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2005 DIGILAW 76 (HP)

SHANKAR THAPPA v. STATE OF H. P

2005-03-30

K.C.SOOD, LOKESHWAR SINGH PANTA

body2005
JUDGMENT Lokeshwar Singh Panta, J.—Shankar Thappa-appellant (hereinafter referred to as the accused) has filed this appeal against the judgment and order of conviction and sentence dated 31.10.2002 passed by learned Sessions Judge, Mandi in Sessions Trial No. 11 of 2002 under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short N.D.P.S. Act). He was sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs. 1,00,000/- failing which he was to suffer four years rigorous imprisonment. 2. The case of the prosecution against the accused in brief, is that on 26.11.2001 at about 9.15 p.m. PW-9 Ashish Sharma, Station House Officer, Police Station, Sarkaghat along with PW-8 Ramesh Chhajta, Deputy Superintendent of Police, ASI, Arjun Dass, Constable Perma Nand and Constable Suresh Kumar was on patrolling and detection of crime duty at Damshera. One bus of Himachal Road Transport Corporation Bearing Registration No. HP-12-4156 came from Joginder Nagar. The said bus was going from Joginder Nagar to Chadigarh. It was stopped for checking the luggage of the passengers. The accused was also travelling in the bus occupying seat No. 14. He was keeping one bag on his left side of the window and himself was pretending to be sleeping. On inquiry made by the Police, the accused disclosed his name. PW-9 got the bag of the accused checked by from Rakesh Kumar, Home Guard. On checking the bag three polythene packets concealed under a blanket were recovered there from. As there was no provision of light at that place, therefore the bus was taken to Bus Stand. Sarkaghat along with bag of the accused. The packets were opened in the presence of PW-4 Ram Singh Driver and PW-5 Tara Chand Conductor of the bus in which Charas was detected. The weights and scales were arranged from PW-3 Pawan Kumar working in a Halwai shop of Rattan Singh at the Bus Stand. On weighment, it was 3 Kg. Charas. Two samples of 25 grams each were drawn separately by PW-9 which was sealed in two different parcels with seal impression H. The remaining Charas was sealed in another parcel with the same seal. The seal after use was given to PW-4 driver The seized contraband was taken into possession vide seizure memo Ext.PR N.C.B. Form Ext.PL was prepared on the spot. The seal after use was given to PW-4 driver The seized contraband was taken into possession vide seizure memo Ext.PR N.C.B. Form Ext.PL was prepared on the spot. PW-9 sent Rukka Ext.PK trough Constable Suresh Kumar to the Police Station for registration of the case. The other articles found in the bag were taken into possession vide seizure memo Ext. PR Spot map Ext.PO was prepared. PW-9 supplied the grounds of arrest to the accused. Statements of the witnesses were recorded. On 27.11.2001, PW-9 sent special report Ext. PJ to the higher Police Officer. He deposited the sealed packets of sample and other articles with PW-1 M.H.C. Jaspal Singh on 27.11.2001. On receipt of Chemical Examiner Report Ext. PQ and on completion of the investigation, PW-9 prepared the challan and presented the same in the Court. 3. The accused came to be tried by the learned Sessions Judge. He pleaded not guilty to the charge. 4. To prove its case against the accused, the prosecution examined as many as nine witnesses. In his statement under Section 313 Cr.P.C, the accused denied the prosecution case as a whole. He pleaded that he has been falsely implicated in the case and claimed to be innocent. He, however, led no defence evidence. 5. 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 jail appeal. 6. This Court has appointed Mr. Rakesh Jaswal, Advocate as Legal Aid Counsel representing the accused. 7. We have heard learned Counsel for the accused and the learned Additional Advocate General for the State and have also gone through the material on record. 8. The learned Counsel for the accused has assailed the impugned conviction and sentence on the following grounds : 1. The prosecution has failed to prove that the bag Ext.P-1 was recovered from the exclusive possession of the accused as both the independent witnesses, namely, Driver and Conductor of the bus have not supported the version of the prosecution in that regard; 2. The prosecution has not produced Home Guard who checked the bag of the accused allegedly kept by him by the side of the window of the bus on seat No. 14. 3. The prosecution has not produced Home Guard who checked the bag of the accused allegedly kept by him by the side of the window of the bus on seat No. 14. 3. The register of Malkhana of the Police Station showing the entry of deposit of N.C.B. form sample of seal was not produced by the prosecution before the learned trial Court nor there is any link evidence to connect the bulk Charas allegedly seized with the sample which was analyzed by the Chemical Examiner, therefore, possibility of tampering of the sealed sample parcels cannot be ruled out. 9. In response, the learned Additional Advocate General for the State, however, has sought to support the judgment of the learned trial Court and further submitted that in view of the analysis of the evidence made by the trial Court and the nature of the offence committed by the accused, no interference is called for by this Court in the judgment of the learned trial Court. 10. In order to consider the contentions raised by the learned Counsel for the parties, we will briefly refer to the evidence on record. GROUNDS NO. 1 AND 2. 11. Both these grounds are inter linked and inter connected and are dealt with and considered jointly. In supped of these grounds, the learned Counsel for the accused has taken us through the evidence of the relevant witnesses. It is the evidence of PW-4 Ram Singh, Driver of the bus that on 26.11.2001 he was driving the bus bearing registration No. HP-12-4156 from Joginder Nagar at 6.30 p.m. The bus was bound to Chandigarh. PW-5 Tara Chand was the Conductor with him. At about 9.15 p.m. when the bus reached at a place known as Damshera, it was signalled by the Police to be stopped. The police officials had checked the luggage of all the passengers sitting in the bus. One person sitting on seat No. 14 was in possession of a bag with him. On checking of his bag, three polithene packets concealed underneath the blanket were found. The bus was taken to the Bus Stand, Sarkaghat. The accused along with bag was taken outside the bus and out of the three packets recovered from his bag, some black substances in the shape of sticks and coins were recovered there from. On weighment of the black substance, it was found 3 Kg. Charas. The bus was taken to the Bus Stand, Sarkaghat. The accused along with bag was taken outside the bus and out of the three packets recovered from his bag, some black substances in the shape of sticks and coins were recovered there from. On weighment of the black substance, it was found 3 Kg. Charas. The Investigating Officer drew two samples of 25 grams each from the recovered substance which were put in separate packets and sealed with seal. The remaining substance was wrapped in a cloth parcel and was sealed on the spot. Seizure memos Ext. PE and PF bear his signature as well as that of PW-5. He identified the accused to be the same person whese bag Ext.P-1 was searched by the Police in which blanket Ext.P-2 as well as three polythene packets of the Charas were recovered. On personal search of the accused, some more articles including bus tickets were taken in his presence vide recovery memo Ext.PG which bears his signature. A sample of parcel Ext.P-3 was sealed with seal impression H which was signed by him. He identified the packets of Charas Exts. P-4, P-5 and P-6 as well as sample packet Ext.P-7 to be the same which were recovered from the possession of the accused in his presence. He stated to have signed the specimen seal impression H affixed on a piece of cloth Ext.PH. He partly resiled from his earlier statement in regard to handing of seal H to him by the Investigating Officer after its use and as such he was declared hostile. In his cross-examination conducted by learned Public Prosecutor, he has admitted that the bus tickets of the accused were also taken into possession by the Police. He admitted the suggestion of the defence that after the bag was recovered from the possession of the accused, the police officials came to the Bus Stand in the Jypsy where the bag was opened. He further stated that there may be 7-8 police officials checking the bus including the Deputy Superintendent of Police. He admitted the suggestion of the defence that for the first time he saw the accused on the day when he was apprehended by the Police and second time when he appeared before the Court to make his statement. He further stated that there may be 7-8 police officials checking the bus including the Deputy Superintendent of Police. He admitted the suggestion of the defence that for the first time he saw the accused on the day when he was apprehended by the Police and second time when he appeared before the Court to make his statement. A suggestion of the defence that no recovery was effected in his presence from the bag of the accused or he has deposed falsely to help the prosecution is categorically denied by him. 12. PW-5 Tara Chand, Conductor of the bus also stated that the accused was sitting on seat No. 14 with a bag which was kept by him on his side. On checking of the bag of the accused, three potythene packets were recovered from it at Bus Stand, Sarkaghat. The Police weighed the recovered substance which was found 3 Kg. of Charas. He partly resiled from his earlier statement and was allowed to be cross-examined by the learned Public Prosecutor for the State. In the cross-examination, he admitted the sealing of two samples of Charas taken out from the recovered substance with seal impression H by the Investigating Officer in his presence and the remaining Charas having been put in a cloth packet sealed with the same seal. The recovered Charas and the bag itself were taken into possession by the Police vide seizure memo Ext.PE which was signed by him and PW-4 and in his presence specimen seal impression H was separately taken out on a piece of cloth Ext.PH. He admitted that on personal search of the accused, bus tickets were recovered and taken into possession vide recovery memo Ext.PG duly signed by him as well as by the accused. He identified the bag Ext. P-l, blanket Ext. P-2, parcel of samples Exts. P-4, P-5 and P-6 and small sample parcel Ext. P-7 to be the same which were recovered from the accused. In his presence the accused disclosed his name as Shankar Thapa. He denied the suggestion of the defence that nothing happened in his presence or that he has deposed falsely against the accused. 13. The evidence of the independent witnesses has been corroborated by the official witnesses, namely, PW-8 Ramesh Chhajta, Dy. In his presence the accused disclosed his name as Shankar Thapa. He denied the suggestion of the defence that nothing happened in his presence or that he has deposed falsely against the accused. 13. The evidence of the independent witnesses has been corroborated by the official witnesses, namely, PW-8 Ramesh Chhajta, Dy. Superintendent of Police and PW-9 Ashish Sharma, Inspector/SHO that the accused was sitting on seat No. 14 keeping his bag by his side towards the window of the bus and pretending himself to be sleeping. The presence of the accused as a passenger in the bus occupying seat No. 14 has been established by the prosecution witnesses. It has come in the cross-examination of PW-8 and PW-9 conducted by the defence that the accused himself had handed over the bag to Home Guard Constable. PWs. 8 and 9 have stated that one more person was sitting with the accused on the other side. PW-9 also stated that firstly the luggage of the other passengers was checked by the Police and the accused was the only passenger left under the impression that at that time he was sleeping. It has also come in the evidence of PW-9 that the Home Guard to whom the bag was handed over by the accused for search was not cited as a witness in charge sheet prepared under Section 173 Cr.P.C. but later on an application under Section 311 Cr.P.C. was filed seeking examination of the said Home Guard but it was rejected by the Court. From the evidence discussed above, it is clear that PWs-4, 5, 8 and 9 have clearly proved that the accused had kept the bag on his left side of the seat and there is no material contradiction in their statements to hold that the bag Ext.P-1 was not found in the inclusive possession of the accused at the time of its search. The contraband was recovered from the bag of the accused in which blanket Ext.P-2 and other clothes were also packed by him. PW-9 in the last two lines of the cross-examination of the defence has self stated that the clothes which were recovered from the bag of the accused have been got released by him. This piece of evidence proves that the bag Ext.P-1 belongs to the accused from which 3 Kg. Charas was recovered by the Police. The evidence of RWs. PW-9 in the last two lines of the cross-examination of the defence has self stated that the clothes which were recovered from the bag of the accused have been got released by him. This piece of evidence proves that the bag Ext.P-1 belongs to the accused from which 3 Kg. Charas was recovered by the Police. The evidence of RWs. 4, 5, 8 and 9 is reliable, cogent and convincing to prove that the accused was carrying bag Ext.P-1 with him ^hen he was travelling in the bus occupying seat No. 14 thereof. He was apprehended by the Police and from his possession 3 Kg. Charas was recovered concealed underneath blanket Ext. P-2 in bag Ext. P-l. Non-examinatk5n of the Home Guard volunteer to whom the bag was handed over by the accused is immaterial and insignificant in the light of the trust worthy and reliable evidence of the other witnesses as discussed herein above. GROUND NO. 3. 14. The learned Counsel for the accused argued that there is no cogent and reliable link evidence to prove that the case property was dealt with and retained as per the procedure to ensure its safe custody and that it was not tampered with. 15. Per contra, the learned Advocate General has contended that in view of the statements of PW 1 MHC, Jaspal Singh, PW-2 Constable Bhagat Ram and PW-9 Ashish Sharma, Investigating Officer, the prosecution has led link evidence establishing that the case property and samples were dealt within accordance with law and were duly preserved, ruling out any likelihood of the tampering. We may point out that link evidence with reference to any psychotropic or narcotic substance seized when found in unlawful possession, is the evidence which provides link in the evidence from the stage of taking of the sample till its examination by the Chemical Examiner. The prosecution is duty bound to lead link evidence to prove that articles/samples sent to the Chemical Examiner were the same which were recovered from the accused and the sample analyzed by the Chemical Examiner is in fact of the bulk of the contraband recovered from him. 16. As noticed above, the version of PW-9 is that the packets of samples and other articles were deposited by him with PW-1. 16. As noticed above, the version of PW-9 is that the packets of samples and other articles were deposited by him with PW-1. It is the evidence of PW-1 that on 26.11.2001 PW-9 deposited with him three parcels of samples with seal H, one bag green and brown in colour and one blanket. He entered the articles in register No.19 of the Malkhana. On 28.11.2001 he sent one sample to C.T.L. Kandaghat for chemical analysis through PW-2 vide R.C.No. 68/2001. On return, PW-2 handed over receipt to him. He categorically stated that so long the case property remained under his custody, it was not tampered by him nor he allowed anyone else to tamper the same. He categorically denied the suggestion of the defence that the case property was not deposited with him. The testimony of PW-1 has been corroborated by PW-2 who deposed that on 28.11.2001 PW-1 handed over to him sample parcel containing three seals with seal impression H along with N.C.B. form and a docket which he deposited with C.T.L. Kandaghat on the same day vide R.C. No. 68/2001. On return he handed over the receipt to PW-1. He also deposed that so long the sample remained with him it was not tampered with nor he allowed anyone else to tamper the sample parcel. The evidence of two police officials about safe custody of the contraband articles has not been challenged or shaken in the cross-examination. The report of the Chemical Examiner Ext.PQ recorded on N.C.B. Form Ext.PL reveals that the sample received in the laboratory was sealed with seal impression H containing he contents of Charas. He certified that the seals were found intact and unbroken tallied with the specimen impression of seal/seals sent separately. It is settled proposition of law that even if there is any sort of procedural irregularity in conducting the search and seizure, the evidence collected thereby will not become inadmissible and the Court would consider all the circumstances and find out whether any serious prejudice has been caused to the accused. In the present case, the accused has not shown any serious prejudice caused to him for non-production of Malkhana register in the Court or not depositing the N.C.B. form by PW-9 with PW-1. 17. On careful scrutiny of the evidence as discussed above, the prosecution has led cogent, trustworthy and convincing link evidence to prove the charge against the accused. In the present case, the accused has not shown any serious prejudice caused to him for non-production of Malkhana register in the Court or not depositing the N.C.B. form by PW-9 with PW-1. 17. On careful scrutiny of the evidence as discussed above, the prosecution has led cogent, trustworthy and convincing link evidence to prove the charge against the accused. The ratio of the judgments relied upon by the learned Counsel for the accused in support of his submission in Sandeep Kumar v State of H.P, 2002 (2) Shim.L.C. 224 (H.P.); State of H.P. v. Gurdeep Lal and another, Latest HLJ 2002 (HP) (DB) 1018; Amar Singh v. State of H.P, Criminal Appeal No. 303 of 1998; Titu Singh v. State of H.P, Criminal Appeal No. 528 of 2000, decided on 26.4.2002; Laloo Ram v. State of H.P, 2003 (2) Current LJ 293 (H.P); Rajan Ali v. The State (Delhi Admn.), 1999 (4) RCR (Criminal) 632; Mool Chand v. State, 1993 (3) Crimes 224; Lalman v. State, 1999 (1) Crimes 484 (Delhi High Court); Jagat Singh v. State of H.P, Criminal Appeal No. 9 of 2002, decided on 25.6.2004 and Roshan Lal v. State of H.P, 2004 (2) Shim. L.C. 393, is of no avail or assistance to the accused in the facts and circumstances of the present case as those cases were decided on the facts and the material evidence appearing on record. 18. No other point was urged by the learned Counsel for the parties. 19. In the result, for the reasons stated hereinabove, we do not find any good reason to upset the conviction and sentence imposed upon the accused by the learned Sessions Judge holding him guilty for the offence under Section 20 of N.D.P.S. Act. 20. In the result, the appeal is devoid of any merit and is accordingly dismissed. The case property be dealt with as per the direction of the trial Court. 21. We place on record our appreciation for the valuable assistance rendered by Mr. Rakesh Jaswal, Amicus Curiae. Appeal dismissed.