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Himachal Pradesh High Court · body

2010 DIGILAW 1287 (HP)

Virender Kumar v. State Of H. P.

2010-12-29

SURINDER SINGH

body2010
JUDGMENT : Surinder Singh, J. The appellant has challenged his conviction and sentence passed by the learned Trial Court in Sessions Trial No. 14/09, decided on 30.10.2009, under Section 20(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short the 'Act', whereby he has been sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs. 50,000/-, in default of payment of fine to undergo simple imprisonment for a period of one year allegedly for possessing 1 Kg. 600 grams of the stuff, which contained 608.48 grams of Charas (Resin of the cannabis plant). 2. In short, the prosecution story as emerges from the prosecution evidence can be stated thus. On 22nd December, 2008, PW-10 SI/SHO Dharam Singh along with PW-3, Constable Virender Kumar, HC Hoshiar Singh and HHC Ghanshyam were on patrolling in their official vehicle being driven by Krishan Kumar, in connection with the detection of crime. They had put a 'Nakka' at the place known as 'Sambla Chowk'. In the process of checking of pedestrians and different vehicles passing through that place, around 1.00 p.m. they noticed the appellant having a pithu (Bag), hung on his shoulder, who on seeing the Police Party took U-turn and immediately started running. Getting suspicious, the Police party apprehended him and asked his identity. On checking the bag, a black substance was recovered from a plastic bag having imprint of 'AMARTEX INDUSTRIES'. On its examination, the contents smelt like Charas, which was found in small flat pieces like 'Chapatis'. The recovered stuff was kept as it is. PW-3 constable Virender Kumar was sent for arranging the weights and scale from a shop of PW-2 Omi Chand, which was nearby. Shri Omi Chand was also included to witness further proceedings. On weighing, the recovered stuff turned out to be 1 Kg. 600 grams. The police mixed the aforesaid entire stuff and separated two samples of 25 grams each. Each Sample parcels were sealed with the seal producing the impression of English letter 'D' and the remaining Charas was put in the same Poly bag and then sealed in the same bag with the same seal. 3. The specimen of the seal was separately taken on a piece of cloth, which is Ex.PW1/A and seal after its use was handed over to PW-1 HC Hoshiar Singh. 4. 3. The specimen of the seal was separately taken on a piece of cloth, which is Ex.PW1/A and seal after its use was handed over to PW-1 HC Hoshiar Singh. 4. The case property was taken into possession vide seizure memo Ex.PW1/B in the presence of the witnesses and its copy was supplied free of cost to the appellant. 5. NCB forms, in triplicate, were filled in on the spot, one of which is Ex.PW-10/B. 6. Rukka Ex.PW-10/A was sent for the registration of case through PW-3 constable Virender Kumar. Site plan Ex. PW-10/C was also prepared on the spot. 7. The statements of witnesses were recorded, appellant was arrested and grounds of arrest Ex. PW10/E were informed to him. 8. The case property was deposited in Malkhana with PW-8 MHC Inder Dev, its entry was made in the Malkhana - Register, extract whereof is Ex.PW-4/C. 9. The special report was sent to the officer superior within statutory period. 10. PW-4 HC Thalia Ram had handed over one of the sample parcels to PW-5 Chet Ram against the Road Certificate (Ex.PW-4/D) accompanied by the sample of seal, copy of FIR and NCB forms in triplicate for its deposit in Forensic Science Laboratory. On depositing the same on 24.12.2008, he obtained the receipt on the said Road Certificate, which was handed over back by him to the HC aforesaid. 11. On analysis sample parcel testified positive for Charas by the Forensic Science Laboratory. It contained 38.03% w/w resin of cannabis plant. The report is Ex.PW-10/F. 12. After completion of investigation, challan against the appellant was presented in the trial Court and he was accordingly charge-sheeted, under Section 20 of the Act, to which he pleaded not guilty and claimed trial. 13. To prove its case the prosecution examined its witnesses and the appellant was also examined under Section 313 of the Code of Criminal Procedure. He denied all the circumstances, which were found attendant upon him. When called upon to enter in his defence, he did not lead any evidence in defence. 14. At the end of the trial, he was convicted and sentenced as aforesaid. 15. Shri Jagjeet Beniwal, the learned counsel for the appellant took up the following points in his arguments seeking acquittal of the convict/appellant:- i) the investigation was conducted by PW- 10, SI/SHO Dharam Singh who was also the seizing Officer. 14. At the end of the trial, he was convicted and sentenced as aforesaid. 15. Shri Jagjeet Beniwal, the learned counsel for the appellant took up the following points in his arguments seeking acquittal of the convict/appellant:- i) the investigation was conducted by PW- 10, SI/SHO Dharam Singh who was also the seizing Officer. Thus, he could not act fairly and objectively in the circumstances, therefore the appellant is entitled to acquittal and he cited the Judgments of Punjab and Haryana High Court rendered in Mohmmad Salim v. State of Haryana, 2008 Cr.L.J., 2697 and Rasila v. State of Haryana, 1996 (1) Current Law Journal, 399; based upon the judgment of the Apex Court reported in Megha Singh v. State of Haryana, AIR 1995 S.C. 2339 ; ii) the sample of seal was not handed over to an independent witness, thus possibility of seal on the samples being tampered with, substance being changed and parcel being resealed cannot be ruled out. Learned counsel placed his reliance on judgment of Delhi High Court rendered in Emma Charloddeve v. Narcotic Control Bureau, 2000 (4) RCR (Criminal) 386 and also the judgment of Punjab and Haryana High Court in Bhola Singh v. State of Punjab, 2005 (3) (Crimes) 119; and that iii) there has been a difference in the weight in the sample taken and as received by the Forensic Science Laboratory. Thus from this variation in the weight, the only inference can be that the sample was tampered with. He relied the judgment rendered by the High Court of Punjab and Haryana reported in Rampal v. State of Haryana, 1996 (2) RCR (Criminal) 522. 16. Contra, the learned Additional Advocate General supported the impugned judgment of conviction and sentence and submitted that the points raised are not sufficient to reverse the conviction into acquittal. The case law cited by the learned counsel for the appellant is not applicable in the fact situation of this case. Further, that the Police had no malice against the appellant to frame him in a false case. Further that there is no bar that the seizing police officer cannot investigate the case in the given circumstances. Also that the sample of seal was handed over to PW-5 Constable Chet Ram as stated by the Investigating Officer, but he was not cross-examined on this point. Further that there is no bar that the seizing police officer cannot investigate the case in the given circumstances. Also that the sample of seal was handed over to PW-5 Constable Chet Ram as stated by the Investigating Officer, but he was not cross-examined on this point. Further neither the Investigating Officer nor Constable Chet Ram aforesaid were contradicted on this point and lastly that the variation in weight is quite negligible owing to the various circumstances, which is not fatal to the prosecution case. 17. I have given my thoughtful consideration to the rival contentions of the parties and have carefully gone through the evidence on record. 18. PW-10 SI/SHO has fully corroborated the prosecution case about the recovery, separating the samples and sealing it with the seal as aforesaid and taking into possession the case property from the appellant vide seizure memo Ex.PW-1/B in the presence of PW-2 Omi Chand, from whose shop the scale and different weights were arranged. In cross-examination, the interception of the appellant on the National Highway when number of vehicles were crossing the road and non inclusion of independent witness have been admitted by him. But it has not been even remotely suggested to this witness as to why he has made a false case against the appellant or what was the malice, nor it has been explained by the appellant in his statement under Section 313 Code of Criminal Procedure. 19. PW-3 Constable Virender Kumar has lent full corroboration to the statement of the Investigating Officer (PW-10), which is further duly supported by PW-2 Omi Chand, who was associated by the said Investigating Officer at the time of carrying out the weight of the recovered stuff and sample and further proceedings. He categorically stated about the weight of the recovered stuff and separating samples of 25 grams each by the Investigating Officer and also admitted his signatures on seizure memo Ex.PW-1/B and other documents prepared on the spot. But, in his cross-examination, he stated that the appellant was not apprehended in his presence. Pertinently this was also not the prosecution case that appellant was apprehended in his presence. 20. Further, the case property was deposited in the Malkhana with PW-4 HC Thalia Ram. But, in his cross-examination, he stated that the appellant was not apprehended in his presence. Pertinently this was also not the prosecution case that appellant was apprehended in his presence. 20. Further, the case property was deposited in the Malkhana with PW-4 HC Thalia Ram. He proved the entry in the Malkhana - Register and also having sent one of the samples through PW-5 constable Chet Ram for its examination to the Forensic Science Laboratory. Both of them have supported their version and nothing material can be extracted in their cross-examination, which could be taken note in favour of the appellant. According to them, so long as the case property remained with them, it was intact and not tampered with by anyone. Road Certificate Ex.PW-4/D also supports their version. The sample so received in the Laboratory clearly mentioned the description of the seal on the sample parcel, which tallied with the facsimile of the seal taken on the NCB forms Ex. PW- 10/B and the report of the Chemical Examiner is that the entire mass is a mixture of 'cannabis' and the sample of Charas. The possession whereof could not be explained by the appellant. Thus, presumption by virtue of Section 54 of the Act, can legally be drawn against him that he committed an offence under the Act for possessing the contraband of which he has failed to explain satisfactorily. 21. The first point raised by the learned counsel for the appellant that the Seizing Officer and the Investigating Officer cannot be the same and its benefit can be extended to the appellant is devoid of any merit. There is nothing in the provisions of the Code of Criminal Procedure or the Act, which puts bar. The same very Police official, who is the Seizing Officer or the complainant and got recorded the FIR on the basis of the information received, registered or suspected the crime certainly is competent to investigate the case and submit his final report and no bias or prejudice can be ipso facto attributed to him as held in State represented by Inspector of Police, Vigilance and Anti - Corruption v. Jayapaul, 2004, Cr. Law Journal, 1819 by the Supreme Court. Thus in my opinion, there is no illegality that the complainant police official forfeits his rights to investigate the case in the absence of any bias or real likelihood of bias on his part. Law Journal, 1819 by the Supreme Court. Thus in my opinion, there is no illegality that the complainant police official forfeits his rights to investigate the case in the absence of any bias or real likelihood of bias on his part. In this case, as already stated above, it has not been even remotely suggested to PW-10 SI/SHO Dharam Singh as to what was the malice against the appellant to frame him in a false case. In Mohammad Salim's case supra, the recovery of alleged contraband was doubted on various other grounds, which inter alia led to his acquittal. Further in Rasila's case cited above, it was only held to be a ground for granting a bail and not on merits. Megha Singh's case decided by the apex Court and relied in the cases above is not applicable in this case. It relates to the facts that the Head Constable had arrested the accused on having received a pistol and cartridges without licence from him. Head Constable was the complainant and proceeded with the investigation under the TADA Act. It gave an occasion to suspect a fair and impartial trial. Therefore, in these circumstances, the point raised by the learned counsel for the appellant deserves to be rejected. 22. In so far as the second point is concerned, the Investigating Officer stated having handed over the seal to a police official. No cross-examination was conducted to this effect on PW-1 Hoshiar Singh or even PW-5 Constable Chet Ram. They were not contradicted with this aspect of the case. Moreover, the case of the prosecution has been constant with respect to the sampling and sealing the case property on the spot along with the sample parcels separately with the seal aforesaid, which was used by the Investigation Officer who himself was the SHO and also its facsimile was taken on the NCB forms and on a separate piece of cloth. Therefore, even non-entrustment of the seal either to PW-2 Omi Chand or any other person is not fatal to the prosecution case in absence of any reason as to why the police officials would tamper with the contents of the recovered stuff or the sample parcel sent for the analysis. Therefore, even non-entrustment of the seal either to PW-2 Omi Chand or any other person is not fatal to the prosecution case in absence of any reason as to why the police officials would tamper with the contents of the recovered stuff or the sample parcel sent for the analysis. When the appellant has failed to put his positive case in the cross-examination of the witnesses and to show the prejudice caused to him, no benefit can be extended to him in any way. The prosecution witnesses have testified that the sample as long as remained in their possession, it was neither changed nor tampered with. Therefore, Emma Charloddeve's case supra has no application in the present facts and circumstances of the case. In that case, the positive case put forth by the accused was that the parcel of contraband sent through post was addressed to some one else but foisted upon her and the Court found that the prosecution witnesses were making discrepant statements on material aspect of the case. But I did not find any discrepancy in the statement of the witnesses in the case in hand on material aspects of the case. Further, in Bhola Singh's case, there was no evidence with respect to filling the NCB Forms on the spot and its deposit by the Investigating Officer in the Malkhana along with case property to the Forensic Science Laboratory, which is not lacking in this case. Therefore, in these circumstances, the point raised by the learned counsel for the appellant deserves to be rejected. 23. The last Point taken up by the learned counsel for the appellant is with respect to the discrepancy in weight of sample parcel. As per the case of the prosecution 25 grams each were separated from the recovered stuff on the spot which was weighed with conventional scale and weights provided by PW-2 Omi Chand. But in the Laboratory it turned out to be 26.47 grams i.e. 1.47 grams more, when weighed on the electronic balance as indicated in the report. The electronic balance is a very sensitive and sophisticated apparatus than that of the conventional weights and scale. The negligible difference of the weight cannot be counted for taking such defence nor it can be said to have caused any prejudice. Further minor difference in the weight would not vitiate the trial. The electronic balance is a very sensitive and sophisticated apparatus than that of the conventional weights and scale. The negligible difference of the weight cannot be counted for taking such defence nor it can be said to have caused any prejudice. Further minor difference in the weight would not vitiate the trial. The perusal of the evidence on record, in the instant case, clearly reveals that the said substance was entirely deposited in the Malkhana of the Police Station, which contained a sample of seals, remaining bulk of the contraband, which was sealed, for the production before the Court and there is evidence that it did not carry out the same weight. Therefore, this difference in weight is quite negligible and ignorable. Resin mass can also gain weight by absorbing moisture from the air. Therefore, this argument is also rejected. 24. In the instant case, the prosecution proved during the trial of the case that the contraband, which was recovered and its sample sent for the chemical analysis, was the same. It was not tampered with. 25. Having examined the case of the appellant from every angle, I do not find that the prosecution evidence could be doubted at any rate even for non-inclusion of the independent witness as it being a chance of recovery and further after having recovered the contraband, in question, PW-2 Omi Chand was associated as witness right from the time of weighing the contraband on the spot till last and he testified before the trial Court. 26. Therefore, for the above-stated reason, I do not find any discrepancy in the judgment of conviction and sentence impugned. The appellant despite recovery of 1 Kg. 600 grams stuff was found in possession of Charas to the extent of 608 grams calculated upon the resin contents as per the Judgment rendered in Dharampal's Case reported in HLJ 2007 (HP), 827 by the Division Bench. Thus rightly convicted and sentenced under Section 20 (B) of the Act. Therefore, the appeal sans merits and is accordingly dismissed.