Kuldeep Singhs case (supra), it was held by the Hon’ble Supreme Court as under: "14. In Kuldeep Singhs case (supra), it was held by the Hon’ble Supreme Court as under: "14. Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime e.g. where it relates to offences relating to narcotic drugs or psychotropic substances which have great impact not only on the health fabric but also on the social order and public interest, cannot be lost sight of and per se requires exemplary treatment. Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time or personal inconveniences in respect of such offences will be result-wise counterproductive in the long run and against societal interest which needs to be cared for and strengthened by a string of deterrence inbuilt in the sentencing system." 12. From a perusal of the law laid down by the Hon’ble Supreme Court, in my opinion, it cannot be said that the sentence awarded to the accused- appellant by the learned Sessions Judge is on the higher side, keeping in view the quantity of Charas recovered from the possession of the accused-appellant i.e. 850 gms. Under Section 20 of the NDPC Act read with the Schedule, maximum punishment which could be awarded to the accused-appellant was rigorous imprisonment for 10 years and a fine of Rs. 1,00,000/-, in case the recovery was more than 100 gms and less than one Kg. Taking into consideration the facts and circumstances of the present case, in my opinion, it cannot be said that the sentence awarded to the accused-appellant is on the higher side. Infact, the accused appellant has already been leniently dealt with by the learned Sessions Judge and there is no scope for any further leniency to be shown to the accused-appellant in this case. So far as Nagender’s case (supra), relied upon by the accused-appellant, is concerned, in my opinion, the same would be of no relevance keeping it view the law laid down by the Supreme Court, in Kuldip Singh’s case (supra). 13. No other point has been urged before me in this appeal. 14. For the reasons recorded above, finding no merit in this appeal, the same is hereby dismissed. Appeal dismissed. *******