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Himachal Pradesh High Court · body

2012 DIGILAW 1014 (HP)

Atal Bihari v. State of H. P.

2012-12-20

R.B.MISRA, V.K.SHARMA

body2012
JUDGMNET V.K. Sharma, J. The challenge herein in this appeal under Section 374 of the Code of Criminal Procedure, 1973 (in short ‘Cr.P.C’), is against the judgment and order dated 11.4.2011/18.04.2011, whereby the convict, appellant herein, who shall hereinafter be referred to as ‘the accused’, was tried by the learned Special Judge, Mandi, H.P., for the offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( in short ‘NDPS Act’) and was ultimately convicted for the offence punishable under Section 20 (b) (ii) (c) of the NDPS Act and sentenced to undergo rigorous imprisonment for 12 years and to pay a fine of Rs. 1,20,000/- (Rs. One Lac and Twenty Thousand) and in default to suffer further simple imprisonment for a period of two years. 2. Briefly stated facts of the case are that during the night intervening 8/9-1-2010, at 12.30 AM, a police party headed by PW-8 ASI Mohan Lal, was present at a place known as ‘Gadda Nallah’ near Pandoh, District Mandi (H.P.) in connection with nakabandi. In the meantime, a person, who was carrying a black coloured bag on his shoulder, was found coming from Gohar side towards Pandoh, on foot, who on seeing the police, at once turned around and tried to flee. On this, the police suspected him of carrying some stolen property. Accordingly, he was apprehended by the police. Since it was night time and a lonely place, no independent local witness could be joined. Accordingly, two members of the police party, namely ASI Ram Lal (PW-1) and HHC Dharam Pal (PW-7) were associated as witnesses. On being confronted, the suspect disclosed his name as Atal Bihari @ Bihari (the accused), besides giving his parentage and address. Thereafter, after the members of the police party gave their personal search to the accused vide memo Ex.PA, in which nothing incriminating was found, the bag being carried by the accused bearing inscription ‘Adidas’ was searched by the police. A green coloured plastic carry bag with inscription ‘Jagjit Cloth House’, was found inside the bag, in which some black coloured substance in the form of sticks and balls was found, which on smelling and on the basis of experience was found by the police to be cannabis. Whereas the recovered contraband in the form of balls was wrapped with plastic tape, the same in the form of sticks was not wrapped. Whereas the recovered contraband in the form of balls was wrapped with plastic tape, the same in the form of sticks was not wrapped. The recovered contraband was weighed by the police with the help of scales and weights being carried in the investigating officer’s kit and was found to be 5 Kgs. The recovered contraband was thereafter put in the same plastic carry bag and then in the aforesaid bag, which in turn was put in a cloth parcel, which was sealed with 16 seals bearing impression ‘R’. NCB-I Form was prepared in triplicate and seal impression was also taken on the same. In addition thereto, seal impression was also taken separately on a piece of cloth. The seal after use was handed over to PW-1 ASI Ram Lal. The recovered contraband along with seal impression and NCB-I Form was taken into possession by the police vide recovery memo Ex.PC, copy of which was supplied to the accused free of cost. 3. The accused was arrested after apprising him of the grounds of arrest and intimating his cousin Roshan Lal about the arrest vide memo Ex.PD. Rukka Ex.PO was sent to the Police Station for registration of a case, on the basis of which FIR Ex.PQ was registered. The case property along with sample seals and NCB-I Form in triplicate was produced before the Inspector/SHO Hari Pal (PW-9), who re-sealed the same with six seals bearing impression ‘S’, vide memo Ex.PT. Seal impression was also taken separately on NCB-I Form in triplicate and a piece of cloth. Thereafter, the case property was deposited by PW-9 Inspector/SHO Hari Pal with PW-4 HC Anil Kumar (Additional MHC/Incharge Malkhana), who sent the same for chemical examination to State Forensic Science Laboratory, Himachal Pradesh at Junga. 4. On receipt of FSL report Ex.PM, it was established that the recovered contraband was “extract of cannabis and sample of CHARAS”. 5. On completion of investigation the accused was sent up to face trial. When charged, he did not plead guilty and claimed to be tried. The prosecution evidence followed. It examined nine witnesses in all. 6. On close of the prosecution evidence, the accused was examined by the learned trial court under Section 313 Cr.P.C, wherein, his case was that of denial simplicitor, innocence and false implication by the police “in league with my enemy”. However, according to him, he was arrested at Mandi. The prosecution evidence followed. It examined nine witnesses in all. 6. On close of the prosecution evidence, the accused was examined by the learned trial court under Section 313 Cr.P.C, wherein, his case was that of denial simplicitor, innocence and false implication by the police “in league with my enemy”. However, according to him, he was arrested at Mandi. In defence he has examined four witnesses, namely DW-1 Hans Raj, DW-2 Gulab Singh son of Sh. Chet Ram, DW-3 Gulab Singh, son of Sh. Hem Chand and DW-4 Gun Prakash. 7. On conclusion of the trial and after hearing the parties the learned Special Judge proceeded to convict and sentence the accused, as already noticed. 8. We have heard the learned counsel for the appellant/accused and learned Senior Additional Advocate General for the respondent-State and perused the records. 9. The accused had raised threefold contentions before the learned trial court viz. (1) non-joining of independent witnesses to the search and seizure by the police, (2) contradictions in the testimonies of eye witnesses rendering the prosecution case un-reliable and (3) noncompliance of the provisions of Sections 42 and 50 of the NDPS Act. 10. As far as the first contention relating to non-joining of independent witnesses to the search and seizure is concerned, it would be seen that the police party was present on the spot scene in connection with nakabandi and as such there was no prior information with it that the accused carrying the contraband would come in their way. Furthermore, it was odd hour in the night at 12.30 AM and presence of independent witnesses on the spot at such time was highly improbable. Even otherwise, when on seeing the police the accused had all of a sudden turned around to flee, it was suspected that he might have been carrying some stolen property and it was only during his search that he was found carrying the incriminating substance. Furthermore, even if the defence version that there are some houses, shops and school etc. Even otherwise, when on seeing the police the accused had all of a sudden turned around to flee, it was suspected that he might have been carrying some stolen property and it was only during his search that he was found carrying the incriminating substance. Furthermore, even if the defence version that there are some houses, shops and school etc. near the place of occurrence, as depicted in photographs Ex.D-1 to D13, is admitted to be correct , it was not expected out of the police to have knocked the doors of such dwellings/buildings, as by that time the search and seizure had already been made and no fruitful purpose would have been served by joining any such independent witness, which course otherwise was also not advisable keeping in view the odd hour in the night. Thus, the contention regarding non-joining of independent witnesses has been rightly repelled by the learned trial court. 11. Insofar as the second contention regarding contradictions in the testimonies of the eye witnesses is concerned, it would be seen that in reply to question No. 24 of the statement under Section 313 Cr.P.C, the accused has admitted that he was arrested by the police vide memo. Ex.PD, though according to him, the arrest was made at Mandi. In reply to question No. 41, as to why this case has been made out against him, the accused has stated that it was “because the police is in league with my enemy”, without naming the ‘enemy’. 12. When viewed against the foregoing background the contradiction that whereas PW-7 HHC Dharam Pal has stated that it was moon lit night , according to PW-8 ASI Mohan Lal, it was pitch dark, loses its very significance. 13. As per the prosecution the accused was apprehended and arrested at a place known as ‘Gadda Nallah’. However, according to him he was arrested at Mandi. Keeping in view the substantially large quantity of contraband recovered from the accused the possibility that the same was planted upon him is, prima facie, ruled out. More so, when neither any motive nor ill will or enmity with the accused is either alleged or proved against any member of the police party actuating it to falsely implicate him in a serious case like this. More so, when neither any motive nor ill will or enmity with the accused is either alleged or proved against any member of the police party actuating it to falsely implicate him in a serious case like this. Furthermore, it does not stand to reason that in case the accused was arrested at Mandi, what was the necessity for the police to show the arrest having been made at ‘Gadda Nallah’. All the eye witnesses namely PW-1 ASI Ram Lal, PW-2 LHC Narpat Ram, PW-7 HHC Dharam Pal and PW-8 ASI Mohan Lal have stated in one voice that during the night intervening 8/9-1-2010, at about 12.30 AM, they being members of the police party were present at ‘Gadda Nallah’ in connection with nakabandi. In cross examination each of them has stated that they had gone to the spot in a private vehicle, Sumo. 14. The slight difference in the testimonies of the eye witnesses with regard to the distances between Mandi and Pandoh and further upto ‘Gadda Nallah’ vis-a-vis the distances mentioned in the communications Ex.DW-3/A and Ex.DW-4/A, proved in evidence by DW-3 Sh. Gulab Singh and DW-4 Shri Gun Parkash, are not very material in the given facts and circumstances, as on the one hand whereas the eye witnesses have deposed about these distances on mere approximation and on the other the variation is not very significant. 15. Another contradiction highlighted by the defence is that whereas PW-2 LHC Narpat Ram has stated that while taking rukka from the spot to the police station he had taken lift in a private taxi, according to PW-7 Dharam Pal he (PW-2 HHC Narpat Ram) had gone on foot. It cannot be said to be a contradiction and that too of a serious nature going to the root of the case, as it is not clear as to whether PW-2 had taken lift in a private taxi right at the place of occurrence or while on way to Mandi to deliver rukka at the police station. 16. The alleged contradictions in the depositions of the eye witnesses highlighted by the defence with regard to existence of a nallah/rivulet, bridge/culvert, houses, shops and school etc. 16. The alleged contradictions in the depositions of the eye witnesses highlighted by the defence with regard to existence of a nallah/rivulet, bridge/culvert, houses, shops and school etc. at the place of occurrence known as Gadda Nallah’ vis-à-vis photographs Ex.D-1 to D-13 are also of no consequence in the peculiar facts and circumstances of the present case, as the police officials who were present on the spot for nakabandi during midnight and had encountered upon the accused all of a sudden, were not expected/required to observe all such distinguishing features existing on/near the spot as shown in photographs Ex.D-1 to D-13, as it is not made out from the testimony of DW-1 Shri Hans Raj, as to who has taken these photographs. 17. Another contention raised on behalf of the defence is that whereas PW-2 LHC Narpat Ram has stated during cross examination that after delivery of rukka Ex.PO he had returned to the place of occurrence at 5.15 AM, arrest memo, which is stated to have been prepared on 9.1.2010, at 4.00 AM also records FIR number in its body, meaning thereby that the memo Ex.PO is ante dated. In this regard, suffice it to say that the timings have been stated by PW-2 on approximation, as according to him while on his way from the Police Station to the spot he had reached Pandoh at about (emphasis supplied) 5.00 AM and on the spot at 5.15 AM. 18. The third contention raised by the defence regarding non-compliance of the provisions of Sections 42 and 50 of the NDPS Act has also been rightly rejected by the learned trial court, as on the one hand the accused was apprehended by the police from a public place all of a sudden without any prior information and on the other the contraband was recovered from a bag being carried by him and not on his personal search. 19. The additional contentions raised on behalf of the accused before this court shall be dealt with hereinafter. 20. Admittedly, the seal used during the proceedings on the spot by the police was handed over to PW-1 ASI Ram Lal. However, he could not produce the same at the time of trial, as according to him the same has been misplaced. By placing reliance upon a Division Bench authority of this court in Nanha Vs. 20. Admittedly, the seal used during the proceedings on the spot by the police was handed over to PW-1 ASI Ram Lal. However, he could not produce the same at the time of trial, as according to him the same has been misplaced. By placing reliance upon a Division Bench authority of this court in Nanha Vs. State of H.P., Latest HLJ 2011 (HP) 1195, it is submitted by the defence that non-production of the seal is fatal for the prosecution case. However, the facts of the case relied upon are clearly distinguishable from the facts of the present case. Whereas, in the case in hand specimen of the seal used was separately prepared on a piece of cloth and was also obtained on NCB-I Form prepared in triplicate, in the case of Nanha Vs. State of H.P. supra, there was no facsimile of the seal on NCB-I Form. Thus, mere non-production of the seal, which is said to have been misplaced by the witness, would not materially effect the prosecution case in the peculiar facts and circumstances of the present case. 21. It was next contended that all the incriminating circumstances were not put to the accused during his examination under Section 313 Cr.P.C. Three instances cited in this regard are that firstly DDR Ex.PL vide which the police party had left for the place of occurrence to lay naka was not put to the accused. Secondly, only the time of occurrence and not the date thereof has been put to the accused. And thirdly, particulars of the vehicles used by the police to perform the journeys to and fro the place of occurrence were also not put to him. The contention does not deserve any consideration and is liable to be outrightly rejected for the reasons that when it was specifically put to the accused that the police party was present on the spot at the given time in connection with nakabandi, the omission to put DDR Ex.PL to him specifically was not required and in any case this aspect of the matter would not effect the case of the prosecution in any manner whatsoever. Non mention of the date of occurrence in question No. 2 of the statement appears to have been left out inadvertently. Non mention of the date of occurrence in question No. 2 of the statement appears to have been left out inadvertently. However, no prejudice has been caused to the accused on this count, as he was all through aware of the date of occurrence during the trial and the same was specifically put to him in the charge. Particulars of the vehicles used by the police was not required to be put to the accused, as the same had no nexus/relevance to the incriminating circumstances appearing against him in the prosecution evidence. It being so, the accused cannot derive any benefit from the proposition of law propounded by this court in Tulsi Ram Vs. State of H.P., 2007 (2) Shim. LC 189. 22. The further contention raised by the defence by placing reliance upon the law laid down by this court in (1) Bajinder Singh Vs. State of Himachal Pradesh, Latest HLJ 2010 (HP) 1263, (2) Om Parkash Vs. State of Himachal Pradesh, Latest HLJ 2012 (HP) 474 and (3) Sunil Vs. State of H.P. etc. etc., Latest HLJ 2010 (HP) 207 is that FSL report Ex.PM is not in accordance with Section 2(iii) of the NDPS Act. However, this submission also appears to have been raised so as to be simply rejected for the reasons stated hereafter. 23. Relevant portion of FSL report Ex.PM reads as under:- “RESULTS OF THE EXAMINATION Various scientific tests such as physical identification, chemical and chromatographic analyses were carried out in the laboratory with the exhibit under reference. The above tests performed indicated the presence of cannabinols including the presence of tetrahydrocannabinol in the exhibit. The microscopic examination indicated the presence of Cystolithic hairs in the exhibit. Charas is a resinous mass, which on testing was found present in the exhibit. The quantity of resin as found in the exhibit is 30.36% w/w. The result thus obtained is given below. The exhibit is extract of cannabis and sample of CHARAS.” 24. Since FSL report Ex.PM conclusively establishes that the recovered contraband was “extract of cannabis and sample of CHARAS”, the same cannot be placed on the same footing as FSL reports in Re: (1) Bajinder Singh Vs. State of Himachal Pradesh, (2) Om Parkash Vs. State of Himachal Pradesh and (3) Sunil Vs. State of H.P. etc. etc, supra. 25. Since FSL report Ex.PM conclusively establishes that the recovered contraband was “extract of cannabis and sample of CHARAS”, the same cannot be placed on the same footing as FSL reports in Re: (1) Bajinder Singh Vs. State of Himachal Pradesh, (2) Om Parkash Vs. State of Himachal Pradesh and (3) Sunil Vs. State of H.P. etc. etc, supra. 25. In view of MINISTRY OF FINANCE (Department of Revenue) NOTIFICATION dated the 18th November, 2009, which is re-produced below, the entire contraband recovered from the accused, that is, ‘charas’ falls within the definition of “Cannabis (hemp)”. “S.O.2941(E). In exercise of the powers conferred by clause (vii a) and (xxiii a) of Section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( 61 of 1985). The Central Government, hereby makes the following amendment in the Notification S.O. 1055(E), dated 19th October, 2001, namely:- In the Table at the end after Note 3, the following Note shall be inserted, namely:- “(4) The quantities shown in column 5 and column 6 of the Table relating to the respective drugs shown in column 2 shall apply to the entire mixture or any solution or any one or more narcotic drugs or psychotropic substances of that particular drug in dosage form or isomers, esters, ethers and salts of these drugs, including salts of esters, ethers and isomers wherever existence of such substances is possible and not just its pure drug contents.” 26. This inference is further fortified from the ratio laid down by the Hon’ble Supreme court in Harjit Singh Vs. State of Punjab, (2011) 4 Supreme Court Cases 441. 27. A similar view has been taken by the Hon’ble High Court of Delhi vide judgment dated 02.07.2012, in BAIL APPLN 2330/2008, DILIP Vs. STATE, copy of which has been made available by the learned Sr. Additional Advocate General at the time of hearing, wherein it has been held as under vide para 21:- “Therefore, our answer to the question is that the percentage of THC in a sample of charas by itself cannot be determinative of the purity of the sample. Furthermore, a test resulting in the quantification of the percentage content of THC is neither relevant nor necessary for the purposes of considering the grant of bail or of awarding sentence under the NDPS Act. Furthermore, a test resulting in the quantification of the percentage content of THC is neither relevant nor necessary for the purposes of considering the grant of bail or of awarding sentence under the NDPS Act. We may point out that in the question referred to us, Section 21 of the NDPS Act has been mentioned, whereas the context is in respect of an alleged recovery of charas. We have mentioned above that Section 21 deals with ‘psychotropic substances’ and has nothing to do with the punishment in relation to cannabis (charas, ganja or a mixture thereof) and cannabis plants, which are specifically dealt with under Section 20 of the NDPS Act. Therefore, we have taken the reference to Section 21, in the question referred to us as being a reference to Section 20 of the NDPS Act.” 28. Even otherwise the quantity of resin in the recovered contraband weighing 5 kg. having been found to be 30.36%, the same also being more than the commercial quantity would fall within the mischief of Section 20 (b) (ii) (c) of the NDPS Act. 29. The above discussion brings us to hold that the impugned judgment/order dated 11/18.4.2011, do not call for any interference at the hands of this court. Accordingly, the appeal is dismissed being without any merit.