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2012 DIGILAW 188 (HP)

Nazir Mohammad v. State of Himachal Pradesh

2012-04-13

KULDIP SINGH

body2012
JUDGMENT Kuldip Singh, J . This revision has been directed against judgment dated 22.6.2006 passed by learned Sessions Judge, Kullu in Criminal Appeal No.26/2005, affirming judgment dated 7.9.2005 passed by learned Judicial Magistrate Ist Class, Manali in Criminal Case No.184/1/2002/14-III.2002. 2. The prosecution case in brief is that on 21.7.2002 at about 11 a.m. a telephonic message was received at Police Station, Manali that a loaded truck with forest produce was stationed at Gulaba. The police came to action and police party reached Gulaba at 12 noon, the truck No.HP-31-2527 was found there. The Whether the reporters of the local papers may be allowed to see the Judgment Yes police officials were about to check the truck, two persons sitting in the truck on the front seats jumped out and sped away from the spot. The 3rd person Nazir Mohammad petitioner owner of the truck was apprehended by the police on the spot. The petitioner disclosed that driver of the truck was Man Singh and owner of the case property Kala has fled away from the truck. 3. On checking the truck 228 scants of different sizes of deodar and 74 scants of different sizes of Rai, total 302 scants were recovered from the truck and taken into possession through seizure memo Ex.PW1/A. The petitioner was asked to produce permit for transportation of the timber but he could not produce any permit/authorization. Ex.PW-6/A ruka was sent for registration of the case and FIR Ex.PW-1/B came to be registered on the basis of ruka at Police Station, Manali. 4. The case was investigated. The value of the seized timber was got valuated. Spot map was prepared. The truck alongwith documents was taken into possession. It has come in the investigation that scants were loaded by petitioner and other accused from the Saw-Mill of Juna Singh at Larankelo. On completion of investigation the report under Section 173 Cr.P.C. was prepared and submitted in the Court. 5. The notice of accusation was put to petitioner and other co-accused for offences punishable under Sections 41, 42 of the Indian Forest Act. They pleaded not guilty and claimed trial. The prosecution has examined eight witnesses and produced some documents on record. The statements of petitioner and other accused were recorded under Section 313 Cr.P.C. They denied the prosecution case but led no evidence in defence. They pleaded not guilty and claimed trial. The prosecution has examined eight witnesses and produced some documents on record. The statements of petitioner and other accused were recorded under Section 313 Cr.P.C. They denied the prosecution case but led no evidence in defence. On conclusion of trial, learned Magistrate convicted the petitioner under Section 42 of the Indian Forest Act and acquitted other accused namely Man Singh, Chet Ram and Sanjeev Kumar. The petitioner was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of `5,000/-with default clause. The appeal filed by petitioner was dismissed by learned Sessions Judge on 22.6.2006, hence present revision. 6. Heard and perused the record. The learned counsel for the petitioner has submitted that the two Courts below have misconstrued, misinterpreted the evidence on record. The prosecution had not associated independent witnesses. There are material contradictions in the prosecution case. The two Courts below erred in convicting and sentencing the petitioner. The sentence imposed is excessive. 7. The learned Addl. Advocate General has supported the impugned judgment. She has submitted that the two Courts below have concurrently recorded findings of facts that petitioner has committed offence punishable under Section 42 of the Indian Forest Act. The prosecution has proved the case against petitioner beyond reasonable doubt. The sentence imposed is also not excessive. She has prayed for dismissal of the revision. 8. In order to appreciate the rival contentions, it is necessary to refer to evidence which has come on record. PW-1 Gambhir Chand, Sub Inspector has stated that on 21.7.2002 some unknown person gave information at Police Station on telephone that at place Gulaba truck No.HP-31-2527 was standing with illicit timber. On this, police party reached the spot at about 12 noon and found the truck in question standing at Gulaba, three persons were sitting on front seats of the truck. They fled away on seeing the police, one person was apprehended who disclosed his name Nazir Mohammad owner of the truck. He disclosed the name of other persons, driver Man Singh and Kala owner of the timber. On checking of the truck 302 scants of deodar, Rai of different sizes were found in the truck without any authorization and permit. They fled away on seeing the police, one person was apprehended who disclosed his name Nazir Mohammad owner of the truck. He disclosed the name of other persons, driver Man Singh and Kala owner of the timber. On checking of the truck 302 scants of deodar, Rai of different sizes were found in the truck without any authorization and permit. The timber was seized vide recovery memo Ex.PW-1/A which was signed by him and another witness Bhim Sen, Investigating Officer gave copy of recovery memo to Nazir Mohammad. He was cross-examined and in cross-examination he denied the suggestion that the accused were not arrested on the spot nor the scants were taken into possession on the spot. 9. PW-2 Mehar Chand has proved valuation report Ex.PW-2/A. PW-7 HC Bhim Sen has stated that on 21.7.2002 he and other police officials reached Gulaba at about 12 noon and truck No.HP-31-2527 was found there. On seeing the police party two persons sitting in the truck ran away, one of them namely Nazir Mohammad owner of the truck was overpowered. The other person who ran away was Man Singh. On search of the truck 302 scants were recovered and taken into possession through memo Ex.PW-1/A which was signed by him as a witness. Nazir Mohammad signed the memo in token of receiving the copy of the seizure memo. The accused could not produce any permit for transportation of timber. 10. PW-8 Roshan Lal, DSP has stated that in the year 2002 he was posted as SHO, Police Station, Manali. On 21.7.2002 an unknown person informed the police station that a truck bearing No.HP-31-2527 was stationed at Gulaba loaded with timber without permit. The police reached the spot. There were two persons sitting on the front seats of the truck No.HP-31-2527. One of them was overpowered who disclosed his name Nazir Mohammad. He disclosed that the other persons who fled away from the spot were Man Singh and Kala. On spot 302 scants were recovered from the truck vide memo Ex.PW-1/A. Ruka Ex.PW-6/A was sent. 11. In the statement under Section 313 Cr.P.C. the petitioner has admitted that truck No.HP-31-2527 was stationed at Gulaba at the relevant date, time and place. The petitioner however, stated that he was not aware that the truck was loaded. He said that he was with his buffaloes at Gulaba. 11. In the statement under Section 313 Cr.P.C. the petitioner has admitted that truck No.HP-31-2527 was stationed at Gulaba at the relevant date, time and place. The petitioner however, stated that he was not aware that the truck was loaded. He said that he was with his buffaloes at Gulaba. The seizure memo Ex.PW-1/A was put to him and he said that he does not know 302 scants were recovered from the truck and were seized vide seizure memo Ex.PW-1/A. PW-7 has stated that petitioner has signed Ex.PW-1/A in token of having received its copy. PW-1 has also stated that copy of seizure memo was given to petitioner. The petitioner while referring seizure memo Ex.PW-1/A in his statement under Section 313 Cr.P.C. has not stated that seizure memo Ex.PW-1/A does not bear his signature. The petitioner has admitted his presence at Gulaba in his statement under Section 313 Cr.P.C. 12. The learned counsel for the petitioner has submitted that independent witnesses were not associated by the prosecution during investigation and he has relied Smt. Prem Lata v. State of Himachal Pradesh 1987 CRI.L.J. 1539 and has submitted that in absence of non-compliance of Section 100(4) Cr.P.C. the petitioner is entitled to benefit of doubt. The learned counsel for the petitioner has submitted that the prosecution story is suspicious in asmuch as according to the prosecution story the truck was lying stranded at Gulaba for the last two days due to traffic jam. The prosecution despite traffic jam for the last two days has not joined any independent person in the investigation. 13. In Balbir Singh vs. State (1996) 11 SCC 139, it was contended that though the appellant was arrested from the park where a number of witnesses were present, the prosecution had not examined any independent witnesses and, therefore, the prosecution case had been rendered doubtful. The Supreme Court held that this cannot be agreed. None of the prosecution witnesses who have been examined bore any ill-will or malice against the appellant. Of course, they all belong to the police force but merely on that account their evidence cannot be said to be tainted. 14. In Kalpnath Rai vs, State (1997) 8 SCC 732, it has been held that there can be no legal proposition that evidence of police officers, unless supported by independent witnesses, is unworthy of acceptance. Of course, they all belong to the police force but merely on that account their evidence cannot be said to be tainted. 14. In Kalpnath Rai vs, State (1997) 8 SCC 732, it has been held that there can be no legal proposition that evidence of police officers, unless supported by independent witnesses, is unworthy of acceptance. Non-examination of independent witness or even presence of such witness during police raid would cast an added duty on the court to adopt greater care while scrutinizing the evidence of the police officers. If the evidence of the police officer is found acceptable it would be an erroneous proposition that the court must reject the prosecution version solely on the ground that no independent witness was examined. 15. The Supreme Court in Akmal Ahmad vs. State of Delhi (1999) 3 SCC 337 has noticed that the evidence of PW-8 Sub-Inspector of Police is not supported by any witness other than police personnel. It is now well settled that the evidence of search or seizure made by the police will not become vitiated solely for the reason that the evidence is not supported by any independent witness. 16. The judgment relied by learned counsel for the petitioner is not applicable in the facts and circumstances of the present case in asmuch as the petitioner while cross-examining the prosecution witnesses has not denied his presence at the place of occurrence when the truck was searched by the police. The petitioner has admitted his presence at Gulaba in his statement under Section 313 Cr.P.C. The signature of petitioner on seizure memo Ex.PW-1/A has been proved by PW-7, which the petitioner has not denied in his statement under Section 313 Cr.P.C. It is not even remotely the case of the petitioner that he was having the permit or authorization for transporting the timber which was recovered from the truck. There is nothing on record to disbelieve the police witnesses. 17. The petitioner has admitted while cross-examining the witnesses of the prosecution that he was the owner of the truck No.HP-31-2527 when it was searched, not only this, the truck was got released by the petitioner in his favour as owner. There is nothing on record to disbelieve the police witnesses. 17. The petitioner has admitted while cross-examining the witnesses of the prosecution that he was the owner of the truck No.HP-31-2527 when it was searched, not only this, the truck was got released by the petitioner in his favour as owner. It has come in the investigation that there was traffic jam for the last two days but when the police visited the spot no one was available due to traffic jam, but this is not so important when other evidence on record coupled with stand of the petitioner it has been proved that petitioner infact was present in the truck when the truck was searched and huge illicit timber was found in the truck. 18. The two Courts below after due appreciation of evidence on record have recorded the findings of facts against the petitioner. It is not a case that important evidence going to the root of the case has been ignored or inadmissible evidence has been considered by the Courts below while convicting and sentencing the petitioner. The impugned judgment is not perverse. The view taken by the two Courts below emerges from the evidence on record. On behalf of the petitioner, no case has been made out that conviction of the petitioner is not based upon the evidence which has come on record. 19. The learned counsel for the petitioner has submitted that sentence imposed by the Courts below is on the higher side. As per prosecution case the petitioner was found transporting huge quantity of 302 scants of deodar and Rai without permit/authorization. It is not a case where only a few scants were found transporting in the vehicle. No case for interference on the sentence has been made out. There is no merit in the revision. 20. In view of above, revision is dismissed, bail bonds of the petitioner are cancelled. The petitioner is directed to surrender to serve out the sentence imposed.