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Himachal Pradesh High Court · body

2009 DIGILAW 893 (HP)

Sanjay Kumar v. State of H. P.

2009-10-20

SURINDER SINGH, SURJIT SINGH

body2009
JUDGMENT Surjit Singh, J. 1. By this common judgment, two appeals, particulars of which are given in the heading hereof, are being disposed of, as both of them arise out of the same judgment of conviction and sentence, i.e. judgment dated 24th October, 2006, of the trial Court. 2. Appellants Inder Singh and Sanjay Kumar were sent up for trial, for an offence, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, by Banjar Police, on the following allegations. On 27th January, 2005, PW-11 SI Dorje Ram, SHO Police Station, Banjar, accompanied by ASI Harish Chander (PW-9), Constable Amar Singh (PW-8) and a few other police officials, namely ASI Lekh Ram, Constable Om Chand and Constable Krishan Chand, left Police Station, Banjar, at 9 p.m., for routine patrolling. He went towards Fagu Pul, a place at a distance of about 6 km from Banjar. There, he and the police officials accompanying him organized a Naka. At 10.30 p.m., a vehicle (TATA SPACIO), bearing registration No. HP01K- 0373, appeared from Banjar side. It was headed towards Aut, a place situated on the Manali-Chandigarh Highway. Vehicle was got stopped. PW-11 SI Dorje Ram went to the driver's side window. Its glass pane was already lowered. He felt strong smell of Charas, emerging from inside the vehicle. That aroused his suspicion. He informed the occupants of the vehicle, namely Sanjay Kumar, who was in driver's seat, and Inder Singh, who was occupying a seat parallel to that of the driver's, that he wanted to search the vehicle. One of the Constables, namely PW-8 Amar Singh, was deputed to nearby houses to bring independent local witnesses. He returned within 7-8 minutes and told that there was only one house located at a short distance and that in that house no adult male member was available. Soon thereafter a Utility Van bearing Registration No. HP-49-1314 appeared from Bali Chowki side. It was got stopped. There were two persons, including the driver, in that vehicle. They were PW-1 Sher Singh and PW-10 Mohar Singh. They were associated as witnesses and vehicle was searched. 3. During the course of search of the vehicle, it was felt that Charas had been concealed between the inner lining and the outer metallic sides of the doors. So, the inner linings of all the doors were pulled apart. They were PW-1 Sher Singh and PW-10 Mohar Singh. They were associated as witnesses and vehicle was searched. 3. During the course of search of the vehicle, it was felt that Charas had been concealed between the inner lining and the outer metallic sides of the doors. So, the inner linings of all the doors were pulled apart. Five paper bags, containing Charas, were recovered, after removing the lining of driver's side window. Similarly, five paper bags were recovered, after removing the inner lining of the window opposite the first window and five packets each were recovered on removal of the inner lining of the two back windows. Entire quantity of Charas was heaped up and weighed. It was 22 kg and 750 grams. Two samples, each weighing 25 grams, were separated and made into separate parcels, which were sealed with a seal that produced impression of English letter 'T'. Rest of the Charas was put back into the paper bags. Those paper bags were put into a gunny bag, which was available in the vehicle itself and then that gunny bag was made into a parcel of cloth, which too was sealed with the same seal, as the sample parcels. Seizure memo was prepared. Other necessary papers were also drawn. Report of search and seizure was prepared and sent to the Police Station for registration of the case. That report is Ex. PW-11/A. Case was formally registered, on the basis of this report, vide FIR Ex. PW-5/A, by PW-5 MHC Chaman Lal. Case property was deposited by PW-11 SI Dorje Ram with PW-5 MHC Chaman Lal. The latter sent one of the two samples to the Chemical Examiner, through PW-6 Constable Om Chand, the same day. PW-6 Om Chand deposited the sample parcel with the Chemical Laboratory, alongwith NCB form and specimen impression of the seal and the other papers on the next following day, i.e. 29th October, 2009. Chemical Examiner reported that sample contained resin of cannabis plant, to the extent of 32.79 per cent. On receipt of the report, both the appellants were challaned. 4. Trial Court charged the appellants with an offence, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act. They pleaded not guilty and were, therefore, put on trial. Chemical Examiner reported that sample contained resin of cannabis plant, to the extent of 32.79 per cent. On receipt of the report, both the appellants were challaned. 4. Trial Court charged the appellants with an offence, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act. They pleaded not guilty and were, therefore, put on trial. To prove the factum of search and seizure, prosecution examined PW-11 SI Dorje Ram, PW-9 ASI Harish Chander and PW-8 Constable Amar Singh, as also the two independent witnesses, namely PW-1 Sher Singh and PW-10 Mohar Singh. 5. Learned trial Court believed the testimony of the police officials, named above, and convicted the appellants of the offence, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, and sentenced them to undergo rigorous imprisonment for 15 years and to pay a fine of Rs. 2,00,000/- each; in default of payment of fine to undergo rigorous imprisonment for a further period of three years, each. 6. We have heard the learned Counsel for the appellants as also the learned Assistant Advocate General and perused the record. 7. Both the independent witnesses did not support the prosecution version. They were cross-examined by the prosecution, with the leave of the Court. They are contradicted by the statements, which they made to the police during the investigation. They were duly confronted with such statements and those statements have been proved by PW-11 SI Dorje Ram. The same are Ex. PW11/ C and Ex.PW-11/E. Whatever the witnesses stated in the Court is contrary to certain marked portions of the aforesaid two statements, Ex. PW-11/C and Ex. PW-11/E, and they are contradicted, in all material particulars, by their previous statements and, hence, no reliance can be placed upon their testimony. 8. The other three witnesses, namely PW-11 SI Dorje Ram, PW-9 Harish Chander and PW-8 Amar Singh, stated, with one voice, that Charas was recovered from the vehicle of the appellants, in the manner stated hereinabove, while narrating the prosecution case. No material contradiction has appeared in the testimony of these three witnesses. 9. It has been submitted by the learned Counsel representing the appellants, that there is a major contradiction in the testimony of PW-11 SI Dorje Ram, PW-9 Harish Chander and PW-8 Constable Amar Singh, which renders the entire prosecution story highly doubtful. No material contradiction has appeared in the testimony of these three witnesses. 9. It has been submitted by the learned Counsel representing the appellants, that there is a major contradiction in the testimony of PW-11 SI Dorje Ram, PW-9 Harish Chander and PW-8 Constable Amar Singh, which renders the entire prosecution story highly doubtful. They have pointed out that while in their statements, under Section 161 of the Code of Criminal Procedure, Ex. DB and Ex. DC, PW-8 Amar Singh and PW-9 Harish Chander stated that the inner lining of the windows of the vehicle were pulled apart clockwise, but in the witness-box one of the two witnesses, namely PW-9 Harish Chander, said that the exercise was carried out ante clockwise. PW-11 SI Dorje Ram in his testimony also stated that the inner lining of the windows was removed ante clockwise. In our considered view, this contradiction is not so serious as to render the prosecution case doubtful, especially when the quantity of Charas recovered is huge which the police could not have arranged for planting upon the appellants and there is no other contradiction in the testimony of these three police officials, with respect to the search and seizure, the timing and the place of search and seizure and also the association of independent witnesses and the manner in which the weighment was done and all other details of search and seizure. 10. Another contradiction that has been pointed out by the learned Counsel is with regard to the colour of the paper bags. All the witnesses stated that the colour of the paper-bags was brown, but when the case property was produced in the Court, a few of the paper bags were found to be white, though majority of them were brown coloured. Since the majority of the paper bags are of brown colour and only a few are of white, it is just likely the witnesses had forgotten, when testifying in the trial Court, that a few of the bags were white also. We do not find any other contradiction in the testimony of the three witnesses. In any case, looking to the huge quantity, it cannot be said that the Charas has been planted upon the appellants. 11. We do not find any other contradiction in the testimony of the three witnesses. In any case, looking to the huge quantity, it cannot be said that the Charas has been planted upon the appellants. 11. Half-hearted attempt has been made to seek acquittal of the appellants, on the plea that mandatory provision of proviso to Sub-section (1) of Section 42 of the Narcotic Drugs and Psychotropic Substances Act, had not been complied with, inasmuch as grounds of belief were not recorded, as per requirement of the said provision of law, even though the search was conducted after sunset and before sunrise of a closed place, i.e. a vehicle. It is by now well settled that search of a public vehicle, which the vehicle in this case was, it being a Taxi, is not covered by Section 42 of the Narcotic Drugs and Psychotropic Substances Act, but by Section 43 of the said Act and in case of search and seizure, under Section 43 of the Act, such grounds/reasons are not required to be recorded. 12. No other submission has been made on behalf of the appellants. However, it has been submitted on behalf of both of them that the punishment awarded by the trial Court is too harsh and disproportionate to the quantity of Charas actually recovered from the appellants. According to them, it is not the entire quantity, i.e. 22.750 kgs, stuff recovered from them, which is Charas, but the resin content of it, which is Charas. Resin content in the sample has been found to be 32.79 per cent, by the Chemical Examiner, per report Ex. PA. That means the Charas content in the total recovered stuff was only to the extent of 32.79 per cent and the quantity of Charas in the stuff, thus, works out to a little more than 7 kg. We find merit in the submission, in view of a judgment of Division Bench of this Court in Dharam Pal v. State of H.P. and Anr. (Latest HLJ 2007 (HP) 827). 13. As a result of the above discussion, conviction of both the appellants for offence, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, as recorded by the learned trial Court, is upheld. (Latest HLJ 2007 (HP) 827). 13. As a result of the above discussion, conviction of both the appellants for offence, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, as recorded by the learned trial Court, is upheld. However, the sentence awarded by the trial Court is reduced and the appellants are sentenced to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs. 1,00,000/- each; in default of payment of fine to undergo rigorous imprisonment for a further period of one year, each. 14. We find that the trial Court has not passed any order, with respect to the disposal of the vehic le from which the Charas was recovered. Admittedly, the owner of the vehicle was appellant Sanjay Kumar. He was himself carrying the Charas in the vehicle. He was in driver's seat. Therefore, there should be no difficulty in coming to the conclusion that the vehicle was being used for carriage of narcotic drug, to the knowledge of the owner. Consequently, we order the confiscation of the vehicle, under Section 63 of the Narcotic Drugs and Psychotropic Substances Act. Both the appeals stand disposed of accordingly.