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2012 DIGILAW 200 (HP)

Baljit @ Bagga v. State of Himachal Pradesh

2012-04-17

SURINDER SINGH

body2012
JUDGMENT Surinder Singh, Judge (Oral) The above titled appeals are arising from the judgment passed in NDPS Case No. 11 of 2010, decided on 8.8.2011, whereby the appellants herein, were convicted under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short ‘The Act’ for allegedly keeping ’Charas’ in their possession and each of them were sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of ` 50,000/- each, with the default clause, which is under challenge in these appeals. 2. In short, the prosecution story can be stated thus. On 18th January, 2010, PW-7, ASI Jagat Singh alongwith PW-3 Constable Rohit Verma and Constable Moti Ram, were on patrol duty. They put a Naka near “Akhni Khad”. Around 11 .30 a.m., the appellants, hereinafter referred to as “the accused persons”, emerged from the katcha road and reached the main road. On spotting the police, they had tried to escape which raised suspicion. The police chased and apprehended them at some distance. Their identity was asked. The place aforesaid was isolated and lonely. Therefore, the independent witnesses could not be associated.(ii)Each of the accused persons were given option orally as well as in writing under Section 50 of the Act to be searched before the Magistrate or the Gazetted Officer and they were informed that it was their legal right.(iii)Accused Dharam Dass made the endorsement in his hand on Ext. PW-3/A that he was ready and willing to render himself to be searched by the police party. Similar endorsement was made on Ext. PW-3/B on a separate document by accused Baljit Singh.iv)Thereafter, all the police officials rendered themselves to be searched by the accused persons,butno incriminating article was found in their possession. To this effect, separate memos Ext. PW-3/C and Ext. PW-3/D were prepared.A. Recovery from accused Dharam Dass (v) PW-7 ASI Jagat Singh conducted personal search of accused Dharam Dass. During the search, he recovered a polythene bag, which was kept concealed and tied with a thread near his navel under his garments. On opening the said envelop, he recovered a round shaped black material which smelt like “Charas”. On its weighment, it was found to be one kilogram. The recovered envelop was sealed with seal impression ‘N’ at nine places and sample of the seal was taken on a piece of cloth Ext. On opening the said envelop, he recovered a round shaped black material which smelt like “Charas”. On its weighment, it was found to be one kilogram. The recovered envelop was sealed with seal impression ‘N’ at nine places and sample of the seal was taken on a piece of cloth Ext. PW-3/G. The case property recovered from the possession of accused Dharam Dass was taken into possession vide Memo Ext. PW 3/E. One copy of the said memo was supplied to the said accused free of cost.B. Recovery from accused Baljit Singh (vi) Thereafter, the personal search of accused Baljit Singh was conducted by PW-7 ASI Jagat Ram. He was also found having kept a polythene envelop in the same manner concealed near his navel beneath his clothes. It was also tied with a thread. The contents thereof were one kilogram, of the same nature, as found in the possession of co-accused Dharam Dass. It also smelt like “Charas”. The recovered stuff was similarly sealed with seal impression “N” at nine places. The facsimile of the seal was separately taken on a piece of cloth Ext. PW-3/H. The relevant columns of NCB forms were filled in. One of such form is Ext. PW-7/D containing the facsimile of the seal. The “Charas” recovered from the possession of accused Baljit Singh was taken into possession vide Memo Ext. PW-3/F. One copy of the said memo was also supplied to the said accused free of cost.C. Other Proceedings (vii)Rukka Ext. PW-1/A was prepared by PW-7 aforesaid and sent to the concerned Police Station for the registration of the FIR through PW-3 Constable Rohit Verma. (viii) The police also prepared site plan Ext. PW-7/A of the place of alleged recovery. (ix) The accused persons were arrested. The grounds of arrest were informed to them vide memos Ext. PW-7/B and Ext. PW-7/C. (x)After the registration of the case, PW-3 Constable Rohit Verma returned with the case file. PW-7 ASI Jagat Singh met him at bus stand Nirmand and handed it over to him.(xi)The case property was entrusted to PW-1 MHC Lal Chand alongwith the NCB forms in triplicate.He deposited the case property in the Malkhana and made its entry in the relevant register, the abstract of which is Ext. PW-7 ASI Jagat Singh met him at bus stand Nirmand and handed it over to him.(xi)The case property was entrusted to PW-1 MHC Lal Chand alongwith the NCB forms in triplicate.He deposited the case property in the Malkhana and made its entry in the relevant register, the abstract of which is Ext. PW-1 /D.(xii)On 20.1.2010, PW-1 MHC Lal Chand handed over two recovered sealed parcels alongwith the NCB forms in triplicate with a police docket vide RC No. 4/2010 Ext. PW-1/E for its analysis in FSL Junga through Constable PW-3 Rohit Verma.On its deposit, the said Constable obtained receipt Ext. PW.1/F on the RC and handed it over back to the MHC. (xiii) Special report Ext. PW-2/A was prepared by the Investigating Officer and sent to the SDPO, Ani within the statutory period. (xiv)On examination of the recovered sample parcels, both were tested positive for “Charas”. One of the parcels contained 29.75% w/w resin of cannabis plant and another 32.58% w/w. The result of the examination is Ext. P.A. 3. On completing the investigation, challan was presented in the Court for the trial of the accused persons for the offence aforesaid. They were accordingly charge-sheeted, to which they pleaded not guilty and claimed trial. 4. At the end of the trial, each of the accused persons were convicted and sentenced, as aforesaid. D. Submissions of the learned Counsel for theParties 5. Shri Naresh Kumar Tomar, learned Counsel for the accused persons vehemently argued that there was fault in the investigation of the case, as in fact, two FIRs should have been registered against the accused persons on separate recoveries followed by two NCB forms and separate Malkhana entries.He also ventilated that there is a contradiction appearing in the statements of the prosecution witnesses with respect to the distance where they were apprehended. He also pointed out that there was a rain shelter and a Dhaba, but police did not include independent witness. He also argued that the NCB form contains FIR number and it appears to have been written in one go, which causes a dent in the case of the prosecution and also that there has been non-compliance of Section 55 of the Act. He also argued that the NCB form contains FIR number and it appears to have been written in one go, which causes a dent in the case of the prosecution and also that there has been non-compliance of Section 55 of the Act. 6.Contra, Shri R.P. Singh, learned Assistant Advocate General supported the impugned judgment of conviction and sentence passed by the learned trial Court and submitted that the contradictions, as pointed out, are very minor in nature, which do not shake the prosecution case at all. He argued that both the accused persons were going together and the recoveries were made in the same sequence as in one incident, therefore, there was no necessity to lodge two FIRs etc nor it was a legal requirement. It is also argued that there is no evidence to show that some persons were present at the rain shelter or that the Dhaba was open, rather the witnesses stated that it was a seasonal Dhaba and no question was asked that on that day it was open. Further, it is submitted that compliance of Section 55 of the Act is directory and the recovered parcels were sealed separately which reached as it is in the laboratory for examination and no prejudice is caused to the accused persons. 7. I have given my thoughtful consideration to the rival contentions of the parties and carefully and cautiously re-appraised the evidence.Findings of this Court 8. PW-7 ASI Jagat Singh and PW-3 Constable Rohit Verma have consistently and unequivocally testified that on 18.1.2010 around 11.30 a.m, when they were on patrol and Nakabandi duty at Akni Khad, they saw two persons coming down from a katcha path towards the main motorable road, who on seeing the police party, tried to turn back. On getting suspicious, they were chased and apprehended. Their identity was asked and an option was given to each of them orally as well as in writing informing them about their legal right to be searched before the Magistrate or the Gazetted Officer and they consented to be searched by the police party. Both these witnesses have proved consent memos, aforesaid. They further stated about the non-availability of the independent witnesses. They also testified recoveries, as aforesaid. 9. Both these witnesses have proved consent memos, aforesaid. They further stated about the non-availability of the independent witnesses. They also testified recoveries, as aforesaid. 9. The contradiction, to which Shri Tomar, learned Counsel for the accused persons points out is the cross-examination of PW-7 ASI Jagat Singh to doubt the prosecution story that he stated that the accused persons were apprehended at a distance about 15 meters, whereas PW-3 Constable Rohit Verma stated that they were at a distance of about 100-150 meters. To my mind, this is not a material contradiction which is enough to shake the prosecution case. These discrepancies are bound to be there as it is only an estimate, which suffers from man to man, on his own knowledge, reason, memory and observance, therefore, not enough to discard their statements. Further, each of the accused persons when apprehended, were found having concealed the contraband beneath the wearing apparels against the belly near the navel and on its recovery from each of the accused persons, it was weighed and then separately sealed with seal impression ‘N’ at nine places in the presence of PW-3 Constable Rohit Verma and Constable Moti Ram. These facts stand corroborated by PW-3 Constable Rohit Verma and in the cross-examination of PW-3 aforesaid and qua recovery, his testimony could not be shattered. 10. Once the recovery stands proved, the prosecution is further obliged to prove that it was a contraband within the meaning of the Act. For this, a reference is also required to be made to the statement of PW-7 ASI Jagat Singh. He stated that the stuff recovered from each of the accused persons was separately sealed vide separate seizure memos on the spot. Therefore, he took and deposited these articles with PW-1 MHC Lal Chand alongwith the NCB forms, which fact is corroborated by the entry in the Malkhana register Ext. PW-1/B. He further testified that both these sample parcels alongwith NCB forms were sent through PW-3 Constable Rohit Verma for analysis and its entry with respect to deposit and withdrawal alongwith the NCB forms finds mention in the abstract of the Malkhana register aforesaid, which has not been assailed in his cross-examination. Further, the road certificate Ext. PW-1/E coupled with the statement of PW-3 Constable Rohit Verma afford corroboration to this fact. He also stated that both these recovered parcels and NCB forms were deposited in the laboratory. Further, the road certificate Ext. PW-1/E coupled with the statement of PW-3 Constable Rohit Verma afford corroboration to this fact. He also stated that both these recovered parcels and NCB forms were deposited in the laboratory. The receipt on the R.C. confirms this fact. The result of the examination Ext. P/A also reveals that two parcels duly sealed with seal impression “N” at nine places were received in the Laboratory. The NCB form Ext. P.W. 7/D bears the facsimile of the seal used on the spot. It was received in the laboratory alongwith these two parcels duly sealed and tallied with the seals found on each of the parcels in the laboratory. Both these parcels tested positive for “Charas”. Therefore, the link evidence is complete and the recovered stuff is proved to be the “Charas” within the meaning of Section 2(iii) (a) of the Act. 11. Once the link evidence is complete and the recovered stuff is proved to be the contraband, the conviction of the accused persons cannot be faulted with. 12. Though, in the cross-examination, PW-7 ASI Jagat Singh stated that at the time of filling up the NCB form, FIR number was not known to him. But however, he stated that PW-3 Constable Rohit Verma after registration of the case met him at bus stand, Nirmand and handed over to him the case property. Since FIR was prepared by him, its number must have been written by him at that time. Thus, in my opinion, there appears no discrepancy to disbelieve the prosecution case. 13.In so far as non-inclusion of independent witnesses is concerned, the learned Counsel for the accused persons also points out towards the statement of PW-3, aforesaid. He stated that there was a rain-shelter and a Dhaba, but he neither stated that there were persons present nor that Dhaba was open, but he made a reference that it was a seasonal Dhaba. Nothing came on record that the Dhaba was running at that time. It was the month of January. Actually, there was no business, thus there was no chance of running a Dhaba at that time. Therefore, this argument is worth rejecting and the initial story of the prosecution has been that it was a secluded and lonely place and no independent witness was available. It was the month of January. Actually, there was no business, thus there was no chance of running a Dhaba at that time. Therefore, this argument is worth rejecting and the initial story of the prosecution has been that it was a secluded and lonely place and no independent witness was available. Even otherwise, the suggestion which was put to PW-3, is suggestive of the fact that the Dhaba was not running at that time as he clearly denied that the Dhaba remains open day and night and voluntarily stated that the Dhaba opens occasionally. Therefore, no such presumption as is sought to be drawn, could be drawn on the above statement. 14. Further, I also do not find any fault in registration of one FIR with respect to the accused persons as the sequence and incidence are same wherein the accused persons were walking together, intercepted, searched, tried to escape and were found in possession of the contraband. There is also no law that in the aforesaid factual background, there should have been two FIRs or for that matter, two entries in the Malkhana register and preparation of two NCB forms. Since, no prejudice is shown to have been caused to the accused persons, hence this argument is also rejected. 15. Now, the last but not the least, the point with respect to non-compliance of the provisions of Section 55 of the Act comes in question. As a matter of fact, non-compliance of the provisions of Section 55 of the Act is not fatal to the prosecution unless a material prejudice is shown to the accused. Although, the compliance of Section 55 of the Act is not mandatory, but it is only fatal as held by the Apex Court in Ouseph Vs. State of Kerela: (2004) 10 SCC 647 when the articles remained unsealed for nearly two months, on facts created a doubt and possibility of tampering is not ruled out. However, in the instant case, the recovered stuff was sealed on the spot, deposited in the Malkhana, with NCB forms which has the same facsimile of the seal as on each of the parcels. The seals on both the parcels tallied and found to be intact. There is no doubt that the substance recovered from the accused persons was not the same which was examined in the laboratory. The seals on both the parcels tallied and found to be intact. There is no doubt that the substance recovered from the accused persons was not the same which was examined in the laboratory. Neither the learned trial Court nor this Court on re- appreciating the evidence found that the stuff recovered from each of the accused persons did not reach FSL, Junga in the same form as was recovered. Therefore, non-compliance of Section 55 of the Act was not fatal in view of the judgments of the Supreme Court in State of Rajasthan Vs Daul @ Daulat Giri: (2009) 14 SCC 387 and State of Rajasthan Vs. Bhiya Ram, (2009) 14 SCC 390 and also Hardip Singh Vs. State of Punjab: (2008) 8 SCC 557. 16. Therefore, in view of the above, in my considered opinion, the conviction of the accused persons cannot be faulted with. 17. However, as far as the sentence is concerned, to have the consistency in the sentence, it appears slightly to be on the higher side for the reason that one of the sample parcels was having resin content to the extent of 29.75% and another 32.58%.Therefore, taking the percentage of resin content of cannabis plant which falls within the definition of “Charas”, the substantive sentence imposed upon each of the accused persons is reduced to three years instead of five years, as ordered by the learned trial Court, without disturbing the fine amount and default clause. Ordered accordingly. 18.The learned trial Court shall send the modified warrants to the Superintendent Jail concerned forthwith, in conformity with this judgment. 19.Both these appeals are dismissed subject to the modification in sentence to the above extent.